High Court Kerala High Court

Cherayi Dasan vs Valiyaparambil Beena on 31 March, 2008

Kerala High Court
Cherayi Dasan vs Valiyaparambil Beena on 31 March, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP(Family Court) No. 24 of 2008()


1. CHERAYI DASAN ,S/O.RAMANKUTTY
                      ...  Petitioner

                        Vs



1. VALIYAPARAMBIL BEENA,D/O. SANKARAN
                       ...       Respondent

2. SAI KIRAN, MINOR REPRESENTED BY HIS

                For Petitioner  :SRI.SIBY MATHEW

                For Respondent  :SRI.K.A.SALIL NARAYANAN

The Hon'ble MR. Justice R.BASANT

 Dated :31/03/2008

 O R D E R
                             R. BASANT, J.
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                     R.P.F.C. No. 24 of 2008
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             Dated this the 31st day of March, 2008

                                O R D E R

This revision petition is directed against an order passed

under Section 127 Cr.P.C. enhancing the maintenance granted to

the claimants – wife and child of the petitioner herein – from

Rs.500/- and Rs.450/- fixed respectively in 1997 to Rs.1000/-

and Rs.750/- respectively fixed in the year 2007.

2. Marriage is admitted. Paternity is also admitted. The

earlier order, though an ex parte order, is also conceded. The

wife contended that subsequent to the earlier order, an Original

Petition, which was pending, was agreed to be settled by reunion.

But she contended that the husband had not returned the articles

or the amount nor had he resumed cohabitation. The passage of

time of one decade along with the growth of the child and the

increase in the earnings of the petitioner were pressed into

service to justify the claim for enhancement of maintenance.

R.P.F.C. No. 24 of 2008
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3. The husband contended that subsequent to the order passed

under Section 127 Cr.P.C. in 1997 there was an agreement to resume

the cohabitation and cohabitation was actually resumed. The spouses

allegedly lived together from 2000 to 2007. The order of maintenance

was never attempted to be executed in the meantime. In 2007 the wife

left the petitioner without any satisfactory reasons. Thereafter attempt

was made to execute the order for the entire period. Subsequently the

present claim petition was also filed seeking enhancement of

maintenance. In these circumstances the husband contended that he is

not entitled to pay any enhanced maintenance, she having resorted to

separate residence in 2007 without any reasons.

4. The counsel for the rival contestants have been heard.

Records of the court below have been perused.

5. The learned counsel for the petitioner contends that the

learned Judge of the Family Court erred grossly in not considering

whether there has been a resumption of cohabitation and whether the

wife had left the company of the petitioner in 2007 without any valid

reasons. The learned counsel for the petitioner contends that

R.P.F.C. No. 24 of 2008
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cohabitation having been resumed in the interregnum period and the

wife having not claimed execution of the earlier order for maintenance

all along, the learned Judge was obliged to consider this question

under Section 127 Cr.P.C.

6. The learned counsel for the respondents/claimants contends

that all these questions do not arise for consideration at all. The wife

even in the petition under Section 127 Cr.P.C. had made unambiguous

averments that though there was an attempt to settle the Original

Petition filed in 2000 by resuming cohabitation, cohabitation was not

resumed and the parties were residing separately all along. In these

circumstances the contention that there was resumption of cohabitation

and subsequent separate residence without any valid reasons did not

arise for consideration at all. The counsel submits that the oral

evidence of PW1 and RW1 must remove the last trace of doubt on this

aspect.

7. I have been taken through the evidence of PW1, the claimant

and RW1, the petitioner herein. I find the contention of the learned

counsel for the respondent to be absolutely justified. There is no

R.P.F.C. No. 24 of 2008
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worthwhile attempt either by cross examination of PW1 or by chief

examination of RW1 to advance a contention that there was resumption

of cohabitation subsequent to the order in the Original Petition. In the

light of the categoric assertions made in the petition under Section 127

Cr.P.C. by the claimants and in the light of the total absence of

evidence on this aspect and more importantly in the absence of even an

attempt to raise this contention before the learned Judge of the Family

Court, the learned Judge was eminently justified in not adverting to

this unnecessary controversy, though raised in the counter statement

which was not sought to be supported by any evidence at all. I do not,

in these circumstances, find any merit in the contention that the

learned Judge had omitted to consider any relevant aspect.

8. Be that as it may, the counsel for the petitioner contended that

the enhancement allowed is excessive. The petitioner is directed to pay

an amount of Rs.1000/- p.m. to his wife and Rs.750/- p.m. to the child.

After a period of about one decade maintenance for the wife and child

has been enhanced from Rs.500/- to Rs.1000/- and from Rs. 450/- to

Rs.750/- In any view of the matter, I am satisfied that the quantum of

R.P.F.C. No. 24 of 2008
5

enhancement granted is absolutely justified and the same does not

warrant any interference. No other contentions are raised.

9. I am satisfied that this revision petition only deserves to be

dismissed. I do so.

(R. BASANT)
Judge
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