Muhammed Bhukari v. Sajeera C. and Faikkashassa (Minor)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2012/19TH MAGHA 1933** **RPFC.No. 162 of 2011 ( ) ------------------------** **MC.471/2008 of FAMILY COURT, MALAPPURAM** **-----** ## **REVISION PETITIONER/RESPONDENT::** **--------------------------------** **MUHAMMED BHUKARI, S/O.SAITHALAVI HAJI, THAYYIL VEEDU, ALSILA, ATHAVANADU P.O. PARITHI, MALAPPURAM DISTRICT.** **BY ADV. SRI.JAMSHEED HAFIZ** ## **RESPONDENTS/PETITIONERS::** **------------------------** **1. SAJEERA C., D/O.P.MUHAMMED, GREEN MAHAL, KUTTIPPURAM P.O., TIRUR TALUK MALAPPURAM DISTRICT.** **2. FAIKKASHASSA (4 AND HALF YEAR OLD MINOR) D/O.MUHAMMED BUKHARI** **(MINOR REPRESENTED BY 1ST RTESPONDENTY MOTHER).** **BY SRI.K.J.SAJI ISAAC BY DR.ELIZABETH VARKEY** **THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VK** ## **P.BHAVADASAN, J.** ---------------------------------------------------RP(FC) No.162 of 2011-E ---------------------------------------------------Dated this the 8[th] day of February 2012 ## Order This revision is directed against the order dated 20.04.2011 in MC No.471/08 of the Family Court, Malappuram. 2. The petition was one under Section 125 of Cr.P.C. by the wife and child of the petitioner herein, who was the respondent before the court below. The parties and facts are hereinafter referred to as they are available before the trial court. 3. The marriage between the petitioner and the respondent was solemnized on 20.07.2003. A child was born to them in the wedlock. They are living separately since 11.04.2008. Various allegations are made in the petition, regarding the circumstances under which the first petitioner was compelled to take up separate residence and seek maintenance from her husband. Pointing out that RPFC 162/11 2 he has married again and it is not possible to live with him any more and also alleging that he is bound to maintain the petitioners, she laid a claim for maintenance claiming a sum of Rs.25,000/- to the first petitioner and Rs.13,000/- to the second petitioner. It is specifically averred that at the relevant time, she had no independent means of income and had to depend on the husband, who is very affluent and had a fleet of cars. The allegation regarding the material articles given at the time of marriage are also mentioned in the petition, which are not very relevant for the present purpose. However, the first petitioner has averred that she is accustomed to an affluent way of life both before and after marriage as both her parents and husband were very well off and it was on that basis that the maintenance was claimed. 4. The respondent resisted the petition, pointing out that the maintenance amount claimed is exorbitantly high. It is seen from the impugned order that though series of counselling were conducted, they were not successful. RPFC 162/11 3 The parties were allowed to adduce evidence. Evidence consists of the testimony of PW1 and documents marked as Exts.P1 to P7 from the side of the petitioners. The respondent had DW1 examined and Exts.D1 to D5 marked. 5. On an evaluation of the evidence, the court below came to the conclusion that the claim made is reasonable and awarded a sum of Rs.25,000/- per month as maintenance to the first petitioner till 23.6.2009 from the date of the petition as she was unemployed during the said period and also Rs.13,000/- as maintenance to the second petitioner from the date of petition. The said order is under challenge. 6. The learned counsel for the revision petitioner pointed out that the amounts awarded as maintenance to the petitioners are exorbitantly high and it is without any justifiable reason. It is also pointed out that it is without any evidence to prove the income of the respondent that the order has been passed. It is further pointed out that the child is only 3½ years old and so, the amount ordered as RPFC 162/11 4 maintenance to the child is far too excessive. 7. The learned counsel for the respondent, on the other hand, pointed out that both the parties are very well off and are leading luxurious life. Even though it is not mentioned in the petition as such that the petitioner continued her affluent life even after marriage, it is evident from the evidence adduced that her husband was also very well off and she could continue the affluent life which she was used to, before marriage. The learned counsel also pointed out that both the petitioners are in U.A.E. and the amount awarded is very reasonable. In support of his contentions, the learned counsel relied on the decision in **Vinny Parmvir Parmar v. Parmvir Parmar** (AIR 2011 SC 2748). 8. This is yet another story of break up of a family. In this case, it would appear from the evidence that both the respondent and the petitions are sufficiently rich and are leading an affluent life. Though it is not mentioned in the petition that even after the marriage, the first RPFC 162/11 5 petitioner enjoyed the same affluent life as before, it is evident from the statement in the petition regarding the assets of the respondent that he was very well off and he could afford a luxurious life. True, maintenance does not mean luxury, but it also does not mean a pittance. It means, as observed in the decision in **Vinny Parmvir Parmar v. Parmvir Parmar** (supra) the amount should be commensurate with the needs of the person, capacity to pay and such other factors, which are relevant. The relevant portion of the above decision reads as follows : - “12. As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent's own income and other property and the income and other property of the applicant are all relevant materials in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim, has RPFC 162/11 6 to consider all the above relevant materials and determine the amount which is to be just for living standing. No fixed formula can be laid for fixing the amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband. At the same time, the amount so fixed cannot be excessive or affect the living condition of the other party. These are all the broad RPFC 162/11 7 principles courts have to be kept in mind while determining maintenance or permanent alimony.” 9. It is true that the lower court has not actually quantified the amount necessary for the first petitioner and has given an amount of Rs.25,000/- for the wife. From 23.06.2009, it seems that she is employed, going by the entries in her passport. The learned counsel for the respondent pointed out that that is only for the purpose of going abroad. Since the court below has found that the wife is employed from 23.06.2009 and it is not necessary to consider the cross appeal, it is not necessary to consider that aspect. 10. Coming to the question as to whether the quantum awarded to the wife is excessive or not, it is true that no basis is mentioned by the lower court in awarding the sum of Rs.25,000/- to the first petitioner. But the fact remains that both the respondent and the petitioner before the court below are very well off and are considerably rich. RPFC 162/11 8 However, maintenance awarded to the first petitioner i.e., Rs.25,000/- is slightly on the excessive side. During the relevant period, it is not shown that she was employed. That is for the period from 30.06.2008 to 23.06.2009. It is felt that a sum of Rs.20,000/- would be sufficient as monthly maintenance to the first petitioner for the above period. 11. As far as the maintenance to the child is concerned, this court does not find any grounds for interfering with the quantum of maintenance awarded. It is very vehemently pointed out by the learned counsel for the revision petitioner that the child is only 3 ½ years old and it does not need such a huge amount for maintenance and an amount of Rs.5,000/- will be sufficient to meet the expenses of the child. This court is unable to agree with the said contention. The child is staying with its mother abroad and considering the cost of living, treatment charges etc. it does not appear that the amount of Rs.13,000/- is excessive. It was after considering the RPFC 162/11 9 various factors like cost of living in a foreign country and other needs of the child that the court below has ordered to pay Rs.13,000/- as maintenance to the child. It is felt that the amount awarded is reasonable. In the result, while confirming the order of maintenance awarded to the child @ Rs.13,000/- to the child, the amount awarded to the wife is modified as Rs.20,000/- per month from the date of the petition till 23.06.2009. Subject to the above modification, the revision petition is disposed of. 12. The learned counsel for the revision petitioner then pointed out that the petitioner has paid some amount to the respondents during the tendency of the petition, as per the orders of the court below. It is directed that the said amount shall be given credit to while making payments as directed above. ## **P.Bhavadasan, Judge** sta RPFC 162/11 10 RPFC 162/11 11