Kerala High Court
Basheer.M.P vs Afsath.M.P on 1 April, 2008
Author: R.Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 80 of 2007()
1. BASHEER.M.P., S/O.MAMMATH KOYA,
... Petitioner
Vs
1. AFSATH.M.P., D/O.MOHAMMATH,
... Respondent
2. MUHAMMATH ANEESH, S/O.BASHEER,
3. ANUSHA, D/O.BASHEER,
4. ANEESHA, D/O.BASHEER,
For Petitioner :SRI.R.SUDHISH
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble MR. Justice R.BASANT
Dated :01/04/2008
O R D E R
R.BASANT, J
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R.P.F.(C).No.80 of 2007
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Dated this the 1st day of April, 2008
ORDER
This revision petition is directed against a direction issued by the Family Court under Section 125 Cr.P.C to the petitioner to pay an amount of Rs.1,500/-, Rs.750/-, Rs.750/- and Rs.500/- respectively to his wife and 3 minor children - aged 13 years, 12 years and 10 years respectively. Marriage is admitted. Paternity of the children is not disputed. That the parties are residing separately is also conceded. That the petitioner has contracted subsequent marriage without and before divorcing the 1st claimant/wife is also accepted.
2. In these circumstances, the only question that remains to be considered in a claim under Section 125 Cr.P.C is the quantum of maintenance which is liable to be paid to the claimants. There is no contention that the claimants are not unable to maintain themselves. It was contended by the claimants that the petitioner has handsome income from various sources. It was contended that he is an autorickshaw owner, who can drive autorickshaw also. It was contended that he has income from landed properties also.
3. The 1st claimant/wife was not able to tender any evidence to show that the petitioner owns any autorickshaw or R.P.F.(C).No.80 of 2007 2 owns any landed property. In these circumstances, the court below proceeded on the admitted circumstance that the petitioner is a driver of an autorickshaw. The court further took note of the fact that the petitioner, fully conscious of his liability to maintain the claimants - ie. wife and 3 children, had willfully embraced the responsibility of another marriage. That, the learned Judge of the Family Court clearly reckoned as an indication of the degree of affluence enjoyed by the petitioner. It is accordingly that the learned Judge proceeded to pass the impugned order directing payment of a total amount of Rs.3,500/- per mensem as per the details shown above. The learned counsel for the petitioner submits that the quantum of maintenance awarded is excessive. It is, in these circumstances, prayed that the quantum of maintenance may be reduced.
4. This Revision Petition was admitted by another Bench and stay was ordered subject to conditions. Those conditions had not been complied with and the petitioner is now undergoing imprisonment for default in payment of the maintenance amount, it is submitted.
5. The short question to be considered is whether the quantum of maintenance awarded is excessive. The status of the petitioner shall have to be reckoned as an autorickshaw driver. R.P.F.(C).No.80 of 2007 3 The court below has taken note of the fact that he must be getting an income of at least Rs.250/- per day from his employment as an autorickshaw driver. This would mean that he must, at any rate, have an income of Rs.6,250/- per mensem (25 X 250). That assumption does appear to me to be absolutely reasonable. Out of this income, the petitioner has to maintain himself and his second wife also.
6. The amount of maintenance offered to the 3 children aged 13, 12 and 10 respectively, ie. Rs.750/-, Rs.750/- and Rs.500/- does appear to me to be absolutely reasonable. So far as the quantum of maintenance awarded to the wife is concerned, I am satisfied that some leniency can be shown to the petitioner and the quantum of maintenance awarded to the 1st claimant/wife can be reduced from Rs.1,500/- to Rs.1,250/- per mensem. To this extent alone, this Revision Petition can succeed.
7. In the result, this Revision Petition is allowed in part. The impugned order is upheld in all other respects, but the quantum of maintenance awarded to the 1st claimant/wife is reduced from Rs.1,500/- per mensem to Rs.1,250/- (Rupees One thousand two hundred fifty only) per mensem.
(R.BASANT, JUDGE) rtr/-
R.P.F.(C).No.80 of 2007 4