A husband must provide maintenance to his wife and children; mere claims of inadequate income without proof cannot deny this obligation.

“CR”

ORDER

This revision petition has been filed challenging the order passed in M.C.No.98/2015 on the files of the Family Court, Tirur dated 25.8.2022.

2. The 1^st petitioner is the wife of the respondent.

Petitioners 2 and 3 are the children of the 1^st petitioner, born in wedlock with the respondent. The petitioners filed a maintenance case against the respondent under Section 125 of Cr.P.C claiming maintenance at the rate of ₹10,000/- to the 1^st petitioner, ₹8,000/- to the 2^nd petitioner and ₹6,000/- to the 3^rd petitioner. The Family Court, after trial, granted monthly maintenance at the rate of ₹4,000/- to the 1^st petitioner and ₹1,500/- each to the petitioners 2 and 3. Dissatisfied with the quantum of maintenance granted, the petitioners have approached this Court.

3. I have heard Sri Jamsheed Hafiz, the learned counsel for the petitioners. Even though notice has been served on the respondent, there is no appearance.

4. The marital relationship and paternity are not in dispute. Admittedly, the 1^st petitioner does not have any job or source of income. According to the petitioners, the respondent is working abroad in a supermarket and earns more than ₹1,00,000/- per month. It is also alleged that the respondent earns ₹25,000/- per month from the landed property. The respondent has admitted that he was employed in Gulf. However, he has taken a contention that he has returned from Gulf and now working as an employee in a bakery in Madras. According to him, he is only getting ₹8,000/- per month. He has also contended that he is suffering from various ailments and has to maintain his second wife.

5. As stated already, the definite case of the petitioners is that the respondent is employed at Gulf and earns ₹1,00,000/- per month. The respondent has admitted that he was employed at Gulf, but, according to him, he has returned from Gulf and now working as an employee in a bakery in Madras. However, absolutely no piece of evidence has been produced by the respondent to prove where he works now and what his income is, which is a fact within his exclusive knowledge. Even though the respondent has taken up a contention that he is suffering from various ailments, no document has been produced to prove the same. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children and cannot contend that he is not in a position to earn sufficiently to maintain his family. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court [Rajnesh v Neha & Another (2021)2 SCC 324].

6. The respondent is aged 40 years. He has no case that he has any incapacity to earn. Nothing has been produced to show his physical inability, if any. Since the respondent has failed to produce any material to prove his present employment and income, the adverse inference has to be drawn against him. The petitioner has given positive evidence that the respondent is earning ₹1,25,000/- per month.

7. The respondent has taken yet another contention that the 1^st petitioner left his company, refused to live with him without any sufficient reason and hence not entitled to maintenance. It is also contended that with the meagre income he gets from his present job, he has to maintain his second wife as well. The Muslim Personal Law, though, permits the husband to contract a second marriage during the subsistence of the first marriage in exceptional circumstances, specifically mandates that the