Nassar v. Akhila

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943 MAT.APPEAL NO. 19 OF 2019** **AGAINST THE JUDGMENT DATED 09.10.2018 IN OP 815/2014 OF** **FAMILY COURT, CHAVARA** ## **APPELLANT/RESPONDENT:** **NASSAR, AGED 50 YEARS S/O.ALIKUNJU, ANZIYA MANZIL, PADANAYARKULANGARA NORTH MURI, FROM VELIYIL PUTHENPURAYIL, PADA NORTH MURI, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT.** **BY ADVS. K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN** ## **RESPONDENT/PETITIONER:** **AKHILA, AGED 25 YEARS D/O.NASSAR, VELIYIL PUTHENPURAYIL, VADAKKUMMURI, PADANAYARKULANGARA, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM-690518.** **MAT.APPEAL NO. 19 OF 2019** 2 **BY ADVS. SMT.BHANU TILAK (CAVEATOR) SRI.K.S.HARIHARAPUTHRAN SMT.BHANU THILAK** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MAT.APPEAL NO. 19 OF 2019** 3 ## **J U D G M E N T** ## SOPHY THOMAS, J. This appeal has been preferred by the father who was directed by the impugned judgment and decree to pay maintenance and marriage expenses to his daughter. 2. The respondent-daughter filed O.P.No.815 of 2014 against her father claiming maintenance (past and future), gold, and also marriage expenses of Rs.29,15,000/-. The Family Court, Chavara, allowed that O.P. in part directing him to pay Rs.76,000/- towards past maintenance, future maintenance at the rate of Rs.3000/- per month from 01.01.2015 to 31.12.2017, and thereafter, @ of Rs.4000/- per month till she gets married, and Rs.16,35,000/- towards anticipated marriage expenses. Aggrieved by the judgment and decree her father has come up with this appeal. 3. The facts in brief are as follows: The appellant father treated his wife and children in a cruel manner **MAT.APPEAL NO. 19 OF 2019** 4 and he failed to look after them properly. So they had to seek shelter at their maternal aunt's home. A criminal case was registered against the father under Sections 498A, 324 and 308 of IPC. Knowing about the case registered against him, he left the house, taking valuable household articles, including gold ornaments of the respondent/daughter. She passed B.A decree and was doing B.Ed decree at the time of filing O.P. She had no job or income, and though interim maintenance was ordered in M.C.271 of 2011 against the father, he was not making regular payment. He is owning a Saw mill, he has got several vehicles, and he is running furniture business also. He has got immovable properties, and he is doing real estate business as well. His monthly income is Rs.4,10,000/. The petitioner is entitled to live at par with the status of her father, and so she claimed Rs.10,000/- per month, towards her maintenance. She was about to marry. But due to financial constraints her mother was not able to conduct her marriage. Going by the **MAT.APPEAL NO. 19 OF 2019** 5 status of her father, she needs 100 sovereigns of gold and a car for her marriage. Moreover amounts are needed for marriage feast, hall etc. So towards marriage expenses she claimed Rs.29,15,000/-. Claiming those reliefs, she filed the O.P. against her father. 4. The father filed objection admitting the relationship, but refuting the case of desertion. He never took away the ornaments of the daughter and he was attending the household affairs, as well as all the needs of the children. Admittedly, he was running a Saw mill and furniture business. But he is not getting monthly income as stated by the daughter in her petition. He has got only one car for his personal use. He is a Cardiac patient and he lost his business, and now, the furniture shop has been closed. He is ready to give his daughter in marriage, according to his capacity. He is not in a position to give 100 sovereigns of gold ornaments and a car for his daughter. So, he prayed for dismissal of the petition. **MAT.APPEAL NO. 19 OF 2019** 6 5. The parties went on trial. PWs.1 to 3 were examined and Exts.A1 to A3 were marked from the side of daughter. DWs 1 to 3 were examined and Exts.B1 to B3 were marked from the side of the father. Ext.X1 series were marked as witness Exhibits. 6. On consideration of the evidence and documents put forward from either side, the Family Court partly decreed the O.P., against which the father has approached this Court. 7. The appellant-father is admitting the relationship. The respondent-daughter is not having any job or income to maintain herself also is not disputed. The parties are Muslims. 8. As far as, a Hindu father is concerned, Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956, obliges him to maintain his unmarried daughter, which specifically includes the right to claim marriage expenses also. Section 3(b)(ii) of the Hindu Adoptions and Maintenance Act, 1956 says, that in the case of an **MAT.APPEAL NO. 19 OF 2019** 7 unmarried daughter, maintenance includes, reasonable expenses of an incident to her marriage, apart from provisions for food, clothing, residence, education and medical attendance and treatment, envisaged under Section 3(b)(i). 9. A Division Bench of this Court had occasion to deal with the claim of an unmarried Muslim daughter to claim maintenance and marriage expenses from her father This Court held that maintenance under different Personal Laws should be given uniform meaning and interpretation, and hence a Muslim father is liable under his Personal Law to pay maintenance to his unmarried daughter, whether major or minor, and maintenance includes reasonable marriage expenses also. 10. The text by Mulla under the heading Maintenance in paragraphs 369 and 370 was extracted by the Division Bench in the decision in **Ismayil v. Fathima and Another [2011 (3) KHC 825]** as follows: 369. Maintenance defined.--"Maintenance" in this **MAT.APPEAL NO. 19 OF 2019** 8 Chapter includes food, raiment and lodging. 370. Maintenance of children and grandchildren.-(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (S.352) does not relieve the father from the obligation of maintaining them (a). But the father is not bound to maintain a child who is capable of being maintained out of his or her own property. (2) If the father is poor, and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be. (3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances." (emphasis supplied) 11. So, a Muslim father is liable to maintain his unmarried daughter, according to his Personal Law whether she is major or minor. Maintenance includes reasonable marriage expenses also. 12. Relying on **Mathew Varghese v. Rosamma Varghese [2003 KHC 362],** “every father whatever be his religious denomination and faith has the indisputable liability to **MAT.APPEAL NO. 19 OF 2019** 9 maintain his child. If the concept of maintenance would include the marriage expenses of the daughter, then absence of a stipulation in the Personal Law obliging payment of such expenses (maintenance) is no reason for a father to avoid liability to meet expenses in connection with the marriage of his daughter. Marriage expenses of an adult unmarried daughter is the obligation or liability of the father, apart from maintaining his daughter till the time of her marriage”. 13. In the case in hand, the relationship is not disputed and the incapacity of the respondent daughter to maintain herself also is not in dispute. Now the question is the quantum of maintenance which the father was liable to pay according to his status and financial capacity. 14. The respondent daughter was alleging that her father was owning a Saw mill, several vehicles, immovable properties and he was doing furniture business and real estate business, as well, earning monthly income of more than Rs.4 lakhs. But he produced evidence to show that **MAT.APPEAL NO. 19 OF 2019** 10 now the furniture businesses is closed. He produced medical evidence to show that he is a Cardiac patient. According to him, he lost his business, and he is not getting monthly income as alleged by the respondentdaughter. But, admittedly still he is running the Saw mill though he has not produced any documents to prove his monthly income. 15. The Family Court awarded Rs.76,000/- towards past maintenance and Rs.3000/- per month from 01.01.2015 till 31.12.2017, and thereafter, @ Rs.4000/- per month till the date of her marriage as future maintenance. 16. The appellant father contended that he was making monthly payment of Rs.2000/- to the respondent as ordered in M.C. But he has not produced any documents to prove payment of monthly maintenance to the respondent as ordered in M.C. But considering the fact that the appellant is a Cardiac patient, and he lost his furniture business, we are inclined to fix the past maintenance @ Rs.50,000/- and future maintenance @ Rs.2500/- per month **MAT.APPEAL NO. 19 OF 2019** 11 from 01.1.2015 till the date of her marriage. 17. Now regarding marriage expenses, the respondentdaughter produced Annexure-A1 to show that she got married on 10.09.2021. Towards marriage expenses, against her claim of Rs.29,15,000/- the Family Court awarded only Rs.16,35,000/-. Annexures-A2 to A11 were produced by the respondent as additional documents, to prove the expenses incurred in connection with her marriage. She produced bills for purchasing gold jewellery in the name of various persons. There are only 2 bills in her name amounting to Rs.1,86,990/- the other bills are in the name of Smt.Raseena, Mr.Abdual Rahman Kunju and Mr.Sabin Samad. If the entire gold ornaments covered by those bills were purchased in connection with the marriage of the respondent, it may not have been in the name of different persons. We do not know whether those persons purchased those ornaments for their own purposes. Annexure-A4 is the bill for Wedding Album. Annexures-A5 and A6 are for purchasing electric and plumbing materials **MAT.APPEAL NO. 19 OF 2019** 12 and Annexure-A7 is for purchasing Almirah, Mattress etc., which cannot reasonably be included in the marriage expenses. 18. The financial capacity of the appellant to pay marriage expenses of Rs.16,35,000/- is under challenge. There is no convincing evidence to prove that he is financially stable to pay that much of amount towards marriage expenses of the respondent. An amount of Rs.6 lakhs towards marriage expenses seems to be sound and reasonable. 19. Considering the factual scenario, as to the illness and loss of business of the appellant we are inclined to fix the past maintenance at Rs.50,000/- and future maintenance at the rate of Rs.2,500/- per month from 01.01.2015 till the date of her marriage i.e., 10.09.2021 which amounts to Rs.2,00,000/-. Towards marriage expenses, we are inclined to award a reasonable amount of Rs.6 lakhs. 20. In the result, the Mat. Appeal is allowed in **MAT.APPEAL NO. 19 OF 2019** 13 part, modifying the judgment and decree to the extent of Rs.2.5 lakhs towards maintenance (past and future) and Rs.6 lakhs towards marriage expenses. The appellant has to pay the amount within three months from today, and in default, the respondent can realize the amount from the appellant and his assets with 6% interest per annum from the date of default till realization. The Mat. Appeal is allowed to that extent modifying the impugned decree and judgment. The parties shall suffer their respective costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** AS **MAT.APPEAL NO. 19 OF 2019** 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANN.A1:**|**TRUE COPY OF THE MARRIAGE CERTIFICATE**| |---|---| ||**DATED 10.09.2021**| |**ANN.A2:**|**TRUE COPY OF THE CATERING BILL DATED**| ||**12.09.2021**| |**ANN.A3:**|**TRUE COPY OF THE PANDAL AND DECORATION**| ||**BILL DATED 12.09.2021**| |**ANN.A4:**|**TRUE COPY OF THE BILL OF WEDDING ALBUM**| ||**DATED 28.09.2021**| |**ANN.A5:**|**TRUE COPY OF THE INVOICE OF PURCHASER OF**| ||**BUILDERSWARE DATED 23.03.2021**| |**ANN.A6:**|**TRUE COPY OF THE INVOICE OF ELECTRICAL**| ||**WARES DATED 23.03.2021**| |**ANN.A7:**|**TRUE COPY OF THE INVOICE ISSUED BY**| ||**POCHAYIL H.S MALL DATED 07.09.2021 &**| ||**17.09.2021**| |**ANN.A8:**|**TRUE COPY OF THE INVOICE ISSUED BY THE**| ||**MALABAR GOLD JEWELERY DATED 09.09.2021**| |**ANN.A9:**|**TRUE COPY OF THE INVOICE ISSUED BY**| ||**MALABAR GOLD JEWELERY DATED 03.09.2021**| |**ANN.A10:**|**TRUE COPY OF THE INVOICE ISSUED BY**| ||**MALABAR GOLD JEWELERY DATED 21.04.2021**| |**ANN.A11:**|**TRUE COPY OF THE INVOICE ISSUED BY**| ||**MALABAR GOLD JEWELERY DATED 19.04.2021**|