Suresh Babu vs Nithya

The revision petitioner is the respondent in M.C. No. 150/2013 on the files of the Family Court, Ottappalam. The above M.C. was filed under Sec. 125(1) of the Code of Criminal Procedure by the respondents, who are the wife and son of the revision petitioner, claiming maintenance allowance from the revision petitioner.

According to the 1st respondent, she is the legally wedded wife of the revision petitioner and the 2nd respondent is the son born in that wedlock. She has no job or income and she is unable to maintain herself and the 2nd respondent. It is alleged that the revision petitioner has neglected to pay maintenance allowance since the last 2= years, though he has sufficient income. The revision petitioner is working as a sales man in Devaki Medicals, Mannarkkad, and getting Rs. 10,000/- as monthly salary. In addition to that he has also got landed property and getting Rs. 1,00,000/- per year as income. Thus, the respondents claim Rs. 2,000/- each as maintenance allowance from the revision petitioner.

The revision petitioner filed a counter affidavit admitting the status of the 1st respondent as wife and the 2nd respondent as his son, but denied all other allegations levelled against him. According to him, he is only a helper in the medical shop referred above and he is getting only Rs. 100/- to Rs. 150/- per day, that too was not getting regularly. He has no landed property as stated by the respondents. Moreover, according to him the 1st respondent is working as a sales girl in Mullas Wedding Centre, Mannarkkad, and getting Rs. 6,000/- per month. Thus, according to him the 1st respondent is not entitled to get maintenance allowance from the revision petitioner.

After considering the rival contentions, the court below directed the revision petitioner to pay maintenance allowance at the rate of Rs. 1,500/- each to respondents 1 and 2. The legality and propriety of this Order is under challenge in this revision petition.

The learned counsel for the revision petitioner advanced arguments challenging the entitlement of maintenance as well as the quantum of maintenance allowance determined by the court below. The court below ought to have found that the 1st respondent was capable enough to maintain herself. According to the learned counsel for the revision petitioner the quantum of maintenance determined by the court below is excessive and disproportionate with the income of the revision petitioner.

In view of the contentions raised at the Bar, the question that arises for consideration is whether the court below can be justified in directing the revision petitioner to pay maintenance allowance at the rate of Rs. 1,500/- each to respondents 1 and 2.

The marriage with the 1st respondent and the paternity of the 2nd respondent is admitted by the revision petitioner. It is also admitted that he is working in the medical shop referred to by the 1st respondent. But, according to him he is a Helper in that medical shop and getting Rs. 100/- to Rs. 150/- per day and that too was not getting regularly. Since the employment in the medical shop is admitted, the burden is on him to prove that he is only getting the amount claimed by him. In the absence of sufficient evidence to substantiate his contention an adverse inference can be drawn with regard to his salary. That apart, I am unable to take a view that an employee in a medical shop having 10 years of experience is getting only Rs. 100/- to Rs. 150/- per day. Though the revision petitioner had contended that the 1st respondent is working in a textile shop, no evidence had been adduced to substantiate the said contention. In the above circumstances I cannot find fault with the court below in arriving at such a finding that the respondents are entitled to get maintenance allowance from the revision petitioner.

Coming to the quantum of maintenance allowance as I have already held that it cannot be believed that the petitioner is getting only Rs. 100/- to Rs. 150/- per day, the petitioner has no case that he is unhealthy or physically incapacitated to do work. Having regard to the cost of living, educational expenses of the 2nd respondent and the income of the revision petitioner, I am of the opinion that the quantum of maintenance allowance determined at Rs. 1,500/- per month is just and reasonable. I do not find any reason to interfere with the determination of the quantum of maintenance allowance.

The learned counsel for the revision petitioner urged for some time to pay the arrear by way of instalment.

Having regard to the facts and circumstances of the case, the petitioner is given six moths'' time to pay the entire arrear, provided that half of the arrear shall be paid within three months and the remaining half shall be paid within the next three months. In case of default in effecting the 1st instalment within the specified time, this instalment facility will stand cancelled and the court below is at liberty to realise the entire arrear in lump sum.

This Revision Petition is disposed of accordingly.