The revision petitioner is the petitioner in M.C.No.193/2009 on the files of the Family Court, Palakkad. She is the wife of the respondent herein. The above petition was filed under Sec.125(1) of the Code of Criminal Procedure, seeking maintenance allowance from the respondent herein. It is the case of the revision petitioner that she is the legally wedded wife of the respondent and as such she is entitled to get maintenance allowance from the respondent under Sec.125(1) of the Cr.P.C. But, he wilfully neglected to look after and refused to pay maintenance allowance from 31-8-2007 onwards. Though the marriage was on 2-2-2006, she was constrained to leave the company of the respondent due to mental and physical cruelty and harassment meted out to her. She has no job or any other sources of income to eke out livelihood and now she is depending upon her parents and siblings for livelihood. She claimed ₹2,500/- towards her food, clothing and other day to day expenses. Whereas, the respondent is working as an Electrician and he is having landed properties getting a gross income of ₹13,000/- per month. He has sufficient capacity to pay maintenance allowance. Whereas she is unable to maintain herself.
2. The respondent entered appearance and filed a counter statement admitting the marital status of the revision petitioner; but denied the allegation of torture and harassment meted out to her by him. In the counter affidavit, he expressed his readiness and willingness to look after the revision petitioner with all love and affection if she rejoins the matrimonial company. It is his case that, though he met with an accident on 25-5-2007 and sustained severe injuries, she did not care to look after and nurse him. Thus, the petitioner miserably failed to discharge the duty of a wife and thereafter she is residing separately without sufficient reasons. Hence, she is not entitled to get maintenance allowance from the respondent. After considering the rival contentions, the court below dismissed the maintenance case on a finding that the revision petitioner is residing separately without sufficient reasons and thereby she is not entitled to get maintenance allowance from the respondent.
3. The learned counsel for the revision petitioner advanced arguments assailing the findings of the court below that there is no sufficient reason to reside separately and claim maintenance allowance from the respondent. According to the learned counsel, the court below went wrong by relying on the lawyer's notice said to have been issued to the revision petitioner though the same was not produced before the court in evidence. He further contends that the said lawyer's notice was issued after getting knowledge that the revision petitioner has initiated proceedings under Sec.498A of the Indian Penal Code against the respondent. The said lawyer's notice was issued after starting investigation on the petition filed under Sec.498A of the Indian Penal Code against the respondent by the revision petitioner. In short, the lawyer's notice was issued to circumvent the criminal proceedings initiated against him. Therefore, there was no bona fides in the offer to live together made by the respondent.
4. The question that arises for consideration in this revision petition is, whether the court below can be justified in dismissing the maintenance case on a finding that the revision petitioner has refused to live with the respondent and she has miserably failed to establish sufficient reason for separate living?
5. Going by the impugned order, it could be seen that the court below dismissed the maintenance case on the finding that the revision petitioner has refused to live with the respondent and also she has failed to establish justifiable reason for her separate living. The marital status of the revision petitioner is not disputed and admittedly she is residing separately from 31-8-2007 onwards and the respondent has not paid any amount towards maintenance to the revision petitioner after 31-8-2007. But, it is the specific case of the respondent that the revision petitioner had left his company leaving the matrimonial relationship without sufficient reasons.
6. Per contra, the revision petitioner alleged that she was constrained to leave the matrimonial home due to physical and mental harassment meted out to her by the respondent. Though she has initiated criminal proceedings under Sec.498A of the Code of Criminal Procedure against the respondent, no documentary evidence had been produced before the court to substantiate the matrimonial cruelty said to have been meted out to her.
7. Going by the impugned order, it is seen that the court below has relied on the lawyer's notice which is said to have been sent to the revision petitioner, expressing his desire to live with the company of the revision petitioner. According to the findings of the court below, though the respondent expressed his desire to live together, by issuing notice, the revision petitioner refused to respond positively and in that context, it could be reasonably presumed that the revision petitioner is not interested to live along with the respondent and she failed to show sufficient reason to live separately. But, it is pertinent to note that the copy of lawyer's notice or the receipt and acknowledgment, which would prove the receipt of the same have not been produced before the court below. Similarly, no documentary evidence had been adduced to show the institution of the proceedings under Sec. 498A of the Indian Penal Code, before the issuance of lawyer's notice, by the respondent. In the absence of the above evidence, no inference can be drawn about the bona fides of the lawyer's notice. In short, I find that for rejecting the claim of maintenance allowance, the court below has relied on two documents which could have been produced before the court below; but not produced. Needless to say, the finding under which the court below rejected the claim is seen based on a mere assumption, which is not supported by any material evidence, though such evidence is available in the hands of both parties. No other witnesses had been examined. Now what is available in evidence is oath against only. The learned counsel for the revision petitioner urged for an opportunity to produce the documents pertaining to proceedings under Sec.498A IPC and some other additional evidence to substantiate her contentions. I am of the opinion that if an opportunity is given to adduce evidence, the respondent also will get an opportunity to produce the copy of the said lawyer's notice and the receipt and acknowledgment, if any, which would prove the receipt of the lawyer's notice.
8. In this analysis, I am inclined to set aside the impugned order, which is not supported by material evidence and I do so. The matter is remitted back to the trial court for passing order afresh after affording sufficient opportunities to both parties to adduce further evidence. The court below shall pass order afresh within a period of six months from today. The court below shall issue notice afresh to both parties requiring their presence on the date of first posting.
The RPFC is disposed of accordingly.
Stu //True copy// P.A to Judge K.HARILAL, JUDGE.