Kerala High Court
Vijayasankar vs Jiju on 22 October, 2013
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 22ND DAY OF OCTOBER 2013/30TH ASWINA, 1935
RPFC.No. 279 of 2012 ()
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MC 249/2011 of FAMILY COURT,KOZHIKODE
REVISION PETITIONER(S)/RESPONDENT:
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VIJAYASANKAR, AGED 37 YEARS
S/O..LATE S.R.THAMBI, PADMANIDHI, DOOR NO.106
PLOT NO.16, SECOND MAIN ROAD, ALAMELUPURAM
SELAYOOR P.O., CHENNAI-600 073, TAMILNADU.
BY ADVS.SRI.K.M.FIROZ
SMT.M.SHAJNA
RESPONDENT(S)/RESPONDENT:
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JIJU
D/O.JALADHARAN P.N., VRINDAVAN, GOVINDAPURAM P.O.
KOZHIKODE-673016.
R1 BY ADVS. SRI.P.R.SREEJITH
SRI.M.PROMODH KUMAR
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 22-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RP(FC).279/12
APPENDIX
REVN. PETITIONER'S EXHIBITS:
ANNEXUREA1- TRUE COPY OF THE APPLICATION FILED UNDER RIGHT TO
INFORMATION ACT THROUGH REVN. PETITIONER'S FRIEND,
SRI.SHAHABUDHEEN MPHAMMED, KOZHIKODE,BEFORE THE
PUBLIC INFORMATION OFFICER, KOYILANDI MUNICIPALITY,
KOZHIKODE DT.23.7.13
ANNEXUREA2- TRUE COPY OF THE COMMUNICATION DT.21.8.13 ISSUED BY THE
PUBLIC INFORMATION OFFICER ATTACHED TO THE KOYILANDI
MUNICIPALITY, KOZHIKODE.
ANNEXUREA3- TRUE COPY OF THE COMMUNICATION ISSUED BY THE
PUBLIC INFORMATION OFFICER OF KOZHIKODE CORPORATION
DT.17.8.13 IN RESPECT OF THE ENQUIRY MADE BY SRI.
SHAHABUDHEEN MPHAMMED, KOZHIKODE
RESPONDENT'S EXHIBITS: NIL
OKB.
TRUE COPY
P.A. TO JUDGE
.
K.HARILAL, J.
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R.P.(FC) No.279 of 2012
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Dated this the 22nd day of October, 2013
O R D E R
The revision petitioner is the respondent in M.C.No.249/11 on the files of the Family Court, Kozhikode. He is the husband of the respondent herein. The respondent filed the above M.C. under Section 125 of the Cr.P.C. seeking maintenance allowance from the revision petitioner. According to the respondent, she is the legally wedded wife of the revision petitioner and, thereby, she is entitled to get maintenance allowance from the revision petitioner under Section 125 of the Cr.P.C. But, he has been neglecting and refusing to pay maintenance allowance to the revision petitioner from 13.1.10 onwards. The respondent has no job or any other source of income. She is unable to maintain herself and now she is depending upon her father for her livelihood. The revision petitioner used to drink liquor and subject the respondent to severe mental and physical cruelties and, at last, she was constrained to live separately with her parents. She claimed an amount of Rs.10,000/- per month for her maintenance R.P.(FC).279/12 :2:
allowance. According to the respondent, the revision petitioner is a Software Engineer having B.Tech. qualification and he is working as Senior System Engineer. He is getting Rs.75,000/- per month as salary. But, the Family Court directed the revision petitioner to pay maintenance allowance at the rate of Rs.8,000/- per month.
2. The revision petitioner filed a counter statement admitting the marriage with the respondent, but denied the entire allegations in the complaint. According to him, she is residing separately on her own accord, without sufficient reasons. He denied the allegation that he has subjected the respondent to mental and physical cruelties. He admitted that he is working as a System Engineer. But, according to him, he is drawing a salary of only Rs.25,000/- per month. Out of the said amount, he has to pay Rs.20,000/- towards loan availed for construction of the residential house. According to him, the respondent has sufficient grounds to maintain herself. Both the counsel for the revision petitioner and the respondent advanced arguments in support of their respective contentions.
3. In view of the rival contentions raised in the Revision Petition, the question to be considered is whether there is any illegality or impropriety in the impugned order directing the R.P.(FC).279/12 :3:
revision petitioner to pay maintenance allowance at the rate of Rs.8,000/- per month to the respondent.
4. The first point to be considered is whether there are sufficient grounds to live separately, without forfeiting her right to claim maintenance, from the revision petitioner? The marriage is admitted. According to the revision petitioner, the respondent is living separately on her own accord, without sufficient reasons. It is the case of the respondent that he used to drink liquor and subject her to severe physical and mental cruelties. It is specifically alleged that on 12.1.2010 the revision petitioner beat on the face of the respondent in the public bus stand when the strap of the respondent's slippers was broken. Any how, after the marriage on 3.9.2009, they lived together till 13.1.2010. Even though the above period is very short, they could not live comfortably and harmoniously. Going by para 9 of the impugned order, it is seen that in cross-examination of the revision petitioner, where he was asked whether he was ready to take back his wife, he answered that, 'he is not ready at present'. I am of the opinion that the said statement itself is sufficient to show that he is not interested to live along with the respondent. If that be so, the respondent has the right to live separately, without forfeiting R.P.(FC).279/12 :4:
her right to claim maintenance allowance from the revision petitioner.
5. The next point that survives for consideration is, whether the quantum of maintenance determined by the court below is proper and justifiable? Admittedly, the revision petitioner is an Engineer drawing Rs.25,000/- as salary per month. But, in evidence, he has stated that he is getting Rs.40,200/- as salary per month and he is getting Rs.25,000/- per month excluding his expenses. Though he contended that the respondent has sufficient means to maintain herself, no evidence had been adduced by him to substantiate the said contention. It is further contended that the respondent is the owner of the two cinema theatres at Koyilandy and Nilambur, respectively. But, no evidence had been adduced in trial. In this Revision Petition, the revision petitioner has produced three documents as Annexure-A1 to A3 along with Crl.M.A.No.7658/13. A1 is the application filed invoking the provisions to the Right to Information Act and A2 and A3 are the information granted thereunder. Annexure A2 shows that the alleged theatre at Koyilandy belongs to one P.N.Jaladharan and A3 shows that the theatre at Calicut belongs to Dr.P.Sivasankaran. Obviously, Annexures A2 and A3 do not R.P.(FC).279/12 :5:
show that the theatres belong to the respondent. Therefore, I find that even if Annexures A2 and A3 are taken in evidence, the said evidence will not render any aid or assistance to substantiate the contention raised by the revision petitioner.
6. In the affidavit filed along with Crl.M.A.No.7659/13, the revision petitioner sought for an order directing the respondent to divulge the details of all his immovable and movable properties derived therefrom before this Court in the Revision Petition for the purpose of proper and just adjudication of the matter. I am of the opinion that such a petition is per se unsustainable and liable to be dismissed at the threshold as it is not maintainable under the revisional jurisdiction contemplated under Section 397 and 401 of the Cr.P.C. Under the revisional jurisdiction the limited question to be considered by this Court is whether there is any illegality or impropriety or incorrectness in the impugned order under challenge. There cannot be a direction to opposite party to produce the evidence or materials.
7. Admittedly, the respondent is the wife of an Engineer, who is drawing a salary of Rs.40,000/- per month. If that be so, she has the right to live with the standard of life on a par with that of her husband. Having regard to the standard of life and cost of living and the income of the revision petitioner, I R.P.(FC).279/12 :6:
am of the opinion that the amount quantified by the court below is just and proper and the determination of the quantum of maintenance allowance does not call for any interference under the revisional jurisdiction.
The Revision Petition is dismissed.
Sd/-
(K.HARILAL, JUDGE) okb.