Athikkad Sulaiman v. Paramban Fathima and Sumayya

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 24 OF 2015 ``` ``` AGAINST THE COMMON ORDER DATED 22.08.2014 IN MC 189/2013 OF FAMILY COURT, TIRUR ``` ## `REVISION PETITIONER/RESPONDENT:` ``` ATHIKKAD SULAIMAN, AGED 43 YEARS, S/O. KUNHIMARAKKAR, ATHAVANAD AMSOM DESOM AND POST - 676 301, TIRUR TALUK, MALAPPPURAM DISTRICT. ``` ``` BY ADV SRI.K.K.MOHAMED RAVUF ``` ## `RESPONDENTS/PETITIONERS:` ``` 1PARAMBAN FATHIMA, AGED 38 YEARS, D/O. MUHAMMEDKUTTY, KALPAKANCHERY P.O., TIRUR TALUK, MALAPPURAM DISTRICT. 676305. ``` ``` 2SUMAYYA, AGED 18 YEARS, PARAMBAN HOUSE, KALPAKANCHERY P.O., TIRUR, TALUK, MALAPPURAM DISTRICT 676305 (THE 2ND RESPONDENT BEING MAJOR NOW SHE IS MADE A PARTY IN HER PERSONAL CAPACITY) ``` ``` BY ADV SRI.A.KRISHNAN ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.12.2023, ALONG WITH RPFC.25/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)Nos.24 & 25/2015 -:2:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 25 OF 2015 ``` ``` AGAINST THE COMMON ORDER DATED 22.08.2014 MC NO.289/2013 OF FAMILY COURT, TIRUR ``` ## `REVISION PETITIONER/PETITIONER:` ``` ATHIKKAD SULAIMAN, AGED 43 YEARS, S/O. KUNHIMARAKKAR, ATHAVANAD AMSOM DESOM, POST - 676 301, TIRUR TALUK, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.K.K.MOHAMED RAVUF ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1PARAMBAN FATHIMA, AGED 38 YEARS, D/O. MUHAMMEDKUTTY, KALPAKANCHERY P.O., TIRUR TALUK, MALAPPURAM DISTRICT. 676305. ``` ``` 2SUMAYYA, AGED 18 YEARS, PARAMBAN HOUSE, KALPAKANCHERY P.O., TIRUR, TALUK, MALAPPURAM DISTRICT 676305 (THE 2ND RESPONDENT BEING MAJOR NOW SHE IS MADE A PARTY IN HER PERSONAL CAPACITY) ``` ## `BY ADV SRI.A.KRISHNAN` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.12.2023, ALONG WITH RPFC.24/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)Nos.24 & 25/2015 -:3:- Dated this the 7[th] day of December, 2023 ## **C O M M O N O R D E R** These revision petitions have filed challenging the common order in M.C.Nos.189/2013 & 289/2013 of the Family Court, Tirur, ordering the revision petitioner to pay the respondents – his wife and child – monthly maintenance allowance @ Rs.2,500/- & Rs.1,500/-, respectively. The revision petitioner was the respondent in M.C.No.189/2013 and the petitioner in M.C.No.289/2013, which were filed by and against the respondents. ## **Brief facts:** 2. The wife and child of the revision petitioner had filed M.C.No.389/2008 before the Family Court, Malappuram, against the revision petitioner/ husband/father under Section 125 of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), seeking an order of maintenance. The said R.P.(FC)Nos.24 & 25/2015 -:4:- application was allowed by directing the revision petitioner to pay the wife and child monthly maintenance allowance @ Rs.900/- to the wife and Rs.800/- to the child. Subsequently, alleging change of circumstances, the wife and child filed M.C.No.189/2013, seeking enhancement of maintenance. On the other hand, the revision petitioner filed M.C.No.289/2013, to cancel the order in M.C.No.389/2008. It was the case of the wife and child in the application that, subsequent to the order passed in M.C.No.389/2008, the revision petitioner secured an employment abroad and is earning Rs.50,000/- per month. Furthermore, their living expenses have increased. Therefore, their monthly maintenance allowance may be enhanced to Rs.5,000/and Rs.3,000/-, respectively. 3. The revision petitioner filed a written objection, refuting the allegations in the above R.P.(FC)Nos.24 & 25/2015 -:5:- application. He contended that the wife has landed properties and is also a tailor by profession. She earns a daily income of Rs.300/-. Their older son is working abroad and he is earning Rs.50,000/- per month. The revision petitioner has filed an application against his son for maintenance, since he has no job or income and is liable to maintain himself. The wife is living separately from him without any sufficient cause. The child has attained majority and is no longer entitled for maintenance. The application is meritless and, therefore, may be dismissed. 4. The revision petitioner also filed M.C.No.289/2013 on the very same assertions in the above written objection to cancel the order in M.C.No.389/2008. The wife and child resisted the said application by denying the allegations in M.C.No.289/2013. 5. The Family Court consolidated and jointly R.P.(FC)Nos.24 & 25/2015 -:6:- ## tried the two applications. 6. In the trial, the wife was examined as PW1 and the revision petitioner was examined as RW1 and Exts R1 to R1(k) were marked in evidence. 7. The Family Court, after analysing the pleadings and materials on record, by the impugned common order, partly allowed M.C.No.189/2013 by directing the revision petitioner to pay the wife Rs.2,500/- and the child Rs.1,500/- per month from the date of petition, and dismissed M.C.No.289/2013 filed by the revision petitioner. 8. It is assailing the said common order; the two revision petitions are filed. 9. Heard; Sri. K. K. Mohamed Ravuf, the learned counsel appearing for the revision petitioner and Sri. A. Krishnan, the learned counsel appearing for the respondent/wife and child. 10. The learned counsel appearing for the R.P.(FC)Nos.24 & 25/2015 -:7:- revision petitioner reiterated the contentions in the memorandum. In addition to the above grounds, he argued that in the light of the law declared by this Court in **Cholamarakkar & Anr. v. Pathummamma @ Pathumma & Anr.** [2008 (3) KHC 973] and **Yousuff v. Nafeesakutty** [2020 (1) KLT 369] and the admitted fact the child having attained majority on 07.08.2012, the Family Court had gone wrong in ordering maintenance to the child. He prayed that the revision petitions be allowed and the common order may be set aside. 11. The learned counsel appearing for the respondents defended the impugned order and submitted that there is no error or illegality warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. 12. The revision petitioner admits his marriage with the first respondent /wife and the paternity of the R.P.(FC)Nos.24 & 25/2015 -:8:- second respondent /child. 13. The case of the wife and child before the Family Court was that the order in M.C.No.389/2008 was passed on 21.05.2009, directing the revision petitioner to pay them the monthly maintenance allowance @ Rs.900/- and Rs.700/-, respectively. 14. It is after the lapse of more than four years that the wife and child filed the application for enhancement of maintenance. Immediately, the revision petitioner filed M.C.No.289/2013, to cancel the order in M.C.No.389/2008. 15. The respondents have contended that the revision petitioner is employed abroad and he is earning Rs.50,000/- per month. Therefore, they are entitled to enhancement of maintenance @ Rs.5,000/& Rs.2,000/-, respectively. 16. The revision petitioner’s main defence was that he is suffering from arthritics and backache. R.P.(FC)Nos.24 & 25/2015 -:9:- Moreover, he has contracted a second marriage during the subsistence of the marriage with the first respondent. Therefore, he has to look after his second wife. The first respondent is a tailor and is earning Rs.300/- per day. Likewise, their older son is employed abroad and is earning Rs.50,000/-. Hence, the first respondent can easily seek maintenance from their older son. 17. It is not disputed that, it is during the subsistence of the marriage between the revision petitioner and the first respondent that he has contracted the second marriage. Thus, the separate residence of the first respondent is justified. Although the revision petitioner has contended that he is suffering from various ailments other than for certain medical bills , there is no material to prove his affliction. 18. The revision petitioner was aged 41 years at R.P.(FC)Nos.24 & 25/2015 -:10:- the time of filing the applications. As there is no material to prove that he is suffering from any ailment, he is assumed to be an able bodied person. An able bodied person in the year 2013 by any stretch of imagination would have earned Rs.1,000/- per day for a period of 25 days. Thus, the revision petitioner’s notional income is fixed at Rs.25,000/- month. The defence of the revision petitioner that their older son is employed abroad and the first respondent can seek maintenance from him is untenable. 19. Section 125 of the Code casts a duty on the husband to maintain his wife, until she is remarried or has a means to maintain herself. There is no material on record to prove that the first respondent was having any source of income. Therefore, I am of the definite view that there is no error in the finding of the Family Court directing the revision petitioner to pay the first respondent monthly maintenance allowance @ R.P.(FC)Nos.24 & 25/2015 -:11:- Rs.2,500/- 20. Now, coming to the question regarding the liability of the revision petitioner to maintain the second respondent after she has attained majority. 21. The legal position is no longer res integra, in view of the declaration of law by this Court in **Cholamarakkar** and **Yousuff** (supra), wherein it is has categorically held that the liability of a father to maintain his unmarried daughter is only till she attains majority, unless the daughter proves that she has any physical or mental abnormality or injury. 22. In the case on hand, there is nothing on record to establish that the second respondent was having any such affliction. Therefore, the Family Court ought to have granted monthly maintenance allowance to the second respondent @ Rs.1,500/- per month from the date of petition till 07.08.2012 i.e., the date she had attained majority. This is an error committed by R.P.(FC)Nos.24 & 25/2015 -:12:- the Family Court. 23. After bestowing my anxious consideration to the pleadings and materials on record and the law on the point, I am inclined to interfere with the impugned common order directing the revision petitioner to pay the second respondent monthly maintenance allowance @ Rs.1,500/- from the date of petition until further orders. The revision petitioner’s liability to maintain the second respondent is only limited till 07.08.2012. Thus, I modify the impugned common order to the above limited extent. 20. In the result, - (i) The revision petitions are partly allowed; - (ii)The revision petitioner shall pay the first respondent monthly maintenance allowance @ Rs.2,500/- from the date of petition 07.09.2011 until further orders. - (iii) The revision petitioner is directed to pay the second respondent monthly maintenance R.P.(FC)Nos.24 & 25/2015 -:13:- allowance @ Rs.1,500/- from 07.09.2011 till 07.08.2012. - (iv) As these revision petitions have been pending consideration before this Court from 2015 onwards, the revision petitioner is permitted to pay the arrears of maintenance allowance due to the respondents as per this order in three equated and successive monthly installments commencing from 07.01.2014 onwards. - (v) Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim order of this Court or the impugned common order, he only needs to pay the balance amount as per this order. Sd/- ## **C.S.DIAS,JUDGE** DST/07.12.23 //True copy// P.A. To Judge