Rashid Ali v. Km. Sulthana and Nafla (minor)

**RPFC NO. 166 OF 2017** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945** ## **RPFC NO. 166 OF 2017** **AGAINST THE ORDER IN MC 13/2014 OF FAMILY COURT,KOZHIKODE** ## **REVISION PETITIONER/RESPONDENT:** RASHID ALI AGED 45 YEARS, M.M.HOUSE, BEHIND COOL WELL ICE FACTORY, VALLAYIL JUNCTION, GANDHI ROAD, KOZHIKODE-673011. BY ADV SRI.SRINATH GIRISH ## **RESPONDENTS/PETITIONERS:** 1 KMAR SULTHANA, D/O.UMMAR KOYA, AGED 34, 'SARIYATH MANZIL', P.O.ARTS COLLEGE, MEENCHANDA, KOZHIKODE-673018. 2 NAFLA MINOR REPRESENTED BY MOTHER, KAMAR SULTHANA, 'SARIYATH MANZIL', P.O.ARTS COLLEGE, MEENCHANDA, KOZHIKODE673018. BY ADV SRI.K.RAKESH THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RPFC NO. 166 OF 2017** **2** ## **O R D E R** The revision petition is filed questioning the legality and correctness of the order passed in M.C.No.13/2014 dated 16.11.2016 of the Family Court,Kozhikode, ordering the revision petitioner to pay the respondents – his divorced wife and daughter - monthly maintenance allowance @ Rs.4,000/- & Rs.5,000/-, respectively, from the date of application (16.01.2014). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts:** 2. The respondents had filed the application before the Family Court under Section 125(1) of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), against the revision petitioner for an order of monthly maintenance allowance on the assertion that the first respondent was married to the revision **RPFC NO. 166 OF 2017** **3** petitioner on 13.8.2000 as per the Muslim religious rites and customs of the community. The second respondent was born in their wedlock. The revision petitioner was employed in the Gulf and he used to send Rs.10,000/per month towards the respondents maintenance allowance. The revision petitioner is an alcoholic and used to subject the first respondent to matrimonial cruelty. Since 2012, the revision petitioner has refused to maintain the respondents. The second respondent is studying in the seventh standard and requires Rs.6,000/per month for her maintenance. The revision petitioner was a salesman in a private company in the Gulf and was thereafter employed as a driver and earning Rs.20,000/- per month. He is also getting an income of Rs.50,000/- per month from his properties. He has substantial savings in several banks. The respondents require monthly maintenance allowance @ Rs.15,000/and Rs.10,000/-, respectively. Hence, the application. 3. The revision petitioner had filed a written **RPFC NO. 166 OF 2017** **4** objection, denying the allegations in the application. It was his defence that he lost his job in the Gulf and returned back to India. He was working only as a driver in India and he is earning Rs.8,000/- per month. The first respondent insisted the revision petitioner to pronounce talaq. The revision petitioner has subsequently remarried and he has to look after his parents and present wife. The revision petitioner does not have any means to maintain the respondents. Hence, the application may be dismissed. 4. During the pendency of the application, the first respondent had filed O.P.No.424/2014, for a decree of divorce under the provisions of the Dissolution of Muslim Marriage Act, 1939. The Family Court consolidated and jointly tried the two proceedings. 5. The first respondent was examined as PW1 and Exts.A1 to A8 were marked through her on her side. The revision petitioner was examined as RW1 and Exts.B1 to B5 (e) were marked in evidence through him. **RPFC NO. 166 OF 2017** **5** 6. The Family Court, by its common order, allowed O.P. No.424/2014 by dissolving the marriage between the revision petitioner and the first respondent and partly allowed the application by directing the revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.5,000/- & Rs.4,000/- respectively, from the date of petition. 7. It is assailing the order in MC 13/2014; the revision petition is filed. 8. Heard; Sri.Srinath Girish, the learned counsel appearing for the revision petitioner and Sri.K.Rakesh, 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 first respondent and also the paternity of the second respondent. By the common order, the marriage between the revision petitioner and the first respondent was dissolved by a decree of divorce. Therefore, the first **RPFC NO. 166 OF 2017** **6** respondent is the divorced wife of the revision petitioner. He has also admitted in his written objection that he has re-married subsequent to the divorce. 11. The respondents' case in the application was that, despite the revision petitioner having sufficient income as a driver and income from his properties, he has refused to maintain the respondents. The respondents have no means to sustain themselves. 12. The revision petitioner's defence was that he has lost his job in the Gulf and was presently working as a driver in India, and was earning only Rs.8,000/- per month. However, he has admitted that he has re-married and, therefore, he has to look after to his present wife and parents. 13. 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 dependant wives and children for their financial support, **RPFC NO. 166 OF 2017** **7** so as to prevent them from falling into destitution and vagrancy. 14. **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. 15. 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 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, husband was required to earn money even by physical labour, if he is **RPFC NO. 166 OF 2017** **8** able bodied and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. 16. It is well-settled that Courts are permitted to do some guesswork to arrive at the quantum of maintenance. 17. Ext.A3 certificate reveals that the revision petitioner was employed in the Gulf for more than 12 years and he was earning 3,000/- Omani Riyals per month. It was his defence that he lost his employment and is presently working as a driver in India and is only earning Rs.8,000/- per month. Although he alleged that the first respondent is living separately from him without any sufficient cause, it is undisputed that the marriage between the couple was dissolved by the very same common order and the revision petitioner has remarried. 18. In **Bhuwan Mohan Singh** v. **Meena & Ors** (supra), the Hon'ble Supreme Court has held that, it is the sacrosanct duty of an able bodied person to maintain his wife, including his divorced wife and children as per **RPFC NO. 166 OF 2017** **9** his status and standard of living. Although the revision petitioner contended that he was only earning Rs.8,000/per month at present, he has not produced any material before the Family Court to substantiate his income. 19. The revision petitioner was aged 43 years at the time of filing of the application. Therefore, he is deemed to be an able bodied person. Hence, I fix the notional income of the revision petitioner @ Rs.1000/- per day. 20. On a reconsideration of the pleadings and materials on record, I find that the quantum of maintenance fixed by the Family Court is reasonable and justifiable and does not warrant any interference by this Court under Sec.19(4) of the Family Courts Act, 1984. The revision petition is devoid of any merits and is only liable to be dismissed. 21. The learned counsel appearing for the revision petitioner submitted that the revision petitioner is presently not in a position to pay any amount as maintenance due to his affliction. If that be the case, it **RPFC NO. 166 OF 2017** **10** would be up to the revision petitioner to work out his statutory remedies as contemplated under the law. In the result, - (i) The revision petition is dismissed. (ii) The revision petitioner would be at liberty to seek for modification of the impugned order, in accordance with law. (iii) If the revision petitioner has deposited any amount pursuant to the interim order passed by this Court, he would be entitled to adjust the deposited amount while calculating the arrears of maintenance payable as per the impugned order. **Sd/-C.S.DIAS** ma/16.11.2023 **JUDGE**