Abbas v. Fathima Shahanas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944** **MAT.APPEAL NO. 285 OF 2006 AGAINST THE ORDER DATED 03.04.2006 IN O.P.NO.372/2005 OF THE FAMILY COURT, MALAPPURAM** ## **APPELLANT/RESPONDENT:** **ABBAS** **AGED 43 YEARS, S/O AVARAN, KARUNAKARATH VEEDU, PERINTALMANNA AMSOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADV SRI.DEVIDAS.U.K** ## **RESPONDENTS/PETITIONERS:** - **1 FATHIMA SHAHANAS, D/O.ABBAS, KARUNAKARATH VEEDU, PERINTALMANNA AMSOM, PERINTALMANNA TALUK, MALAPPURAM DISTRICT, REP.BY MOTHER-3RD RESPONDENT** - **2 SHAHANA SHERIN, 10 YEARS, MINOR, D/O ABBAS, KARUNAKARATH VEEDU, PERINTALMANNA AMSOM,, PERINTALMANNA TALUK, MALAPPURAM DISTRICT, REP.BY MOTHER-3RD RESPONDENT** - **3 BUSHRA.E.K., 29 YEARS D/O.UNNEN HAJI, ELATHODIKAKKASSERI, EDAPPALAM, OTTAPPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV SRI.K.SHIBILI NAHA** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** Mat.Appeal No.285 of 2006 ## **JUDGMENT** ## Ajithkumar, J. This is an appeal filed under Section 19 of the Family Courts Act, 1984. 2. The order dated 03.04.2006 of the Family Court, Manjeri in O.P.No.372 of 2005 is under challenge. As per the said order, the appellant was directed to pay an amount of Rs.86,248/- as past maintenance to respondents 1 and 2 during the period from 13.02.1995 to April, 2004 along with interest at the rate of 6% per annum. 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 4. The relationship between the parties is not disputed. The appellant married the 3[rd] respondent on 28.06.1992. Respondents 1 and 2 are their children. It is also beyond dispute that in February 1995 the respondents were sent to the parental house of the 3[rd] respondent. The 3[rd] respondent instituted O.P.No.372 of 2005 contending that **3** Mat.Appeal No.285 of 2006 ever thereafter she had been looking after the affairs of the children, who were then aged 11 and 10 years respectively, and therefore, she was entitled to realise the amount of maintenance on various heads. She had contended that apart from meeting the living and educational expenses of minor children, she had to meet expenses including their treatment. 5. The appellant resisted the claim of the respondents by filing a counter statement. The appellant admitted that the respondents were sent to the parental home of the 3[rd] respondent on 13.02.1995. But he denied the allegation that he refused to maintain the children. It is his contention that it was only because the 3[rd] respondent did not take care of his affairs, she had to leave the marital home and that compelled him to marry Sumayya. The appellant would contend that he had been making payments of amounts to meet the educational and other expenses of respondents 1 and 2. Regarding the income he has been deriving also, he raised disputes. He maintains that from the steel and cement business he has been doing in partnership, he could earn only **4** Mat.Appeal No.285 of 2006 Rs.2,500/- to Rs.3,000/- a month and that since he has to maintain two wives and six children, he was unable to pay the amounts as claimed by the respondents. 6. Before the Family Court, the appellant and the 3[rd] respondent were examined. They are RW1 and PW1 respectively. Exts.A1 to A10 were marked. 7. The Family Court, after considering the evidence of PW1, the admissions made by RW1 and Exts.A1 to A5, which are the documents regarding the admission of respondents 1 and 2 in school and madrassa, came to the conclusion that it was the 3[rd] respondent, who was looking after the matters of the education of the children. The learned counsel appearing for the appellant would contend that without there having sufficient evidence in support, such a finding was entered into and it is wrong. 8. Regarding the quantum of maintenance fixed by the Family Court, the learned counsel appearing for the appellant took exception and contended that if the evidence regarding income being derived by the appellant was **5** Mat.Appeal No.285 of 2006 appreciated in its proper perspective, such an exorbitant amount would not have been ordered to be paid. 9. Exts.A1 to A5 produced by the 3[rd] respondent would show that respondents 1 and 2 were joined in school and madrassa by her. She has deposed categorically before the court that it was she, who has been looking after the affairs of the children and doing everything necessary for their education. Although the appellant claimed and deposed before the court as RW1 that he used to make payment to the respondents towards maintenance, and for convenience only the children were joined in the school near the house of the 3[rd] respondent, that evidence stands unreliable. There is nothing to support that version so as to receive it in preference to the evidence of PW1 which gets corroboration from Exhibits A1 to A5. Therefore, we hold that the finding of the Family Court that it was the 3[rd] respondent, who was taking care of the affairs of respondents 1 and 2, cannot be said to be incorrect. 10. The Family Court, accepting Ext.A6(a) to A6(f) to be genuine documents, found that the expenses incurred by **6** Mat.Appeal No.285 of 2006 the 3[rd] respondent towards medical treatment of the children was liable to be paid by the appellant. There is no contention, now, for the appellant controverting the said claim. 11. Ext.A8 is a copy of mortgage deed and Exts.A9 and A10 are copies of assignment deeds from which details of the landed property owned by the appellant are available. It is an admitted fact that he is conducting a hardware business. While the appellant contended that it is a partnership firm and the income he gets therefrom is meagre, PW1 asserted that the appellant has been getting enough income from the said business and landed properties. From the said evidence, it is quite clear that the appellant has income from the business as well as landed properties, which is extensive in area. In the light of that fact, the Family Court held that the appellant was liable to pay monthly maintenance to the children at the rate of Rs.300/- for the initial period and at the rate of Rs.500/for the subsequent period. Considering the evidence available on record, we do not find any reason to say that the amounts fixed by the Family Court is exorbitant. **7** Mat.Appeal No.285 of 2006 12. Another contention raised by the appellant is that the parties belong to the Hanafi Madhab sect, and therefore, the respondents are not entitled to claim past maintenance. The learned counsel appearing for the respondents would contend that without the backing of any pleading, such a contention is raised in the appeal and therefore the same cannot be reckoned with. The learned counsel appearing for the appellant would point out that this Court in **Amina v. Hassan Koya [1985 KLT 596]** held that presumption available was that the Muslims in the State of Kerala are followers of Hanafi School of Law and if departure therefrom is resorted to, it must be pleaded and proved, and therefore, such a contention is available to the appellant even without any pleadings. This question was considered by a Full Bench of this Court in **Beepathu and others v. Kovath Abdul Azeez [2016 (2) KHC 303].** It was held, “In view of the conflict of decisions, it has to be decided as to whether the parties to this litigation follow the Hanafi school or Shafei school of Muhammedan Law. In the light of the contents of the precedents of the Kerala High Court as noted above, there is a clear divergence **8** Mat.Appeal No.285 of 2006 of opinion and none of the decisions referred to above amounts to declaration of law that the Muslims of Kerala belong to any particular group; either as Hanafi sect of Sunni; or, Shafei sect and as to what is the exact law that is applicable to them. Keeping in mind the nature of conflict and the absence of evidentiary material on the basis of which the aforenoted decisions have been rendered, we are of the view that none of those decisions could be treated as precedent which could be utilised as sources of law to hold that the Muslims of Kerala belong to Hanafi sect of Sunni; or, belong to Shafei sect.” Therefore, the contention of the appellant is not tenable. Without pleading and proof no party can claim that he belongs to any particular School of Muslim Law. For that matter the appellant cannot purse the contention that the respondents are not entitled to claim past maintenance since they belong to Hanafi sect. Therefore the said contention of the appellant can only be turned down. 13. In the said circumstances, we find no reason to interfere with the findings of the Family Court resulting in the decree directing the appellant to pay Rs.86,248/- to the respondents. The interest allowed is legal and not in any way **9** Mat.Appeal No.285 of 2006 violative of the provisions of Section 34 of the Code of Civil Procedure, 1908. Hence, the appeal is dismissed. No costs. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr