IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 291 of 2007()
1. THOMAS, S/O.THOMAS,
... Petitioner
Vs
1. ANIYAMMA THOMAS @ ANNA,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.SHAJI THOMAS PORKKATTIL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :03/12/2009
O R D E R
P.S.GOPINATHAN, J.
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R.P.(F.C). No. 291 of 2007
IN
R.P.(F.C).No.326 of 2007
======================
Dated this the 3rd day of December, 2009.
ORDER
Both these revision petitioners are filed assailing the order in M.C.
No. 29/2005, a petition filed under Section 125 of the Code of Criminal
Procedure before the Family Court Kottayam. By the order impugned the
lower court directed the respondent therein, who is the husband of the
petitioner to pay monthly maintenance at the rate of Rs.1,000/-. Criminal
R.P.F.C No.291/2007 was filed by the respondent husband before the trial
court assailing the order granting maintenance. R.P.F.C No.326/2007 was
filed by the petitioner assailing the inadequacy of the maintenance.
Hereinafter, the parties are referred to as they are arrayed before the trial
court.
2. The respondent married the petitioner on 13.5.1968. Two sons
were born in the wedlock. The elder son is reported married and residing
separate. Alleging that the respondent neglected to pay maintenance, in
addition to the cruelty, the petitioner sought for an order directing the
RP(FC). No. 291 of 2007 IN
RP(FC).No.326 of 2007 2
respondent to pay monthly maintenance at the rate of Rs.10,000/-. It was
alleged that the petitioner was not able to maintain herself. On the other
hand, the respondent was owning 8 acre of rubber estate and had been
getting an annual income of Rs. 6 lakhs.
3. The respondent admitted the status. The cruelty alleged was
denied. It was further contended that the petitioner tied the hands and
legs of the respondent and was admitted in a mental hospital alleging that
he was insane and that by filing complaint before the police he escaped
and that the petitioner had been possessing the properties of the respondent
and had been taking income along with the children and there are civil
suits pending between the parties. The allegation in the petition that the
respondent was having 8 acres of property and had been getting Rs.6 lakhs
as annual income was denied. The claim for maintenance at the rate of Rs,
10,000/-per month was also stated to be baseless and prayed for dismissal
of the petition.
4. As part of the enquiry the petitioner was examined as PW1 and
Exts. A1 to A8 were marked. The respondent was examined as CPW1 and
Exts.B1 to B5 were marked. On appraisal of the evidence the lower court
arrived a finding that the petitioner is entitled to separate maintenance and
a sum of Rs. 1,000/- per month was awarded towards the maintenance.
Now these revision petitions.
RP(FC). No. 291 of 2007 IN
RP(FC).No.326 of 2007 3
5. From the material disclosed in evidence it is revealed that there is
little likelihood of parties joining together. They are at logger heads and
fighting tooth and nail. Though it is contended by the respondent that the
revision petitioner had been occupying the properties belonging to the
respondent and taking income, there is no convincing evidence to that
effect. There is also no material to conclude that the petitioner has got any
independent source for her maintenance. In the above circumstances the
petitioner is entitled to an order for separate maintenance.
6. Though the respondent denied of having 8 acres of estate, he had
to admit in the witness box that he had been owning 5 acres of estate of
which one acre is planted with pepper. Regarding the agricultural
expenses and the net income, there is no reliable evidence. However, it
would give good yield to provide maintenance to the petitioner. Though the
learned counsel for the petitioner argued that the petitioner is in her sixties
and suffering so many ailments, the evidence on record didn’t show that
the petitioner had been suffering from any ailment. Therefore, the
minimum requirement would meet the ends of justice. Taking into account
of the extent of property owned by the respondent, the value of the
essential commodities, price index and the minimum requirement of the
petitioner, I find that a sum of Rs. 3,000/- per month would be just and
reasonable maintenance and that the respondent could easily make it out
RP(FC). No. 291 of 2007 IN
RP(FC).No.326 of 2007 4
of the estate. The order impugned requires such modification.
In the result, R.P.F.C. No. 292/07 is dismissed and R.P.F.C.
No.326/07 is allowed. While confirming the order to pay maintenance, the
amount awarded by the lower court is enhanced to Rs.3,000/- from
Rs.1,000/- with effect from 1.7.08. The respondent is permitted to pay the
arrears in four monthly instalments. It is reiterated by the learned counsel
for the respondent that the petitioner had been occupying the properties
of the respondent in violation of the prohibitory order of the civil suit. In
the events there is any change of circumstance, including exclusion of the
respondent from his properties, the respondent is at liberty to move the trial
court for a alteration under section 127 of Code of Criminal Procedure. If
such a petition is filed, the trial court shall take note that the quantum
determined by this order is on the presumption that the respondent has been
taking income from his estate.
P.S.GOPINATHAN, JUDGE.
mns