IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 243 of 2008()
1. NIZARUDEEN, S/O.MUHAMMED KASIM,
... Petitioner
Vs
1. SHYLA BEEVI, D/O.SAINABA BEEVI,
... Respondent
2. ANCY (MINOR), D/O.SHYLA BEEVI,
For Petitioner :SRI.K.M.ANEESH
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/07/2008
O R D E R
R.BASANT, J
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R.P.F.C. No.243 of 2008
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Dated this the 30th day of July, 2008
ORDER
The petitioner in this Revision Petition challenges an order
passed under Section 125 Cr.P.C obliging him to pay maintenance
@ Rs.500/- and Rs.400/- respectively to his wife and minor child
aged 5 = years.
2. Marriage is admitted. Paternity is not disputed.
Separate residence is conceded. The husband took up a plea that
he is willing to pay maintenance to the wife on condition that she
lives with him. The wife resisted the said offer on the ground that
the petitioner was guilty of matrimonial cruelty against her. She
was assaulted and harassed. She was driven out of the
matrimonial home by her husband during her pregnancy. She
was compelled to take residence at her parental home. After she
went to her parental home and after delivery, till now the
petitioner has not chosen to visit her, pay any maintenance to her
or even to see the child. It is true that he sent a notice
demanding resumption of co-habitation. But the claimant/wife did
not venture to do the same as she apprehends physical harm.
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3. Parties went to trial on these contentions. No other
evidence was adduced. The statement on oath of the
claimant/wife as PW1 was there against the statement on oath of
the petitioner as CPW1. The learned Judge of the Family Court
evaluated the probabilities and came to the conclusion that the
version of the claimant/wife deserves to be preferred to that of
the petitioner. Accordingly the learned Judge proceeded to pass
the impugned order.
4. The petitioner claims to be aggrieved by the impugned
order. What is the grievance ? First of all it is contended that the
learned Judge ought to have held that the wife is not entitled for
separate maintenance as she has shown no sufficient cause to
justify her separate residence. On this aspect as stated earlier,
there was only oath against oath of the rival contestants. The
learned Judge of the Family Court appears to have realistically
evaluated and assessed the evidence on the basis of broad
probabilities. 1st claimant wife with the second claimant child
aged 51/2 years was residing separately from her husband. Both
the petitioner and the claimant/wife were in the pink of their
health and a new born baby was also there. Ordinarily and
normally it would be prudent to assume that in the absence of
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compelling reasons, a wife in such a situation may not take up a
separate residence. She advances physical and mental cruelty as
the reason to justify her separate residence. The petitioner was
not able to advance any reasons to explain such separate
residence. According to him, the claimant/wife had gone away on
her own without any reasons. The sequence of events have been
adverted to by the learned Judge of the Family Court. Even after
separate residence, the petitioner did not visit his wife. Even
after the child’s birth, he did not visit the child. Broad
circumstances do certainly support any to justifying the discretion
exercised by the learned Judge to prefer to accept and act upon
the evidence of the claimant/wife to that of the
petitioner/husband. I am unable to find any satisfactory reasons
which can persuade this Court to invoke the revisional jurisdiction
of superintendence and correction to interfere with that discretion
of the trial court. The trial court, it cannot be ignored or
forgotten, has the significant advantage of seeing the witnesses
performd in the witness box before it. Hence the discretions
exercised by a trial court in the matter of appreciation of evidence
will not be lightly interfered by this Court in exercise of the
revisional jurisdiction of superintendence and correction. Unless
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such discretions be grossly erroneous or perverse and such vice in
turn leads to failure or miscarriage of justice, the revisional
jurisdiction of superintendence and correction shall not normally
be invoked. I find no such reasons in this case justifying
invocation of the revisional jurisdiction. This petition deserves to
be dismissed.
5. This Revision Petition is accordingly dismissed and the
impugned order is upheld.
(R.BASANT, JUDGE)
rtr/-