Respondent in MC.No.185/2012 and petitioner is MC.No.185/2012 are the respective revision petitioners in RP (FC)Nos.90/2014 and 414/2014 respectively and petitioner in MC.No.581/2011 on the file of Family Court, Thrissur, is the revision petitioner in RP(FC)No.111/2014. Though, MC.No.185/2012 and 581/2011 were disposed of by separate orders since there are certain common issues, this court felt that these cases can be disposed of by a common order. 2. For the purpose of convenience sake the status of the parties have mentioned in RP(FC)Nos.90/2014 and 111/2014 can be referred to as revision petitioners and respondents respectively.
3. The revision petitioner in RP(FC)No.90/2014 and 111/2014 married the respondent in RP(FC)No.90/2014 and the respondent in RP(FC)No.111/2014 was the son born to them in the wedlock. It is quite unfortunate that at the old age both being senior citizens, they have been brought to court to settle their dispute regarding maintenance. MC.No.185/2012 was filed by the wife of the revision petitioner in RP(FC)No.90/2014 stating that they are living separately on account of ill- treatment met by her, at the hands of her husband and in spite of having good income, he is not paying any maintenance to her. He is getting income by way of rent and also he was having landed properties which he was indiscriminately selling and depositing the amount in bank in order to avoid the property being inherited by his wife and children after his death. So, she claimed maintenance of Rs.25,000/- per month.
4. On the other hand, the husband of the petitioner in MC.185/2012 who is the respondent in RP(FC)No.414/2014 and revision petitioner in RP(FC)No.90/2014 filed detailed counter stating that he is an aged person and there is none to look after him and he is a chronic diabetic patient and for the purpose of doing charity work, he was selling the property and gave one room for the mosque also and by using the amount by selling the property, he purchased a property and he is getting rent from the property. Except that income, he has no other income and wife is residing in the house which he constructed in the property he purchased by using the sale consideration of sale of an other property. Further, the sons are well off and they are looking after their mother and she had filed the present petition at the instigation of her children. So she is not entitled to get maintenance is the contentions raised.
5. He had also filed a petition for maintenance as MC.No.581/2011 before the same family Court against his son claiming maintenance @ Rs.8000/- per month. He had mentioned in that petition that he is unable to maintain himself and the son is capable of providing maintenance and in spite of that he has neglected him to maintain him. The respondent therein appeared and filed counter stating that he is having monthly income of Rs.20,000/- which he getting by way of interest. He had sold landed properties worth Rs.91 lakhs and he had rented out buildings also and getting Rs.25,000/- per month. In fact he sent his wife out and in order to avoid paying maintenance to his wife, he had filed this petition for maintenance. Further, he is also residing with a concubine now in his tharavadu house. So he prayed for dismissal of the application.
6. After evidence in both these cases, the family court allowed MC.No.185/2012 directing the revision petitioner to pay maintenance @ Rs.3000/- per month from the date of order and dismissed the application for maintenance filed by him namely, MC.No.581/2011,. Dissatisfied with the dismissal, and order of direction to pay maintenance he filed RP(FC) No.111/2014 and RP(FC)No.90/2014 respectively and dissatisfied with the quantum of maintenance and direction to pay maintenance from the date of order, the wife of the revision petitioner had filed RP(FC)No.414/2014.
7. Heard both sides.
8. The counsel for the revision petitioner namely the husband/father submitted that it is true that he had sold the property but using that amount he had purchased the property in which a building was constructed where his wife and children were residing. Further, he is now bed ridden and the amount which he is getting by way of rent is not sufficient to meet his requirements.
9. On the other hand, the counsel for the respondents namely the wife and son of the revision petitioner submitted that the lower court was perfectly justified in dismissing the application for maintenance filed by him against the son and the amount awarded is less for the wife and that too the court below should have awarded from the date of petition and no reason has been given for restricting the same to the date of order.
10. It is an admitted fact that the Mohammed, the revision petitioner in RP(FC)Nos.111/2014 and 90/2014 married Fathima who is the respondent in RP(FC)No.90/2014 and revision petitioner in RP(FC)No.414/2014 and Kabeer the respondent in RP(FC)No.111/2014 was born to them in the wedlock. It is also an admitted fact that they are now residing separately on account of some difference of opinion. It is true that wife, if she is able to prove that she has no independent income and unable to maintain herself irrespective of the age of the husband, then he is liable to pay maintenance unless it is proved that he is unable to maintain himself and he has no independent to provide maintenance. It is also in away admitted in the counter statement filed by the revision petitioner, her husband that he was having landed properties and it was also admitted by him in his evidence also that he had sold some of the properties and deposited the amount in the bank and he had also stated that he had purchased some property with the sale proceeds in which the building has been constructed where his wife and children were residing. It is also brought out in her evidence that one of her child is mentally challenged person and he is being living with her in the house. Merely because the residence has been provided alone is not sufficient to say that proper maintenance has been provided by the husband as apart from residence, amounts will be required for food as well as cloth and meeting other necessities as well. It was in away admitted that the revision petitioner had constructed some shop rooms and getting income from them and according to him, he is getting income @ Rs.9000/- per month whereas according to the respondents he is getting more income. However, no evidence has been adduced by the revision petitioner to prove that actual rent that has been collected by him from his tenants. It is also in away admitted that valuable properties have been sold and some properties was given for charity to a mosque. A person will be able to provide philanthropic or charitable activities only if he is able to maintain himself and if he gets some excess amount after meeting all his expenses. Though, he had a case that he is completely bed ridden, no such evidence has been adduced on the side of the revision petitioner to prove this fact. So, considering the status of the parties and also the income that is being derived by the revision petitioner by letting out the rooms for rent and his own evidence shows that it will be sufficient for meeting his requirements, court below was perfectly justified in denying maintenance to him and rightly dismissed MC.No.581/2009 which was filed by him against his son seeking maintenance.
11. Once it is proved that he is having sufficient income not only maintain himself and also to provide for charity, then he is bound to pay reasonable maintenance to his wife also. So, considering the status of the parties, the quantum of maintenance fixed by the court below namely Rs.3000/- per month cannot be said to be excessive. Merely because, children are bound to maintain their mother is not a ground to exonerate the husband from providing maintenance to his wife.
So, the quantum of maintenance fixed by the court below also cannot be said to be excessive. Considering the age of revision petitioner, the court below was perfectly justified in fixing the payment of amount from the date of order. There is a discretion vested in the court to order maintenance either from the date of order or from the petition. In this case, considering the age of the parties the court below was perfectly justified in fixing the payment from the date of order and that also cannot be said to be improper as contended by the counsel for the respondent herein. So, under the circumstances, this court feels that no illegality has been committed by the court below in passing the impugned order which requires interference and all the revisions lacks bonafide on merit and they are liable to be dismissed.
In the result, all the revisions are dismissed.
Sd/-
K.RAMAKRISHNAN, JUDGE R.AV //true copy// PA to Judge