IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 158 of 2006()
1. ANTONY DISILVA, S/O.JOSEPH DISILVA,
... Petitioner
Vs
1. JULIE DISILVA, AGED 27 YEARS,
... Respondent
2. RAYAN, (MINOR), AGED 2 YEARS,
For Petitioner :SRI.JOSE KURIAKOSE (VILANGATTIL)
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :20/09/2006
O R D E R
R. BASANT, J.
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R.P.(F.C.).No. 158 of 2006
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Dated this the 20th day of September, 2006
O R D E R
This revision petition is directed against an order directing
payment of maintenance under Section 125 Cr.P.C. at the rate of
Rs. 1,500/- and Rs.1,000/- p.m. respectively to the claimants,
admittedly the wife and minor child of the petitioner.
2. Marriage is admitted. Separate residence is also admitted.
The claimants contended that they are unable to maintain themselves
and that the petitioner, having sufficient means, is refusing and
neglecting to pay maintenance to the claimants. The first claimant
wife and the petitioner husband examined themselves as PW1 and
RW1 respectively. The learned Judge of the Family Court came to
the conclusion that the wife is justified in residing separately. It was
thereafter found that the means of the petitioner and the needs of the
claimants justify issue of a direction to pay the amount of Rs.1,500/-
and Rs.1,000/- p.m. respectively. Accordingly the learned Judge of
R.P.(F.C.).No. 158 of 2006 2
the Family Court proceeded to pass the impugned order.
3. The learned counsel for the petitioner has advanced detailed
arguments. The counsel submits that separate residence of the claimant
wife is not justified. The court below was called upon to choose between
the assertions on oath of the rival contestants. The young wife with an
infant child was choosing to reside separately. Though an offer was made
that the wife can reside with the husband, she stated that she is afraid and is
hence not willing to go and reside with him. In fact the cross examination
of PW1 clearly shows that the petitioner had gone to the extent of
suggesting that the claimant wife had illicit relationship with another
teacher, a former co-worker, of hers. In any view of the matter, I am
satisfied that the revisional jurisdiction of superintendence and correction
does not deserve to be invoked against the course followed by the trial court
in choosing to accept and act upon the oral evidence of the claimant/
wife/PW1 in preference to that of the respondent/petitioner herein.
4. It is then contended that the quantum of maintenance fixed is
excessive. The evidence indicates that the claimant wife was employed
R.P.(F.C.).No. 158 of 2006 3
earlier as a teacher prior to her marriage and that she is now without any
employment. Merely because she had an employment prior to her
marriage, in the total absence of any tangible evidence, it cannot lightly be
assumed that the wife is now employed as a teacher and has any income.
That contention cannot obviously succeed.
5. We now come to the means of the petitioner/husband. He is
admittedly an employee in a company at Mysore. His evidence shows that
he is doing the work of marketing. PW1 asserted that he is the Marketing
Manager. He holds an M.B.A. qualification and gets an income of
Rs.20,000/- p.m. she asserted. The petitioner in his evidence in chief
examination made a fanciful assertion that he is getting an income of only
Rs.1,200/- p.m. He offered to produce the salary certificate issued by his
employer. But he did not choose to produce such salary certificate. In
these circumstances the learned Judge of the Family Court took into
account all the relevant and probative inputs and came to the conclusion
that the claimants are entitled to maintenance at the rate of Rs.1,500/- and
Rs.1,000/- p.m. respectively.
6. Even admittedly the wife was having employment prior to her
R.P.(F.C.).No. 158 of 2006 4
marriage and was getting Rs.2,000/- a month. The petitioner herein has
no specific assertion about the quantum of monthly income that he has. In
his evidence in chief examination an unsatisfactory assertion is made that
he gets only less than Rs.1,200/- p.m. The offer to produce the salary
certificate has not been honoured also. I will assume that the petitioner is
an able bodied person, who is able to secure marriage with a lady, who was
admittedly getting an amount of Rs.2,000/- per month. Reasonable
inference can, in these circumstances, be drawn and the conclusion of the
court below that the appellants are entitled to Rs.1,500/- and Rs.1,000/-
respectively as maintenance does not at any rate warrant interference in
revision. The challenge must and does in these circumstances fail.
7. This revision petition is hence dismissed. The learned counsel for
the petitioner submits that a huge amount is now in arrears and prays that
some time may be granted to the petitioner to raise the amount, pay the
same and avoid coercive process. I am not satisfied that any specific
direction deserves to be issued. If the petitioner shows his bonafides by
depositing a substantial portion of the amount and prays for time for
making payment of balance amount, I have no reason to assume that the
R.P.(F.C.).No. 158 of 2006 5
learned Judge of the Family Court will not consider such request in
accordance with law. No specific directions are hence issued.
(R. BASANT)
Judge
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