MUHAMMED Vs. SAINABI

JUDGEMENT

(1.) This revision is by the husband against his divorced wife. She obtained an order for maintenance to her and to her child, at the rate of Rs. 75/- and Rs. 37.50 per month respectively from the Sessions Court, Kozhikode. Originally, the Additional Judicial First Class Magistrate, Kozhikode, denied maintenance to her and granted Rs. 25/- to her child alone. The Magistrate relied upon Ext. D1, which according to her operated as a discharge of all the claims that the wife would have bad against the husband, including customary dues. The learned Sessions Judge, in revision, ordered maintenance to the divorced wife at the rate of Rs. 75/- per month and enhanced the maintenance payable to the child from Rs. 25/- to Rs. 37.50 per month, holding that Ext. Dl cannot be availed of by the husband. The husband has come up in revision before this Court challenging the order of the Sessions Judge.

(2.) It is contended by the petitioner that the Sessions Judge was largely influenced by the fact that the petitioner married a fourth time after divorce. The petitioner had adduced evidence in the case to show that he was a sickly man suffering from tuberculosis and had produced documents by way of medical certificate and prescriptions for medicines in support of that case. The Sessions Judge declined to rely upon these documents, since the name given in the prescriptions is only Mohammed without the necessary initials of the petitioner for proper identification. But the Sessions Judge overlooked the fact that this was not seriously challenged by the wife before the Trial Court. I say so, because in cross examination, no attempt appears to have been made to make out that the prescriptions related to some other Muhammed. Therefore, the learned Judge was in error in rejecting his evidence in toto.

(3.) To arrive at the quantum of maintenance also, the learned Judge appears to have misdirected himself, on the evidence adduced. CPW 1 is the petitioner and CPW 2, a witness on his side. According to the petitioner, he is a trader in 'Murukku'. According to his witness, the petitioner supplies him 'Murukku' at his tea shop From this, the learned Judge jumps to the conclusion that the petitioner is capable of doing business and earn his living. He also relies upon the admissions made by the petitioner that there are 25 coconut trees in the property wherein he lives and that there is a shop room. There is no further discussion about the actual income available from these coconut trees and the shop room. The wife, in her evidence, has not satisfactorily proved the actual or even the approximate income that the petitioner gets per month. There is only her evidence that the monthly income of the petitioner is Rs. 1,000 per month. The evidence is not sufficient or conclusive about the means of the husband.