Jishar Pilathottathil vs Ummu Habeeba Vellathodi

K. Harilal, J.—The revision petitioner is the respondent in M.C. No. 330 of 2013 on the files of the Family Court, Tirur. He is the husband of the 1st respondent as well as the father of the 2nd respondent herein. The respondents filed the above M.C. under Sec. 125 of the Code of Criminal Procedure seeking maintenance for them from the revision petitioner on the allegation that the revision petitioner has been neglecting to pay monthly maintenance allowance to the respondents from 15-06-2011 onwards. According to them, the revision petitioner has not paid any amount after 15-06-2011. The 1st respondent has no job or income and she is unable to maintain herself and the 2nd respondent. Now, the respondents are depending upon the income of the 1st respondent''s parents for their livelihood.

The revision petitioner entered appearance and contending that he is employed in a small footwear shop at Bangalore and getting a monthly salary of 4,500/-. He has admitted the marriage with the 1st respondent and the paternity of the 2nd respondent. According to him, he has to look after his father and mother. So, he is unable to pay maintenance allowance as claimed by the respondents.

The 1st respondent was examined as PW1 and the revision petitioner was examined as RW1. After considering the evidence on record, the court below directed the revision petitioner to pay maintenance allowance @ 3,000/- to the 1st respondent and 2,000/- to the 2nd respondent from the date of petition. This order is under challenge in this revision petition.

The learned counsel for the revision petitioner submits that the court below failed to appreciate evidence on record in its correct perspective. The court below ought not have granted maintenance allowance based on the uncorroborated and highly interested testimony of the 1st respondent. The court below ought to have found that the revision petitioner is getting 4,500/- per month as a salesman in a small footwear shop at Bangalore. The quantum of maintenance allowance awarded by the court below is highly excessive considering the income of the revision petitioner.

Per contra, the learned counsel for the respondents advanced arguments to justify the determination of maintenance allowance by the court below. According to them, the amount determined by the court below is just and proper. There is no reason to interfere with the above finding.

In view of the rival submissions at the Bar, the short question that arises for consideration is, whether the court below can be justified in fixing the quantum of maintenance allowance to the respondents?

The marriage with the 1st respondent and the paternity of the 2nd respondent is admitted. The only contention is that, he is employed in a small footwear shop at Bangalore and getting a monthly salary of 4,500/-. He has no case that the 1st respondent is able enough to maintain herself and the 2nd respondent. As rightly noted by the court below, the revision petitioner is a healthy man and he has no case that he is physically incapacitated to do work. An able bodied healthy man is presumed to be having sufficient earning capacity to maintain his wife and child. The revision petitioner has no case that the 1st respondent has got any job or income from any source. Thus, the sole contention raised by the revision petitioner is that, he is getting 4,500/- per month only. I am unable to accept the said contention, particularly, when it is a matter of common knowledge that, now a days, even a manual labourer is getting 500/- per day. The revision petitioner has no case that he has been providing maintenance allowance to the respondents. If that be so, I hold that the revision petitioner is liable to pay maintenance allowance to his wife and only child.

Having regard to his own admission that he is employed in a shop at Bangalore, I cannot find fault with the court below for directing the revision petitioner to pay maintenance allowance @ 3,000/- to the 1st respondent and 2,000/- to the 2nd respondent. Considering the admitted income of the revision petitioner and the day to day living costs of the respondents, the amount fixed by the court below is just and proper and there is no reason to interfere with the amount fixed by the court below.

Consequently, the revision petition is devoid of merits and dismissed accordingly.