Muhammed Kunhi.K.C. v. Koulath N.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** ## **RPFC.No.135 OF 2015** **AGAINST THE ORDER/JUDGMENT IN MC 134/2013 DATED 05-032015 OF FAMILY COURT, KANNUR** ## **REVISION PETITIONER/S:** **MUHAMMED KUNHI.K.C AGED 43 YEARS S/O.T AHAMMED, ORYARA HOUSE, MAVILAKADAPPURAM P O, VALIAPARAMBA, KASARAGOD DIST** **BY ADVS. SRI.K.P.SUJESH KUMAR SMT.KEERTHI K.NARAYANAN** ## **RESPONDENT/S:** **KOULATH N.V AGED 40 YEARS W/O.MUHAMMED KUNHI,M.K.S VILLA, NEAR R C CHURCH, VELAPURAM, PAPPINESSERI P O, KANNUR** **R1 BY ADV. SMT.BINDUMOL JOSEPH R1 BY ADV. SRI.B.S.SYAMANTHAK** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10-02-2020, THE COURT ON 14-02-2020 PASSED THE FOLLOWING:** **RPFC.No.135 OF 2015** ..2.. ## **ORDER** ## **Dated this the 14th day of February, 2020** The revision petitioner was the respondent in M.C.No.134 of 2013 on the file of the Famiy Court, Kannur. The respondent in this revision petition (in short 'RPFC') was the petitioner in the above maintenance case ( in short 'MC'). 2. The respondent had filed the MC seeking an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (in short 'Cr.PC'). She had also filed OP No.206 of 2013 before the same court seeking a decree for past maintenance. The Family Court consolidated, jointly tried and disposed of the original petition and MC by a common judgment. 3. The case of the respondent in the MC was as follows:The marriage between the revision petitioner and the respondent was solemnized on 17.11.2005 as per the provisions of the Special Marriage Act. They also got their marriage solemnized as per personal law on 10.09.2007. After the initial matrimonial bliss, the **RPFC.No.135 OF 2015** **==> picture [17 x 9] intentionally omitted <==** behaviour of the revision petitioner changed. He started to neglect the respondent. The revision petitioner is in the habit of contracting one marriage after the other. He also misappropriated her gold ornaments. The revision petitioner is earning an amount of Rupees Five Lakh per mensem from his employment abroad. He is working in a fast food and high class restaurant. He has also landed properties and derives an income of Rs.25,000/- per month. The respondent does not have any means for her maintenance. The revision petitioner deserted her on 01.02.2010. Therefore, the respondent may be granted an order of past maintenance for a period from 21.03.2010 to 21.03.2013 at the rate of Rs.15,000/- per mensem. She also may be awarded future maintenance allowance at the same rate. 4. The revision petitioner resisted the MC. He filed a counter statement, _inter alia_ , pleading as follows:-The respondent is not entitled to any amount as maintenance. She is a lady who had married earlier and has grown up children in the earlier marriage. The revision petitioner was also earlier married and has **RPFC.No.135 OF 2015** **==> picture [18 x 9] intentionally omitted <==** children in his previous marriage. The respondent obtained the revision petitioner's consent for the marriage by perpetrating fraud on him, making him believe that her former husband was dead. In fact, he is still alive and therefore the marriage between them is _ab initio voild_ . The respondent stays in her parental home which is worth more than Rupees Fifty Lakh. She is leading an adulteress life with her paramour, which constrained the revision petitioner to pronounce talaq on 16.06.2013. The revision petitioner is only a salesman drawing a monthly salary of Rs.10,000/- per month. Hence, the MC may be dismissed. 5. The respondent was examined as PW1. Exts.A1 to A25 were marked through her. The revision petitioner was examined as RW4. He also examined three other witnesses as RWs1 to 3. Exts.B1 and B2 were marked through them. Exts. X1 to X4 were also summoned and marked. 6. The Family Court after considering the pleadings and evidence on record, by the common judgment dated 05.03.2016, dismissed O.P.No.206 of 2013 on the ground that there was ## **RPFC.No.135 OF 2015** **==> picture [17 x 8] intentionally omitted <==** evidence to prove that the revision petitioner had maintained the respondent till the date of pronouncement of talaq. However, the Family Court allowed M.C.No.134 of 2013, by directing the revision petitioner to pay the respondent monthly maintenance allowance at the rate of Rs.10,000/- with effect from the date of petition, i.e. from 25.03.2013. 7. Aggreived by the said order passed by the Family Court, this RPFC is filed. 8. Heard Sri. Prajeesh, the learned counsel representing K.P.Sujesh Kumar, the learned counsel for the revision petitioner and Sri.Syamananthak, the learned counsel for the respondent. 9. The learned counsel for the revision petitioner submitted that the Family Court has gone wrong in ordering maintenance allowance to the respondent, especially after considering the fact that the revision petitioner has maintained the respondent, and that the findings of the Family Court are contradictory because, by the common judgment, the Family Court has arrived at different conclusions as it dismissed O.P.No.206 of ## **RPFC.No.135 OF 2015** ..6.. 2013 but allowed M.C.No.134 of 2013 by ordering the revision petitioner to pay monthly maintenance to the respondent at the rate of Rs.10,000/-. He also contended that the respondent is not entitled for maintenance as she is living in adultery with her paramour. Likewise the respondent has a grown up son who was taken abroad by the revision petitioner, and that the respondent has admitted in evidence that her son is an engineer and earning a sum of Rs.15,000/- per month from his employment. Therefore, she is not a person who is entitled to be maintained by the revision petitioner. The learned counsel also agreed that though the respondent has claimed that the revision petitioner is earning a fanciful amount of Rs.5,00,000/- per mensem, there is nothing on record to prove the said assertion. The revision petitioner is actually employed only as a hotel worker which is substantiated by Ext. B2 salary certificate, and it shows that he is getting a salary equivalent to Rs.17,000/- per month. 10. Per contra, the learned counsel for the respondent invited my attention to paragraph 20 of the impugned order where ## **RPFC.No.135 OF 2015** **==> picture [17 x 8] intentionally omitted <==** the Family Court has discussed the genuinety of Ext.B2 salary certificate. The Family Court found that the said certificate is not genuine or properly authenticated and that the assertion of the revision petitioner that he is getting only a salary of Rs.17,000/cannot be believed. He also drew my attention to the findings of the Family Court as seen from Exts.A2 to A7 which shows that the revision petitioner has six items of landed properties in his name. Ext.A20 copy of the passport of the revision petitioner shows that he is an NRI. Likewise, Ext.A19 certificate proves that the revision petitioner has got a residential building in the joint names of himself and his former wife. It is taking into consideration all the above aspects that the Family Court arrived at a conclusion that the revision petitioner is liable to maintain the respondent at the rate of Rs.10,000/- per month. 11. On going through the impugned common judgment, it is seen that the Family Court dismissed O.P.No.206 of 2013 and rejected the respondent's claim for her past maintenance. However, the Family Court allowed M.C.No.134 of 2013 and ## **RPFC.No.135 OF 2015** ..8.. ordered the revision petitioner to pay the respondent future monthly maintenance allowance at the rate of Rs.10,000/-. The Family Court rejected the respondent's claim for maintenance in O.P.No.206 of 2013,on the sole ground that the revision petitioner had been maintaining her during coverture. It is proved that the marriage between the revision petitioner and the respondent was dissolved by pronouncement of talaq by the revision petitioner on 12.02.2014 as evidenced by Ext. X3. Therefore, with effect from 12.02.2014, the respondent is the divorced wife of the revision petitioner. 12. The Hon'ble Supreme Court in _**Shameem Banu v. Asraf Khan**_ [2014 KHC 4275] has declared the law that, a divorced muslim wife is entitled to maintenance under Section 125 of Cr.PC. 13. In view of the pronouncement of talaq, the revision petitioner's plea that the respondent is leading an adulteress life will no longer hold good. Similarly, even if the respondent's son is employed abroad, that will not exonerate the liability of the ## **RPFC.No.135 OF 2015** **==> picture [18 x 9] intentionally omitted <==** revision petitioner to maintain his divorced wife. 14. Therefore, the sole question to be considered is whether the quantum of maintenance payable by the revision petitioner to the respondent is reasonable or not. 15. Undisputedly, as proved by Exts.A2 to A7, the revision petitioner holds six items of landed properties. Ext.A19 certificate shows that he is also having a residential building. It is also proved by Ext.A20, copy of the revision petitioner's passport, that he is an NRI. All the above documents prove the affluence of the revision petitioner. His contention that he is getting a salary of only Rs.17,000/- cannot be believed. Even if he is working in India, he would have earned a higher income. Being an able bodied person, his notional income has to be fixed at the rate of Rs.1,000/- per day. Considering the above notional income, the monthly maintenance allowance of Rs.10,000/- fixed by the Family Court, cannot be said to be unreasonable or excessive, in the light of the status and standard of living of the revision petitioner. Therefore, there is no illegality, impropriety or irregularity in the order passed ## **RPFC.No.135 OF 2015** **==> picture [22 x 7] intentionally omitted <==** by the Family Court directing the revision petitioner to pay the respondent monthly maintenance allowance at the rate of Rs.10,000/-. 16. The last question to be considered is whether the Family Court was justified in directing the revision petitioner to pay maintenance from the date of petition, that is from 25.03.2013. Admittedly, the impugned order was passed on 05.03.2015. The Family Court by the common judgment found that the revision petitioner was maintaining the respondent. The Family Court has not assigned any express reason or finding in the impugned order for ordering maintenance to the respondent from 25.03.2013, as enjoined in law. I find that the findings of the Family Court in the impugned order by refusing the maintenance in O.P.No.206 of 2013 and at the same time ordering the maintenance to the respondent in M.C.No.134 of 2013 with effect from 25.03.2013 to be self-contradictory. Therefore, I deem it fit and proper to modify the order in M.C.No.134 of 2013 by directing the revision petitioner to pay the maintenance to the respondent with effect ## **RPFC.No.135 OF 2015** **==> picture [20 x 7] intentionally omitted <==** from 05.03.2015, i.e., the date of passing of the order instead of 25.03.2013. With the above observations, this RPFC is disposed of, confirming the order passed by the Family Court in directing the revision petitioner to pay monthly maintenance allowance to the respondent at the rate of Rs.10,000/- per month, but at the same shall be paid only from the date of order, i.e. from 05.03.2015 and not 25.03.2013. If the revision petitioner has deposited/paid any amount as directed by this Court by its interim order dated 05.05.2015, the same shall be given credit to, while calculating the total arrears of maintenance payable by the revision petitioner to the respondent. Sd/- **C.S.Dias, Judge** kkj/17/02/2020 ## **RPFC.No.135 OF 2015** ..12..