Bushra @ Ushrabi v. Cholamarakkar, S/O. Saithali, The State of Kerala, and Pathumma @ Pathuma (RPFC.No.52 of 2010 / RP.(FC).No.52/2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935** **RPFC.No. 52 of 2010 ( ) -----------------------** **AGAINST THE ORDER IN MC 413/2002 of FAMILY COURT, MALAPPURAM, DATED 17-11-2008.** **REVISION PETITIONER/PETITIONER NO.2:-** **-----------------------------------** **BUSHRA @ USHRABI, AGED 30 YEARS, D/O. CHOLAMARAKKAR, CHEROOR AMSOM KILINANGODE DESOM P.O.CHEROOR, TIRUR TALUK.** **BY ADV. SMT.K.V.RESHMI** ## **RESPONDENTS/RESPONDENT/STATE AND PETITIONER NO.1:-** **------------------------------------------------** **1. CHOLAMARAKKAR,S/O. SAITHALI, CHEROOR AMSOM DESOM, CHEROOR P.O., TIRUR TALUK MALAPPURAM DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM.** **3. PATHUMMAMA @ PATHUMA, CHEROOR AMSOM KILINANGODE DESOM, POTHAYIL HOUSE, P.O. CHEROOR TIRUR TALUK.** **R3 BY ADV. SRI.ANIL THOMAS(T) R1 BY ADV. SRI.V.R.KESAVA KAIMAL R1 BY ADV. SRI.N.M.MADHU R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** = = = = = = = = = = = = R.P.(FC).No.52 of 2010. = = = = = = = = = = = = Dated this the 9[th] July, 2013. ## **O R D E R** The Revision Petitioner is the second petitioner in M.C.No.413 of 2002 filed under Section 125 of the Code of Criminal Procedure, against the first respondent herein. The respondent is the father of the Revision Petitioner. Earlier, the MC was dismissed on a finding that the mother Pathumma is not a legally wedded wife of the respondent and also the Revision Petitioner is not a child who is entitled to get maintenance allowance under 125(1)(c) of the Cr.PC; but the question of paternity was found in her favour. That order was challenged before this court in RPFC No.99/2003. This court confirmed the finding of the Family Court that the said Pathumma is not entitled to get maintenance as there was no legal marriage between the said Pathumma and the respondent herein. This court further found that in 2 **RP.(FC).No.52/2010.** the absence of pleadings regarding any special circumstances under Section 125(1)(c), a major daughter is not entitled to claim maintenance from her father. Admittedly, at the time of filing the M.C., the Revision petitioner was aged 22. However, this court set aside the order of the Family Court as regards the maintenance claim of the Revision Petitioner and remanded the matter for fresh consideration after affording an opportunity of being heard by both sides. 2. After remand, the pleadings in the MC was amended to the effect that though the Revision Petitioner is now aged 30 years, since her father earlier denied her paternity, nobody had come forward to marry her and on account of that denial of paternity she has suffered mental injury. Consequent upon the stigma created on her by the doubtful paternity, she cannot do any job or eke out her livelihood. Nobody was willing to give her any job. The respondent herein has resisted the said contention. The **RP.(FC).No.52/2010.** 3 Revision Petitioner was examined as Pw2. The respondent has not adduced any fresh evidence. After considering the rival pleadings the Family Court considered the sole issue whether the Revision Petitioner is entitled to get maintenance under Section 125(1)(c) of the Code of Criminal Procedure. After considering the evidence, the Family Court dismissed the MC on a finding that the alleged mental deformity said to have been caused by the aforesaid stigma will not come under Section 125(1)(c) of the Cr.PC. 3. The learned counsel for the Revision Petitioner raised the contention that a Muslim unmarried woman is entitled to get maintenance after attaining majority till her marriage and drew my attention to **Noor Saba Khatoon v. Muhammed Quasim** (AIR 1997 SC 3280). But the learned counsel for the Respondent strongly opposed the above argument contending that this point was considered earlier in the first round of litigation in MFA.No.1114/2002 filed by the Revision Petitioner and got rejected by the Division **RP.(FC).No.52/2010.** 4 Bench of this Court. The learned counsel further submitted that the Revision Petitioner is raising the very same contentions in suppression of earlier consideration culminated in rejection of the said argument by this Court. The learned counsel drew my attention to the Judgment of this Court in MFA.No.1114/2002 filed by the Revision Petitioner. Going by the Judgment passed by the Division Bench of this Court in MFA.No.1114/2002 I find that as submitted by the learned counsel for the Revision Petitioner, the Division Bench of this Court considered the question. Did the Supreme Court consider the issue whether muslim unmarried daughter who has attained majority is entitled to get maintenance from the father and declare the law affirmatively in AIR 1997 SC 3280? Relevant findings of this Court in the above Judgment reads as follows: “... ... The issue as to the right to claim maintenance after attaining majority but before marriage of female children did not arise before the court and hence not considered also.” **RP.(FC).No.52/2010.** 5 xxx xxx xxx xxx xxx xxx “... ... Therefore, the observation in Noor Saba Khatoon's case regarding the entitlement for maintenance to unmarried daughters of a Muslim parent will not help the petitioners. That observation regarding entitlement of the females for maintenance till they are married can only be read and understood as entitlement for maintenance in the case of female children till they are married, in case they are unable to maintain themselves on account of any physical or mental abnormality or injury.” xxx xxx xxx xxx xxx xxx “... .... The observation of the Supreme Court in Noor Saba Khatoon's case regarding entitlement for maintenance to unmarried daughters is not an interpretation of law by the Supreme Court on the scope and ambit of Section 125 Cr.PC. The Supreme Court only considered the entitlement of Muslim children who are unable to maintain themselves beyond the age of two years.” 4. Further the Division Bench of this Court considered the decision of this Court in Muhammed v. Kunhayisha (2003(3) KLT 106) and affirmed that decision laid by the learned Single Judge. In the above decision, this Court held as follows: **RP.(FC).No.52/2010.** 6 “We find that the question was considered by a Single Bench of this Court in Muhammed vs. Kunhayisha (2003(3) KLT 106) wherein it has been rightly held as follows: “The language of S.125, according to me, does not at all permit a construction that the status of a major daughter as an unmarried person can by itself be construed as “physical or mental abnormality or injury” sufficient to bring her case within the sweep of S.1125(c). Whatever be the religion of the parties, the language of the Statute does not permit an unmarried major daughter to be brought within the purview of S.125(c) on that sole reason/ground of her being an unmarried daughter. She has to prove further that she is unable to maintain herself and such inability to maintain herself is attributable to physical or mental abnormality or injury, if any, which she is afflicted with. If the intention of the Legislature were to grant maintenance to unmarried female children, solely on the ground that they are unmarried female children, nothing prevented the Legislature from making express provisions imposing liability on the parents to provide maintenance to their female children till they are married. Their disability, if that be one, of remaining unmarried alone was definitely not reckoned by the Legislature as sufficient to entitle them claim maintenance under S.125 Cr.PC. That evidently is the reason why the Parliament which must be presumed to have been conscious of the rights of the unmarried daughters under the Hindu and Mohammedan personal law (statutory and customary) to claim maintenance from their parents till they are **RP.(FC).No.52/2010.** 7 married, did not choose to confer such right on them under S.125 Cr.PC. Under S.125 Cr.PC a minor unmarried daughter is not entitled to claim maintenance from her parents unless her inability to maintain herself is attributable to her physical or mental abnormality or injury and that her mere status as an unmarried daughter - whatever be her religion - does not entitle her to claim maintenance under S.125 Cr.PC.” 5. The learned counsel for the Revision Petitioner cited **Md.Siddique Ali and others v. Mustt.Fatema Rashid and others** (2007 KHC 6401) Gauhati High Court, **Raj Kumari Awasthi and another v. State of Uttar Pradesh and another** (2008 KHC 5753) Allahabad High Court in support of her argument. These decisions have only persuasive value only. When Division Bench of this Court considered this question in the MFA filed by the Revision Petitioner herself and affirmed the decision held by the learned Single Judge of this Court in Muhammed v. Kunhayisha (2003(3) KLT 106), this Court is bound to follow the said decision and I do so. 6. Therefore, I find that the argument that Muslim **RP.(FC).No.52/2010.** 8 unmarried woman is entitled to get maintenance after attaining majority till marriage is liable to be rejected in view of the decision of this Court and I do so. 7. The learned counsel for the Revision Petitioner advanced arguments depicting the alleged stigma which is said to have been caused by the denial of paternity by the Respondent. Per contra, the learned counsel for the Respondent submits that after the unambiguous declaration of her paternity by the competent Civil Court, there cannot be any kind of stigma as claimed by the Revision Petitioner and she is still claiming maintenance without bonafides under the guise of doubtful paternity said to have been existed prior to the declaration of paternity by the Court. 8. In view of the rival contentions and submissions advanced thereunder, the question to be considered in this Revision Petition is whether there is any illegality or impropriety in the impugned order under challenge. Put it differently, the question is whether the Revision Petitioner, **RP.(FC).No.52/2010.** 9 a muslim unmarried major daughter is entitled to get maintenance allowance from her father on the reason that she is suffering from any kind of mental abnormality or injury unable to maintain herself. 9. Admittedly at the time of examination she was aged 30 years. She mounted the witness box and stood for the test of cross examination. After watching the demur of the Revision Petitioner while in the witness box the court observed that her conduct before the court does not undertake that she is having any sort of incapacity either mental or physical or other form of mental diseases. The case of the Revision Petitioner as regards to mental abnormality is that since her father had denied her paternity, nobody has come forward to marry her and on account of that denial of paternity she has suffered mental injury consequent upon which she cannot do any job to eke out her livelihood. But it is pertinent to note that while disposing the MC earlier, the Family Court declared that ## **RP.(FC).No.52/2010.** 10 the respondent herein is the father of the Revision Petitioner and a news item was also happened to appear in the daily newspaper to that effect. As rightly pointed out by the court below, if she had any stigma caused by the doubtful paternity, that had been removed by the declaration of her paternity by the Family Court in the earlier round of litigation itself. Therefore, at any view, after the declaration of paternity by the competent court she cannot claim that she is still reeling under doubtful paternity and that affected her earning capacity. In short, the doubtful paternity had been cleared much earlier and she could not have any reason for continued mental injury to the extent of affecting her earning capacity. No evidence either oral or documentary was adduced to prove that she is suffering from mental injury or at least mental agony or any kind of stigma allegedly caused by the earlier doubtful position of her paternity. In the absence of evidence I find that there is no illegality or impropriety in the finding that **RP.(FC).No.52/2010.** 11 she miserably failed to prove alleged mental abnormality or injury as provided under Section 125(i)(c) of the Cr.PC. I do not find any kind of perversity in the appreciation of evidence also. Consequently, this Revision Petition is devoid of merit and dismissed accordingly. **K. HARILAL, (Judge)** **Kvs/-**