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2006 DIGILAW 654 (KER)

Benny @ Joseph v. Elsy @ Elsamma Abraham

2006-10-04

R.BASANT

body2006
Judgment :- This revision petition is directed against an order directing payment of maintenance under Section 125 Cr.P.C. at the rate of Rs.400/-, Rs.200/- and Rs.300/- p.m. respectively to the claimants, admittedly the wife and two minor children of the petitioner. 2. Marriage, paternity and separate residence are all admitted. There is no contention that the petitioner is willing to maintain the wife on condition that she lives with him. In fact he made an allegation that the claimant wife is not having a proper state of mental health. On that ground, in the counter statement, he asserted that he was proposing to move for divorce. Belatedly when the matter came up for trial, during the course of cross examination of the claimant wife, an offer was made to maintain her on condition that she lives with him. The wife contended that she was not prepared to resume cohabitation. She urged matrimonial cruelty as the reason for not resuming cohabitation. 3. Before the trial court the claimant wife was examined as PW1 and the petitioner herein as CPW1. While the claimant did not rely on any documentary evidence, the petitioner herein relied on Exts. D1 to D3. Ext.D1 is the F.I.R. in a crime registered alleging matrimonial cruelty against the petitioner by the wife. Exts. D2 and D3 are medical prescription/certificate to indicate that the petitioner suffers from some heart ailments. 4. The Family Court, on an anxious consideration of all the relevant inputs, came to the conclusion that the claimant wife is entitled for separate maintenance. There was no bonafide offer made by the petitioner to maintain her on condition that she lives with him, it was held. Though there was evidence to indicate some physical ailments to the petitioner, the earned Judge took note of the fact that sufficient evidence is not placed before court to conclude that the petitioner is without any income or earning capacity. However, taking into account the contention about the illness of the petitioner spoken to by himself and probabilised by Exts. D2 and D3, the learned Judge proceeded to pass the impugned direction to pay maintenance at the rate of Rs.400, 200 and 300 respectively to the claimants. The petitioner claims to be aggrieved by the impugned order. 5. What is the grievance? D2 and D3, the learned Judge proceeded to pass the impugned direction to pay maintenance at the rate of Rs.400, 200 and 300 respectively to the claimants. The petitioner claims to be aggrieved by the impugned order. 5. What is the grievance? Called upon to explain the nature of challenge which the petitioner wants to mount against the impugned direction for payment of maintenance, the learned counsel for the petitioner submits that the Family court went wrong in coming to the conclusion that the claimant wife is entitled for separate maintenance. Second proviso to Section 125(3) stipulates the law on the aspect. I extract the second proviso to Section 125(3): “Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.” 6. No offer worth the name has been made by the petitioner herein in the counter statement filed by him. The learned counsel for the petitioner was requested to locate the plea in his counter statement where such offer has been made. I am unable to find any such offer made in the counter statement. In fact the claimant wife therefore had no responsibility to plead and establish the ground of refusal. However, we get further indication about the want of bonafides in the offer made by the petitioner in the course of cross examination of PW1. In the counter statement the petitioner brands his wife as a mentally ill person and further asserts that he is taking steps to secure divorce against his wife on that ground. Less said about the plea of offer to maintain her on condition that she lives with him, the batter. The plea is found to be totally without any merit and bonafides. The learned Family Court has not committed any error in coming to the conclusion that the wife is entitled for maintenance. I find no reason to invoke the revisional jurisdiction of superintendence and correction against the said finding. 7. We now come to the next contention viz. the quantum of maintenance awarded is excessive. The petitioner is ill, it is contended. I find no reason to invoke the revisional jurisdiction of superintendence and correction against the said finding. 7. We now come to the next contention viz. the quantum of maintenance awarded is excessive. The petitioner is ill, it is contended. Except the production of Exts.D2 and D3 there was nothing in support of the assertion of the petitioner as CPW1 that he is unable to pursue any avocation. Even assuming that the petitioner has some heart ailment, it would be idle to assume that he is unable to do any work. If that were the plea, the same must have been proved by better evidence. No evidence has been produced on this aspect. I am not persuaded to agree that the self serving evidence of CPW1 along with Exts.D2 and D3 can lead the court to a conclusion that the petitioner is so incapacitated because of his illness and he cannot do any work. Even admittedly he has a rubber plantation which was being tapped by him. He wants the court to believe that because of his illness he has stopped taking rubber from his plantation. The theory advanced is too ridiculous to be swallowed by any prudent person. 8. The learned counsel prays that a further opportunity may be given to the petitioner to substantiate his plea about illness and want of sufficient means. A further opportunity by remand cannot be an act of indulgence on the part of the court. Reasons must be shown to exist to justify such a remand. Particularly so in a case where the destitute wife and children came before the court claiming maintenance. Without satisfactory reasons they cannot be directed to fight one more round of legal battle. No satisfactory reasons are shown to grant the prayer for an indulgent further opportunity. 9. There is a challenge against the quantum of maintenance. The maintenance awarded is so grossly inadequate considering the needs of any person used to an ordinary life style. Rs. 400, 200 and 300/- p.m. are the maintenance awarded. At any rate, I am satisfied that interference with the quantum fixed, at the instance of the petitioner, is totally unwarranted. 10. In the result this revision petition is dismissed. I may hasten to observe that I have only held that the challenge at the instance of the petitioner is not justified. At any rate, I am satisfied that interference with the quantum fixed, at the instance of the petitioner, is totally unwarranted. 10. In the result this revision petition is dismissed. I may hasten to observe that I have only held that the challenge at the instance of the petitioner is not justified. If there be a challenge at the instance of the claimants, the same will have to be considered on merits separately.