Navas v. Saleena

## **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.258 OF 2015** **AGAINST THE ORDER/JUDGMENT IN MC 140/2014 DATED 09-042015 OF FAMILY COURT, NEDUMANGAD** ## **REVISION PETITIONER/S:** **NAVAS AGED 42 YEARS** **S/O.ALIYARUKUNJU, CHERUKONATHU VEEDU, PLAMMODU, AYRUPPARA, THIRUVANANTHAPURAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, SHARAFUDEEN, S/O.SULAIMAN PILLAI, CHERUKONATHU VEEDU, PLAMMODU, POTHENCODE, AYRUPPARA, THIRUVANANTHAPURAM.** **BY ADV. SRI.SHAJIN S.HAMEED** **RESPONDENT/S:** **SALEENA D/O.ABDUL RAHMAN, BAJI MANZIL, MELEMUKKU, POTHENCODE PO, VEMBAYAM VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM PIN CODE 695 584. REPRESENTED BY ABDUL RAHUMAN** **R1 BY ADV. SRI.G.RANJU MOHAN R1 BY ADV. SMT.M.SANTHI K8682011** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10-02-2020, THE COURT ON 14-02-2020 PASSED THE FOLLOWING:** **RPFC.No.258 OF 2015** ..2.. ## **ORDER** ## **Dated this the 14th day of February 2020** The revision petitioner was the respondent in M.C. No.140 of 2014 on the file of the Family Court, Nedumangad. The respondent in this revision petition [(in short R.P.(F.C.)]was the petitioner in the above maintenance case (in short 'M.C.'). 2. The respondent had filed the M.C. through her next friend, her father, _inter alia_ , pleading as follows:- The respondent is suffering from mental illness. Her marriage was solemnized with the revision petitioner on 13.11.1995. Subsequently, the revision petitioner neglected the respondent. The respondent is not having any job or income. She is depending on her father. The revision petitioner is doing business in the Gulf, and that he is getting a monthly income of Rs.75,000/-. He is also earning Rs.25,000/- from his business. The respondent is entitled to be maintained at the rate of Rs.10,000/- per month. 3. The M.C. was resisted by the revision petitioner. He **RPFC.No.258 OF 2015** **==> picture [17 x 9] intentionally omitted <==** filed a written objection, _inter alia_ , contending as follows:- It is fact that his marriage with the respondent was solemnized on 13.11.1995. In their wedlock, three children were born. Their marriage was dissolved by pronouncement of talaq on 28.07.2009. The revision petitioner had paid a lump sum amount of Rs.15,00,000/- as per the personal law of their community, to the father of the respondent, towards the full and final settlement of all the respondent's claims as against the revision petitioner. The three children born in the wedlock, are in the care and custody and are being looked after and nurtured by the revision petitioner. In view of the lump sum amount paid, the revision petitioner is not liable to pay any further amount as per law. Hence, the M.C. may be dismissed. 4. The respondent's father and power of attorney holder was examined as PW1 and Exts.P1 and P2 were marked through him. A witness of the revision petitioner was examined as CPW1 and Exts.R1 and R2 were marked through him. 5. The Family Court after considering the pleadings and ## **RPFC.No.258 OF 2015** ..4.. evidence on record, by the impugned order partly allowed the M.C. by directing the revision petitioner to pay monthly maintenance allowance to the respondent at the rate of Rs.2,000/- from the date of petition. 6. It is aggrieved by the said order that this RP(F.C.) is filed. 7. This Court by its order dated 24.07.2015 admitted the RP(F.C.) and granted an interim order staying the operation of the impugned order. 8. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 9. The learned counsel for the revision petitioner argued that the Family Court has erred in not considering the categoric contention of the revision petitioner that, he is not liable to pay any amount in view of the specific provision under Section 127 (3)(b) of Code of Criminal Procedure (in short Cr.PC). According to him, the revision petitioner had paid an astronomical amount of Rs.15,00,000/- to the father of the respondent, towards full and **RPFC.No.258 OF 2015** **==> picture [17 x 8] intentionally omitted <==** final settlement of all the respondent's claims as against the revision petitioner arising out the the marriage, as per the personal law and customary practice of their community. In view of the declaration of law of this Court in _**Aboobacker v.Rahiyanath**_ [2008 (3) KLT 482] and _**Sheeba Pulikkal v. Shoukath Ali**_ [2011 (4) KLT 746], the revision petitioner is not liable to pay any further amount as maintenance to the respondent. The order passed by the Family Court is totally disregarding the law laid down by this Court and the statutory provisions under the Cr.PC and the personal laws of the parties. According to him, even if it is to be considered that the revision petitioner is liable to pay a lump sum amount as contemplated under the Muslim Women (Protection of Rights and Divorce) Act, 1986, an amount of Rs.15,00,000/-, that was paid by the revision petitioner, is more than sufficient towards reasonable maintenance of the respondent for the rest of her lifetime, considering the status and standard of living of the revision petitioner. The revision petitioner has paid the above amount, which is the maximum that he can pay as per ## **RPFC.No.258 OF 2015** **==> picture [18 x 8] intentionally omitted <==** paying capacity. Moreover, the three children born out in the wedlock are in his care and custody and he is nurturing them. This also substantiates that it is only due to the unsoundness of mind of the respondent that the children were given to him. The learned counsel argued that, the Family Court without considering the above questions of law involved in the case, peremptorily allowed the M.C.. Hence the order may be set aside and the M.C. be dismissed. 10. The learned counsel for the respondent on the other hand supported the order passed by the Family Court contending that it is to prevent vagrancy that the Family Court rightly allowed the M.C. and ordered the revision petitioner to pay a nominal amount of Rs.2,000/- per month. There is no illegality or irregularity in the order passed by the Family Court warranting interference by this Court in exercise of its revisionary jurisdiction. He prayed that RPFC be dismissed. 11. Section 127( 3)(b) of the Cr.P.C. reads as follows:“the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the ## **RPFC.No.258 OF 2015** ..7.. whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,- (i)in the case where such sum was paid before such order, from the date on which such order was made; (ii)in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;” [emphasis supplied] 12. This Court in _**Aboobacker v. Rahiyanath**_ (Supra) and _**Sheeba Pulikkal v. Shoukath Ali**_ (Supra), while interpreting the Muslim Women (Protection of Rights and Divorce) Act and Section 125 of the Cr.PC has explicitly laid down the law that, if any amount payable by a muslim husband to his divorced wife under the Act are paid, then the divorced wife cannot claim maintenance under Section 125 in view of the specific bar under Section 127(3)(b). 13. The Parliament in its wisdom has incorporated the said provision in order to safeguard payments made under customary or personal law of the parties. 14. The Hon'ble Supreme Court in _**Danial Latifi v.**_ ## **RPFC.No.258 OF 2015** ..8.. _**Union of India**_ [2003 (1) KLT 651 (SC)] also considered the above question and held that if fair and reasonable maintenance is paid during the period of the iddat, it would effectively discharge the burden of a muslim husband to provide maintenance to his divorced wife. The said legal proposition has been reiterated by this Court in _**Sheeba Pulikkal v. Shoukath Ali**_ (supra) **.** 15. Admittedly the revision petitioner paid the respondent's father an enormous amount of Rs.15,00,000/-, as lump sum maintenance allowance of the respondent. The father while being cross examined as CPW1 has in unequivocal terms admitted that he used the said money for the purpose of constructing a house for his children. It is only in the said circumstances, that the respondent has allegedly become impecunious. The said ground is not sound enough for the respondent to file an M.C. through her father. It is the respondent's father who has misappropriated the lump sum amount that was paid towards the fair and reasonable maintenance of the respondent for her lifetime as per the personal law and ## **RPFC.No.258 OF 2015** **==> picture [18 x 9] intentionally omitted <==** customary practice of the parties. The said aspect has been totally ignored by the Family Court. 16. In addition to the law laid by the Hon'ble Supreme Court in _**Danial Latifi v. Union of India**_ (Supra) and _**Sheeba**_ _**Pulikkal v. Shoukath Ali**_ (Supra) _,_ it is pertinent to point out that the respondent is indisputably a person of unsound mind. It was her father who received the amount of Rs.15,00,000/-, on her behalf, towards her fair and reasonable maintenance. He has not alleged that the amount was paid towards return of patrimony. He has received the amount knowingly fully well that it was paid towards fair and reasonable maintenance of the respondent for her lifetime. If he has used the said amount to construct a house, which was not the intention of the parties at the time of arriving at Exts.R1 and R1(2), then it is the sole responsibility of the respondent's father to maintain the respondent for the rest of her lifetime. He cannot circumvent Section 127(3)(b) and the law laid down by the Hon'ble Supreme Court and this Court in the afore cited decisions, and seek for maintenance for the respondent, after **RPFC.No.258 OF 2015** **==> picture [22 x 7] intentionally omitted <==** misappropriating the lump sum maintenance, without the consent of the respondent, because the respondent cannot give express consent as she is a person of unsound mind. If at all there was any dire need, the father of the respondent ought to have obtained consent from the competent statutory authority as enjoined in law before appropriating the life money of the respondent. Likewise, I find sufficient force in the argument of the learned counsel for the revision petitioner that the three children born in the wedlock are being maintained by the revision petitioner at his own expenses. This again establishes that the respondent is incapable of looking after to herself, leave alone the children. The revision petitioner has shown his _bona fides_ in paying an enormous amount of Rs.15,00,000/- towards full and final settlement of the respondent's fair and reasonable maintenance as per the personal law and customary practice of the parties as contemplated under Section 127 (3)(b) of the Cr.PC. In fact, the respondent's father has to be proceeded against for misappropriating the lump sum maintenance and then filing the M.C. This Court leaves the matter ## **RPFC.No.258 OF 2015** **==> picture [20 x 7] intentionally omitted <==** at rest. 17. In the light of the above findings, I set aside the impugned order passed by the Family Court in M.C. No.140 of 2014. Consequently, this R.P.(F.C) is allowed and M.C. No.140 of 2015 will stand dismissed. The parties shall bear their respective costs. Sd/- **C.S.DIAS JUDGE** **kkj**