Kerala High Court
Revision vs By Advs.Sri.R.S.Kalkura on 31 May, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
TUESDAY, THE 20TH DAY OF MARCH 2018 / 29TH PHALGUNA, 1939
RPFC.No. 365 of 2007
AGAINST THE ORDER IN MC 240/2000 of FAMILY COURT,TRIVANDRUM DATED
31-05-2007
REVISION PETITIONER(S)
ANILKUMAR,S/O.GOPALAN NAIR,
KOVILVILAKOM VEEDU,MANNAMOOLA,PERURKADA VILLAGE,,
TRIVANDRUM.
BY ADVS.SRI.R.S.KALKURA
SRI.M.AJAY (IRUMPANAM)
SRI.HARISH GOPINATH
SRI.G.HARIKRISHNAN (TRIPUNITHURA)
SRI.M.S.KALESH
SRI.V.VINAY MENON
RESPONDENT(S):
1. L.RENU,W/O.ANILKUMAR,THAMALATHUPUTHEN
VEEDU,THIRUMALA P.O,PANGODE,THIRUVANANTHAPURAM.
2. ARATHY,D/O.ANILKUMAR (MINOR),
S/O.SETHUKUTTAN,RESIDING AT THAMALATHUPUTHEN,
VEEDU,THIRUMALA P.O,PANGODE,THIRUVANANTHAPURAM.
R1 & 2 BY ADV. SRI.MANU V.
R1 & 2 BY ADV. SRI.RAM MOHAN.G.
R1 & 2 BY ADV. SRI.G.P.SHINOD
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20-03-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.Harilal & A.M.Babu, JJ.
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R.P.(FC) 365/2007
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Dated this the 20th day of March, 2018.
ORDER
A.M.Babu, J.
1. The revision is filed against an order directing the revision petitioner to pay maintenance to the respondents in the revision. We refer to the parties as they are shown in the application put in before the family court.
2. The case of the petitioners may be briefly stated as follows: The first petitioner was married to the respondent. The marriage was on 10.2.1991. The second petitioner is the only progeny born in the wedlock. She is a minor. The respondent lives away from the petitioners. The respondent was cruel to the first petitioner. The former had no affection Rpfc365/2007 -:2:- towards the second petitioner. The respondent has been harassing and ill-treating the first petitioner. The former is not providing maintenance to the petitioners. The respondent was serving the Indian army. Under the provisions of the Army Act, the petitioners were being paid `1,354/- a month as maintenance from the salary of the respondent. It is understood that the respondent is planning to go for voluntary retirement. He will have a pension of more than `7,000/- in case of his retirement. The petitioners who are unable to maintain themselves are entitled to get `2,000/- per month as maintenance.
3. The respondent opposed the claim for maintenance. His contentions go as under: The first petitioner is leading an adulterous life. Rpfc365/2007 -:3:- She is therefore not entitled to seek maintenance. She has extramarital relationship with her first cousin by name Anilkumar @ Mohanan. The respondent has seen the sexual act between his wife and her paramour. The respondent was even told by his wife that the child was not the child of the respondent. The proceedings for divorce is pending. The first petitioner was very cruel to the respondent. The respondent had retired from military service. He is getting a pension of `1,556/- only. With that he has to maintain his aged mother and mentally retarded sister. The first petitioner is having a job in the military canteen. Her mother is also a working woman. The first petitioner is capable of maintaining herself.
Rpfc365/2007-:4:-
4. PW1 and RW1 were examined and Exts B1 to B5 were marked. The family court on appraisal of the facts and evidence of the case allowed the claim for maintenance at two rates. It was directed to pay maintenance to each petitioner at the rate of `500/- per month from the date of the application to the date of the order and thereafter at the rate of `750/- each.
5. Heard Shri. R.S.Kalkura and Shri. Ram Mohan, the learned counsel for the petitioners and the respondent respectively.
6. The relationship is not in dispute. The first petitioner is the wife of the respondent. The paternity of the second petitioner was challenged by the respondent. He stated that the child was not his child. But no evidence was adduced to rebut the presumption under Rpfc365/2007 -:5:- section 112 of the Indian Evidence Act. The child is entitled to be maintained by its parents. The child is living with its mother. Therefore the mother is doing her part. But the father is not. The father cannot escape from his statutory liability to provide maintenance to the child. The father cannot say that he is not having any income to maintain the child. This is not a case where the father is a person without any means. Health is the wealth of the father to maintain his child. Admittedly the respondent is getting pension. The quantum of maintenance awarded to the child by the family court was palpably low. We confirm the order of the family court directing payment of maintenance to the child.
Rpfc365/2007-:6:-
7. The respondent is liable to maintain his wife too. The husband can escape from the liability to maintain the wife only if there are sufficient grounds. One of the grounds recognized by the statute is the unchastity of the woman. The respondent raised such an allegation. He contended and gave evidence that his wife had sexual relationship with her mother's sister's son. The respondent claimed to have seen the sexual relationship between the two. His case is only that on some day in 1992 he saw it. He did not state on which day of which month of 1992 he saw it. We are in complete agreement with the family court that the respondent failed to prove any extramarital relationship between his wife and the alleged paramour. Unproved allegation of unchastity is Rpfc365/2007 -:7:- cruelty. Wife is entitled to live away from her cruel husband without forfeiting her right to maintenance. As the unchastity alleged is not proved, the wife is entitled to reside away from the husband and claim maintenance. The first petitioner is entitled to get maintenance allowance under section 125 of Cr.P.C if she is unable to maintain herself.
8. PW1 who is the first petitioner gave evidence that she is unable to maintain herself. She denied having any employment for herself. CPW1 who is the respondent failed to give satisfactory evidence to prove the employment or means of his wife. He has given evidence that the mother of his wife has income. The mother's wealth cannot be treated as the means of the first petitioner. The mother's wealth Rpfc365/2007 -:8:- will not absolve the liability of the husband from maintaining his wife. Although there are some confusions in the cross-examination of PW1 about the ownership in three cows, she clarified that the cows belong to her mother. We confirm and concur with the finding of the family court that the first petitioner was a person without any means for her maintenance.
9. What remains is fixation of quantum of maintenance for the first petitioner. Again, `500/- per month till the date of order and `750/- per month thereafter for an adult were very low. The respondent is not a person without any income. He is a pensioner. Although he contended that his pension was only `1,556/-, he conceded in his evidence that his pension was `2,400/-. The petitioners contend Rpfc365/2007 -:9:- that the respondent gets a monthly pension of more than `7,000/-. The precise pension of the respondent is within his exclusive knowledge among the parties to the proceedings. He had a duty to prove what his precise pension was. He could prove it by documentary evidence. He did not produce any document to prove his pension. An adverse inference shall be drawn against him. We, in this connection, refer to illustration (g) to section 114 of the Indian Evidence Act. We draw an adverse inference against the respondent since he secreted the documents relating to his pension. We accept the version of the petitioners that the respondent is getting a monthly pension of not less than `7,000/-. He can afford to pay the quantum of maintenance fixed by the family Rpfc365/2007 -:10:- court.
10. The revision is without any merit. It deserves only a dismissal. We dismiss it.
Sd/-
K.Harilal, Judge Sd/-
A.M.Babu, Judge sl.
//True copy// P.S. To Judge