JAYAPRAKASH Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS petition is filed by the respondent in M.C.No.26 of 2010 of Family Court, Ernakulam. In a proceeding under Section 36 of the Indian Divorce Act, the Presiding Officer of that Court has directed petitioner to provide interim maintenance to the wife and two children, totalling `.3,500/- per month. That order is under challenge on various grounds. Learned counsel submitted that petitioner is not able to raise that much amount as ordered by the court below, respondent No.2 is in the custody of the petitioner, there is an order to give custody of that child also to respondent No.1 which is being challenged and that in the circumstances petitioner ought not to have been directed to pay interim maintenance to the respondents. It is pointed out that respondent No.1 has been working abroad as a nurse for a long time and that she is capable of maintaining herself. Apprehension of petitioner is that case is coming up for evidence on 22.02.2011 and if petitioner does not pay arrears he is likely to be imprisoned. I have heard learned counsel.

(2.) IT is not disputed that petitioner got himself enrolled as an Advocate before 2000 and presently is practising as a lawyer at Muvattupuzha though according to the petitioner as a junior lawyer. Petitioner is aged about 43 years and is not shown to be incapable of earning on account of any physical infirmity and hence I must presume that he is capable of earning. Question whether contention of petitioner that respondent No.1 is having sufficient income to maintain herself is to be considered. Now I am concerned with the order for payment of interim maintenance. Maintenance awarded to respondent No.1 for a month is `.1,500/- which is just `.50/- a day and maintenance awarded to respondent Nos.2 and 3, children is `.1,000/- each per month. The children are aged 8 and 6 years, respectively. Respondent No.1 claimed maintenance for herself and children vide petition filed on 29.01.2010. According to her on 03.10.2010 petitioner forcibly took respondent No.2 from her custody. Though that is denied by the petitioner, it is seen that the Family Court has directed petitioner to return respondent No.2 to the custody of respondent No.1.