Anil Devasia vs Nishida K.

P. Ubaid, J.—The revision petitioner is aggrieved by an order for maintenance, obtained by his wife and the minor children under Section 125 of the Code of Criminal Procedure. He married the first respondent herein in 2004, and she has been residing separately since November 2012. The three children born in the wedlock were in the actual custody of the mother when claim for maintenance was filed under Section 125 of the Code of Criminal Procedure. Alleging cruelty and desertion, the wife brought M.C. No. 67/2013 in the Family Court, Kasaragod.

The husband (revision petitioner) entered appearance in the trial court, and resisted the claim on the contention that the wife has no reason to live separately, and that he has never neglected to maintain his wife and children.

The trial court conducted enquiry in the proceedings and recorded evidence. The wife examined herself as PW1 and the husband himself as RW1. Exts. B1 and B2 series were marked from the side of the husband.

On an appreciation of the evidence, the trial court found that the wife has reason to live separately. Accordingly, he was directed to pay to the wife at the rate of 2,000/- per month, to two children at the rate of 1,500/- each per month, and to the third child at the rate of 1,000/- per month. The said order is under challenge in this revision brought under Section 19(4) of the Family Courts Act.

Pending the proceedings it was submitted from the part of the revision petitioner that the three children are in fact in his custody. Of course as directed by the court, the children were produced by him in Court, and he maintained a defence that they are in his actual custody, and that the order in their favour will have to be cancelled. Of course if he is definite that the children are in his actual custody, he can very well approach the trial court itself for appropriate modifications or cancellation under Section 127 of the Code of Criminal Procedure. Till decision is taken by the trial court under Section 127 of the Code of Criminal Procedure, the revision petitioner will have to pay maintenance to the children also, as ordered by the trial court. The trial court may not be carried away by the fact that the children were produced here by the revision petitioner. The trial court will have to conduct an independent enquiry to find who has actual custody, and decide whether the order in favour of the children requires modification or cancellation.

On hearing both sides on admission, I find no reason or ground to admit the revision to files. I find that with slight some modification in the amount of maintenance, this revision can be disposed of.

The first respondent has given evidence substantiating her claim, and also proving the reason for refusal to join her husband in matrimony. I find that she is a lady having grievance against her husband, and I find that she is in fact a neglected lady, who finds it not safe to join her husband in matrimony due to apprehended acts of cruelty. I find that she is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure.

Now the question is whether the quantum of maintenance requires interference. The question of quantum was discussed in the presence of both the parties. They appeared in Court as directed by the Court for ascertaining the possibility of any form of settlement. Finding that a re-union is not possible this Court heard both sides as regards the quantum of maintenance

On hearing both sides, I feel the necessity of some slight modification in the amount granted to the second and third respondents. They were aged 8 and 6 years respectively, on the date of claim. On a consideration of all the relevant aspects, including so many payments made by the revision petitioner pending the proceedings and even before that by way of educational expenses, I feel that 1,000/- each per month will do justice to the children.

In the result, this revision petition is disposed of as follows, without being admitted to files.

a) The maintenance awarded to the 1st respondent by the trial court is confirmed.

b) The maintenance awarded by the trial court to the respondents 2 and 3 will stand modified to the effect that the maintenance payable to them by the revision petitioner shall be 1,000/- each per month.

c) The maintenance order in favour of the third child stands not modified.

d) The revision petitioner will make payment of the entire arrear at the modified rate in the trial court within one month from this date, on failure of which steps including coercive steps in execution shall be taken by the trial court. In case it is found later by the trial court in appropriate proceedings brought by the revision petitioner that the order in favour of the respondents 2 to 4 is liable to be cancelled or otherwise modified, the amount already paid by the revision petitioner can be adjusted towards the maintenance amount due to the wife.