The counter petitioner in M.C.No.51/2013 of Family court, Vadakara is a revision petitioner herein.
2. The respondents who are the wife and children of the revision petitioner filed M.C.No.51/2013, claiming maintenance under section 125 of the Code of Criminal Procedure. It is alleged in the petition, that the revision petitioner married the first respondent on 15/11/1992 and in that wedlock, the respondents 2 to 4 were born. They were living together for sometime and thereafter difference of opinion arose between them on account of illtreatment met by her in the house of the revision petitioner and respondents started residing seperately. After the seperation, she was not given any maintenance. He is employed and getting good income. They have no independent income to maintain themselves. She had stated that she wanted Rs.4,500/- for her maintenance and Rs.3,500/- each for children. He is working as a supplier of bakery articles and getting Rs.30,000/- per month. He is also having landed properties and getting not less than Rs.20,000/- per annum as income. So, they prayed for allowing the application.
3. The respondent appeared and filed counter admitting the marital relationship and paternity of the children. According to him he is not getting Rs.30,000/- by supply of bakery articles. He has no landed properties and he is not getting any income of Rs.20,000/- per year as mentioned in the petition. He is only getting Rs.5000/- per month. He has no capacity to pay separate maintenance to the petitioners. They are not entitled to get any maintenance. So, he prayed dismissal of the petition.
4. This was tried along with O.P.No.94/2013 filed by the first respondent herein, claiming return of articles and amount paid, and they were tried together. PWs 1 to 4 were examined and RWs 1 to 3 were examined on the side of the petitioners and respondents respectively and Ext.A1 to A3 and B1 to B2 were marked on the side of the respective parties. By a common judgment, the learned Family Court Judge dismissed the O.P. but, allowed the maintenance case, directing the revision petitioner to pay maintenance at the rate of Rs.2500/- to the first petitioner and Rs.2000/- each to the petitioners 2 to 4. This order is being challenged by the revision petitoner by filing this petition.
5. Though notice was served on the respondents, they did not appear. So this court felt that this can be disposed of after hearing the counsel for the revision petitioner. The counsel for the petitoner submitted that there is no valid ground for the respondents to reside seperately and further he is doing only coolie work and getting less income, and he has also a family to maintain consisting his parents. The amount awarded is excessive.
6. It is an admitted fact that the first respondent is the wife of the revision petitioner and the respondents 2 to 4 are the children born to them in the wedlock. The marriage was of the year 1992. It is also seen from the order that there was some attempt made on the part of the first respondent to commit suicide and thereafter she was residing seperately also. According to the witnesses examined on the side of the petitioner, she was driven to commit suicide on account of the illtreatment met by her in her matrimonial house. However no steps have been taken by the revision petitioner to take them back. It was also admitted by him that he did not provide any maintenance to them after they started living separately also. So, under the circumstances, Court below is perfectly justified in coming to the conclusion that the first respondent wife is justified in living seperately from her husband.
7. There is no evidence to show that first respondent is having any independent income to maintain herself as well as children. The case of the first respondent was that the revision petitioner was doing work as a supplier of bakery articles and getting Rs.30,000/- per month as income and he is also having landed properties and getting Rs.10,000/- per annum as income. But there is absolutely no evidence to prove these facts. It is also seen from Ext.P1 and P3 that he had worked abroad earlier, and now he is not working abroad. Even the first respondent has no case that he is working abroad now and getting income. Court below also came to the conclusion that he will be getting at least Rs.600/- per day. But the revision petitioner deposed before this court that he is getting only Rs.400/- per day. The court below had taken his monthly income as Rs.15,000/-, but, if he is a daily worker, one cannot expect that he will be getting employment all days. Further, the maintenance will have to be provided considering the status of the parties. So considering the over all circumstances, the amount of Rs.2500/- to the first petitioner and Rs.2000/- each to the petitioners 2 to 4 appears to be little on the higher side. It is true, for a lady living with 2 female children will be difficult also without support of others. However considering the over all circumstances this court feels that the maintenance can be refixed as follows:
Revision petitioner is directed to pay maintenance at the rate of Rs.2000/- (Rupees two thousand only) per month to the first petitioner and Rs.1500/-(Rupees one thousand five hundred only) each to the petitioners 2 to 4, from the date of petition as ordered by the court below. In the above modification of the quantum of maintenance alone, the revision petition is allowed in part and disposed of accordingly. If any amount has been deposited by the petitioner as directed by this court, then that can be given credit to the arrears payable on the basis of the amount of maintenance fixed by this court.
Sd/-
K.RAMAKRISHNAN, iap JUDGE