Counter petitioner in M.C.No.428/2013 on the file of the Family Court, Tirur, is the revision petitioner herein. The case was filed by the petitioners in the lower court, claiming maintenance from the revision petitioner under Section 125 of the Code of Criminal Procedure. She married the revision petitioner on 07.02.1990 and the 2nd petitioner in the lower court was born to them in that wedlock. The revision petitioner was working as Nursing Assistant in P.H.C. Pookkotur, and getting a monthly income of ₹20,000/-. She requires ₹6,000/- for herself and ₹5,000/- for the minor 2nd petitioner. She is not having any income to maintain herself and the child. She is staying away from him on account of the cruelty met by her at the hands of the revision petitioner. So she filed the application for maintenance.
2. The revision petitioner, who is counter petitioner before the court below appeared and filed counter stating that, first petitioner is working in Preethi Textiles at Feroke, as a sales girl and getting sufficient income. He retired from service on 30.11.2012 and getting a pension of ₹5,025/-. He has to look after his father and adopted son. He had no financial capacity to pay the amount as claimed. The allegation that, he consuming alcohol and ill treating her is not correct. She is residing separately without any reason. So she is not entitled for getting maintenance.
3. First petitioner in the lower court was examined as PW1 and Ext.P1 series were marked on her side. The revision petitioner was examined as RW1 and Exts. D1 and D2 were marked on his side. After considering the evidence on record, the court below found that, the petitioners are unable to maintain themselves and the revision petitioner is liable to pay maintenance and fixed the maintenance at the rate of ₹2,000/- each to the petitioners from the date of filing of the petition. This is being challenged by the revision petitioner.
4. Considering the scope of enquiry and also considering the nature of defence, this court felt that the revision can be disposed of at the time of admission itself, after hearing the counsel for the revision petitioner, dispensing with notice to the respondent.
5. The counsel for the revision petitioner submitted that, he is a pensioner getting only a meagre income and he is not the owner of the auto rickshaw and he is not having any job and the 2nd petitioner has become major and these aspects have not been considered as well. So according to him, the amount awarded is also excessive. He had also produced the documents before this court, that shows that, he is unable to do any heavy work.
6. It is also an admitted fact that, the first respondent herein is the wife of the revision petitioner and 2nd respondent is the daughter born to them in the wedlock. The evidence and the discussions in the order will go to show that, the petitioners were justified in residing separately and that finding on facts do not call for any interference.
7. As regards the quantum of maintenance is concerned, the court below had considered the fact that he is a pensioner and getting only ₹5,025/- as pension, as per the documents produced namely Ext.D2, but it was admitted by him, when he was examined as RW1 that, he was working as an auto rickshaw driver. So it is clear from that, apart from the pension, he is getting some more income. That was also taken note of by the family court, while considering the capacity for the revision petitioner to pay the maintenance. Further the court below also considered the fact that, the revision petitioner has to look after his adopted son also. So it cannot be said that, court has not taken note of all those facts before fixing the quantum of maintenance. The documents now produced before this court, the photo copy of the medical certificate shows that, he is having chronic disc prolapse and advised not to do heavy work. That alone will not be sufficient to come to the conclusion that, he is totally disabled from doing any work. Even though the 2nd petitioner, who is a female child has become major, unless it is proved by the revision petitioner that she is having independent income to maintain herself, he is liable to pay maintenance to her, as per the decision of the Hon'ble Supreme court, till she is employed or married and they need not driven to claim maintenance under the personal law by resorting to the provisions of the Hindu Adoption and Maintenance Act and that can be considered in the proceedings under Section 125 of the Code of Criminal Procedure to avoid multiplicity of proceedings. If the petitioner has a case that, she has become major and has independent income, he is at liberty to move the court below by filing an application under Section 127 of the Code of Criminal Procedure to cancel the order, till then he is liable to pay maintenance to the 2nd respondent as well. Further it is settled law that, while fixing the quantum of maintenance, it must be reasonable to meet the parties' requirement to lead a decent life and considering their status. The respondent has not produced any evidence to prove that the first petitioner is having any income to maintain herself, though he had a case in the counter that she is working in a textile shop and getting income.
So under the circumstances, the amount of ₹2,000/- each, fixed by the court below, considering the fact that the 2nd petitioner is an unmarried, female girl and minor at the time of filing the petition cannot be said to be excessive, which warrants interference of this court, invoking the revisional jurisdiction. So, the revision lacks merits 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 concerned court, immediately.
Sd/-
K. RAMAKRISHNAN, (Judge) // True Copy// P.A. to Judge ss