Abdul Samad vs Sulaikha

K. Harilal, J.—The revision petitioner is the respondent in M.C. No. 215/10 on the files of the Family Court, Malappuram. He is the husband of the 1st respondent as well as the father of the respondents 2 to 4. The above petition was filed by the respondents herein under Section 125(1) of the Cr.P.C., seeking maintenance claim from the revision petitioner. According to the respondents, the 1st respondent is the legally wedded wife of the revision petitioner and the respondents 2 to 4 are the children born in that wedlock. They are legally entitled to get maintenance allowance from the revision petitioner under Section 125(1) of the Cr.P.C. But, he has been neglecting to maintain them and refusing to pay maintenance allowance to them from 25-1-2009 onwards. The 1st respondent has no job or any source of income to eke out livelihood for them. Now, they are depending upon the parents of the 1st respondent; whereas the revision petitioner is a trader in dress materials and carpets, engaged in importing them from Mumbai, Bangalore, etc and he is having an income of Rs. 20,000/- per month. In addition to that, he has landed property worth Rs. 10 lakhs and bank balance also. The respondents claimed maintenance allowance @ Rs. 5,000/-, Rs. 3,000/, Rs. 3,000/- and Rs. 2,000/- respectively per month.

The revision petitioner filed a counter affidavit admitting the marital status of the 1st respondent as his legally wedded wife and the paternity of the respondents 2 to 4 as the children born in that wedlock. But, he denied all other averments in the petition. He has no case that the respondents have any source of income or that they are not capable of maintaining themselves. According to him, he is not a trader in textiles or carpets as alleged by the respondents. So also, he does not have landed property worth Rs. 10 lakhs. He is an ordinary coolie worker and he is suffering from ailments also. But, he, at the same time, expressed his willingness to look after the respondents.

After considering the rival contentions, the court below directed the revision petitioner to pay maintenance allowance @ Rs. 2,000/- to the 1st respondent, Rs. 1,000/- to the 2nd respondent, Rs. 700/- to the 3rd respondent and Rs. 500/- to the 4th respondent per month from the date of filing the above M.C. The legality and propriety of the said direction are under challenge in this Revision Petition.

In this memorandum of Revision Petition, the revision petitioner contended, that though he expressed his willingness to look after the respondents in accordance with his ability, the court below went wrong by directing him to pay maintenance allowance at the rates as referred above. The court below has failed to consider his physical incapacity, as evidenced by Ext. D1, to do work so as to earn livelihood for his family. It is also contended that the quantum of maintenance allowance fixed by the court below is disproportionate with his income and the cost of living of the respondents.

Per contra, the respondents contended that the court below rightly appreciated the evidence on record and directed the revision petitioner to pay maintenance allowance. According to the respondents, in the absence of any document to show his physical disability or incapacity to do work so as to earn livelihood, the court below can be justified in directing the revision petitioner to pay maintenance allowance to the respondents at the rates referred above.

The question to be considered is, whether the court below can be justified in determining the maintenance allowance at the rates referred above?

The marital status of the 1st respondent and the paternity of the respondents 2 to 4 are not disputed. It is also pertinent to note that the revision petitioner himself expressed his willingness to give maintenance allowance according to his ability. But, at the same time, he contended that he is suffering from various ailments. This shows that he is not willing to give maintenance allowance in accordance with the needs of the respondents. Though the revision petitioner contended that the 1st respondent has deserted him along with the children and thereby she is not entitled to get any amount towards maintenance, no evidence had been adduced to substantiate the said contention except his oral testimony. He has no case that he has paid maintenance allowance after 25-1-2009 So also, no evidence has been adduced to show that he has made any effort to resume the company of his wife and children. Therefore, I cannot find fault with the court below in arriving at a finding that the respondents are entitled to get maintenance allowance from the revision petitioner.

Coming to the quantum of the maintenance allowance, it is the case of the respondents that the revision petitioner is a trader of dress materials, carpets etc. But, in cross-examination, he has at last admitted that he used to trade carpets at Bangalore. Though he contended that he is physically disabled to do work, after considering Ext. D1, the court below observed that Ex. D1 CT Scan report does not indicate anything on his earning capacity and there is nothing to suggest that he is sickly and he cannot continue the admitted profession of trading carpets. As rightly held by the court below, even assuming that he is an ordinary coolie, he may get at least Rs. 500/- per day. He has no liability other than to look after his wife and three minor children. The respondents 2 to 4 are aged 12, 8 and 5 and they are school going children. A substantial amount is required to meet their educational expenses. During cross-examination, the revision petitioner himself admitted that he is able to look after his wife and children. If that be so, I find that the court below can be justified in fixing the quantum of maintenance allowance at the rate of Rs. 2,000/- to the 1st respondent, Rs. 1,000/- to the 2nd respondent, Rs. 700/- to the 3rd respondent and Rs. 500/- to the 4th respondent. There is no reason to interfere with the impugned order under challenge.

Consequently, this Revision Petition is dismissed.