In view of the rival contentions the only question
to be considered is whether the court below can be justified
in granting ` 2,000/- per month as monthly allowance; is it
just and reasonable? There is no evidence to prove that the
Revision Petitioner is employed and is earning sufficiently
so as to maintain herself; but the contention is that the
parents are affluent having sufficient income to give
maintenance allowance to their daughter. I am of the
opinion that even if the parents of the wife have sufficient
means, the husband cannot escape from the liability to pay
maintenance to his wife, unless she is able to maintain herself by
her own means or income. Therefore, the income or landed
properties of the parents are totally insignificant and irrelevant
in deciding the right of the wife to claim maintenance. What is
contemplated under Sec.125(a) of Cr.P.C. is whether the wife is
able to maintain herself. The legislative intent is obviously
articulated by employing the expression "herself" at the end of
Section 125(a). Therefore, own means or income of the wife
alone need be considered. However, affluent the parents, that is
of no consequence at all, unless and until the parental properties
devolve upon daughter.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
RPFC.No. 241 of 2011
--------------------------
AGAINST THE ORDER IN MC 393/2010 of FAMILY COURT, KOTTAYAM AT ETTUMANNOOR
DATED 22-08-2011
SMITHA, D/O. MOHANACHANDRA MENON,
V
SUNILKUMAR, S/O. HAIMAVATHYAMMA,
R.P.(FC).No.241 of 2011.
Dated this the 20th May, 2013.
Citation; 2014 (1) crimes 66 kerala
The Revision Petitioner is the petitioner in
MC.No.393/2010 on the files of the Family Court, Kottayam.
She is the wife of the respondent. The above Criminal M.C.
was filed under Section 125 of the Code of Criminal
Procedure claiming maintenance allowance at the rate of
` 5,000/- per month from the respondent. But the Family
Court passed impugned order directing the respondent to
pay ` 2,000/- per month. This revision petition is filed
challenging the said order.
2. The sole ground raised in this revision petition is
the inadequacy of the quantum of maintenance allowance
granted. According to her, she has no job or income. She
was working in a garment making unit for a salary of
` 2,500/- per month. But now she is not working. Per
contra, the respondent is employed in KSEB and getting a
monthly salary of ` 12,000/- per month. In addition to this
he is getting a monthly income of ` 3,000/- from his landed
property.
3. The respondent filed an objection contending that
his monthly salary is only ` 5,150/- and out of that amount
he has to repay housing loan, the EMI of which is ` 3,200/-.
For treatment of his aged mother ` 2,500/- is needed per
month. Whereas the petitioner is the only child of her
parents and the parents have 21 cents of landed property.
The father is a retired employee and the mother is still
employed in Government service at Bhopal.
4. In view of the rival contentions the only question
to be considered is whether the court below can be justified
in granting ` 2,000/- per month as monthly allowance; is it
just and reasonable? There is no evidence to prove that the
Revision Petitioner is employed and is earning sufficiently
so as to maintain herself; but the contention is that the
parents are affluent having sufficient income to give
maintenance allowance to their daughter. I am of the
opinion that even if the parents of the wife have sufficient
means, the husband cannot escape from the liability to pay
maintenance to his wife, unless she is able to maintain herself by
her own means or income. Therefore, the income or landed
properties of the parents are totally insignificant and irrelevant
in deciding the right of the wife to claim maintenance. What is
contemplated under Sec.125(a) of Cr.P.C. is whether the wife is
able to maintain herself. The legislative intent is obviously
articulated by employing the expression "herself" at the end of
Section 125(a). Therefore, own means or income of the wife
alone need be considered. However, affluent the parents, that is
of no consequence at all, unless and until the parental properties
devolve upon daughter.
5. It is also admitted that the respondent is employed in
KSEB. But according to him, he is only a Mazdoor servant
getting a monthly income of ` 5,150/- only. But it is pertinent
to note that he has not produced his salary certificate to
establish the said contention. In such circumstance an adverse
inference can be drawn against him under Sec.114(g) of the
Indian Evidence Act ie., the evidence which could be and is not
produced would, if produced, be unfavourable to the person
who withholds it. In view of the said section of the Evidence
Act, I am inclined to reject the contention that he is getting
only ` 5,150/-. Maintenance obviously includes provision for
food, clothes, residence and medical expenses etc.
Considering the present living index and living standard of
the Revision Petitioner and income of the Respondent, I am
of the opinion that ` 2,000/- is inadequate as maintenance
allowance. On a proper balancing of the above factors,I
enhance the quantum of monthly maintenance allowance to
` 3,000/-, I direct the respondent to pay maintenance
allowance at the rate of ` 3,000/- per month and same will
be just and proper.
This revision petition is allowed.
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