ABDUL GAFOOR Vs. SULAIKHA

JUDGEMENT

(1.) THE revision petitioner is aggrieved by the maintenance order against him from the Family Court, Malappuram in M.C No.1241 of 2010, directing him to pay maintenance to his wife at the rate of 3500/ - - per month and to the minor daughter at the rate of 2000/ - per month. The wife and the child have been residing separately for years. When the husband failed to make payment, the wife brought claim under Section 125 of the Code of Criminal Procedure, in 2010. The revision petitioner entered appearance and resisted the claim on the contention that he does not have much income or source to pay as claimed by his wife and child, and that his wife is not entitled to claim separate maintenance. The trial court conducted an enquiry and recorded evidence. The 1st respondent herein examined herself as PW1 and the revision petitioner examined himself as RW1. Two witnesses were also examined on the side of wife, of course to prove the monitory claims made in O.P.1270 of 2010, tried along with the maintenance claim.

(2.) ON an appreciation of the evidence, the trial court found that the wife is entitled to get separate maintenance, and that the revision petitioner has sufficient income from different sources. Accordingly, the impugned order was passed on 29.6.2012.

(3.) OF course, it is true that definite and satisfactory evidence is not there to prove the actual income of the revision petitioner. Admittedly, he is a "Madrassa" Teacher and he has some part -time job in a Mosque also. We can imagine how much such a person will get as salary. Anyway, that is not an excuse not to pay maintenance to his wife and child. If he finds it difficult to get on with the meagre income which he gets as salary, he will have to find some other source as an able bodied person, and he will have to discharge his liability to pay maintenance to his wife and child. Evidence shows that the revision petitioner is an able bodied and healthy man, and he can make additional source if he so wants. He cannot be heard to say any excuse not to maintain his wife and child. Anyway in the particular factual circumstances where definite or satisfactory evidence is not there to prove the actual income of the revision petitioner, I feel the necessity of some modification in the impugned order. When the Court makes an order under Section 125 Cr.P.C, the said order must work, and it must be enforceable. When the Court grants some amount as maintenance under Section 125 Cr.P.C, it must reach in the hands of the claimant. In short, the Court will have to be realistic in fixing the amount of maintenance. Capacity to pay maintenance is always relevant. In the particular factual situation here, I find that 2500/ - per month to the wife and 1500/ - per month to the child will be reasonable, which the revision petitioner can pay without much difficulty. I find that, to this extent, the impugned order can be modified, and the revision can be allowed in part.