IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 353 of 2007()
1. SAINUL ABID, S/O.ABDULLA,
... Petitioner
Vs
1. KHOULATH, AGED 25 YEARS,
... Respondent
2. FABINA RAMSI, AGED 3 YEARS (MINOR)
3. ABOOBACKER, AGED 1 1/2 YEARS(MINOR).
4. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent :SRI.C.V.MANUVILSAN
The Hon'ble MR. Justice R.BASANT
Dated :03/03/2008
O R D E R
R. BASANT, J.
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R.P.F.C.No. 353 of 2007
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Dated this the 3rd day of March, 2008
O R D E R
ApplicationThis revision petition is directed against an
order passed under Section 125 Cr.P.C. obliging the petitioner to
pay monthly maintenance at the rate of Rs.1300/-, Rs.700/- and
Rs. 500/- respectively to his wife, aged about 25 years, and his
children aged 3 years and 1 = years. The wife is now pregnant
also for the third time.
2. Marriage is admitted. Paternity of the claimant children
is admitted. Separate residence is also admitted. The husband
offered to maintain the claimant wife on condition that she lives
with him. Interestingly, he also set up a defence that the child in
her womb is not fathered by him. He took up a further
contention that the wife has sufficient means. She is employed as
a tailor, it was contended. The petitioner is admittedly an
autorikshaw driver. In these circumstances the learned Judge of
the Family Court correctly addressed himself to the three
questions raised.
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3. First one is whether the claimant wife is a woman unable to
maintain herself. Eventhough claims were made that the claimant is a
tailor, no evidence was produced. The Judge of the Family Court
rightly came to the conclusion that the wife is shown to be a woman
unable to maintain herself. The second question that came up for
consideration was whether the husband is liable to pay separate
maintenance to the wife. The husband had sent a notice to the wife
calling upon her to cohabit with him. She had received the notice, but
not replied to it. The learned Judge of the Family Court decided the
issue in favour of the claimants basically on the test of possibilities and
because of one undisputed conduct on the part of the petitioner. The
wife was two months pregnant. The petitioner had cruelly raised a
contention that the child in the womb is not his. That contention was a
contention which was not seriously raised as can be seen from the fact
that no semblance of evidence was produced to prove, probabilise or
even indicate the truth of that contention. The learned Judge of the
Family Court took note of the probability that a hapless wife, who is
not shown to have any one to look after her, was unlikely to reside
R.P.F.C.No. 353 of 2007
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separately from her husband unless valid reasons are there. The wife
had reasons to urge, whereas the petitioner is ignorant about the
reasons to explain separate residence. The crucial conduct of the
petitioner denying the paternity of the child in womb was reckoned
rightly, according to me, as an indication of matrimonial cruelty
inflicted on the claimant wife. The second contention raised was also
rightly considered and answered by the learned Judge, I conclude.
4. Lastly and thirdly a contention is raised that the quantum of
maintenance awarded is excessive. The petitioner is admittedly an
autorikshaw driver. There are various other disputes raised as to
whether the autorikshaw belongs to him or not. There is also a dispute
as to whether he has other alternative source of income. The learned
Judge, because of paucity of evidence, confined himself to the admitted
source of income of the petitioner – from his employment as a driver.
The learned Judge took the view that at any rate a driver like the
petitioner can safely have assumed to get a monthly income of
Rs.5,000/- The learned Judge further took the view that out of that,
even keeping apart half of the amount for the petitioner and his
fractional liability to maintain his parents, if any, the claimants are
R.P.F.C.No. 353 of 2007
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entitled for Rs.2500/- p.m. in all. The said approach made and the
process of legal reasoning on probabilities adopted by the learned
Judge of the Family Court is found to me to be justified.
5. It will not be inapposite in this context for this Court to
remind itself the nature, quality and contours of the revisional
jurisdiction of superintendence and correction. It is by now trite that
any and every error, even assuming that such error has been committed
by the subordinate court, shall not persuade the court of revision to
invoke its revisional jurisdiction of superintendence and correction.
The finding must be grossly erroneous. The discretion exercised must
be grossly improper. Such vice must also lead to miscarriage of
justice. Then and then alone can a court choose to invoke the revisional
jurisdiction of superintendence and correction.
6. This revision petition deserves to be and I do hereby dismiss
the same.
(R. BASANT)
Judge
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