IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 207 of 2008()
1. C.G.ANISH, S/O.GOVINDAN, CHENNOTH HOUSE,
... Petitioner
Vs
1. K.S.SIRIL, D/O.K.R.SUKUMARAN, KANJIKATTU
... Respondent
2. GURU PRASAD (MINOR), REPRESENTED BY
For Petitioner :SRI.N.RATHEESH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :07/07/2008
O R D E R
R. BASANT, J.
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R.P.(FC) No.207 of 2008
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Dated this the 7th day of July, 2008
ORDER
The petitioner in this R.P.(FC) assails an order passed
under Sec.125 Cr.P.C. obliging him to pay maintenance at the
rate of Rs.750/- per mensem each to his wife and minor child
aged about 4 years.
2. Marriage, paternity and separate residence are all
admitted and not disputed. The wife contended that she had
reason to live separately as matrimonial cruelty of the
culpable variety was being inflicted on her. The husband
contended that the wife was residing separately without any
sufficient cause. He further took up a plea that his wife is
employed and is not a woman unable to maintain herself. The
wife stoutly denied this allegation. According to her, though
qualified as an Ayurvedic Physiotherapist, she was not
R.P.(FC)No. 207 of 2008 -: 2 :-
employed and was not earning any income.
3. Parties went to trial on these contentions. The statement
of oath of the claimant as P.W.1 was there against the statement
of oath of the petitioner as C.P.W.1. The learned Judge of the
Family Court, on an anxious consideration of all the relevant
inputs, came to the conclusion that the evidence of the
claimant/wife as P.W.1 deserves to be preferred to that of
C.P.W.1. Accordingly, the learned Judge proceeded to pass the
impugned order.
4. The petitioner claims to be aggrieved by the impugned
order. What is the ground? The learned counsel for the
petitioner raises two contentions. First of all, it is contended
that the wife has no sufficient cause to justify her separate
residence. On this aspect, we have only the evidence of P.W.1
against the evidence of C.P.W.1. The broad circumstances are
there that the wife, who had along with the husband started the
journey of life only recently and has a minor child aged about 4
years, is not ordinarily likely to reside separately. She had
narrated the circumstances which led to separate residence.
Petition for divorce is pending before the matrimonial court. A
police complaint has been filed and a 498A prosecution is
pending. It is, in these circumstances, that she resides
R.P.(FC)No. 207 of 2008 -: 3 :-
separately. Both of them are young and in the pink of their
health. The infant child is aged only 4 years. On broad
probabilities it is only reasonable to assume that the spouses
would have chosen to live together unless there be a valid
reason. That reason is offered by P.W.1; whereas C.P.W.1 does
not offer any satisfactory reason. I am unable to agree that the
findings of the court below can, in these circumstances, be held
to be not correct, proper or just.
5. There is a further contention that the wife is employed.
It is for the petitioner to show that the wife is not unable to
maintain herself, has an employment and income therefrom. It
is stated that she is employed in the Taj Residency Resort as an
Ayrvedic Physiotherapist. It is only reasonable, I feel, to expect
the husband to adduce better evidence to prove that assertion
which is stoutly denied by the wife on oath. No such evidence is
placed before court.
6. I remind myself of the nature, quality and contours of
the jurisdiction of this court sitting as a court of revision
exercising the jurisdiction of superintendence and correction
only. I am not persuaded to agree that the impugned order
deserves revisional correction. Unless the findings of fact are
grossly erroneous or perverse and such vice, in turn, leads to
R.P.(FC)No. 207 of 2008 -: 4 :-
miscarriage of justice, the court of revision must always be slow
to invoke its revisional jurisdiction. I am unable to agree that
there is any vice in the impugned order which justifies invocation
of such correctional jurisdiction. The quantum of maintenance
awarded is also found to be absolutely fair, reasonable and just
considering the inputs available about the needs of the claimants
and the means of the petitioner – admittedly a driver.
7. This R.P.(FC) is, in these circumstances, dismissed.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge