ABDUL AZIZ Vs. SHAJITHA

JUDGEMENT

(1.) The revision petitioner is the respondent in M.C. No. 64/12 on the files of the Family Court, Irinjalakuda. He is the husband of the 1st respondent as well as the father of the respondents 2 and 3 herein. The respondents have filed the above M.C. under Sec. 127 of the Code of Criminal Procedure seeking enhancement of the maintenance allowance which was directed to be paid earlier in M.C. No. 58/98 on the files of the Family Court, Thrissur. In the above said earlier M.C., the revision petitioner was directed to pay monthly maintenance allowance at the rate of Rs. 400/- to the 1st petitioner and Rs. 300/- each to the respondents 2 and 3 herein. In this M.C., they have claimed enhancement at the rate of Rs. 5,000/- each per mensem. After trial, the learned Family Court Judge directed the revision petitioner to pay enhanced maintenance allowance as prayed for. This revision petition is filed challenging the enhancement of maintenance allowance on various grounds. It is the case of the respondents that the marriage of the 1st respondent with the revision petitioner was solemnized on 7/6/1992 and the respondents 2 and 3 are daughters born in that wed-lock. The matrimonial relationship had broken down and culminated in filing of O.P. No. 176/98 on the files of the Family Court, Thrissur and C.C. No. 858/97 on the files of the Judicial First Class Magistrate's Court, Wadakkancherry, and the earlier M.C. No. 58/98. According to the respondents, the 1st respondent has no job or source of income. The 2nd respondent is studying for Plus Two in G.V.H.S.S., Ollur and the 3rd respondent is studying in 9th standard at St. Joseph's H.S., Veluppadam. The children are in need of a substantial amount to meet their educational expenses like tuition fee, bus fee and other incidental expenses. Similarly, the cost of living has increased enormously and considering the hike in living index, the amount which is being received by them as maintenance allowance is not sufficient for their food, cloth, medicine, treatment expenses etc. Therefore, they are in need of Rs. 5,000/- each per month.

(2.) The revision petitioner filed a counter affidavit admitting the marriage as well as paternity of the children; but denying the claim for maintenance. According to there vision petitioner, the 1st respondent is getting a monthly income of Rs. 3,000/- by doing tailoring work. He denied the allegation that he is having assets, motor car, rubber estates, bank balance etc. He worked abroad for a period of around five years and thereafter he returned to India and now he is working as an autorikshaw driver and he is getting daily wage of Rs. 100/- only. Out of that amount, he has to maintain his second wife and two children born in that wed-lock. In addition to this, he has to maintain his aged parents also. He expressed his willingness to enhance the quantum of maintenance to Rs. 750/- per month to the 1st respondent and Rs. 500/- each per month to the 2nd and 3rd respondents.

(3.) Sri. S.V. Balakrishna Iyer, the learned senior counsel appearing for the revision petitioner advanced arguments in support of the contentions raised in the Revision and challenging the findings of the learned Family Court Judge. The learned senior counsel pointed out that now he is working as an autorikshaw driver and he is getting only Rs. 100/- per day as wages. But he has to give maintenance to his second wife and two children born in that wed-lock, in addition to his aged parents. The learned Family Court Judge has not considered his liability to look after his second wife and two children in the determination of the quantum of maintenance. The learned counsel contended that he is residing in a housing colony set up under the One Lakh Housing Scheme and there is no evidence to show that he is living in affluence. But the learned Family Court Judge miserably failed to appreciate the evidence in its correct perspective and erroneously determined the quantum of maintenance allowance. No way the amount determined is justifiable.