KolloLi Mujeeb @ Majeed v. Naseeba and Mehrin (minor)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 30TH DAY OF JANUARY 2018 / 10TH MAGHA, 1939** **AGAINST THE ORDER/JUDGMENT IN OP 608/2006 of FAMILY COURT, MALAPPURAM DATED 15-06-2007** **APPELLANT(S)/APPELLANT/RESPONDENT** **KOLLOLI MUJEEB @ MAJEED, S/O. CHEKUTTY, KOLLOLI VEEDU, PANAMBRA, P.O. PALLIKKAL BAZAR,, MALAPPURAM (DT), BY POWER OF ATTORNEY HOLDER, MUSTHAFA, S/O. HUSSAIN, KUTTEERI HOUSE, CHELEMBRA, PULLIPPARAMBA (PO), MALAPPURAM DISTRICT.** **BY ADV.SRI.T.K.AJITH KUMAR** ## **RESPONDENT(S)/PETITIONERS:** **1. NASEEBA,D/O. UMMER VELLIMAN KUNNAN, PUNIYANAKKAL VEEDU, KANHIRAPPARAMBU,, CALICUT AIRPORT (PO),MALAPPURAM (DT).** **2. MEHRIN, 3 1/2 YEARS (MINOR) D/O.KOLLOLI MUJEEB, (MINOR IS REPRESENTED BY GUARDIAN, MOTHER IST RESPONDENT)** **R,R1 & R2 BY ADV. SRI.A.C.SANKARA VARMA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-01-2018,ALONG WITH RPFC 332/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.HARILAL & A.M.BABU, JJ. --------------------------MAT.APPEAL No. 401 of 2007 & RP(FC) No. 332 of 2007** **--------------------------Dated this the 30[th] day of January, 2018** ## **JUDGMENT** ## **K.Harilal, J.** The appellant is the respondent in O.P 608/2006 and MC 621/2006 of the Family Court, Malappuram. The respondents 1 and 2 are the wife and daughter of the appellant. The above original petition was filed by the respondents herein seeking past maintenance allowance and MC 621/2006 was filed by the respondents claiming future maintenance allowance under Sec.125 of the Cr.P.C at the rate of Rs 3,500/- to the first respondent and Rs 1,500/- to the second respondent. According to the respondents, the appellant treated the first respondent with cruelty and when it became intolerable she was compelled to live separately along with the second respondent. The first respondent had preferred a criminal complaint before the Magistrate Court against the appellant alleging offence punishable under Sec.498 A of IPC and the same was pending. Eventually the appellant deserted the respondents on 15.2.2004 and thereafter he neglected them and he did not pay any 2 MAT.APPEAL No. 401 of 2007 & RP(FC) No. 332 of 2007 amount towards maintenance allowance. Now, the appellant is doing a business abroad. He has his own ice-cream parlour in Gulf country and he is getting an income of Rs 30,000/- per month. That apart, he has 7½ cents of landed property. Thus, he has sufficient means to pay maintenance allowance to the respondents; whereas, the first respondent has no sources of income and the second respondent is aged 2 ½ years. The first respondent is unable to maintain herself and the second respondent. The appellant is liable to pay maintenance allowance to the respondents as his wife and only child. 2. The appellant resisted the claim for maintenance allowance in OP and MC contending that he divorced the first respondent herein on 19.11.2006 by pronouncing 'Talaqu' and till the date of 'Talaqu' he looked after the petitioners (respondents herein) with proper care. He does not have any business or employment abroad. He is a labourer in Gulf with 100 riyals as salary per month. Hence he prayed for dismissal of both original petition and MC. 3. On the aforesaid contentions, both parties adduced evidence which consists of oral testimony of PWs 1 and 2, RWs 1 3 MAT.APPEAL No. 401 of 2007 & RP(FC) No. 332 of 2007 to 3 and Exts A1 to A4 and B1 to B4 were marked. After considering the aforesaid evidence on record, the Family Court allowed both original petition and MC granting past and future maintenance allowance in both proceedings at the rate of Rs 2000/- to the first petitioner and Rs 1,000/- to the second petitioner. The legality and correctness of the common order granting past and future maintenance allowance are challenged in these Mat. Appeal and RPFC. 4. Heard the learned counsel for the appellant. 5. The marital relationship between the appellant and the first respondent and the parentage of the child are admitted. Similarly, it is not disputed that now they are living separately. The respondent is conducting a business abroad. According to the respondents, the appellant neglected them and refused to pay maintenance allowance to them from 15.2.2004 onwards. They have no sources of income. But the appellant has sufficient means to pay maintenance allowance to them. He is getting an income of Rs 30,000/- per month from his own ice-cream store in Gulf. That apart, he has 7 ½ cents of landed property. In order to prove the aforesaid averments, the first respondent was 4 MAT.APPEAL No. 401 of 2007 & RP(FC) No. 332 of 2007 examined as PW1 and she has sworn the proof affidavit in support of the averments in the original petition as well as the MC. PWs 2 and 3 were also examined to support the evidence of PW1. After evaluating the evidence of PWs 1 and 2, the Family Court observed that there is nothing to disbelieve their evidence. The appellant has no case that the first respondent has any sources of income for livelihood of the first and second respondents. In the absence of any such plea or evidence, the Family Court is justified in finding that the appellant is liable to pay maintenance allowance to the respondents. That apart, the cruelty alleged against the appellant is supported by the pendency of proceedings under Sec.498 A of IPC. The appellant has not put forward any reason to deny maintenance allowance to his own child, the 2[nd] respondent. The appellant has no case that he paid any amount to the respondents as maintenance allowance after 15.2.2004 or the first respondent has been residing separately without sufficient reasons. So the Family Court is justified in finding that the appellant is liable to pay maintenance allowance, past and future, to the respondents. 6. Coming to the quantum of maintenance allowance it 5 MAT.APPEAL No. 401 of 2007 & RP(FC) No. 332 of 2007 has come out in evidence that the appellant has been conducting an ice-cream store at Gulf. The appellant himself has produced Ext B1 and B1 they would show that he is getting 500 riyals per month as salary. But the Family Court has not considered the said document as the same was not proved in accordance with law. It is pertinent to note that the appellant has not chosen to enter the witness box so as to deny the allegations against him and to prove that he has no sufficient income to pay maintenance allowance as claimed by the respondents. Though RW1, a power of attorney was examined for the appellant he was not in a position to speak anything regarding Ext B1 and as rightly observed by the Family Court Ext B1 remains to be a document not even attempted to be proved. Thus, the Family Court is justified in discarding Ext B1. 7. It is contended that the appellant has pronounced 'Talaqu' on 19.11.2006 and in order to prove the alleged 'Talaqu' RW3 was examined. After evaluating the evidence of RW3 the Family Court held that the appellant failed to prove the alleged 'Talaqu' as required under law. The Family Court is justified in relying on **2002 (3) KLT 537 (Shamin Ara vs State of Uttar** 6 MAT.APPEAL No. 401 of 2007 & RP(FC) No. 332 of 2007 **Pradesh)** wherein the Supreme Court held that law ordered by holy Qur'an is (I) that 'Talaqu' must be for reasonable cause (II) that must be preceded by an attempt of conciliation between her husband and wife by two arbitrators, chosen by the wife from her family and other by the husband from his family. If their attempt was failed, 'Talaqu' can be effected”. It was incumbent upon the husband to prove 'Talaqu' in such a way that the same was effected as required under holy Qur'an. In the instant case, the appellant failed to prove formalities of 'Talaqu' as insisted by holy Qur'an. Therefore, the Family Court is justified in rejecting his contention that he had already pronounced 'Talaqu'. 8. Even if Ext B1 is taken at its face value, it shows that he is earning from his employment and he is getting a reasonable amount with free accommodation and travelling expense. It is pertinent to note that no amount was paid by him towards maintenance allowance after 15.2.2004. The husband is liable to pay a reasonable amount to his wife and children to meet the day-to-day expenses. In the above analysis, the Family Court is justified in granting past and future maintenance allowance at the rate of Rs 3,500/- to the first respondent and Rs 1,500/- to the 7 MAT.APPEAL No. 401 of 2007 & RP(FC) No. 332 of 2007 second respondent in both original petition and MC. We do not find any reason to interfere with the common order under challenge. This appeal is devoid of merits. Accordingly, Mat. Appeal 401/2007 and RP (FC) 332/2007 are dismissed. sd/- **K.Harilal Judge** sd/- **A.M.Babu Judge** sks/30.1.2018