Sivan vs Krishnakumari, Neha and Sneha

K. Harilal, J.—The Revision Petitioner is the counter petitioner in Maintenance Case No. 166/2009 on the files of Family Court, Palakkad. The above maintenance case was filed by the respondents herein u/s 125 of Cr.P.C. seeking maintenance allowance from the Revision Petitioner. The respondents are wife and children of the Revision Petitioner. The 2nd respondent was aged 3= years and the 3rd respondent was aged 2= years old. The 1st respondent claimed Rs. 2,000/- per month and the 2nd and 3rd respondents claimed Rs. 1,500/- each towards their maintenance, from the Revision Petitioner. The Family Court passed the impugned order directing the Revision Petitioner to pay Rs. 1,500/- to the 1st respondent and Rs. 1,000/- each to the 2nd and 3rd respondents. This order is under challenge in this Revision Petition. The respondents'' case is that the 1st respondent is the wife of the Revision Petitioner and the 2nd and 3rd respondents are the two children born out of that wedlock. Their marriage was on 29.08.2004. At the time of the marriage, 1st respondent was given 10 sovereigns of gold ornaments and Rs. 15,000/- as gift. The Revision Petitioner demanded 30 sovereigns of gold ornaments more and tortured her both physically and mentally in connection with the said demand. However, they lived together up to September, 2008 and in the meantime, the 2nd and 3rd respondents were born. Thereafter, the Revision Petitioner never looked after the respondents providing any maintenance to them. He ordered the 1st respondent to take the children to orphanage. According to the respondents, the Revision Petitioner is working as a driver in ABT Parcel Company and he is getting a monthly income of Rs. 16,000/-. Per contra, the respondents are unable to maintain themselves. The 1st respondent has no job or income.

The Revision Petitioner entered appearance and filed a counter statement, admitting marriage and paternity of the children. But he denied all other allegations regarding the cruelty and ill-treatment. The occupation and income of the Revision Petitioner was also denied. According to him, amount claimed is highly excessive. He is not getting more than Rs. 3,000/- per month. According to him, the 1st respondent has some deformity to one hand and she is getting pension for physically handicapped persons. The 1st respondent was examined as PW1 and Exts. D1 to D3 were marked.

The 1st question to be considered is that whether there are reasonable grounds to live separately and claim maintenance from the Revision Petitioner. After re-appreciating the oral as well as the documentary evidence, the court below found that there are sufficient reasons to live separately and claim maintenance. The court below rightly found that the living of the Revision Petitioner with another women is also a just ground for the respondents to live separately and claim maintenance.

There is no illegality or impropriety in the said findings which has also come out in evidence that the Revision Petitioner himself filed an O.P. seeking divorce. That itself is a sufficient material to prove that he is reluctant in living along with his wife.

Coming to quantum of maintenance, the Revision Petitioner claims that he is working in ABT Parcel Company and his monthly income is only Rs. 3,000/-. He contented that he sustained injury out of an accident and hence he is unable to drive for a long time and that affects his earning capacity. But after considering Ext. D1, the court below found that there is nothing to prove his permanent disability which is said to have been occurred out of the accident and which affected his earning capacity. He is an able-bodied man and he can earn as driver. So, it can reasonably be found that he is having an average monthly income of Rs. 10,000/- per month.

At the time of taking evidence, the 2nd respondent was studying in 1st standard and 3rd respondent was studying in LKG and both of them are studying in English medium school. The court below found that the 1st respondent is receiving Rs. 600/- per month as disability pension. After taking into account the said income also, the court below granted Rs. 1,500/- to the 1st respondent and Rs. 1,000/- each to the 2nd and 3rd respondents. Considering the income of the Revision Petitioner and the status and living expenses of the respondents herein, I am of the opinion that the quantum of maintenance allowance ordered to be paid is just and proper. There is no illegality or impropriety in the impugned judgment under challenge. The learned counsel for the Revision Petitioner submits that warrant is pending against the Revision Petitioner in execution of the impugned order under challenge. The counsel further submits that he is willing to pay the entire arrears. But he is unable to raise the fund forthwith. The learned counsel seeks permission to deposit the amount in instalments. Having regard to the facts and circumstances of the case, the Revision Petitioner is allowed to deposit half of the entire arrears within two weeks from today and the balance will be deposited within one month from the date of deposit of the first installment as ordered above. The warrant shall be kept in abeyance for a period of two weeks and if the Revision Petitioner deposits half of the amount within two weeks as ordered above, the warrant will be kept in abeyance for a further period of one month from the date of deposit. If the Revision Petitioner makes default in remitting half of the arrear amount within two weeks as ordered above, this order will stand automatically vacated and the respondents will be at liberty to proceed for execution of the order under challenge in this Revision Petition.

This RPFC is dismissed accordingly.