Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE24H DAY OF JANUARY20144TH MAGHA, 1935 RPFC.No. 141 of 2013 () ------------------------ (ORDER
IN MC2072012 OF FAMILY COURT, KOZHIKODE DATED1602-2013) REVISION PETITIONER/RESPONDENT: ------------------------------ GANESHAN A S/O.BALAN, ATHULYA NIVAS, KIZHAKKEKKARA MAYANADU POST, KOZHIKODE-673 008. BY ADV. SRI.JACOB ABRAHAM RESPONDENTS: ------------ 1. MINI K D/O.SUNDARAN, KOYAMBRATH HOUSE, POST KOTTOOLI KUTHIRAVATTOM, KOZHIKODE-673 016.
2. ATHULYA .A, AGED14YEARS D/O.GANAESAHN.A., KOYAMBRATH HOUSE, POST KOTTOOLI KUTHIRAVATTOM, KOZHIKODE-673 016.
3. ANJALI.A., AGED8YEARS D/O.GANAESAHN.A., KOYAMBRATH HOUSE, POST KOTTOOLI KUTHIRAVATTOM, KOZHIKODE-673 016 . (RESPONDENT2AND3ARE MINORS AND ARE REPRESENTED BY THEIR MOTHER THE1T RESPONDENT) THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON2401-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SCL. K.HARILAL, J.
= = = = = = = = = = = R.P.(F.C) No.141 of 2013 = = = = = = = = = = = = = = = Dated this the 24th day of January, 2014 ORDER
The revision petitioner is the respondent in M.C.No.207 of 2012 on the files of the Family Court, Kozhikode. He is the divorced husband of the 1st respondent and father of the respondents 2 and 3. The above M.C was filed under Sec.125 of the Code of Criminal Procedure seeking maintenance allowance. According to the respondents, the 1st respondent has no job or income and the respondents 2 and 3 are minor children, aged 14 and 8 years respectively. The 1st respondent is unable to maintain herself and the children. Per contra, the revision petitioner is a skilled carpenter earning 30,000/- per month. He has landed property of 4 cents with a house building. But, he has been neglecting to pay maintenance allowance to the respondents from 31/08/2010 onwards. They claimed maintenance allowance @ 5,000/- each per R.P.(F.C) No.141 of 2013 2 month from the revision petitioner. But, the Family Court directed the revision petitioner to pay maintenance allowance @ 2,000/- to the 1st respondent and 2,500/- each to the respondents 2 and 3. This order is under challenge in this revision petition.
2. The revision petitioner filed a counter statement admitting the marriage and subsequent divorce and also the paternity of the children. But, he denied the allegation that he has been neglecting to pay maintenance allowance to the respondents 2 and 3. So also, he emphatically denied the case of the 1st respondent that he is a skilled carpenter getting 30,000/- per month. According to him, the 1st respondent is employed in a Auto Consultancy by name `Dinesh Auto Consultancy'. That apart, he contended that the 1st respondent is living in adultery and thereby she is not entitled to get maintenance allowance from the revision petitioner.
3. In view of the rival contentions, the short question R.P.(F.C) No.141 of 2013 3 that arises for consideration is, whether the Family Court can be justified in directing the revision petitioner to pay maintenance allowance to the respondent Nos.1 to 3 at the rate as ordered above 4. Going by the impugned order, it is seen that the marriage and subsequent divorce stand admitted. The revision petitioner had filed O.P.No.260 of 2011 seeking dissolution of marriage and the same was allowed with effect from 18/10/2011 as per Ext.B2 order. The settled legal position under Sec.125 is that a divorced wife is also entitled to get maintenance allowance from the former husband if she is unable to maintain herself and has not married again. Per contra, it is contended that the 1st respondent is leading a adulterous life. This allegation was considered in detail by the court below. To substantiate the above contention, the revision petitioner had produced Ext.B3 enquiry report said to have been prepared by a private detective agency and RW2 was also R.P.(F.C) No.141 of 2013 4 examined to that effect. It is seen that the Family Court has interpreted the expression `living in adultery' in its correct perspective and found that the husband will have to prove a continuous course of adulterous life of wife to deny the grant of maintenance to her. But, the revision petitioner failed to prove the said contention. Though he had produced Ext.B3 enquiry report handed over to him by a private detective agency, the court below found that the same is not admissible in evidence. I also concur with the said findings. Similarly, he had examined RW2 to prove that the 1st respondent is employed in Dinesh Auto Consultancy. But, the Family Court found that the evidence of RW2 is not sufficient to arrive at a finding that she is employed in Dinesh Auto Consultancy. Thus, the evidence adduced by the revision petitioner to substantiate his contentions were found unacceptable to the court below. I do not find any kind of illegality or impropriety in the said findings and there is no perversity in the appreciation of R.P.(F.C) No.141 of 2013 5 evidence from which those findings have arrived at. Consequently, I concur with the findings that the revision petitioner is liable to pay maintenance allowance to the respondents 1 to 3.
5. The next question that survives for consideration is, is the quantum of maintenance determined by the court below proper and justifiable 6. It has come out in evidence that the revision petitioner was working as a carpenter, though the 1st respondent contended that the revision petitioner is getting 30,000/- per month, there is no evidence to prove the said amount. But, at the same time, the revision petitioner himself admitted that he is a carpenter. It is also admitted that, earlier, he had a Omni Maruti Van for his business purpose in connection with the carpentry work. But, he has not disclosed his actual monthly income from the profession. The actual income is a fact exclusively within the knowledge of the person who gets it. Therefore, it is for R.P.(F.C) No.141 of 2013 6 the revision petitioner to prove that he is getting such an amount only. When he has admitted the fact that he is a carpenter, in the absence of evidence from his part to show the exact income, an adverse inference can be drawn against him to the effect that he is getting income as alleged by the respondent. It is a matter of common knowledge that a carpenter is getting income of 500/- to 700/- per day. Though there is no evidence to show that he is getting 30,000/- per month, he may get an average amount of 15 to 25 thousand per month. If that be so, I find that considering the standard of life and living cost of the respondents, the direction to pay 2,000/- to the 1st respondent and 2,500/- each to the respondents 2 and 3 is just and proper and the determination of the quantum of maintenance does not call for any interference under revisional jurisdiction.
7. The learned counsel for the revision petitioner submits that he is unable to raise the entire arrear in lump R.P.(F.C) No.141 of 2013 7 sum and he is suffering from financial crisis. The learned counsel sought for some time to pay the arrear in instalments. Having regard to the submission at the Bar, the revision petitioner is given four months time to pay the arrear. Provided that, half of the entire arrear shall be paid within two months and the balance amount shall be paid within the next two months. In the event of failure to pay the first instalment within the specified time, this instalment facility will stand automatically vacated and the Family Court will be free to enforce realisation of the entire arrear in lump sum. The revision petition is disposed of accordingly. K.HARILAL, JUDGE. Stu //True copy// P.A to Judge