Majeed v. Sakeena and Muhammed Shaheer (Minor)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940 RPFC.No. 159 of 2018 AGAINST THE ORDER/JUDGMENT IN MC 48/2016 of FAMILY COURT, TIRUR DATED 11-08-2017 ## REVISION PETITIONER(S)/RESPONDENT MAJEED AGED 40 YEARS, S/O.YAHUTTI,ALUKKAL HOUSE, THUVVAKAD, KANMANAM(PO),PIN-676 551, TIRUR TALUK,MALAPPURAM DISTRICT. REPRESENTED BY POWER OF ATTORNEY HOLDER KADEEJA, AGED 37 YEARS, W/O.MAJEED, ALUKKAL HOUSE, THUVVAKAD, KANMANAM(PO),PIN 676 551, TIRUR TALUK,MALAPPURAM DISTRICT. BY ADVS.SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY ## RESPONDENT(S)/PETITIONERS: ## 1. SAKEENA AGED 40 YEARS, D/O.MOIDEENKUTTY, KOYISSAN HOSUE, KANMANAM AMSOM DESOM, KANMANAM(PO),PIN 676 551,TIRUR TALUK,MALAPPURAM DISTRICT. ## 2. MUHAMMED SHAHEER(MINOR) AGED 13 YEARS, S/O.SAKEENA, KOYISSAN HOSUE, KANMANAM AMSOM DESOM, KANMANAM(PO),PIN 676 551, TIRUR TALUK,MALAPPURAM DISTRICT, REPRESENTED BY THE MOTHER 1ST RESPONDENT. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02.04.2018, THE COURT ON 13-04-2018 PASSED THE FOLLOWING: ## **ANNIE JOHN, J.** ## **-------------------------------R.P.F.C. No. 159 of 2018** ## **---------------------------------Dated this the 13[rd] day of April, 2018.** ## **ORDER** The petitioner is the respondent in M.C. No. 48 of 2016 on the file of the Family Court, Tirur. He has filed this revision petition through his power of attorney holder. The respondents have filed the M.C seeking maintenance from the petitioner herein at the rate of Rs.8000/- for the first petitioner and Rs.4000/- for the second petitioner. The learned Judge as per order dated 11.08.2017 directed the petitioner herein to pay maintenance at the rate of Rs.5000/- to the first respondent and Rs.3000/- to the second respondent from the date of petition. Aggrieved by the same, the petitioner has filed this R.P.F.C. 2. The marriage between the petitioner and the first respondent was solemnised on 31.03.2002. In that wedlock, the second petitioner was born on 01.11.2002. The allegation against petitioner is that he has not maintained the respondent wife from 07.01.2015 onwards. It is contended that the petitioner husband is conducting his own business in gulf country and earning Rs.1,00,000/- per month. It is further alleged that the petitioner has pronounced talak of the respondent wife on 10.06.2015 and that he has not paid the idda period maintenance and fair provision for future life to the respondents. R.P.F.C. No. 159/2018 -2- 3. The petitioner herein has been examined as PW1 and the first respondent is examined as RW1 and the agreement was marked as Ext.R1. 4. Before the court below, the petitioner herein entered appearance and filed a counter stating that at the time of pronouncing talak, he has paid idda period maintenance and fair provision and an agreement signed by both the petitioner and the respondent wife was executed and the petitioner has no liability to pay maintenance to the respondent wife. He has denied the respondent wife's contention that the petitioner is conducting business in gulf countries. It is also stated that the petitioner is suffering from Tuberculosis and he is working as a driver in gulf country. The second respondent does not require the amount demanded in MC and the petitioner has sold 9 cents of land for settling the claims of the first respondent. He has agreed to pay Rs.2000/- as monthly maintenance to the second respondent and is regularly paying the said amount. It is further stated that his elder son is suffering from Leukemia and a considerable amount is needed for his treatment. 5.I heard the learned counsel for the revision petitioner. The learned counsel for the petitioner argued that the court below has not considered the case advanced by the petitioner and awarded a huge amount as maintenance. It is also argued that the petitioner has to R.P.F.C. No. 159/2018 -3- maintain his other wife and two children and the court below has not considered the fact that the petitioner has paid the idda period maintenance and fair provision to the respondent wife. 6. The judgment was pronounced by the Family Court, Tirur on 11.08.2017. The first respondent has filed the petition under Section 125 of Cr.P.C. The main aspect projected by the petitioner's counsel is that the petitioner has paid the idda period maintenance and fair provision to the respondent wife at the time of pronouncing talak. During cross examination, PW1 has stated that he has not paid any such amount to her. She has admitted that an agreement has been executed and she had signed the agreement as instructed by the Mediators. The agreement would show that Rs.10,000/- has been paid towards the idda period maintenance and fair provision. The court below has found that Rs.10000/- which was paid for maintenance during the idda period is not sufficient and has not considered the fair provision for future life of the first respondent. The petitioner's case is that he is regularly paying Rs.2000/- as maintenance to the second respondent; but no documents were produced before the court below to establish this fact. Even though the petitioner has argued that he has no job in gulf countries as alleged by the respondents, he has not raised any contention that the first respondent is having a job and earning income for her livelihood. 7. The sole question to be considered is whether this Court has got R.P.F.C. No. 159/2018 -4- the revisional power to interfere with the order passed by the court below. It is well settled that the revisional power is limited, that the court is not expected to enter into the evidence adduced by the parties before the court below, and that the court is only bound to consider whether any irregularity or illegality in passing the order by the court below. 8. In _Pyla Mutyalamma Alias Satyavathi v. Pyla Suri Demudu and another[1]_ , it is held that the revisional court can interfere only if there is any material irregularity in the procedure or an error of jurisdiction. The Court on facts held that the High Court in its revisional jurisdiction ought not to have entered into the scrutiny of finding recorded by the Magistrate that appellant was a married wife of respondent before allowing an application determining maintenance. It is also held in paragraph 19 of the judgment that the proof and evidence of subsistence of an earlier marriage at the time of solemnising the second marriage, has to be adduced by the husband taking the plea of subsistence of an earlier marriage and when a plea of subsisting marriage is raised by the respondent husband, it has to be satisfactorily proved by tendering evidence. 9. In Shamim Bano v. Asraf Khan[2] , it is held that the application under Section 125 Cr.P.C is not to be restricted to the date of divorce > 1 (2011) 12 SCC 189 > 2 (2014) 12 SCC 636 R.P.F.C. No. 159/2018 -5- and filing of application under Section 3 of Muslim Women (Protection of Rights on Divorce) would not entitle the wife to sustain her application under Section 125 Cr.P.C. 10. In Shamima Farooqui v. Shahid Khan[(2015) 5 SCC 705] the wife has absolute right of maintenance and the husband is not absolved from his obligation to provide maintenance merely on his plea of financial constraints, so long as he is healthy, able-bodied and capable of earning for his own support. It is further held that sustenance does not mean bare survival, that it gains more weightage when children are also with wife and that the quantum should be adequate so as to enable wife to live with dignity similar to standard with which she would have lived in her matrimonial home. 11. In the facts and circumstances of the case, I find that the amount of maintenance as fixed by the court below as Rs.5,000/- to the respondent wife and Rs. 3000/- to the second respondent is too meagre. The respondents are entitled to get maintenance equal to the status of the petitioner. I am not inclined to interfere with the order passed by the court below. 12. At the fag end of the argument, the learned counsel for the petitioner has sought for some time to pay the amount. Accordingly, the petitioner is directed to pay 50% of the arrears of maintenance within one month from the date of the order and the balance amount within R.P.F.C. No. 159/2018 -6- two months thereafter. He shall continue to pay the monthly maintenance without any interruption. If the petitioner fails to pay the amount as ordered above, the respondents are entitled to execute the order in accordance with law. This petition is disposed of as above. **ANNIE JOHN, JUDGE.** _Rv_ R.P.F.C. No. 159/2018 -7-