Counter petitioner in M.C.No.80/2013 on the file of the Family Court, Kannur is the revision petitioner herein.
2. The respondents herein who are the children of the revision petitioner filed the application for maintenance through their mother under Section 125 of the Code of Criminal Procedure.
3. It is alleged in the petition that petitioners were the children born in the wedlock between the revision petitioner and their mother and after sometime, the relationship between their mother and the revision petitioner was not cordial and she started living separately with the children. He has not provided any maintenance and first respondent is studying in 6th Standard in an English medium school and second respondent is studying in the 1st Standard in Viswa Nirmal Vidya Mandir. The revision petitioner is doing tile work and he is an expert mason. He is willfully abstained from paying maintenance. They require Rs.5,000/- each for their maintenance including the educational expenses.
4. Revision petitioner appeared and filed counter admitting the marriage and paternity of the children. But, he denied the allegation of cruelty alleged against him. According to him, he was a coolie at the time of marriage and he went to Gulf countries during 2006 and constructed the basement of the house and thereafter, he lost his employment and came back as he suffered back pain. Now, he is not able to do any work and he is unable to pay any maintenance. But, he is prepared to take them back and reside together. Though there are schools nearby, she had admitted the children in a distant place for giving education causing huge expense for the education. The mother of the petitioners is working in a bakery of one Joy and getting Rs.8,000/- per month. She has got means to maintain the minors. So, he prayed for dismissal of the application.
5. The mother of the petitioners was examined as PW1 and the respondent was examined as RW1 and Exts.P1 to P4 series were marked on the side of the petitioners in the lower court.
6. After considering the evidence on record, the court below found that Rs.5,000/-claimed by the petitioners is not reasonable and directed the revision petitioner to pay maintenance at the rate of Rs.3,000/- each to the children. This order is being challenged by the revision petitioner. Though a mediation attempt was made by referring the matter for mediation, unfortunately, the matter was not settled.
7. Heard both sides.
8. The Counsel for the revision petitioner submitted that he had filed an application Crl.M.A.No.5649/2014 for referring the petitioner for Medical Board to assess his disability, which will go to show that he is having permanent disability, unable to do any work and according to the Counsel for the revision petitioner, it is due to the adamant attitude of the mother of the petitioners that they could not join together though he had made an offer for living together. Further, the amount of maintenance awarded is also high.
9. The Counsel for the respondents submitted that considering the medical expenses covered by Exts.P1 to P4 series, even the amount awarded is very less. Further, he had not produced any document before the court below or even before this court to prove his disability.
10. It is an admitted fact that revision petitioner married the mother of the respondents and in the wedlock, the respondents were born. It is also an admitted fact that for sometime, he was working abroad and according to the revision petitioner, he came back permanently and the mother of the respondents left and she is adamant in not coming back and he is now without any employment. But, it may be mentioned herein though he filed an application before this court as Crl.M.A.No.5649/14 for referring him to Medical Board to assess his disability, he had not produced any document before the court below or before this court to show that he is suffering from back pain and undergoing treatment for the same. If really he is having any back pain which requires persistent treatment, he could have produced some document to prove his treatment either before the court below or before this court. Even the application did not support any such document. So, it is clear from this that the attempt of the petitioner is only to prolong the matter and no purpose will be served by referring the revision petitioner to Medical Board. So, the Crl.M.A.No.5649/2014 is liable to be dismissed and it is dismissed.
11. As regards the liability of the revision petitioner is concerned, he has no defence except to pay maintenance to the children so long as they are minors and they have no independent income in their name to maintain themselves with that income. It is also settled law that merely because the mother of the petitioners is employed is not a ground to exonerate the father from his liability to pay maintenance to the children. It is an admitted fact that he was a coolie and according to PW1, he is a skilled mason. The lower court had the opportunity to see RW1 when he was examined before the court and came to the conclusion that he is an able bodied person capable of doing work and earn money to pay maintenance to his children. Exts.P1 to P4 series will go to show that the mother of the petitioners is spending huge amount for meeting the education expenses. Merely because they were put in a better school considering their future, it cannot be said to be a luxury now a days as claimed by the revision petitioner in his counter statement. It is clear from the evidence that with the meager income which the mother is getting, it is not possible for her to maintain the children and provide good education for which she requires some more amount as well. Further, it is settled law that maintenance should not be a pittance and it is not a gratis, but, it is a right of the children to get it from their parents for their existence. Further, the revision petitioner had no case that after they started residing separately, he had provided any maintenance to the children as well. He had not produced any documents before the court below to prove this fact. So, considering all these aspects and also the amount required for education expenses and the cost of living nowadays, the amount of Rs.3,000/- fixed by the court below for each respondent cannot be said to be excessive which requires the interference of this court to reduce. So, the revision lacks bona fides and the same is liable to be dismissed.
In the result, the revision petition is dismissed. Office is directed to communicate this order to the court below at the earliest.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge