IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 328 of 2009()
1. UNNIKRISHNAN.C, S/O.NARAYANAN NAIR,
... Petitioner
Vs
1. RADHAMANI.K, W/O.UNNIKRISHNAN.C.,
... Respondent
For Petitioner :SRI.JAWAHAR JOSE
For Respondent :SRI.SURESH KUMAR KODOTH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :18/03/2010
O R D E R
M.N. KRISHNAN, J
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R.P.F.C. NO. 328 OF 2009
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Dated this the 18th day of March, 2010.
J U D G M E N T
This revision is preferred against the order of the Family Court,
Kasargode in M.C.No.235/08. The wife was ordered to be paid
maintenance at the rate of Rs.1,000/- from the date of order. It is
against that decision the husband has come in revision. It is a case
where the couples were earlier married and it was their second
marriage. The wife is having a daughter in the first marriage and the
husband having a son in the first marriage. They got married on
30.12.07 and the matrimonial relationship subsisted for few months.
Thereafter, they are separated on account of incompatibility and that
had lead to the filing of a case for maintenance. The learned young
counsel for the revision petitioner strongly contends before me that
under the provisions of the Criminal Procedure Code, it is equally
important that the capacity of the husband to pay has also to be
considered. There may not be any doubt that in a case u/S.125 of
Criminal Procedure Code necessity of the wife and capacity of the
husband to pay has to be considered to strike a balance in awarding
the amount. Now here the contention of the husband is that he is a
R.P.F.C. NO. 328 OF 2009 2
totally disabled person incapacitated to do any work and he cannot be
saddled with much liability when he himself has to depend on
somebody for his livelihood. One of the documents produced as
Ext.B2, perused by me would reveal that this man had inter vertibral
disc prolapse which had to be operated upon and further it revealed
that it had affected the knee as well. It is also certified that he requires
a prolong treatment and that he will not be able to do her work for and
long time. Innumerable number of doctor certificates, prescriptions etc.
are produced before the court but unfortunately medical evidence is not
tendered which would have been a detrimental factor in deciding a case
of this nature. I am not going into the details of this documents for the
reasons that, I feel it is absolutely necessary to satisfy the conscience
of the court regarding the capacity of the husband to pay. If a person is
totally incapacitated and unable to do any work Sec.125 Cr.P.C. does
not mandate such a person to pay maintenance even if the wife is
unable to maintain herself. So the Family Court is directed to send the
the husband who feels that he is totally incapacitated to undergo
examination by a medical board consisting of experts and get a report
be obtained to indicate what is the disability for the person and what is
the loss of earning capacity and whether he would be able to do any
work and if so the nature of the work. It has been time and again held
R.P.F.C. NO. 328 OF 2009 3
by courts that when the loss of earning capacity is calculated, it has to
be calculated not on the basis of the work which he was doing but it
must be in the background of all the work he was capable of doing.
The Full Bench decision reported in 2003 (2) KLT 462 under the
Workmens Compensation Act in Vanajakshan v Joseph has held
while assessing the disability, loss of earning capacity etc. all these
materials will be taken together and a report be obtained after which
the parties be permited to adduce evidence in support of their
respective contentions then the matter to be disposed of in accordance
with law. Since the matter has to go back to the Family Court the
parties can be permitted to adduce documentary as well as oral
evidence in support of their respective contentions including the
medical evidence. I make it clear that the husband has to bear the
expenses for attending before the medical board. The parties are
directed to appear before the Family Court, Kasargode on 23.4.2010.
Let the matter be disposed within 4 months from the date of first
appearance for the parties.
M.N. KRISHNAN, JUDGE.
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