A wife must provide justifiable reasons for living separately to claim maintenance under Cr.P.C. Section 125.

ORDER

This revision petition has been filed challenging the order passed by the Family Court, Thalassery in M.C.No. 45 of 2018 dated 31.08.2018.

2. The respondent is the husband of petitioner No.1 and the father of petitioner No.2. The petitioners filed M.C.No. 45 of 2018 before the Family Court, Thalassery against the respondent, claiming monthly maintenance at the rate of Rs.15,000/- and Rs.10,000/-, respectively. The respondent resisted the claim of petitioner No.1 mainly on the ground that she was residing separately without any justifiable reason. The Family Court accepted the said contention and rejected the claim of the petitioner No.1 for maintenance. However, the Family Court granted maintenance at the rate of Rs.5,000/- per month to the petitioner No.2. It is challenging the said order, this revision petition has been filed.

3. I have heard Smt.Bindumol Joseph, the learned counsel for the petitioners and Smt.M.M.Deepa, the learned counsel for the respondent.

4. As per Section 125 of Cr.P.C., a wife who is unable to maintain herself is entitled to claim maintenance from her husband who has sufficient means. However, the right of the wife to claim maintenance is not absolute. The wife is obliged to discharge her marital obligations. If the wife refuses to live with her husband without any justifiable reason, she cannot claim maintenance. If she gives a reasonable and justifiable explanation for living separately, she is still entitled to get maintenance.

5. The respondent was employed in the Gulf as a truck driver. He came back from Gulf on 16.05.2016. Thereafter, he filed O.P.No.768 of 2017 seeking divorce. Admittedly, the wife has been living separately at her parental home w.e.f. 16.05.2016. In the petition for maintenance, though the petitioner No.1 has stated that the respondent had treated her with cruelty, it was not pleaded that, that was the reason for her living separately. In the counter statement, the respondent specifically contended that petitioner No.1 has been living separately without any justifiable reason and even though he asked her to come and join with him several times after 16.05.2016, she refused to rejoin him. However, in her chief examination also she did not state that it was on account of cruelty by the respondent, that she was residing separately.

6. It has come out in evidence that after the respondent had come back from Gulf, he issued a lawyer notice to the petitioner No.1 asking her to come and reside with him, but no reply was given. In cross-examination, petitioner No.1 admitted that though the respondent came to her home to take her to the house of the respondent, she was not prepared to go with him. When an offer was made during cross-examination, she stated that she was not prepared to go and reside with the respondent. A specific question was put to petitioner No.1 whether she is prepared to go and reside with the respondent, if he lives separately from his parents, still the answer was that she was not prepared to go and reside with him. All these evidence and circumstances clearly suggest that there is no justifiable reason for the petitioner No.1 to reside separately from the respondent. Hence, I see no reason to interfere with the finding of the Family Court that the petitioner No.1 is not entitled to get maintenance.

7. Admittedly, the respondent was employed in the Gulf as a truck driver. It is true that he has come back from Gulf. The respondent has no case that he has any disability to go for any job. He is an able-bodied person. Considering the ability and means of the respondent and the requirements of the petitioner No.2, the monthly maintenance of Rs.5,000/- granted by the Family Court appears to be very low. Hence, the monthly maintenance granted to the petitioner No.2 is enh