IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 175 of 2008()
1. IBRAYI, AGED 78, UKKADEN VEEDU,
... Petitioner
Vs
1. AYISHA, AGED 70, W/O. IBRAYI,
... Respondent
2. KHADEEJA, AGED 38, D/O. IBRAYI,
For Petitioner :SMT.SHERLY M.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :18/06/2008
O R D E R
R.BASANT, J
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R.P.F.C. No.175 of 2008
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Dated this the 18th day of June, 2008
ORDER
This revision petition is directed against an order passed
under Section 125 Cr.P.C directing the petitioner, who is shown in
the petition as a person aged about 75 years, to pay maintenance
@ Rs.250/- and Rs.500/- respectively to his wife aged 70 years
and physically disabled daughter aged 38 years.
2. Marriage is admitted. The spouses have been living
separately for about 32 years. This is also not disputed. That the
2nd claimant is physically disabled is also not disputed.
3. The wife contended that the petitioner is having
sufficient income from his properties. He had married again. In
such marriage, he has 10 children. In the marriage with the
petitioner also he has 4 children, of which the 2nd petitioner is a
disabled person. She remains unmarried.
4. The claim for maintenance is resisted on the ground
that the petitioner is not having sufficient means. It was further
contended that the 1st petitioner could depend upon her children
for maintenance.
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5. Parties went to trial on these contentions. The 1st
claimant/wife examined herself as PW1. The petitioner did not
adduce any evidence.
6. The learned Judge of the Family Court on an anxious
consideration of all the relevant inputs came to the conclusion
that the petitioner has sufficient means, the assertion that he is
having landed properties and income from them having not been
specifically controverted. It is, in these circumstances, that the
learned Judge of the Family Court proceeded to pass the
impugned order.
7. The petitioner claims to be aggrieved by the impugned
order. What is the grievance ? The short grievance raised is that
the finding that the petitioner has means is grossly incorrect. The
quantum of maintenance which is directed to be paid is also
excessive and perversely disproportionate to the means of the
petitioner. In these circumstances, it is prayed that the impugned
order may be set aside.
8. I have considered all the relevant inputs. I have been
taken through the oral evidence of PW1, ie. the claimant-wife as
also the impugned order. In para.5, the Family Court has
considered and answered this contention in the following words:
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“The petitioner deposed that the counter
petitioner is having landed properties and is getting
income there from. That is not seen denied by the
counter petitioner. His case is that he assigned 12
cents of land to one daughter and 4 cents of land to a
son. This is an admission that he is having properties.
So it is to be presumed that he is getting income
there from. There is a specific case for the petitioner
is that she was having one acres of land at the time
marriage. For this land the counter petitioner
obtained pattayam in his name. This allegation is not
specifically denied by the counter petitioner. In
addition to that it is seen that the counter petitioner is
having 10 children in his second marriage and he is
maintaining them. It is therefore very evident that
the counter petitioner is capable to provide
maintenance to the petitioner. He is wilfully refusing
and neglecting to pay maintenance to the petitioner.
Considering the totality of the evidence I find
petitioners are entitled to get maintenance from the
counter petitioner and the counter petitioner is liable
to pay maintenance to the petitioners.”
9. An idea about the degree of affluence of the petitioner
can be gathered from the fact that he has the asset of 14 children
and 2 wives. The claimant/wife had asserted that the petitioner
was having landed properties measuring 1 = acres. She had also
R.P.F.C. No.175 of 2008
asserted that he has a shop run by him. These assertions remain
uncontroverted by any counter evidence tendered by the
petitioner herein. No reason whatsoever can be deciphered as to
why such evidence in rebuttal was not produced. The learned
counsel for the petitioner prays that further opportunity may be
granted to the petitioner to adduce evidence. No satisfactory
reasons having been shown for offering the luxury of a further
opportunity to the petitioner to adduce evidence, I am not
accepting the request of the petitioner.
10. The learned Judge had occasion to see the parties and
evaluate the evidence tendered on oath. I am unable to agree
that the impugned order suffers from any such vice which can
justify invocation of the revisional jurisdiction of superintendence
and correction. In the nature of the material placed before court
and on broad probabilities the conclusion of the learned Judge of
the Family Court does appear to me to be absolutely cogent,
reasonable, fair and just. The same does not warrant any
interference.
11. This R.P.F.C is, in these circumstances, dismissed.
(R.BASANT, JUDGE)
rtr/-
R.P.F.C. No.175 of 2008