R.P.(F.C.) No.239/11

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 24TH DAY OF JANUARY 2012/4TH MAGHA 1933** ## **RPFC.No. 239 of 2011 ( )** **----------------------------------MC.43/2009 of FAMILY COURT, KALPETTA,WAYANAD** **...........** ## **PETITIONER/COUNTER PETITIONER(S):** **-----------------------------------------------------------** **MOOSA, AGED 46 YEARS, S/O.ALI, ALUVA HOUSE, MANGALASSERI, 10TH MILE, VELLAMUNDA P.O. MANANTHAVADY, REPRESENTED BY POWER OF ATTORNEY HOLDER AND BROTHER, ALUVA SOOPI, AGED 49 YEARS, S/O.ALI HAJI, ALUVA HOUSE, KOTTAYADU, VELLAMUNDA VILLAGE, MANANTHAVADY TALUK.** **BY ADV. SRI.MATHEW KURIAKOSE** ## **RESPONDENT(S):PETITIONERS:** **------------------------------------------------** **1. RAHIYANATH, W/O.MOOSA, AGED 31 YEARS, THAYYIL HOUSE, CHERUKARA, THARUVANNA P.O., MANANTHAVADY - 670 732.** **2. MUFEEDA A., D/O.MOOSA, AGED 15 YEARS, THAYYIL HOUSE, CHERUKARA, THARUVANNA P.O., MANANTHAVADY- PIN-670 732.** **3. MUBASHIRA, D/O.MOOSA, AGED 11 YEARS, THAYYIL HOUSE, CHERUKARA, THARUVANNA P.O., MANANTHAVADY- PIN-670732.** **RESPONDENT NOS.2&3 MINORS ARE REPRESENTED BY THEIR MOTHER RAHIYANATH, W/O.MOOSA, AGED 31 YEARS, THAYYIL HOUSE, CHERUKARA, THARUVANNA P.O., MANANTHAVADY.** **R1TO3 BY ADVS.SRI.T.B.HOOD, SMT.M.ISHA.** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **RP(FC) NO.239/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A CERTIFIED COPY OF THE DIARY EXTRACT FROM 10/12/2009 TO 10/8/2011 WITH ORDER DATED 27/7/2011.** **ANNEXURE B CERTIFIED COPY OF THE COMMON ORDER DATED 6/8/2011 IN CMP NOS.165/11, 166/11 AND 167/11. ANNEXURE C TRUE COPY OF THE LIST OF DOCUMENTS DATED 29/7/2011 FILED BEFORE THE FAMILY COURT, KALPETTA.** ## **RESPONDENTS' ANNEXURES: N I L** **/TRUE COPY/** **P.S.TO JUDGE** ## **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.(F.C.) No. 239 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of January, 2012. ## **ORDER** This revision petition is filed challenging the order dated 10.8.2011 in M.C. No.43 of 2009 of the Family Court, Kalpetta, whereby the Family Court awarded maintenance at the rate of Rs.2,000/- per month to the first petitioner and Rs.1,500/- per month to each of the children from the date of the petition. 2. The first petitioner is the wife and petitioners 2 and 3 are the children of the respondent and first petitioner. Marriage between the first petitioner and the respondent was solemnized on 16.6.1996. Various allegations are made regarding the gold ornaments and other materials given at the time of marriage, which are alleged to have been used by the respondent for his personal purpose. It is alleged in the petition that the respondent used to ill-treat the first petitioner demanding 2 R.P.(F.C.).239/11. more gold ornaments and dowry. An incident dated 19.1.2009 is made mention of with regard to the said complaint made by the first petitioner. It is stated that as a result of the incident on 19.1.2009, 15 cents of land was assigned in the name of the first petitioner and the respondent by her father. It is seen that a complaint had been filed by the first petitioner, which was sent for investigation under Section 156(3) Cr.P.C. in respect of which a final report has been filed by the police for various offences. Suffice to say, the claim of the petitioners is that they had to live separately and that they have to depend on the respondent for their maintenance. Pointing out that the respondent has sufficient means of income to maintain the petitioners, the first petitioner claimed Rs.5,000/- per month for herself and Rs.2,000/- per month for each of the children. 3. It appears that the respondent did not appear in person. However, his power of attorney conducted the case on his behalf. A counter affidavit has been filed, in R.P.(F.C.).239/11. 3 which it is contended that the first petitioner before the court below is not entitled to get maintenance from the respondent. The marital status as well as the paternity were admitted. Various other contentions are taken, which are not very relevant for the present purpose. Suffice to say, the contention of the respondent was that the first petitioner has sufficient means of income of her own to maintain herself and she is not entitled to maintenance. Various accounts held in various Banks are made mention of in the counter. Finally, it is pointed out that the income of the respondent does not permit him to pay maintenance as claimed by the petitioners and he gets only a meager income from his employment. On the basis of these contentions, he prayed for a dismissal of the petition. 4. The evidence before the Family Court consists of the testimony of P.W.1 and documents marked as Exts.A1 to A3 from the side of the petitioners. The respondent adduced no evidence. On an evaluation of the evidence before it, the trial court came to the conclusion that the R.P.(F.C.).239/11. 4 respondent is having sufficient income and granted maintenance at the rate already made mention of. 5. In this revision petition, learned counsel appearing for the revision petitioner pointed out that the court below are not justified in granting permission to the respondent to adduce evidence to show that the first petitioner had independent means of income. Learned counsel pointed out that the observation of the lower court that no evidence was adduced by the respondent inspite of several opportunities given to him and also that the attempt of the respondent was to simply protract the matter to the detriment of the petitioners are not justified as could be seen of the order sheet produced along with the revision petition. Learned counsel pointed out that three petitions filed by him to re-open evidence etc. have been dismissed and it caused considerable prejudice to him and prevented him from establishing that the wife had sufficient means of income of her own to maintain herself. Learned counsel went on to point out that at any rate, the lower court ought R.P.(F.C.).239/11. 5 to have granted an opportunity to the respondent to adduce evidence to establish the income of the first petitioner, even assuming that the lower court was justified in declining to accept the affidavit in chief filed by the power of attorney holder of the respondent on his behalf. 6. Learned counsel appearing for the respondents on the other hand relied on two decisions namely, the decision reported in **Man Kaur v. Hartar Singh Sangha** (JT 2010(1) SC 565) and **Janki Vashdeo Bhojwani v. Indusind Bank Ltd.** ((2005) 2 SCC 217) and contended for the position that the court below was perfectly justified in declining to accept the proof affidavit filed by the power of attorney holder as he was incompetent to give evidence regarding the matters which were in the personal knowledge of the respondent. Even assuming that he was competent to represent the respondent and file a counter on his behalf, he could not give evidence on behalf of the respondent as laid down by the two decisions cited above. It is also contended that the court below has observed that R.P.(F.C.).239/11. 6 several opportunities were given to the respondent before the court below to adduce evidence and he had failed to do so. Learned counsel drew the attention of this court to paragraph 5 of the impugned order and pointed out that there was no representation on behalf of the respondent on the date on which the case was posted and it was represented on his behalf that the matter may be taken as heard. In the light of this observation by the lower court, there is absolutely no merit in the complaint that the respondent was deprived of an opportunity to adduce evidence. Further, learned counsel contended that the maintenance awarded is just and reasonable and does not call for interference. 7. It is significant to notice that at the time of argument before this court, the main issue was regarding the maintenance that was awarded to the first petitioner before the court below, which was determined as Rs.2,000/per month. According to the revision petitioner, the first respondent herein has sufficient means of income to R.P.(F.C.).239/11. 7 maintain herself and there is nothing to show that he is willfully negligent in maintaining her. It is also pointed out that the revision petitioner was making regular payments and so it could not be said that he had willfully neglected in giving maintenance to the first petitioner before the court below. 8. On going through the order sheet, copy of which is produced along with the revision petition, the complaint of the revision petitioner that he was precluded from adducing evidence to show that the wife had independent means of income seems to be justified to certain extent. It is true that the power of attorney holder had filed affidavit in chief on behalf of the revision petitioner. On 22.7.2011 the case was taken up for orders on submission of the petitioners' counsel regarding the acceptance of proof affidavit filed by the power of attorney holder of the respondent before the court below and the case was posted to 27.7.2011. On that day the court passed an order refusing to accept the affidavit filed by the power R.P.(F.C.).239/11. 8 of attorney holder. 9. Learned counsel for the revision petitioner pointed out that after having passed the order, the power of attorney holder of the respondent reasonably expected that he would be given an opportunity to adduce evidence in support of his claim and that he will get an opportunity to adduce evidence to show that the first respondent herein had sufficient means of income to maintain herself. The matter was posted for orders on 4.8.2011. In the meanwhile, four petitions, i.e., C.M.P. Nos. 165, 166, 167 and 168 of 2011, filed by the revision petitioner mainly for re-opening the evidence and call for documents from the Bank to show that the first respondent herein had sufficient means of income, were dismissed by the court below. 10. As rightly submitted by the learned counsel for the revision petitioner, even assuming that the proof affidavit of power of attorney holder could not be accepted, that will not preclude the revision petitioner from adducing other evidence to show that the first respondent herein had R.P.(F.C.).239/11. 9 independent means of income. As already noticed, on going through the order sheet of the court below produced by the revision petitioner, it could not be said that unnecessary adjournments were sought for by the respondent before the court below with the intention of protracting the proceedings. On a quite few occasions, there was no sitting and adjournments had been made on that ground. As rightly pointed out by the learned counsel for the revision petitioner, an opportunity ought to have been given to the revision petitioner to show that first respondent herein had independent means of income. 11. However, it needs to be noticed that the maintenance granted to the children is Rs.1,500/- each per month appears to be just and reasonable and there is no reason to interfere with the maintenance granted to the children by the court below. But there is some justification in the complaint voiced regarding the maintenance granted to the wife especially when the revision petitioner has a case that she has independent means of income. It is felt R.P.(F.C.).239/11. 10 that an opportunity ought to be given to the revision petitioner to adduce evidence to show that the wife had independent means o income and that she is not entitled to maintenance at the rate of Rs.2,000/- per month. Considering the various aspects, it is felt that a remand for this purpose would be justified. 12. However, it is felt that interim maintenance at the rate of Rs.500/- be paid to the first respondent herein till the disposal of the petition afresh by the Family Court concerned with regard to the maintenance available to the wife, i.e., the first petitioner before the court below. In the result, this revision petition is partly allowed, and that portion of the order granting maintenance at the rate of Rs.2,000/- per month to the first petitioner before the court below is set aside and the matter is remanded to the lower court for fresh decision regarding the quantum of maintenance payable, if any, to the first petitioner after affording an opportunity to both sides to adduce further evidence. It is made clear that till the R.P.(F.C.).239/11. 11 determination of the said issue, the revision petitioner will continue to pay Rs.1,500/- as maintenance to each of the children as per the order of the court below and Rs.500/per month to the first petitioner before the court below. Opportunity is given to the revision petitioner to show that the first petitioner before the court below has independent means of income on the further condition that he deposits a sum of Rs.35,000/- within one month from today towards the maintenance awarded to each of the children and on deposit, the respondents before this court will be allowed to withdraw the same. Parties shall appear before the trial court on 24.2.2012. It is clarified that if ultimately it is found that the wife is self sufficient and is not entitled to any maintenance, Rs.500/- per month granted as maintenance now to her will be adjusted towards the maintenance payable to the children. The court below will make every endeavour to dispose of the matter as expeditiously as possible at any rate within three months from the date of appearance of the parties. Order refusing R.P.(F.C.).239/11. 12 to re-open evidence and to issue summons to the witnesses are set aside and the revision petitioner will be at liberty to adduce evidence to show that the wife is self sufficient and is not entitled to maintenance. Arrears of maintenance due to the children on the basis of the deposit now ordered will be worked out at the final stage of the proceedings. **P. BHAVADASAN, JUDGE** sb.