V. Bindu v. S. Krishnankutty

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 RPFC.No. 326 of 2008() ---------------------MC.469/2002 of FAMILY COURT, TRIVANDRUM .................... REVISION PETITIONER(S): PETITIONER IN M.C. -------------------------------------- V.BINDU, D/O.OMANA, BINDU BHAVAN NARUVAMOODU P.O., TRIVANDRUM. BY ADV. SRI.DILIP MOHAN RESPONDENT(S): RESPONDENT --------------- S. KRISHNANKUTTY, S/O.SREEDHARA PANIKER PUTHUVALPUTHEN VEEDU, KOTTUKAL P.O., TRIVANDRUM. ADV. SRI.R.T.PRADEEP FOR R1 SRI.V.VIJULAL FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## ------------------------------------ ## R.P.F.C. No.326 of 2008 ## ------------------------------------Dated this the 6[th] day of November, 2008 ## ORDER Petitioner, whose claim for maintenance under Section 125 Cr.P.C against her husband was rejected by the Family Court, has come before this Court with this revision petition. 2. Marriage is admitted. Separate residence is conceded. There is no offer to maintain the wife on condition that she lives with him. In these circumstances the only questions that survive for consideration are i) Whether the husband is a person having sufficient means and ii) Whether the wife is unable to maintain herself. That no amount of maintenance has been paid to the wife is conceded. 3. There was a contention that the wife is not unable to maintain herself. The wife on oath asserted that she is unable to maintain herself. It is trite following the dictum in **Rajathi v. C.Ganesan** (A.I.R 99 (S.C) 2374] that an assertion on oath by the wife that she is unable to maintain herself would shift the R.P.F.C. No.326 of 2008 2 burden to the respondent/husband to show that she is not entitled to maintain herself. The husband contends that she is employed as a post woman. Employment as a post woman cannot be kept a secret by any one. There will be proper documents to show if a person is employed as a post woman. The claimant/wife asserted on oath that she was temporarily employed as a post woman. She does not have that employment now. No attempt appears to have been taken by the respondent/husband to show that the petitioner is as a matter of fact employed now as a post woman. The cross examination of PW1 shows the apologetic nature of the contention about the employment of the petitioner as a post woman. 4. The next contention that the wife runs a tailoring shop and gets an income of Rs.8,000/- from such an income earning activity. The wife deposed that she has no shop and that she does not know tailoring. Not a semblance of contra evidence is adduced to show that the wife knows tailoring; runs a tailoring shop and derives any income therefrom. 5. The wife admitted in the course of evidence that she has a plot of 50 cents and she resides in the building in that plot. I have gone through the cross examination in detail. There is not R.P.F.C. No.326 of 2008 3 even a semblance of specific suggestion that any portion of that building is rented out and she derives any income from such building. There is not even an assertion or suggestion that there is any income deriving by her from that 50 cents plot and building. 6. Except this, no other circumstances are there to show that the claimant/wife has any source of income as to take her out of the sweep of the expression “woman unable to maintain herself”. 7. A very surprising and interesting argument is pressed into service. I note that the learned Judge of the Family Court has accepted the same also. The wife in an attempt to substantiate her claim for a larger amount as maintenance contended that she and children put together need an amount of Rs.8,000/- for maintenance. From this evidence it is deduced that she now spends Rs.8,000/- and therefore she must have income to spend such amount of Rs.8,000/-. That argument and contention borders on perversity. The wife asserted that she has no employment. She asserted that she is living on the charity of her relatives. Merely because, she asserted and made a tall clam that, she needs an income of Rs.8,000/-, it is unreasonable , R.P.F.C. No.326 of 2008 4 irrational and puerile to jump to the conclusion that she has income earning activity and gets at least such amounts from such activity. 8. I am, in these circumstances, satisfied that the conclusion of the court below on the question as to whether the wife is unable to maintain herself is grossly erroneous and the same warrants revisional interference. 9. It is contended that the husband is not having sufficient means. Admittedly he was employed in the C.R.P.F. He claimed that he had taken voluntary retirement because of his illness. There is nothing to show that voluntary retirement was taken on health grounds. 10. Admittedly he has received terminal benefits. The wife claims that a huge amount of about Rs.4.5. lakhs has been received by him. The husband admits that he has received such amount. But he does not volunteer or reveal to the court the amounts. Going by his evidence he had received “some amounts” which he significantly does not reveal to the court. The stand taken by the respondent in the light of the evidence tendered by the claimant/wife must lead the Court to the natural, reasonable and probable conclusion that the husband must have R.P.F.C. No.326 of 2008 5 received sufficiently huge amount by way of terminal benefits on his voluntary retirement. 11. He admittedly gets a pension exceeding Rs.2,000/- per mensem. Though there is an assertion that he is having income from employment as a security guard, that is denied. No better evidence is produced. He is a 45 year old former constable of the C.R.P.F who has taken voluntary retirement. The assertion of the wife that he has taken up post retirement employment does not at all appear to me to be improbable. The husband relies on certain medical records to show that he suffers from ailments. But that is totally insufficient to assume that the husband has not pursued any productive employment and utilisation of time which he has in abundance as a retired police constable. Reasonable inferences are permissible for a prudent mind and a Court, under Section 3 of the Evidence Act, must certainly adopt the standards of a prudent person. I find no merit in the contention that the respondent/husband has no income earning activity whatsoever post retirement. 12. A strange contention is raised that the wife is able bodied and therefore she must be assumed and presumed to be able to maintain herself. Less said about this contention, the R.P.F.C. No.326 of 2008 6 better. It is true that while considering the question of liability of the husband/father to maintain his spouse/children Courts have taken the view that being able bodied is itself to be reckoned as a reasonable indication that the man has sufficient means. He is expected to o at least manual work, earn his livelihood and support his wife and children. But that logic cannot obviously be applied in the case of a woman. The provisions of Section 125 Cr.P.C are initiated to help and ameliorate the grievances of the lesser fortunate half of the Indian polity. I am unable to agree that the alleged circumstance that the wife has an able body is by itself sufficient to conclude that she is not unable to maintain herself. 13. I am satisfied that the finding that the wife is not entitled for any maintenance under Section 125 Cr.P.C is totally erroneous and does not warrant revisional interference. 14. I should remind myself of the nature, quality and contours of the revisional jurisdiction of superintendence and correction. It is trite that a court of revision should not choose to lightly invoke such revisional jurisdiction of superintendence and correction. Unless the findings are so grossly incorrect, unreasonable, irrational and unjust, the revisional jurisdiction R.P.F.C. No.326 of 2008 7 shall not be invoked. I am satisfied that the finding that the wife is not unable to maintain herself suffers from the vice of irrationality and unreasonableness. It would be abdication of jurisdiction not to invoke the revisional powers of superintendence and correction in the facts of this case. 15. I take the view that the wife is entitled for maintenance from the respondent/husband. I am in these circumstances satisfied that the maintenance deserves to be granted @ Rs.1,000/- per mensem to her. I direct such payment under Section 125 Cr.P.C from the date of the petition, ie. from 26.12.2002. The admitted receipt of lumsum terminal benefit persuades me to hold that the discretion to direct payment of maintenance must be exercised in favour of the claimant and hence I direct payment of maintenance from the date of the petition. 16. This Revision Petition is, in these circumstances, allowed to the above extent. ## **(R.BASANT, JUDGE)** rtr/-