Noushida and Rayyan Rasheed v Abdul Rasheed alias Kunjani (RPFC No. 329 of 2023)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945** ## **RPFC NO. 329 OF 2023** ## **AGAINST THE ORDER IN MC 76/2015 OF FAMILY COURT, MALAPPURAM** ## **REVISION PETITIONERS/PETITIONERS:** 1 NOUSHIDA, AGED 29 YEARS, D/O.PADIKKAL ABDUL ASEES, PADIKKAL HOUSE, PUTHOOR P.O., OTHUKKUNGAL VILLAGE, PUTHOOR AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676 503. 2 RAYAN RASHEED, AGED 7 YEARS, S/O.ABDUL RASHEED, PADIKKAL HOUSE, PUTHOOR P.O., OTHUKKUNGAL VILLAGE, PUTHOOR AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676 503, REPRESENTED BY MOTHER MRS.NOUSHIDA, THE FIRST PETITIONER. BY ADVS. DEVAPRASANTH.P.J. SMT.SMINI JOSE ## **RESPONDENT/RESPONDENT:** ABDUL RASHEED @ KUNJANI, AGED 40 YEARS, S/O.JAKKEERI KUNHUMUHAMMED, JAKKEERI HOUSE, CHATTIPARAMBU AMSOM CHANJAL DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679 322. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.12.2023, ALONG WITH RPFC.56/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NOs.56 OF 2020 & 329 OF 2023 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945 RPFC NO. 56 OF 2020** **AGAINST THE ORDER IN MC 76/2015 OF FAMILY COURT, MALAPPURAM** ## **REVISION PETITIONER/S:** ABDUL RASHEED ALIAS KUNHANI, AGED 39 YEARS, S/O. JAKKIRI KUNHIMUHAMMED, JAKKIRI HOUSE, CHANJAL, CHERIPARAMBU, CHATTIPARAMBU AMSOM, CHANJAL DESOM, KODUR PANCHAYAT, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADVS. P.SAMSUDIN SRI.M.ANUROOP SMT.S.K.SREELAKSHMY ## **RESPONDENTS/PETITIONERS:** 1 NOUSHIDA AGED 28 YEARS, D/O. PADIKKAL ABDUL AZEEZ, PADIKKAL HOUSE, OTHUKKUNGAL VILLAGE, PUTHUR AMSOM AND DESOM, THIRURANGADI TALUK, PUTHUR POST, MALAPPURAM DISTRICT 676 503. 2 RAYAN RASHEED (MINOR REPRESENTED BY MOTHER 1ST RESPONDENT) NOUSHIDA, AGED 28 YEARS, D/O. PADIKKAL ABDUL AZEEZ, PADIKKAL HOUSE, OTHUKKUNGAL VILLAGE, PUTHUR AMSOM AND DESOM, THIRURANGADI TALUK, PUTHUR POST, MALAPPURAM DISTRICT 676 503. BY ADV.DEVAPRASANTH P.J THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.12.2023, ALONG WITH RPFC.329/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NOs.56 OF 2020 & 329 OF 2023 3 ## **COMMON ORDER** As these revision petitions are filed challenging the order in M.C.No.76/2015 of the Family Court, Malappuram and are between the same parties, they are being disposed of by this common order. RP(FC) No.56/2020 is filed by the husband challenging the order directing him to pay monthly maintenance allowance to his wife and son @ Rs.4,000/- and Rs.2,000/-, respectively from the date of petition, and RP(FC) No.329/2023 is filed by the wife and child, dissatisfied with the quantum of maintenance ordered by the Family Court. For convenience, the husband is referred to as the 'revision petitioner' and the wife and child are referred to as the 'respondents'. 2. The respondents had filed M.C.No.76/2015 under Section 125 of the Code of Criminal Procedure against the RPFC NOs.56 OF 2020 & 329 OF 2023 4 revision petitioner, seeking monthly maintenance allowance @ Rs.10,000/- and Rs.5,000/- respectively. It was their case that the 1[st] respondent was married to the revision petitioner on 09.12.2007. Two children were born in their wedlock on 28.03.2009 and 01.11.2012. The 2[nd] respondent is the younger child born in the marriage. The revision petitioner and his parents had misappropriated the gold ornaments given to the 1[st] respondent as a share in her parental properties. Thereafter, the revision petitioner and his parents treated the 1[st] respondent with cruelty. Unable to bear the atrocities meted out on the 1[st] respondent by the revision petitioner and his parents, she filed a complaint before the Court of the Judicial First Class Magistrate, Palakkad. Although the revision petitioner is a photographer by profession and is doing business in gold, property and vehicles and is earning a substantial income, he has refused to maintain the respondents. The respondents do not have the means to maintain themselves. Hence, the application. RPFC NOs.56 OF 2020 & 329 OF 2023 5 3. The revision petitioner resisted the application by filing a written objection. He denied the allegations in the application. He contended that the 1[st] respondent was living separately from him without any sufficient cause. The 1[st] respondent has filed a false complaint against him before the Police and a crime was registered. Despite several rounds of mediation, the matters could not be amicably settled. The revision petitioner is not liable to maintain the respondents. 4. The 1[st] respondent had also filed O.P.No.163/2015 for custody of the older child and O.P.No.239/2015 for a decree for return of money and gold ornaments. The revision petitioner had filed O.P.No.404/2015 for the custody of the younger child. 5. The Family Court consolidated and jointly tried all the four proceedings. In the trial, the 1[st] respondent and two witnesses were examined as PWs 1 to 3 and Exts.A1 to A7 were marked in evidence. The revision petitioner and two witnesses were examined as RWs 1 to RPFC NOs.56 OF 2020 & 329 OF 2023 6 3. 6. The Family Court, after analysing the pleadings and materials on record, by the impugned common order partly allowed the application as observed above. 7. Assailing the impugned order, the revision petitioner has filed RP(FC) No.56/2020 and dissatisfied with the quantum of maintenance, the respondents have filed RP(FC) No.329/2023. 8. Heard; Sri.P.Samsuddin, the learned counsel appearing for the revision petitioner and Sri.Devaprasanth P.J., the learned Counsel appearing for the respondents. 9. Is there any illegality, impropriety or irregularity in the impugned order ? 10. The revision petitioner admits his marriage with the 1[st] respondent as well as paternity of the 2[nd] respondent. 11. It is submitted across the Bar that the marriage RPFC NOs.56 OF 2020 & 329 OF 2023 7 between the revision petitioner and the 1[st] respondent has now been dissolved by a decree of divorce. Therefore, the 1[st] respondent is the divorced wife of the revision petitioner. She has thereafter re-married on 24.06.2020. 12. In the light of the change of circumstances, the question that arises for determination is the quantum of maintenance payable to the 1[st] respondent from the date of application i.e., 19.03.2015 till 24.06.2020 and that to the 2[nd] respondent from the date of application until further orders. 13. The respondents' case in the application was that the revision petitioner treated the 1[st] respondent with matrimonial cruelty. Despite being a Photographer and doing other business, and earning a substantial income, the revision petitioner has willfully refused to maintain the respondents. 14. The revision petitioner's defence was that the 1[st] RPFC NOs.56 OF 2020 & 329 OF 2023 8 respondent was living separately from him without sufficient cause. Moreover, she has lodged false complaint against the revision petitioner. 15. In the celebrated decision in **Rajnesh v. Neha and Anr.** [2020 (6) KHC 1], the Hon'ble Supreme Court has held that the Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 16. In **Captain Ramesh Chander Kaushal v. Veena Kaushal & Ors.** [(1978) 4 SCC 70], the Hon'ble Supreme Court has declared that the provision of maintenance is a measure of social justice and specially enacted to protect women and children, who fall within the constitutional sweep of Article 15(3) and reinforced by Article 39. 17. In **Bhuwan Mohan Singh v. Meena & Ors.** [(2015) 6 SCC 353], the Hon'ble Supreme Court has observed that Section 125 of the Code was conceived to RPFC NOs.56 OF 2020 & 329 OF 2023 9 ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, and the husband is required to earn money even by physical labour, if he is able bodied and cannot avoid his obligation, except on any legally permissible ground mentioned in the statute. 18. Even though the respondents had alleged that the revision petitioner was a Photographer and was doing business in property and vehicles, and earning a substantial income, they have not specifically mentioned the actual income of the revision petitioner. 19. On the contrary, the revision petitioner alleged that he is not in a position to maintain the respondents since he does not have the means. 20. As observed in **Bhuwan Mohan Singh** (supra), it is the sacrosanct duty of the husband/father to maintain RPFC NOs.56 OF 2020 & 329 OF 2023 10 his wife and child even by doing daily labour. 21. The revision petitioner was aged 36 years at the time of filing the application. There was nothing on record to prove that he was suffering from any ailments or disability. Therefore, the revision petitioner is assumed to be an able bodied person, who by any stretch of imagination would have earned Rs.1,000/- per day and worked for 25 days in a month. Thus , I fix his notional monthly income at Rs.25,000/-. Likewise, there in nothing on record to prove that the respondents have any income to maintain themselves. 22. Viewed in the above background and 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 under Section 19(4) of the Family Courts Act, except to the extent of limiting the maintenance allowance of the first respondent from the date of application till 24.6.2020. RPFC NOs.56 OF 2020 & 329 OF 2023 11 In the result, (i) R.P (FC) No.329/2023 is dismissed. (ii) R.P (FC) No.56/2020 is partly allowed by modifying the impugned order so far as it relates to the 1[st] respondent, by ordering the revision petitioner to pay the monthly maintenance to the 1[st] respondent @ Rs.4,000/- from 19.3.2015 till 24.6.2020. The maintenance allowance ordered to the 2[nd] respondent is confirmed. (iii) The revision petitioner is permitted to pay the arrears of maintenance as ordered above in three equated monthly installments falling due on 15.1.2024, 15.2.2024 and 15.3.2024. (iv) Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim order of this Court, he would be entitled to adjust the deposited amount while calculating the arrears payable to the respondents. RPFC NOs.56 OF 2020 & 329 OF 2023 12 (v) If the revision petitioner fails to pay the arrears as ordered above, the respondents would be at liberty to execute the order in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm/15.12.23