Musthafa v Zeenath and Safnas

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2023-10-30
Court Decision / Holding: Revision petition dismissed; impugned order of maintenance confirmed. The High Court stayed execution pending payment on conditions and noted the benevolent purpose of Chapter IX CrPC.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Musthafa

Respondents

Zeenath
Safnas

Legal Representation & Advocates

Counsels for Petitioners

• Sri Jamsheed Hafiz

Case Synopsis & Summary

Musthafa, the revision petitioner, challenges the Family Court, Tirur’s 2013 order in MC 471/2013 directing him to pay monthly maintenance to his wife Zeenath and their son from 13.12.2012. The Family Court consolidated the maintenance application under Section 125 CrPC with related relief petitions. The respondents testified that the couple married on 18.02.2007 and their second respondent was born on 24.11.2007; Musthafa, a construction worker earning about Rs.45,000 per month, treated the first respondent with cruelty and refused to maintain them. He contended that Zeenath left the matrimonial home without sufficient cause and that he had no job or income, arguing that the application should be dismissed. The respondents argued for maintenance on the basis of their need and lack of means. The Family Court, after recording evidence (PW1, PW2 for the respondents; RW1-RW3 for the petitioner; Exts P1–P7 and R1–R2), partly allowed the application by directing the petitioner to pay Rs.3,000 per month to each respondent from 13.12.2012. On admission, the High Court stayed execution on conditions: deposit 50% of arrears and continue to pay Rs.2,000 to each respondent. The Court dismissed the revision petition under Section 19(4) of the Family Courts Act, 1964, reiterating the benevolent purpose of Chapter IX CrPC and citing Anju Garg v. Deepak Kumar Garg to underscore the obligation of maintenance by an able-bodied husband toward wife and child.

Provisions of Law Cited

Section 125 of the Code of Criminal Procedure, 1973Section 19(4) of the Family Courts Act, 1964

Legal Doctrines & Maxims

An able bodied person is statutorily bound to maintain his wife and child.
Section 125 CrPC is a benevolent provision to ameliorate the agony and financial suffering of women and children who are constrained to leave the matrimonial home under Chapter IX of the Code.

Submissions & Arguments

Contentions of Appellants / Petitioners

Musthafa argued that Zeenath left the matrimonial home without sufficient cause and that he had no income or means to maintain the respondents, urging dismissal of the maintenance petition.

Contentions of Respondents

Zeenath and Safnas contended they were entitled to maintenance, having left the matrimonial home due to cruelty and needing support; they argued the trial court properly awarded maintenance given the petitioner’s earning capacity and the needs of the wife and child.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Anju Garg & Another v. Deepak Kumar Garg	2022 LiveLaw (SC) 805	Positive	Cited to support the principle that an able-bodied person has a statutory duty to maintain wife and child under Section 125 CrPC.

Extracted Judgment Text

Exact text extracted from official judgment records.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 ``` ## `RPFC NO. 385 OF 2016` ``` AGAINST THE ORDER DATED 14.07.2016 ON MC 471/2013 OF FAMILY COURT, TIRUR ``` ## `PETITIONER/RESPONDENT:` ``` MUSTHAFA, S/O MUHAMMED BAVA, MARAKKAREPURAKKAL HOUSE, MANGALAM AMSOM, KOOTTAYI DESOM, VADIKKAL, KOOTTAYI (PO), PIN, TIRUR TALUK, MALAPPURAM DIST. ``` ``` BY ADV SRI.JAMSHEED HAFIZ ``` ## `RESPONDENTS/PETITIONERS:` ``` 1ZEENATH, D/O SAIDUTTY, ASANARUPURAKKAL HOUSE, MANGALAM AMSOM, KOOTTAYI DESOM, KOOTTAYI PO- 676 121, TIRUR TALUK, MALAPPURAM DIST. 2SAFNAS, S/O ZEENATH, REP. BY 1ST RESPONDENT MOTHER ZEENATH, ASANARUPURAKKAL HOUSE, MANGALAM AMSOM, KOOTTAYI DESOM, KOOTTAYI PO- 676 121, TIRUR TALUK, MALAPPURAM DIST. ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.385/2016 -:2:- Dated this the 30[th] day of October,2023 ## **O R D E R** The revision petition is filed challenging the order passed in M.C.No.471/2013 of the Family Court, Tirur, directing the revision petitioner to pay monthly maintenance allowance @ Rs.3,000/- each to his wife and son – the respondents – from the date of application(13.12.2012). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts:** 2. The respondents had filed the above application before the Family Court, stating that the first respondent was married to the revision petitioner on 18.02.2007, and the second respondent was born in their wedlock on 24.11.2007. The revision petitioner treated the first respondent with matrimonial cruelty and she was compelled to return to her parental home R.P.(FC)No.385/2016 -:3:- along with the second respondent. Even though the revision petitioner had the means to maintain the respondents, he has willfully refused to maintain them. The respondents have no means to maintain themselves and, therefore, they require Rs.5,000/- & Rs.8,000/- as monthly maintenance allowance. The revision petitioner is a construction worker and is earning Rs.45,000/- per month. Hence, the application. 3. The revision petitioner resisted the application by contending that the first respondent is living separately from him, without any sufficient cause. He does not have any job or income. Therefore, he is not in a position to maintain the respondents. Hence, the application may be dismissed. 4. The respondents had also filed O.P.No.455/2013 before the same court against the revision petitioner and his mother seeking monetary reliefs. R.P.(FC)No.385/2016 -:4:- 5. The Family Court, consolidated and jointly tried the two cases. In the trial, the first respondent examined herself and another witness as PWs 1 & 2 and marked Exts P1 to P7(l) in evidence. The revision petitioner examined himself and two other witnesses as RWs 1 to 3 and marked Exts R1 & R2 in evidence. 6. The Family Court, by the impugned order, partly allowed the application by directing the revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.3,000/- per month from 13.12.2012. 7. It is assailing the said order; the revision petition is filed. 8. Heard; Sri.Jamsheed Hafiz, the learned counsel appearing for the revision petitioner on admission. 9. Even though this revision petition was filed as early as on 26.08.2016, this Court has not admitted the R.P.(FC)No.385/2016 -:5:- revision petition; but stayed the execution of the impugned order, subject to the condition that the revision petitioner deposits 50% of the arrears as ordered in the impugned order and continues to pay maintenance @ Rs.2,000/- each per month to the respondents. 10. The revision petitioner admits the marriage with the first respondent and the paternity of the second respondent. 11. The respondents asserted that they had to leave the matrimonial home because the revision petitioner treated the first respondent with cruelty. Although the revision petitioner is a construction worker and earning Rs.45,000/- per month, he refused to maintain them. The respondents are hence entitled to receive monthly maintenance allowance from the revision petitioner @Rs.13,000/- per month. 12. The revision petitioner resisted the R.P.(FC)No.385/2016 -:6:- application on the ground that the first respondent left the matrimonial home without any sufficient cause. Moreover, the revision petitioner does not have any income as alleged in the application. 13. Section 125 of the Code of Criminal Procedure,1973 (‘Code’ for short), was conceived to ameliorate the agony, anguish and financial sufferings of women and children, who are constrained to leave the matrimonial home for the reasons provided in Chapter IX of the Code, so that suitable arrangements can be made by the Courts to sustain them in their life ahead. 14. It is trite that an able bodied person is statutorily bound to maintain his wife and child, [read **Anju Garg & Another v. Deepak Kumar Garg** [2022 LiveLaw (SC) 805]]. 15. The defence taken of the revision petitioner is that he does not have the means to maintain the R.P.(FC)No.385/2016 -:7:- respondents and that the first respondent left his marital consortium without sufficient cause. 16. There is absolutely no material on record to substantiate that the revision petitioner made an effort to effect a rapprochement with the first respondent or file a petition for a decree for restitution of conjugal rights. Therefore, the defence raised by the revision petitioner is untenable going by the benevolent purpose under Chapter IX of the Code and the said defence is raised to wriggle out of his liability to maintain the respondents. 17. On a consideration of the pleadings and materials on record, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court by exercising its revisional powers under Section 19(4) of the Family Courts Act, 1964. The revision petition is devoid of any merit and is R.P.(FC)No.385/2016 -:8:- resultantly, dismissed. Needless to mention, if the revision petitioner has already deposited any amount, pursuant to the interim order of this Court, he will be entitled to adjustment of the deposited amount while paying the arrears of maintenance as per the impugned order. Sd/- ## **C.S.DIAS,JUDGE** DST/30.10.23 //True copy// P.A. To Judge