IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 1775 of 2002()
1. C.P.DIVAKARAN, KOCHUKALEEKKAL,
... Petitioner
Vs
1. SUBHADRA, SREENILAYAM VEEDU,
... Respondent
2. MALOOTTI, SREENILAYAM VEEDU,
For Petitioner :SRI.P.S.NANDANAN
For Respondent :SRI.R.PADMAKUMAR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/10/2007
O R D E R
V. RAMKUMAR, J.
````````````````````````````````````````````````````
Crl. R.P. No. 1775 OF 2002 A
````````````````````````````````````````````````````
Dated this the 22nd day of October, 2007
O R D E R
In this revision filed under Section 397 read with
Section 401 Cr.P.C. the revision petitioner, who was the counter
petitioner in M.C. No.27/1994 on the file of JFCM, Mavelikkara,
challenges the orders concurrently passed by the courts below
directing him to pay maintenance to respondents 1 and 2, who are
the wife and child of the revision petitioner. While the quantum of
maintenance fixed by the Magistrate was Rs.150/- per month to
the wife and Rs.100/- per month to the child, in a revision at the
instance of the respondents the Additional Sessions Judge-II,
Mavelikkara in Crl.R.P. No.85/1995 enhanced the quantum of
maintenance to the wife and child at the rate of Rs.500/- and
Rs.200/- per month respectively. It is the said order which is
assailed in this revision.
2. The marriage between the revision petitioner and the
1st respondent was on 10.2.1991. The second respondent was
born on 5.10.1991. According to the wife, after the birth of the
child, the husband started behaving cruelly towards her after
Crl.R.P.No.1775/02
: 2 :
consuming alcohol and demanding more dowry. He used to
question his paternity over the child. She alleged that her
husband was employed in the government ferry service. He had
refused to cohabit with the wife on the allegation that the child was
not his. He filed H.M.A.O.P. No.89/1991 before the Sub Court,
Mavelikkara, for declaring the marriage with the 1st respondent null
and void on the ground that she was pregnant on the date of
marriage. The wife and daughter claimed maintenance at the rate
of Rs.500/- and Rs.200/- per month.
3. The application for maintenance was resisted by the
revision petitioner contending inter alia as follows:-
The 2nd applicant is not the child born to him in the 1st
applicant. At the time of the marriage itself the 1st applicant was
pregnant and the marriage was conducted suppressing the
pregnancy. The 2nd applicant was born as a fully matured child
after 236 days of marriage. He has not demanded dowry nor has
he ill treated the 1st applicant as alleged. He is not in the habit of
taking alcohol as alleged. Since the 1st applicant was pregnant on
the date of marriage and the said fact was concealed from him, he
filed H.M.A.O.P. No.89/1991 for declaring the marriage to be null
Crl.R.P.No.1775/02
: 3 :
and void. That petition was, however, dismissed. The application
for maintenance is without any bona fides and may be dismissed.
4. Both the courts below have concurrently held that the
2nd applicant(2nd respondent herein) was a premature baby born to
the revision petitioner and the 1st respondent herein and that the
allegation of pre-marital affair made by the husband was not true,
that absolutely no evidence was adduced by the revision
petitioner/husband to show that the wife was living in adultery and
that since he was indulging in physical assault of his wife after
coming home drunk, the act of the wife leaving the matrimonial
home and claiming separate maintenance was justified.
5. The fact that the revision petitioner was employed in
the government ferry service at Ernakulam is not disputed. The
only objection raised by the revision petitioner is that the court
below was not justified in enhancing the maintenance as there
was no evidence to show the income of the revision petitioner. It
is true that the wife and child had only alleged that the revision
petitioner is employed in the government ferry service and that
besides his salary income he was also having a monthly income of
Rs.250/- from other properties. But then, the revision petitioner
Crl.R.P.No.1775/02
: 4 :
did not adduce any acceptable evidence to show his income which
is a matter within his exclusive knowledge and by virtue of Section
106 of the Evidence Act the burden was on him to show his
income. The applicants had discharged their initial burden and in
the absence of any material produced by the revision petitioner the
Sessions Court was justified in enhancing the monthly allowance
to Rs.500/- and Rs.200/- respectively. Even that amount is a
paltry amount with which one cannot make both ends meet.
6. The argument of the learned counsel for the revision
petitioner that the direction to pay the maintenance from the date
of petition, namely, 7.9.94 is illegal, also cannot be continenced.
All that sub section (2) of section 125 says is that if the court so
orders an application for maintenance may be made operative
from the date of application for maintenance. No reasons are
expected to be stated by the court for directing that the order for
maintenance shall relate back to the date of application. The
above provision is to prevent vagrancy and destitution and a
person in utter poverty knocks at the door of the criminal court for
a pittance and if the trial of the case takes months or years to ripe
into a final order and if the courts were to give the applicant
Crl.R.P.No.1775/02
: 5 :
maintenance only from the date of the order, that would be a
negation of justice. In the normal course, the order for
maintenance should relate back to the date of the application for
maintenance and it is only in exceptional cases that it can be
made operational from the date of the final order. It is for no fault
of the applicant that the court is denying him maintenance for the
period from the date of application till the date of final disposal.
Hence, no reasons need be stated if the order for maintenance is
made operational from the date of the petition.
7. After considering the facts and circumstances of the
case, I see no reason to interfere with the revisional order passed
by the Additional Sessions Court.
This revision is accordingly dismissed.
The revision petitioner is given three months’ time to deposit
the entire arrears. He shall, however, continue to deposit the
future maintenance without fail.
(V. RAMKUMAR, JUDGE)
aks
Crl.R.P.No.1775/02
: 6 :
V. RAMKUMAR, J.
“““““““““““““““““““““““““`
Crl. R.P. No. 1775 OF 2002 A
“““““““““““““““““““““““““`
O R D E R
22nd day of October, 2007