Nidheesh Kumar vs Sobhana

Basant Balaji, J

The revision is filed against the order dated 25.8.2016 in M.C.No.251 of 2014 on the files of the Family Court, Palakkad, whereby the Family court had awarded monthly maintenance at the rate of Rs.3,000/- to first petitioner and Rs.2,000/- to the 2nd petitioner from the date of petition.

The averments in the maintenance case in brief is as follows:

The first petitioner is the wife of the respondent and the 2nd petitioner is the minor daughter. The respondent married the first petitioner on 10.2.2008. At the time of marriage, the first petitioner has received 28 sovereigns of gold ornaments and Rs.50,000/- as gift from her parents. A gold chain weighing one sovereign and a gold coin weighing one sovereign were also gifted to the respondent/husband at the time of the first Vishu by her parents. On the birth of the child, the father of the first petitioner had given 2 sovereigns of gold ornaments to the 2nd petitioner and Rs.20,000/- to the father of respondent/husband. The wife further alleges that the mother of the respondent had obtained the entire gold ornaments including the Thali chain. On 6.9.2014, the respondent came by consuming alcohol and beat the first petitioner as well as the child. The neighbours interfered and the first petitioner was taken by her parents. The respondent is an autorikshaw driver and getting Rs.1,000/-per day. Hence she claimed Rs,7,000/- per month to her and Rs,5,000/- to the 2nd petitioner.

The respondent filed a counter admitting the marriage and paternity of 2nd petitioner. He denied the entrustment of gold ornaments to the 1st petitioner at the time of marriage and also the gold chain as well as the gold coin gifted to him on the first Vishu. He denied the ill treatment to the 1st petitioner. He also further denied that his mother had obtained the entire gold ornaments of the first petitioner. The respondent denied the fact that he is earning Rs.1,000/- per day. He further alleges that the first petitioner left his company without any sufficient reason and hence, she is not entitled to get maintenance from him.

The court below on going through the oral evidence of PW1, CPW1 and CPW2, came to the definite finding that the petitioners are unable to maintain themselves and that the respondent is earning income from the auto-rikshaw and so, he is liable to maintain the petitioners. The Family Court on a consideration on the status of the parties, directed the respondent to give Rs.3,000/- per month to the first petitioner and Rs.2,000/- per month to the 2nd petitioner from the date of petition. Aggrieved by the said order, this revision is filed by the respondent/husband.

Heard the learned counsel for the revision petitioner Adv.Shri P K Mohanan and the learned counsel for the respondents Adv.Shri.Johnson Varikkappallil.

The main contention put forward by the learned counsel for the revision petitioner is that the court below had committed an error that he has admitted in his counter that he is getting Rs.600/- per day and that while he was examined as CPW1 he has deposed that he is getting Rs.500/- per day. In fact, the counsel argued that what he stated in the counter is that during peak seasons, he used to get Rs.600/-, but for the rest of the days it is less the said amount. So, the contention of the counsel for the petitioner is that the court below erred in fixing the amount as Rs.300/- per day and granting maintenance at the rate Rs.3,000/- per month to the first respondent and Rs.2,000/-per month to the second respondent.

The counsel for the respondents, on the other hand, submitted that the petitioner has admitted in his deposition that he is getting Rs.500/- per day and Rs.200/- is given to the owner of the auto-rikshaw and so, he is earning at least Rs.300/- per day and hence, he is in a position to pay Rs.3,000/- per month to the first respondent and Rs.2,000/-to the second respondent.

I have heard the contentions of the counsel on both sides. The revision petitioner has admitted in his counter that he gets Rs.600/- per day during peak seasons. But during examination, he admitted that normally he is getting Rs.500/- per day. It is true that he has deposed that Rs.200/- has to be paid to the owner of the auto-rikshaw. It has to be borne in mind that a wife, along with a minor child, is claiming maintenance from the husband and the father after living separately for sufficient reasons. The petitioner does not have a case that he is not an able bodied and that he has some physical infirmity in earning income. His only contention is regarding the quantum of earning. The Family Court, on the basis of the evidence adduced, came to the conclusion that at least Rs.300/- per day is the income from the auto-rikshaw and so, maintenance was awarded at the Rs.3,000/- and Rs.2,000/- to the respondents. I find no informity in the order passed by the Family Court, sitting in this revisional jurisdiction as there is no illegality and impropriety in the order passed by the Family Court. Hence, this Revision Petition fails and accordingly, the same is dismissed.