Kerala High Court
Moideen Haji M.M vs Rukhiya on 10 March, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2014/26TH BHADRA, 1936
RPFC.No. 193 of 2014 ()
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AGAINST THE ORDER IN MC 197/2012 of FAMILY COURT, KANNUR DATED 10-03-2014
REVISION PETITIONER(S)/RESPONDENT:
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MOIDEEN HAJI M.M., AGED 66 YEARS
S/O.AHAMMED KUTTY.M.P, MANHAMKOTTU HOUSE
PATTANNUR AMSOM, AYIPPUZHA DESOM, IRIKKUR
THALASSERY TALUK, KANNUR-670593.
BY ADV. SRI.K.C.SANTHOSHKUMAR
RESPONDENT(S)/PETITIONERS:
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1. RUKHIYA,, AGED 56 YEARS
D/O.MUKKANNA KALATHIL ABDULLA, P.K.HOUSE, KORALADU.P.O
CHATTUKAPPARA, KUTTIYATTOOR, KANNUR-670602.
2. IRSHAD.P.K,, AGED 29 YEARS
S/O.RUKHIYA.P.K, MENTALLY RETARDED
REP.BY GUARDIAN MOTHER RUKHIYA, P.K.HOUSE
KORALADU.P.O, CHATTUKAPPARA, KUTTIYATTOOR
KANNUR-670602.
3. FATHIMATH SUHARA.P.K,, AGED 18 YEARS
D/O.RUKHIYA.P.K, P.K.HOUSE, KORALADU.P.O
CHATTUKAPPARA, KUTTIYATTOOR, KANNUR-670602.
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON
17-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
JJJ
K.HARILAL, J.
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R.P. (FC) No. 193 of 2014
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Dated this the 17th day of September, 2014
O R D E R
The revision petitioner is the respondent in M.C. No.197/2012 on the files of Family Court, Kannur. The above M.C. was filed by the respondents herein, who are the wife and daughter of the revision petitioner, under section 125(1) of the Code of Criminal Procedure (for short, 'Cr.P.C.'), claiming maintenance allowance from the revision petitioner.
2. According to the 1st respondent she is the legally wedded wife of the revision petitioner and respondents 2 and 3 are the children born in that wedlock. But, subsequently she herself filed an application to delete the 2nd respondent from the party array.
R.P.(FC) No. 193 of 2014 -2-
3. It is the case of the 1st respondent that after their marriage they have resided together at the residence of the 1st respondent and as well as the revision petitioner. During the early days of the marriage itself the behaviour of the revision petitioner towards the 1st respondent was very cruel and did not care to pay any amount of maintenance to the respondents. The revision petitioner is working in Sharjah as a mechanic and earning Rs.1,50,000/- per month as salary. The 1st respondent has no job or income and the 3rd respondent is a student in Sree Narayana Guru College of Engineering, Payyanur. Apart from the day-to-day expenses, the respondents require a good amount to meet the educational expenses of the 3rd respondent. Now, they depend upon her brother, who is a coolie worker. Though the respondents are not able enough to maintain themselves, the revision petitioner has been neglecting to pay maintenance allowance to the respondents. R.P.(FC) No. 193 of 2014 -3-
4. The revision petitioner filed a counter statement admitting the marriage with the 1st respondent and the paternity of the 3rd respondent. He denied his avocation as mechanic and salary of Rs.1,50,000/-. According to him, he is a driver by profession who gets 1800 Dirhams as salary. He is suffering from heart disease from 2007 onwards and he continues the treatment. He admitted that he married again and in the second wedlock he has three children. He claims that he has paid Rs.3,000/- on 16.4.2012 to the 1st respondent and Rs.2,000/- on 16.7.2012 by way of money transfer.
5. The 1st respondent was examined as PW1 and Exhibits A1 to A3 were marked. Exhibits B1 to B5 were marked on the part of the revision petitioner. After considering the evidence on record, the court below directed the revision petitioner to pay maintenance allowance at the rate of Rs.5,000/- each to respondents 1 and 3 per month. R.P.(FC) No. 193 of 2014 -4- The legality and propriety of this Order is under challenge in this Revision Petition.
6. The learned counsel for the revision petitioner advanced arguments challenging the entitlement of maintenance found by the court below and the quantum of maintenance and allowance determined thereunder. According to the learned counsel it has come out in evidence that the revision petitioner is suffering from cardiac problems and he is continuing his treatment. It is also contended that the quantum of maintenance allowance fixed by the court below is excessive and disproportionate with the income of the revision petitioner. The revision petitioner has married again. He has to maintain his second wife and three children born in that wedlock.
7. In view of the contentions raised at the Bar, the question to be considered is whether the court below can be justified in granting maintenance allowance at the rate of R.P.(FC) No. 193 of 2014 -5- Rs.5,000/- each to respondents 1 and 3.
8. The marriage with the 1st respondent and the paternity of the 3rd respondent are admitted. It is also admitted that he is employed abroad and working as a driver. Though the revision petitioner contended that the 1st respondent has a job in a private company and is getting a wage of Rs.200/- per day, no evidence had been adduced to substantiate such contentions. The court below, after analysing the evidence adduced by the 1st respondent, observed that the evidence let in by the 1st respondent would prove that she has been deserted by the revision petitioner for the last 12 years and during this period he had given only Rs.5,000/- towards maintenance allowance.
9. Being a person employed abroad, had he paid any more amount towards maintenance allowance, he would have produced documentary evidence to substantiate such payment. As rightly held by the court below, in the absence R.P.(FC) No. 193 of 2014 -6- of any evidence to show payment of maintenance allowance other than Rs.5,000/-, it can be held that the revision petitioner had neglected respondents 1 and 3 since the last 12 years. In view of the above analysis, I cannot find fault with the findings by which the court below held that respondents 1 and 3 are entitled to get maintenance allowance from the revision petitioner.
10. Coming to the quantum of maintenance allowance the revision petitioner himself admitted that he is employed abroad and he is a driver by profession. As rightly held by the court below though he admitted his employment as a driver he did not cause production of any document pertaining to his salary. The salary and income are facts exclusively within the knowledge of the revision petitioner. So, as rightly held by the court court below, the burden was on the revision petitioner to cause production of requisite evidence to prove his actual income. In the absence of such R.P.(FC) No. 193 of 2014 -7- evidence and adverse inference under section 114(g) of Indian Evidence Act can it be safely drawn against the revision petitioner. The revision petitioner would allege that he is a heart patient and has undergone a surgery. Exhibit B1 is an outpatient ticket issued in the name of the revision petitioner. Exhibits B2 and B3 are the medical records issued in favour of the revision petitioner. After examination of those documents the court below found that those documents bear the name of another person. Thus the genuineness of Exhibits B2 and B3 is suspected as not that of the revision petitioner.
11. I do not find any reason to doubt the above observation made by the court below, in the absence of any evidence contrary to the said findings. The quantum of maintenance allowance has to be fixed considering the status of the parties, standard of living and the day-to-day living expenses and the income of the husband. Having R.P.(FC) No. 193 of 2014 -8- regard to the above factors, in the instant case, I find that the quantum of maintenance at the rate of Rs.5,000/- each to respondents 1 and 3 is just and proper and I do not find any reason to interfere with the determination of the quantum of maintenance allowance.
This Criminal Revision Petition is devoid of any merit and is dismissed accordingly.
Sd/-
K. HARILAL, JUDGE //True Copy// P.A. to Judge jjj