P. C. Moosakkutty v. C. A. Jameela

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 3RD DAY OF JULY 2013/12TH ASHADHA, 1935** ## **RPFC.No. 168 of 2011** **-------------------------** **O.P.No.417/2010 and MC.Nos. 430/2010 & 422/2010 of FAMILY COURT, MALAPPURAM DATED 21-12-2010** **REVISION PETITIONER(S)/RESPONDENT:** **----------------------------------** **P.C.MOOSAKKUTTY, AGED 42 YEARS, S/O.SAITHALAVI HAJI, POTTANAMCHALIL HOUSE, KOOTTAVIL TEACHER, AMLP SCHOOL, KARAPARAMBU PULPATTA P.O., ERNAD TALUK, MANJERI PSL.** **BY ADV. SRI.K.ABDUL JAWAD** **RESPONDENT(S)/PETITIONER:** **-------------------------** **C.A.JAMEELA, AGED 36 YEARS, D/O.ELAYODATH ABOOBACKER, MUSLIYAR (LATE) ELANKOOR AMSOM, ALUNGAL, MANHAPPATTA P.O. MANJERI PSL-676123.** **BY ADV. SRI.BABU S. NAIR** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 03-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** ## **K.HARILAL, J.** = = = = = = = = = = ## **R.P.(F.C).No.168 of 2011** = = = = = = = = = = = = = = = Dated this the 3[rd] day of July, 2013 ## **O R D E R** The Revision petitioner is the common respondent in M.C.No.430/10 and M.C.No.422/10 on the files of the Family Court, Malappuram. M.C.No.430/10 was filed by the respondent herein under Section 125(1) of the Code of Criminal Procedure claiming that she is legally wedded wife of the Revision petitioner herein and the Revision petitioner has been neglecting her and refused to pay maintenance allowance. M.C.No.422/10 was filed by the respondent herein and her minor daughter under Section 127 of the Cr.P.C for enhancement of maintenance allowance to ₹ 3,000/- per month from 800/- per month ordered to the₹ minor daughter in the earlier M.C.No.662/2007. The respondent claimed Rs.4000/- and her daughter claimed Rs.3000/- as their monthly maintenance allowance. The learned Family Court Judge directed the Revision petitioner **R.P.(F.C).No.168 of 2011** 2 to pay maintenance allowance at the rate of Rs.3000/- per month to the respondent/mother and Rs.1500/- to the 2[nd] petitioner/daughter as the enhanced monthly maintenance allowance. This order is under challenge in this Revision Petition. 2. According to the respondent, the Revision petitioner married her on 22.5.1995 and one female child is born in that wedlock. Earlier the respondent filed M.C.No.513/02 before the very same court for maintenance and the court directed the Revision petitioner to pay maintenance allowance at the rate of Rs.500/-each per month. Thereafter the respondent had gone to Gulf country and thereupon the Revision petitioner had filed M.C. under Section 127 of the Cr.P.C and got the order of maintenance allowance to respondent cancelled. But, according to the respondent, now she has come down from Gulf and now she has no job or income for her livelihood. So also, the Revision petitioner has not discharged his liability under Section 3 of the Muslim Women (Protection of Rights on **R.P.(F.C).No.168 of 2011** 3 Divorce) Act (for short 'the Act'). Now the respondent and her daughter are depending upon the parents and relatives of the respondent; whereas the Revision petitioner is working as a Teacher in an Aided school with a salary of Rs.16,000/- per month. He has a bus and an autorikshaw in addition to one acre of landed property and getting a total income of Rs.45,000/- per month. 3. In the counter statement, the Revision petitioner contended that though he is working as a Teacher in an L.P. School, he is not getting Rs.16,000/- per month as claimed by the respondent. So also he does not have any other income. He is looking after his second wife and two children born in that wed-lock. So he is unable to pay maintenance allowance to the respondent. 4. Heard the learned counsel on both sides. 5. The learned counsel for the Revision Petitioner submits that M.C No.77/2008 filed by the respondent claiming benefits under Sec.3 of the Act is pending before the Chief Judicial Magistrate's Court, Manjeri. Therefore, 4 ## **R.P.(F.C).No.168 of 2011** she is not entitled to get maintenance under Sec.125 of the Cr.P.C. 6. Per contra, the learned counsel for the respondent drew my attention to the decision reported in **Kunjimohammed v Ayishakutty** [2010(2) KLT 71] and submitted that so long as the benefits under Sec.3 of the Act is not received, a divorced wife is also entitled to get maintenance under Sec.125(1) of the Cr.PC. I have given anxious consideration to the rival submissions made at the Bar. Going by the impugned common order, it could be seen that the very same contention was raised before the Family Court also. In **Kunjimohammed's** case (Supra), this Court held as follows: “The divorced Muslim wife's right to claim maintenance under Sec.125 Cr.P.C does not stand extinguished by the enactment of the Muslim Women (Protection of Rights on Divorce) Act. Her right under Sec.125 Cr.P.C shall stand extinguished only when the payment under Sec.3 is actually made and absolution is granted by the court under Sec.127(3)(b) of the Code. Till then, or till she remains a divorced Muslim wife, she will be entitled to claim maintenance from her divorced husband. Death, remarriage or actual payment of the amount payable under Sec.3 of the Act alone shall extinguish her right under Sec.125 Cr.P.C to claim maintenance”. **R.P.(F.C).No.168 of 2011** 5 7. In view of the above decision, the argument advanced by the learned counsel for the Revision petitioner does not deserve any more deliberations. The legal position is well settled by this Court and held that so long as the benefits under Sec.3 of the Act is not received, a divorced Muslim wife is also entitled to get maintenance allowance under Sec.125 of the Cr.PC. I am of the opinion that the pendency of a claim under Sec.3 of the Act does not act as a bar at present for claiming maintenance under Sec.125 of the Cr.PC. If the Court allows the case in favour of the respondent, certainly, the Revision petitioner can resort to other appropriate remedies available under law. But, at present, the same cannot be taken in evidence denying the right to get maintenance allowance under Sec.125 of the Cr.PC. Therefore, I reject the contention raised by the learned counsel for the Revision petitioner. 8. What remains is the quantum of maintenance only. Admittedly, he is working as a teacher. The respondent claims that he is getting Rs.16,000/- as monthly salary but **R.P.(F.C).No.168 of 2011** 6 the Revision petitioner denied the same and contended that he is not getting so much salary. As far as an employee is concerned, the salary is a fact exclusively within the knowledge of the employer and employee. Here, employer is not a party to the proceedings. So exact salary, being a fact exclusively within the knowledge of the Revision petitioner alone in this case, an adverse inference can be drawn against the Revision petitioner under Sec.114(g) of the Indian Evidence Act unless he produces the salary certificate showing the exact salary. No document has been produced to show his exact salary, though he contends that he is getting a lesser amount only. Therefore, legally, it could be presumed that he is getting Rs.16,000/- as salary. Though she was employed earlier, now she has no job or income. The cancellation of earlier order to pay maintenance on getting employment for some period is not a bar for claiming maintenance after losing of that employment unless there is evidence to show that she attained self sufficiency before the losing of employment. 7 ## **R.P.(F.C).No.168 of 2011** Here, there is no evidence to show that she is able to maintain herself. So, I held that the respondent is entitled to get maintenance allowance from the Revision petitioner. 9. The learned counsel for the Revision petitioner contended that he has to maintain his second wife, children and aged parents also. Absolutely, no evidence to show that parents are depending upon him. So also, it could be presumed that he contracted the second marriage as he was so confident of his income to maintain two families. Though Muslim Personal Law permits a person to marry more than one women, and up to 4 women, the Personal Law itself insists him to maintain all wives and all children equally. So he cannot deny just and proper maintenance allowance to first wife and children under the guise that he has to pay maintenance allowance to wife and children of subsequent marriages. Therefore, I am not inclined to accept his argument that he has to maintain his second wife and children and he is unable to give just and proper maintenance allowance to the petitioners. **R.P.(F.C).No.168 of 2011** 8 10. The challenge under this Revision petition is confined to the order granting maintenance to the wife alone. Admittedly, the Revision Petitioner is working as a school teacher, a divorced wife is also has the right to live with the standard of life at par with the standard of life of her former husband. Considering the income of the Revision petitioner, standard of life and living cost of the respondent, I find that the direction to pay Rs.3,000/- to the respondent and Rs.1,500/- to the daughter is just and proper. Thus, the impugned order under challenge does not call for any interference of this court. Consequently, this revision petition is dismissed. **K.HARILAL, JUDGE.** ## **Stu** **//True copy//** **P.A to Judge.**