IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 34607 of 2005(T)
1. ABY JOHN, AGED 31 YEARS, S/O.JOHN,
... Petitioner
Vs
1. SHERLY, D/O.THOMAS,
... Respondent
2. AALYA, AGED 7 MONTHS(MINOR),
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :SRI.LEGY ABRAHAM
The Hon'ble MR. Justice R.BASANT
Dated :05/12/2006
O R D E R
R.BASANT, J
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W.P.C.No.34607 of 2005
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Dated this the 5th day of December 2006
O R D E R
Against the petitioner, an interim direction for payment of
maintenance under Section 125 Cr.P.C has been passed by the
learned Judge of the Family Court (copy of that order is produced as
Ext.P4). It reads as follows:
“Heard both sides. Considering the needs of the
petitioners and income of the counter petitioner he is
directed to pay Rs.700/- to P1 and Rs.500/- to P2 from the
date of this CMP.”
2. The grievance of the petitioner raised in this Criminal
Miscellaneous Case is that inspite of the fact that he had offered to
maintain the wife on condition that she lives with him, the learned
Judge of the Family Court had not at all adverted to that aspect. The
learned counsel for the petitioner relies on Section 125(4) Cr.P.C,
which extract below:
“125(4): No wife shall be entitled to receive an [allowance
for the maintenance or the interim maintenance and
expenses of proceeding, as the case may be,] from her
husband under this section if she is living in adultery, or if,
without any sufficient reason, she refuses to live with her
husband, or if they are living separately by mutual
consent.” (emphasis supplied
3. Whether it be a claim for maintenance or interim
maintenance, the Family Court is bound to consider whether the
W.P.C.No.34607/05 2
refusal of the wife to live with the husband is justified or not. A prima
facie consideration on the basis of materials available must certainly
be undertaken even when the direction is to pay interim maintenance.
The impugned order extracted above does not at all show that the
learned Judge of the Family Court had pointedly considered this
aspect of the matter.
4. It follows therefore that the direction for payment of
interim maintenance in so far as it relates to the first claimant/wife
cannot be supported. The same warrants interference. So far as the
child is concerned, there can be no dispute and the child is entitled for
interim maintenance.
5. In the result, this Criminal Miscellaneous Case is allowed
in part. The direction for payment of interim maintenance for the first
claimant/wife is set aside. The learned Judge of the Family Court is
directed to dispose of the claim of the first claimant/wife for interim
maintenance afresh, in accordance with law, expeditiously – at any
rate, within a period of one month from the date on which a copy of
this order is placed before the learned Judge.
Hand over copy of this order to the learned counsel for the
respondent.
(R.BASANT, JUDGE)
jsr
W.P.C.No.34607/05 3
W.P.C.No.34607/05 4
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006