RP (FC) 492 of 2015

RP (FC) 492 of 2015 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, ``` ## **`1945`** ``` RPFC NO. 492 OF 2015 ``` ``` AGAINST THE ORDER/JUDGMENT MC 681/2012 OF FAMILY COURT, ``` ## **`MALAPPURAM`** ## **`REVISION PETITIONER/S:`** ``` 1MUMTHAS.K AGED 36 YEARS D/O.AHAMMED KOZHIKKODAN,MARAKKAR COMPLEX,PAZHAYANGADI,KONDOTTY AMSOM,DESOM,MALAPPURAM DISTRICT. 2MUHAMMED FARHAN-MINOR REPRESENTED BY MOTHER-GUARDIAN,1ST REVISION PETITIONER. 3MUHAMMED RAMSAN-MINOR REPRESENTED BY MOTHER-GUARDIAN,1ST REVISION PETITIONER. BY ADV SRI.P.M.RAFIQ ``` ## **`RESPONDENT/S:`** ``` CHERIYAN AMEER ALI AGED 42 YEARS S/O.MOIDEENKUTTY,KUNNATH HOUSE,CHUNGAM,KONDOTTY AMSOM,DESOM,MALAPPURAM DISTRICT,PIN-673638. ``` ``` BY ADV SIRAJ KAROLY ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RP (FC) 492 of 2015 2 ## **C.S DIAS,J.** ## **--------------------------R.P (FC) No.492 of 2015** **----------------------------Dated this the 21[st] day of November, 2023** ## **O R D E R** The revision petition is filed assailing the order in M.C.No.681/2012 of the Family Court, Malappuram, dismissing the application filed by the first revision petitioner seeking monthly maintenance allowance from the respondent. The revision petitioners were the petitioners and the respondent was the respondent before the Family Court. ## **Brief facts:** 2. The revision petitioners had filed the application before the Family Court under Section 125 of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), seeking monthly maintenance allowance from the respondent @ Rs.10,000/- for the first revision petitioner and RP (FC) 492 of 2015 3 Rs.5000/- each for the revision petitioners 2 and 3. It was their case that the first revision petitioner was married to the respondent on 18.8.1995 as per the Muslim religious rites and customs of the community. The revision petitioners 2 and 3 were born in their wedlock. The respondent returned to Jeddah on 25.4.2009. Thereafter, he started to ignore the revision petitioners. He openly declared that he was not interested to continue with the marriage. The revision petitioners have no means for their sustenance. The respondent is earning a monthly income equivalent to Rs.90,000/- from his employment in Jeddah and Rs.20,000/- per month from his rental income. Hence, the application. 3. The respondent had filed a written objection, denying the allegations in the application. However, he admitted the marriage with the first revision petitioner and the paternity of the revision petitioners 2 and 3. It was his main defence that the first revision petitioner used to frequently leave RP (FC) 492 of 2015 4 the matrimonial home without any sufficient cause. The respondent has contracted a second marriage as there was no possibility of a reunion with the first revision petitioner and their marriage was irretrievably broken. The amount of maintenance claimed was excessive. The respondent is not liable to maintain the first revision petitioner. Hence, the application may be dismissed. 4. The first revision petitioner had also filed O.P.No.849/2012 before the Family Court, against the respondent for a decree for restitution of conjugal rights. 5. The Family Court consolidated and jointly tried the two proceedings. 6. In the trial, the first revision petitioner was examined as PW1 and the respondent and a witness were examined as RW1 and RW2. Ext.B1 marriage certificate was marked in evidence. 7. The Family Court, after analysing the pleadings and materials on record, by the impugned RP (FC) 492 of 2015 5 order, disallowed the claim of the first revision petitioner and partly allowed the claim of the revision petitioners 2 and 3 by directing the respondent to pay the monthly maintenance allowance @ Rs.2,500/- each till they attain majority. 8. It is aggrieved by the dismissal of the application of the first revision petitioner; the revision petition is filed. 9. Heard; Sri.P.M.Rafiq the learned counsel appearing for the revision petitioners and Sri.Siraj Karoly, the learned counsel appearing for the respondent. 10. Is there any illegality, impropriety or irregularity in the impugned order? 11. The respondent admits his marriage with the first revision petitioner and the paternity of the revision petitioners 2 and 3. He has also conceded in the written objection that during the subsistence of his marriage with the first revision petitioner, he RP (FC) 492 of 2015 **==> picture [7 x 9] intentionally omitted <==** has contracted a second marriage with another woman as per personal law. 12. The respondent's principal defence in the written objection was that the first revision petitioner was living separately from him without any justifiable reason or sufficient cause. Therefore, he is not liable to maintain her. 13. The learned Judge of the Family Court, on the findings that there was no provision for a Muslim woman to seek a decree for restitution of conjugal rights and the first revision petitioner had left the matrimonial home without sufficient cause and further that the first revision petitioner was unable to establish that the respondent had totally repudiated his objection of marriage concluded that the first revision petitioner is disentitled to maintenance. 14. On an analysis of the pleadings and materials on record, particularly the admission of the respondent that he has contracted a second RP (FC) 492 of 2015 7 marriage during the subsistence of his marriage with the first revision petitioner by itself demolishes his defence that the first revision petitioner is living separately from him without sufficient cause. 15. It may be true that the respondent is at liberty to contract a second marriage, as per his personal law, during the subsistence of his marriage with the first revision petitioner. But that does not mean the respondent can compel the first revision petitioner to continue her cohabitation with the respondent. Moreover, it was the first revision petitioner who filed the petition for a decree of restitution of conjugal rights and not the respondent. The respondent has not produced any material to prove that he had taken any effective steps to effect a rapprochement. Hence, his defence is untenable and unsustainable. Therefore, the finding of the definite view that the finding of the Family Court that the first revision petitioner has not established that there was a happy reunion between RP (FC) 492 of 2015 8 the first revision petitioner and the respondent is erroneous and wrong. In view of my finding that the first revision petitioner was living separately from the respondent with sufficient cause, the next question is the quantum of maintenance payable by the respondent to the first revision petitioner. 16. Even though the respondent contended that he is no longer employed in Gulf and is only getting a meager monthly income of Rs.500/-, the same cannot be accepted, in view of the law laid down in **Bhuwan Mohan Singh v. Meena & Ors.** [(2015) 6 SCC 353] wherein, the Hon'ble Supreme Court has held that, it is the sacrosanct duty of the husband to provide financial support to the wife and children, even by doing physical labour. An able bodied person cannot avoid his obligation to maintain his wife and children except on any legally permissible ground mentioned in the statute. 17. It is also well-settled that the Courts are permitted to do some guesswork to arrive at the RP (FC) 492 of 2015 9 quantum of maintenance to be paid by the husband to the wife. 18. Going by the pleadings and materials on record, I find that the respondent was aged 39 years at the time of filing of the application. He is deemed to be an able bodied person. By any stretch of imagination, a daily labourer would have earned at least Rs.20,000/- per month at that time. Therefore, I am of the view that the respondent is liable to pay the first revision petitioner monthly maintenance allowance @ Rs.5,000/- per month, which is reasonable. 19. In the result, - (i) The revision petition is allowed. (ii) The impugned order dismissing the first revision petitioner's claim for maintenance is set aside. (iii) MC No. 681/2012 is allowed in part, by directing the respondent to also pay the monthly maintenance allowance @ Rs.5,000/- to the first revision RP (FC) 492 of 2015 10 petitioner/1[st] petitioner from the date of application, until this order is modified/altered/cancelled. (iv) The respondent is permitted to pay the arrears of maintenance due to the first revision petitioner, as per this order, in six equated and successive monthly installments commencing from 3.1.2024 onwards. (v) If the respondent fails to pay the above ordered amount, the first revision petitioner would be at liberty to execute the order, in accordance with law. sd/- sks/21.11.2023 **C.S.DIAS, JUDGE**