IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 296 of 2009()
1. SUDHEER, S/O.LATE HASSAN, 30 YEARS,
... Petitioner
Vs
1. SHEMITHA, D/O.YUSAF, 25 YEARS,
... Respondent
2. MUHAMMED ALSAFITH, MINOR, 8 MONTHS,
3. THE STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.K.R.VINOD
For Respondent :SRI.VINOD KUMAR.C
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/08/2009
O R D E R
THOMAS P.JOSEPH, J.
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R.P(FC) NO.296 of 2009
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Dated this the 10th day of August, 2009
O R D E R
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Heard both sides.
2. This revision is in challenge of the order passed by the
Family Court, Palakkad in M.C. No.393 of 2007 directing petitioner to
pay maintenance at the rate of Rs.1,250/- to respondent No.1, wife
and Rs.750/- to respondent No.2, son per month. It is not disputed
that petitioner married respondent No.1 on 17.11.2005 and
respondent No.2 is born in that wedlock. Respondents alleged that
petitioner subjected respondent No.1 to cruelty and harassment. On
27.11.2006 petitioner assaulted respondent No.1 at a time when she
was carrying respondent No.2. Hence she had to withdraw from the
company of petitioner. She was sent out of matrimonial home.
According to respondent No.1, even after delivery petitioner did not
care for them. He neglected and refused to maintain them. It is also
contended that petitioner is running a tailoring shop and earning
Rs.20,000/- per month. Petitioner denied that there was any cruelty or
harassment on his part. Respondent No.1 withdrew from his company
without any reason. She wanted separate residence as she was not
willing to stay with other members of his family including his mother.
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He claimed that he is an employee in a tailoring shop getting only
Rs.100/- per day. He has to look after his aged mother as well. Both
sides adduced evidence in the court below. Learned Judge found that
respondent No.1 has sufficient reason to stay away from petitioner and
that the claim of petitioner that he made efforts to get back
respondents is not bona fide.
3. So far as that contention is concerned, it is not disputed
that in the counter statement there was no offer that petitioner is
prepared to maintain the respondents. Court below stated that the
counsellor in her report stated that in the conciliation talk petitioner
was adamant that he would not have the company of respondents. In
the above circumstances I find no reason to interfere with the finding
of the court below that the effort allegedly made by petitioner is not
bona fide. It has come in evidence and petitioner himself as R.W.1
stated that respondent No.1 had very cordial relationship with the
other members in the family. Therefore case of petitioner that
respondent No.1 is living away demanding separate residence was not
accepted by the court below. I find no reason to differ. Respondent
No.1 is entitled to separate residence and maintenance. So far as
respondent No.2 is concerned irrespective of the propriety of his
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custody petitioner is bound to maintain respondent No.2
4. What remained for consideration is only whether
maintenance awarded is excessive or beyond the reach of petitioner.
Respondent No.1 was aged 25 years and respondent No.2, 8 months
at the time of filing the petition in the court below. I am not inclined
to think taking into account the cost of living and the needs and
requirements of respondents that what is awarded to them is
excessive. I have no reason to interfere with the maintenance
awarded to respondent Nos.1 and 2.
5. Then the question is whether the said amount is beyond
the reach of petitioner. Assuming that there is no evidence to show
that the tailoring shop belongs to the petitioner it is not disputed that
he is a tailor working in that concern. Even according to him he is
getting Rs.100/- per day. He did not produce documents to show what
exactly is his actual income. Courts below observed that petitioner
will get anything not less than Rs.200/- per day and accordingly fixed
Rs.5,000/- as his monthly income. Having regard to the tailoring
charges payable in these days, I am not inclined to think that finding of
learned Judge is erroneous. I also take into account that petitioner is
a skilled worker and even a manual labourer gets anything not less
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than Rs.200/- per day. Viewed in that line I find no reason to interfere
with the order impugned. There is no merit in the revision petition and
it is liable to be dismissed.
Revision petition is dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv