Court:ALLAHABAD HIGH COURT
Bench: JUSTICE K.C. Bhargava
ANKUR TRIPATHI @ TINNU Vs. RADHEY SHYAM PANDEY & ORS. On 29 September 1993
Parents are natural guardians. No other person can be appointed as guardian of minor. Custody of minor can not be denied to parents, merely on ground of not approaching Civil Court under Hindu Minority and Guardianship Act.
This revision has been filed against the order in M.C. No. 39 of 1994 of the Family Court, Kozhikode. Petitioner herein was the respondent in the M.C. filed before the Family Court.
2. The petitioner’s case is that the wife and two children filed the above case for maintenance against him. The first petitioner-wife claimed maintenance at the rate of Rs. 400/- per mensem on the allegation that she is entitled to live separately from him on the ground of his cruelty towards her. For the children, she claimed Rs. 200/- each. The husband-respondent contended that the wife has no justifiable reason to live separately and hence she is not entitled to maintenance. He has made many attempts to take her back but failed. According to him, the wife is doing work in a prawn factory and is earning substantial income. He is a fish-monger. His work is only seasonal and hence he is not able to provide maintenance.
3. The Family Court fixed the maintenance due to the petitioners at the rate claimed by them. Aggrieved by the said order, this revision has been filed by the husband.
4. The learned Counsel for the petitioner submitted that the Court below, without taking any evidence, came to the conclusion that the wife is entitled to live separately and to claim maintenance. Regarding the quantum also, he submits that the Court has fixed the same arbitrarily. The learned Judge, without taking any evidence, held that the wife is entitled to separate maintenance. That finding is not correct. For awarding maintenance to a wife living separately, the Court has to come to the conclusion that she is justified in living separately. The Court has hastened to come to the conclusion that she is entitled to maintenance. This finding is incorrect and hence it is liable to be set aside.
5. According to the wife, the husband is a Clerk in a prawn factory and is getting a monthly income of Rs. 3,000/- per month and hence the maintenance amount was fixed at Rs. 250/- each for petitioners 2 and 3. The respondent being an able-bodied man, the quantum of maintenance fixed by the Court below at Rs. 250/- each per month for petitioners 2 and 3 is reasonable. Therefore, I do not find any reason to set aside the said finding. But the order of the Court below awarding maintenance to the wife is liable to be set aside.
In the result, the revision is partly allowed. The order under challenge is set aside to the extent it awarded maintenance to the first respondent. In all other respects the order is confirmed. The Court below is directed to afford an opportunity to the petitioner and the first respondent to adduce evidence and to dispose of the case, in accordance with law, within two months from the date of receipt of records by that Court.
Revision partly allowed.
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