SMITHA Vs. SUNILKUMAR

JUDGEMENT

(1.) The Revision Petitioner is the petitioner in M.C. No. 393/2010 on the tiles of the Family Court, Kottayam. She is the wife of the respondent. The above M.C. was filed under Section 125 of the Code of Criminal Procedure claiming maintenance allowance at the rate of Rs. 5,000 per month from the respondent. But the Family Court passed impugned order directing the respondent to pay Rs. 2,000 per month. This revision petition is filed challenging the said order. 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 Rs. 2,500 per month. But now she is not working. Per contra, the respondent is employed in KSEB and getting a salary of Rs. 12,000 per month. In addition to this he is getting a monthly income of Rs. 3,000 from his landed property.

(2.) The respondent filed an objection contending that his monthly salary is only Rs. 5,150 and out of that amount he has to repay housing loan, the EMI of which is Rs. 3,200. For treatment of his aged mother, Rs. 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 of the revision petitioner is a retired employee and the mother is still employed in Government service at Bhopal.

(3.) In view of the rival contentions, the only question to be considered is whether the court below can be justified in granting Rs. 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 taken into account while determining right to get maintenance. However, affluent the parents, that is of no consequence at all, unless and until the parental properties devolve upon daughter. It is also admitted that the respondent is employed in the KSEB. But according to him, he is only a Mazdoor servant getting a monthly income of Rs. 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 Rs. 5,150 per mensem. 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 Rs. 2,000 per mensem is inadequate as maintenance allowance. On a proper balancing of the above factors, I enhance the quantum of monthly maintenance allowance to Rs. 3,000, I direct the respondent to pay maintenance allowance at the rate of Rs. 3,000 per month and same will be just and proper.