Counter petitioner in M.C.No.267/13 on the file of Family Court, Nedumangad is the revision petitioner herein.
2. The petition was filed by the respondents herein who are the wife and child of the revision petitioner seeking maintenance under Section 125 of the Code of Criminal Procedure.
3. It was alleged in the petition that the revision petitioner married the first respondent herein and in the wedlock, second respondent was born and from 18.04.2011 onwards they were living separately and no maintenance was provided by the revision petitioner. He is a rubber-tapper getting Rs.600/- per day and also as a coolie getting Rs.500/- per day. The first respondent has no income of her own to maintain herself for the child. She requires Rs.3,000/- for her purpose and Rs.3,000/- for the maintenance of the child. So, they were compelled to file the application for maintenance.
4. Respondent appeared and filed counter, admitted the marriage and paternity of the child. According to the revision petitioner in the counter, the first respondent deserted the revision petitioner during 2011 and so, she is not entitled to get maintenance. Further, she is having sufficient means to maintain herself. He had also contended that the marriage between the revision petitioner and the first respondent is dissolved. So, she is not entitled to get maintenance. He prayed for dismissal of the application.
5. In the lower court, first respondent herein was examined as PW1 and the revision petitioner was examined as CPW1. After analyzing the evidence, court below found that the respondents are entitled to get maintenance from the revision petitioner and directed him to pay maintenance at the rate of Rs.3,000/- to the first petitioner and Rs.2,500/- to the second petitioner which is under challenge before this court.
6. Since the respondents appeared through Counsel, this court felt that the revision can be admitted and disposed of on merit after hearing both sides today itself. So, the revision is admitted and heard and disposed of today itself.
7. The Counsel for the revision petitioner submitted that in fact, the marriage between the revision petitioner and the first respondent was dissolved by pronouncing talaq evidenced by Annexure A talaaq nama and Annexure B certificate issued from the Jama-ath and so, she is not entitled to get maintenance and whatever amount required has been provided as per custom.
8. But, the Counsel for the respondent submitted that the divorce has not been proved and court below has correctly appreciated the evidence and granted maintenance which does not require interference at the hands of this court as no illegality has been committed.
9. It is an admitted fact that the revision petitioner married the first respondent in the year 2010 and in the wedlock, second respondent was born. It is also an admitted fact that till 2011, they were living together. It is thereafter that they started residing separately. The case of the respondents was that since the ill treatment is not tolerable, she has no other option but to reside separately. Though the revision petitioner had taken a contention in the lower court that the marriage has been dissolved, he had not adduced any evidence except his interested testimony to prove the same. But, now, an attempt has been made by producing two documents which are only photostat copies of the alleged talaaq nama and certificate issued from the Jama-ath to prove that the divorce was effected on 03.03.2013 and that was accepted by the Jama-ath on 10.03.2013. Mere production of a document is not sufficient to prove talaaq. Further, if the marital position has been changed, then, he can file an application under Section 127 of Code of Criminal Procedure to vary the order of maintenance passed. In the absence of any evidence adduced before the court below, court below was perfectly justified in coming to the conclusion that the marriage subsists and he is liable to pay maintenance.
10. The evidence also will go to show that she is having justifiable reason for residing separately and even as per CPW1, he pronounced talaaq because she had shown some signs of mental illness, that itself is a cruelty which is a sufficient ground for residing separately from the husband. Further, it was admitted by him that, he is a coolie getting Rs.500/- per day. Further, he had no case that he is having any permanent disability to do any work as well. Further, though he had a case that first respondent herein is having income of her own, no document has been produced to prove that fact. So, court below was perfectly justified in coming to the conclusion that, the first respondent herein is unable to maintain herself and the revision petitioner is capable of maintaining and in spite of that, he had not provided any maintenance to the child or the first respondent. As per the child is concerned, he has no escape from payment of maintenance. The amount of Rs.3,000/- and Rs.2,500/- respectively fixed by the court below cannot be said to be excessive which does not require any interference at the hands of this court.
So, with the above observation, this court feels that the revision petition can be dismissed. So, with the observation that leaving open the right of the petitioner to move the magistrate court under Section 127 to vary the order as regards the first respondent is concerned and not in respect of the second respondent. The revision is dismissed.
Office is directed to communicate this order to the court below at the earliest.
Bb Sd/-
K.Ramakrishnan, Judge.
[True copy] P.A to Judge