Ramesan vs Abitha

K. Ramakrishnan, J.—This Criminal Miscellaneous Case was filed by the petitioner, who is the respondent before the Family Court, Irinjalakuda, challenging the interim order of maintenance passed in M.P. No. 137/2013 in M.C. No. 56/2013 on the file of that Court under Section 482 of the Code of Criminal Procedure.

It is alleged in the petition that petitioner herein is the husband of the first respondent and father of other respondents. The first respondent filed before the Family Court, Irinjalakuda seeking maintenance for herself and for and on behalf of her children at the rate of Rs. 5,000/- each. It is also alleged in the petition that the petitioners in the lower court claimed that the respondent therein is working as an advocate clerk and also doing other business and getting not less than Rs. 50,000/- per month and the respondent in the lower court is not having any income to maintain herself and she has been neglected by the counter petitioner in the lower court, she filed the above application for maintenance from the petitioner herein. She also filed M.P. No. 137/2013 claiming interim maintenance at the same rate claimed in the original petition for maintenance. The respondent in the lower court appeared and filed an objection stating that he is not an advocate clerk, but a coolie by profession and he is suffering from some illness and on account of the illness, he is unable to do any work. He had further contended that he is having only less income with that he will have to meet his medical expenses as well and offers to pay maintenance at the rate of Rs. 2,000/- per month. He had also produced certain documents to show his illness. The learned Family Court Judge after considering the contentions of both the parties, passed an impugned order fixing interim monthly maintenance at the rate of Rs. 5,000/- per month to the petitioners in the lower court jointly. This order is being challenged by the petitioner herein by filing this petition before this Court.

Respondents 2 and 3 are children of the first respondent and service on first respondent will be sufficient for and on behalf of respondents 2 and 3 as well as she represents them in the lower court also. So it can be treated as service complete.

Heard the learned counsel for the petitioner and the respondents.

The counsel for the petitioner submitted that the claim of the petitioner in the lower court was that he is an advocate clerk and also doing some other real estate business and getting an income of not less than Rs. 50,000/- per month and he is capable of paying maintenance at the rate of Rs. 15,000/- to the respondents herein. The lower court has not considered the documents produced by him that he is suffering from illness and he had undergone a surgery and he is not an advocate clerk and not having any other income and further the petitioners in the lower court are residing in the house belonging to the respondent therein and on account of the conduct of the first respondent herein, he had to go out of the house and live in a rented house. So with the meager income, he will not able to pay the maintenance at the rate claimed by the petitioners in the lower court. However with all these difficulties, according to the counsel for the petitioner, understanding his responsibility, he is offering Rs. 2,000/- as interim maintenance.

The counsel for the respondents submitted that illness said to have been suffered by him is not having any permanent disability disabling him from doing any work. Further, there is no case for the petitioner herein that the first respondent is having any income to maintain herself and no document has been produced to prove this fact as well. Considering the living condition, the amount awarded by the court below is reasonable and no interference is called for at the hands of this Court.

It is an admitted fact that the petitioner married the first respondent herein and in that wedlock respondents 2 and 3 were born to them and they are now residing separately and the children are now with the first respondent. It is true that though the first respondent in her maintenance petition field before the court below claimed that the petitioner herein is an advocate clerk and also having other business and getting monthly income at Rs. 50,000/- per month, no acceptable document has been produced before the court below to prove that fact. Similarly though the petitioner has also a case that the first respondent is having some income and getting income from the property also, there is no evidence forthcoming on that aspect as well. Merely because she is residing in the house belonging to the petitioner alone is not sufficient to deny her maintenance as mere residence alone will not be sufficient as maintenance includes food, clothing and residence. Further the status of the parties and also the manner in which they lived when they living together are also matters to be considered while the court fixing the quantum of maintenance payable. But, at the same time, while considering the interim maintenance payable, the court should also be very careful while fixing the quantum of maintenance as it must be within the capacity of the petitioner to pay as well. So considering the circumstances, this Court feels that Rs. 5,000/- maintenance awarded by the court below appears on the higher side and same can be reduced to Rs. 3,500/- which the petitioner herein has to pay from the date of the order of the court below. Two months time is granted to the petitioner to deposit the arrears of maintenance at the rate fixed by this Court and he is bound to pay the same every month to the respondents during the pendency of the proceedings and that will meet the ends of justice as far as both the parties are concerned. So the interim order of maintenance passed by the court below at the rate of Rs. 5,000/- per month is set aside and the same is reduced to Rs. 3,500/- per month which he has to pay from the date of order of the court below. The petitioner is also directed to pay the arrears of maintenance to the respondents herein within two months from today and he is directed to continue to pay the interim maintenance at the rate fixed by this Court to the respondents till the disposal of the case by the court below. Further, considering the fact that the case is of the year, 2013 and the first respondent had to live with the two minor children, this Court feels that a direction can be given to the Family Court, Irinjalakuda to expedite the disposal of the case itself as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this order. Out of the arrears, the petitioner is directed to deposit 50% of the arrears within one month from today and the balance 50% within another one month. The 1st respondent is permitted to withdraw the amount as well. The fact that interim maintenance amount has been reduced to Rs. 3,500/- will not stand in the way of Family Court, Irinjalakuda fixing appropriate quantum of maintenance on the basis of evidence available before that court while disposing the main case.

With the above modifications and observations, this petition is disposed of.

Communicate this order to the court below at the earliest.