Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 29TH DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 RPFC NO. 7 OF 2022 AGAINST THE ORDER/JUDGMENT IN MC 35/2020 OF FAMILY COURT, NEDUMANGAD PETITIONERS/PETITIONERS:
1 MUBEENA LATHEEF AGED 28 YEARS, D/O. ABDUL LATHEEF, THOUFEEK MANZIL, PAZHAVILA, PANGODE P.O, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.
2 MARIYAM MUKTHAR AGED 6 YEARS, D/O. MUKTHAR AHAMAD, THOUFEEK MANZIL, PAZHAVILA, PANGODE P.O, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.
MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, MABEENA LATHEEF 3 MARVA MUKTHAR AGED 3 YEARS, D/O. MUKTHAR AHAMAD, THOUFEEK MANZIL, PAZHAVILA, PANGODE P.O, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.
MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, MABEENA LATHEEF 4 UMAR MUKTHAR AGED 2 YEARS, S/O. MUKTHAR AHAMAD, THOUFEEK MANZIL, PAZHAVILA, PANGODE P.O, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.
MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, MABEENA LATHEEF 5 AMIR MUKTHAR AGED 2 YEARS, S/O. MUKTHAR AHAMAD, THOUFEEK MANZIL, PAZHAVILA, PANGODE P.O, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.
MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, MABEENA LATHEEF BY ADV LATHEESH SEBASTIAN
RP(FC) NO. 7 OF 2022 2 RESPONDENT/RESPONDENT:
MUKTHAR AHAMAD AGED 39 YEARS, S/O. ABDUL RAZAK, CHERUCHITANKARA VEEDU, KANNAMBALLY BHAGOM, KEERIKKAD VILLAGE, KAYAMKULAM P.O, KARTHIKAPPALLY TALUK, ALAPPUZHA - 680502.
BY ADV MATHEW KURIAKOSE THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RP(FC) NO. 7 OF 2022 3 O R D E R Dated this the 29th day of November, 2022 This is a revision petition filed under Section 19(4) of the Family Courts Act, 1984. The order in MC No. 35/2020 on the file of Family Court, Nedumangad dated 30.11.2021 is under challenge in this revision petition. The revision petitioners are the original petitioners and the respondent is the sole respondent in the above MC.
2.
The petitioners herein approached the Family Court and pressed for grant of allowance of maintenance on the allegation that, they did not have any means of income to survive and the respondent who has been doing business, is capable of maintaining themselves.
3.
The respondent herein resisted the said claim on the allegation that, the 1st petitioner herein deserted him without any valid reason and therefore she could not claim maintenance. The liability in so far as the minors are concerned, he did not raise any serious objection. At the same time his contentions before the trial court was that, he had been getting only Rs.10,000/- as monthly income. The Family Court, as per the impugned order, denied the claim of
RP(FC) NO. 7 OF 2022 4 maintenance at the instance of the 1st petitioner and granted maintenance to the minor children at the rate of Rs.2,000/- each.
4.
The learned counsel for the petitioners would urge that, the Family Court went wrong in disallowing maintenance to the 1st petitioner and also limiting the quantum of maintenance at the rate of Rs.2,000/- to the minors in a case, admittedly, the respondent has been doing business. Therefore, the said order requires modification is the submission of the learned counsel for the petitioners.
5.
Per contra, it is submitted by the learned counsel for the respondent that, evidence given by the 1st petitioner, in the matter of reluctance on her part to rejoin the respondent, was considered by the Family Court and the same is the reason for denial of maintenance to her. He also submitted that, as per Ext.D1 Certificate issued by the Village Officer, Keerikkadu Village and as per Ext.D2 GST form, the income of the respondent is proved to be Rs.10,000/- per month. Further, the respondent will have to look after the age old mother also. This is the context in which the Family Court, while denying maintenance to the 1st petitioner, granted reasonable maintenance to the minors.
RP(FC) NO. 7 OF 2022 5 6.
While allying the dispute in the matter of denial of maintenance to the 1st petitioner, the learned Family Court Judge referred paragraph 227 of Mulla's Principle of Mohammedan Law, holding the view that, “the husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him”. In fact, the evidence of the 1st petitioner is that, she was treated like a slave and made to take all house hold works. Therefore, she could not stay safely at the family house of the respondent and she was ready to stay along with the respondent, if a rental house is availed. But the evidence of the 1st petitioner would go to show further that, her demand was to take a rental house nearby her family house.
7.
In this matter, willful reluctance on the part of the 1st petitioner to join the respondent to treat the same as desertion cannot be found. Therefore, merely relying on paragraph 227 of Mulla's Principle of Mohammedan Law, denial of maintenance claimed under Section 125 of Cr.P.C could not be justified. Therefore, the said finding is set aside.
8.
Accordingly, it is held that, the respondent herein is bound to maintain all the petitioners. It is true that,
RP(FC) NO. 7 OF 2022 6 though the petitioners alleged the income of the respondent at Rs.3,50,000/- per month, from business, the respondent would contend that, his annual income is only Rs.60,000/- and the base for this contention is Ext.D1 certificate issued by the Village Officer certifying so. I do not think that, a certificate issued by the Village Officer, without cross- examining him thoroughly, ascertaining the reason for certifying so, cannot be the foundation to hold that, the income of the respondent is at Rs.60,000/- per month. Even otherwise, the contents in Ext.D1 is as against the contention in Ext.D2, the GST return, wherein the respondent would admit that his income would come to Rs.10,000/- per month.
If so, the yearly income would be Rs.1,20,000/-.
9.
Admittedly, the respondent is a person aged 37 years doing business. Therefore, he is legally bound to maintain the petitioners so as to give food and shelter to them. Apart from that, he is bound to pay the education expenses also, in so far as the minors are concerned. Having considered the above essential requirements, the maintenance granted by the Family Court at the rate of Rs.2,000/- each to minors is found to be very meagre and accordingly, the same requires enhancement.
RP(FC) NO. 7 OF 2022 7 10.
Therefore, it is ordered that, the respondent herein shall pay maintenance at the rate of Rs.2,500/- (Rupees Two Thousand Five Hundred Only) to the 1st petitioner and pay Rs.3,000/- (Rupees Three Thousand Only) each to the petitioners 2 and 3 and also pay Rs.2,500/- (Rupees Two Thousand Five Hundred Only) to petitioners 4 and 5.
The order of the Family Court stands modified as indicated above, with direction to the respondent to deposit the entire arrears, within a period of thirty days. If the respondent did not deposit the arrears, within a period of thirty days, the petitioners are at liberty to enforce the order.
Sd/- A. BADHARUDEEN JUDGE SK