Counter petitioner in M.C.No.96/13 of the Family Court, Kalpetta is the revision petitioner herein.
2. The application for maintenance was filed by respondents herein through the first respondent claiming maintenance for herself and her child.
3. It is alleged in the petition that revision petitioner married the first respondent herein on 20.05.2010 and thereafter, they were living as husband and wife and in the wedlock, the second respondent was born. They were treating her cruelly. On 29.09.2011, the revision petitioner took the respondents herein to the house of the first respondent and thereafter, he did not return. No amount was paid for maintenance as well. He filed O.A.No.881/11 before the Family Court, Calicut for restitution of conjugal rights and obtained an ex parte decree. The Family Court directed the first respondent to go and reside with the revision petitioner in his house during holidays as she was doing her M.S.C Course. She went there, but, they did not allow her to enter the house.
So she had no other option, but, to return to her parental house and also filed a complaint before the Vanitha Commission regarding this aspect. He is not paying any maintenance. He is having good income and working as a clerk in Kottakkal Aryavaidyasala and getting good income and capable of paying maintenance. The second respondent is having congenital eye disease and she will have to undergo continuous treatment including change of spectacles often. Huge amount is required for her maintenance and medical expenses. She is without any employment. So, she requires Rs.5,000/- each for maintenance per month for them. So, she filed the petition.
4. Revision petitioner appeared before the court below and filed objection stating that she left the house voluntarily and she is not interested in living in the matrimonial home though he is prepared to take care of them. He filed O.A.No.881/11 before the Family Court, Calicut for restitution of conjugal rights and the same was allowed on 09.05.2012. She did not comply with the directions of the Family Court. The revision petitioner received a letter that on 04.08.2012, she will come and on that day, she came for the purpose of making some trouble there, not with an intention to live and thereafter, after quarreling with them, she left the place and filed a complaint before the Women Cell, Police and they conducted enquiry and closed the petition. The amount claimed is excessive. The first respondent is taking tuition and getting good income. He is prepared to look after his child. He had to look out his parents also. The amount claimed is excessive. So, he prayed for dismissal of the application.
5. The first respondent herein was examined as PW1 and Exts.A1 to A8 were marked on the side of the respondents who are the petitioners before the court below. The revision petitioner who was the counter petitioner before the court below was examined as RW1 and Ext.B1 marked on his side. After considering the evidence on record, court below found that the revision petitioner is liable to pay maintenance to the petitioners and fixed the maintenance at the rate of Rs.2,500/- to the first respondent and Rs.5,000/- to the second respondent and directed to pay the amount from the date of petition. Dissatisfied with the same, the present revision has been filed by the revision petitioner - counter petitioner before the court below.
6. Heard the Counsel for the revision petitioner and the Counsel for the respondents.
7. Counsel for the revision petitioner submitted that, first respondent had left the house voluntarily and in spite of the fact that he obtained an order for restitution of conjugal rights, she did not come and live with him. So, she is not entitled to get maintenance. Further, he is prepared to look after the child. He is getting only Rs.15,000/- per month as salary as a Clerk working in Kottakkal Aryavaidyasala and he had look after his old parents as well. So, the amount ordered is excessive.
8. On the other hand, the Counsel for the respondents submitted that, in compliance with the order of the Family Court in the restitution of conjugal rights case, she went to the house, but, she was not permitted to enter the house. So, she filed a complaint before the Vanitha Cell and the application was filed only for the purpose of denying maintenance and the offer was not bona fide. The second respondent is ailing from serious eye disease and huge amount is required for her treatment and after satisfaction of the evidence adduced, court below had reasonably fixed the maintenance amount which does not require any interference.
9. It is an admitted fact that revision petitioner married the first respondent and in the wedlock, second respondent was born. It is also an admitted fact that second respondent is suffering from some eye disease for which continuous treatment is required. It is also an admitted fact that from 29.09.2011, they were residing separately. It was admitted by RW1 in his evidence that, it was he who had taken the respondents to her house and left there and thereafter, he did not pay any maintenance. It is true that he filed O.A.No.881/2011 before the Family Court, Calicut for restitution of conjugal rights and obtained Ext.B1 order. It was also brought out in evidence of PW1 and RW1 that in compliance of Ext.B1 order, on 04.08.2012, the respondents came to the house of the revision petitioner and there was some quarrel ensued, thereafter, she left the place. According to the revision petitioner, they told that if she is intended to reside there permanently, she can come and join and she left the house. But, according to PW1, though she went there with the child to live there along with her husband, the parents did not allow her to enter the house. So, she was compelled to return and she filed Exts.A4(a) complaint before the Vanitha Cell. So, this will go to show that the obtaining of Ext.B1 order is without any bona fides and it is with an intention to avoid payment of maintenance to the respondents that such an application has been filed and from the evidence that appears to be probable as well. So, merely because the revision petitioner obtained an order for restitution of conjugal rights that alone is not sufficient to deny maintenance to the respondents considering the facts of this case that it has been brought out in evidence that though first respondent went there to live along with the revision petitioner that was not permitted. So, she will have to go back. The documents produced probablise that case as well. So, under the circumstances, court below was perfectly justified in coming to the conclusion that merely because he obtained an order for restitution of conjugal rights on the basis of the evidence adduced is not a ground to deny the maintenance to the first petitioner as she was justified from living separately from the revision petitioner.
10. It is an admitted fact that that revision petitioner is working as a clerk and getting Rs.15,000/- per month. Though first respondent is doing her M.S.C.Course, there is no evidence to show that she obtained any employment or getting any income. So, under the circumstances, the revision petitioner is liable to pay maintenance to the first respondent. Further, it was brought out in evidence and admitted by RW1 that huge amount is required for treatment of the second respondent as she is undergoing treatment in Coimbatore eye hospital and frequent visits will have to be made for which huge amount is required. So, under the circumstances, the amount of Rs.2,500/- fixed by the court below for maintenance to the first respondent and Rs.5,000/- to the second respondent cannot be said to be excessive under the circumstances which requires any interference in the hands of this court. The revision lacks bona fides and the same is liable to be dismissed.
In the result, the revision petition is dismissed.
Communicate this order to the court below immediately.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge