R.P.(F.C). No.269 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 3RD DAY OF JANUARY 2014/13TH POUSHA, 1935** ## **RPFC.No. 269 of 2009** ## **--------------------------------** ## **M.C NO: 605/2008 of FAMILY COURT, MALAPPURAM DISTRICT.** ## **------------------------** ## **PETITIONER:** **-------------------** **MUSTHAFA, S/O.PALAPARAMBIL ABOOBACKER, KALPAKANCHERY AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, THROUGH POWER OF ATTORNEY HOLDER, MAMMADU.** ## **BY ADV. SRI.K.K.MOHAMED RAVUF** **RESPONDENTS:** **------------------------** **1. AYISHA MOL, D/O.PALLIYALIL SAIDALI, MELMURI AMSOM, DESOM, TIRUR TALUK.** **2. MOHAMMED FARIS, 9 YEARS, S/O.MUSTHAFA (MINOR) BY GUARDIAN THE IST RESPONDENT.** **3. MOHAMMED AJAS, 6 YEARS, S/O.MUSTHAFA (MINOR) BY GUARDIAN THE IST RESPONDENT.** ## **BY ADV. SRI.A.KRISHNAN** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20-12-2013, THE COURT ON 03-01-2014 PASSED THE FOLLOWING:** **Msd.** ## K.RAMAKRISHNAN, J. ----------------------------------------------------------------R.P.(F.C.). No.269 of 2009 -----------------------------------------------------------------Dated this the 3[rd] day of January, 2014 ## O R D E R Respondent in M.C. No.605/2008 on the file of the Family Court, Malappuram is the revision petitioner herein. The first respondent herein filed an application for maintenance for herself and on behalf of respondents 2 and 3 under Section 125 of the Criminal Procedure Code (herein after called the 'Code'). The parties are muslims. It is alleged in the petition for maintenance that the revision petitioner herein married the first respondent as per custom on 12.07.1998 and in that wedlock respondents 2 and 3 were born to them. It is also alleged in the petition that while they were residing together, she was ill-treated by him. Even on earlier occasions, she had to leave the matrimonial home and reside in her parental house and due R.P.(F.C.). No.269 of 2009 2 to some mediation, she was brought back to the house of the revision petitioner on the understanding that no illtreatment will be done to her. Thereafter, respondent left to Gulf county and during October 2006, she was taken to her house along with children and left there and thereafter no maintenance was given to her and children. She is unable to maintain herself. The revision petitioner is working abroad and getting good income of not less than ₹20,000/- per month from his employment and 5,000/- per₹ month from his properties. The first respondent requires ₹3,000/- per month and respondents 2 and 3 require ₹2,000/- each for their maintenance. The revision petitioner is capable of paying the amount and he is willfully neglecting to maintain the respondents. So she prayed for granting maintenance at the rate of 3,000/- per month for₹ herself and 2,000/- each for respondents 2 and 3. ₹ 2. Respondent appeared through power of attorney and filed counter statement, contending as follows: The application is not maintainable. He admitted R.P.(F.C.). No.269 of 2009 3 the marriage between the first respondent and himself and the birth of children in the wedlock. But according to him, the marriage between the first respondent himself was not in force, as he had divorced her on 19.07.2008 as per custom. So according to him, she is not entitled to get maintenance from him. He had also stated that there was intervention of mediators and all of them felt that it was not possible to have re-union and it was on that basis that the divorce was effected. He denied the allegation regarding cruelty etc. He denied the allegation that he was getting ₹ 20,000/- per month from his employment abroad and ₹ 5,000/- from his properties. In fact he was getting only ₹ 7,000/- per month and he will have to meet his food, residence and dress out of the same and he will have to maintain his family as well. So he is not liable to pay maintenance to the first respondent. He is prepared to maintain the children. So he prayed for accepting his contention and pass appropriate orders accordingly. 3. PWs 1 to 3 were examined on the side of the R.P.(F.C.). No.269 of 2009 4 first respondent and the power of attorney of the revision petitioner was examined on the side of the revision petitioner as RW1 and Ext.B1, B1(a) and B2 and B2(a) were marked on the side of the revision petitioner. 4. After considering the evidence on record, the learned family court found that the revision petitioner had neglected to maintain the respondents and directed the revision petitioner to pay 3,000/- per month to first₹ respondent, 800/- to the 2₹ nd respondent and 700/- to the₹ 3[rd] respondent. Aggrieved by the same, the present revision has been field by the revision petitioner / respondent before the court below. 5. Heard the learned counsel for the revision petitioner and the respondents. 6. The learned counsel for the revision petitioner submitted that in the written statement, he had categorically stated that there is no marital relationship now subsisting and he had divorced the first respondent on 19.07.2008 and he is not liable to pay maintenance to the R.P.(F.C.). No.269 of 2009 5 first respondent. The Family Court has not recorded any finding regarding the question of divorce, which is illegal. 7. On the other hand, the learned counsel for the respondent submitted that, except stating that he divorced the first respondent, there is no other evidence adduced on the side of the revision petitioner to prove this fact. Mere mentioning of pronouncement of divorce, is not sufficient and it must be proved in accordance with law and in the absence of any proof regarding the same, the family court was justified in passing an order directing the revision petitioner to pay maintenance to the first respondent. There is no illegality committed by the family court, which warrants interference of this court. 8. The counsel for the revision petitioner is not questioning the liability of the revision petitioner to pay maintenance to the children. He only disputes his rights to pay maintenance to the first respondent alone, as according to him, she is a divorced wife and she is not entitled to maintain application under Section 125 of the code, even as R.P.(F.C.). No.269 of 2009 6 per section 5 of the Muslim Women (Protection of Rights on Divorce) Act, unless they opt to prefer to be governed by the provision of Section 125 to 128 of the Code, the application for maintenance by a divorced wife is not maintainable under that provision after coming in to force of Muslim Women (Protection of Rights on Divorce) Act 1986. 9. The fact that, the revision petitioner married the first respondent and respondents 2 and 3 were born to them in the wedlock is not in dispute. The question is whether, there was valid divorce effected and mere mentioning of divorce effected earlier in the written statement is sufficient to infer that there was a valid divorce and the revision petitioner is not liable to pay the maintenance to the first respondent under Section 125 of the Code. 10. Section 125 of the Code reads as follows: **“125. Order for maintenance of wives, children and parents** . (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether R.P.(F.C.). No.269 of 2009 7 married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason or any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [***], as such magistrate thinks fit, and to pay the same to such person as the magistrate may from time to time direct: Provided that the magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: **[Provided further that the magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and he expenses of such proceeding which the magistrate considers reasonable, and to pay the same to such person as the magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]” ## 11. Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 reads as follows: **5. Option to be governed by the provisions of section 125 to 128 of Act 2 of 1974.** - If, on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or R.P.(F.C.). No.269 of 2009 8 separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974); and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly. Explanation.- For the purposes of this section, “ date of the first hearing of the application” means the date fixed in the summons for attendance of the respondent to the application. 12. It is settled law that, if a muslim validly dissolved the marital tie with his wife and if they have not opted to be governed by the provisions of Section 125 to 128 of the 'Code', then the application under Section 125 of the 'Code' is not maintainable. It is true that, though a contention was raised by the revision petitioner in the counter statement filed through his power or attorney that there is no marital relationship now subsisting between the revision petitioner and the first respondent and he had validly divorced her on 19.07.2008 as per custom, there is no finding recorded by the family court, regarding the validity of the divorce alleged to have been effected by the revision petitioner and the maintainability of the application for maintenance under Section 125 of the 'Code'. But if the parties have understood the pleadings and evidence has R.P.(F.C.). No.269 of 2009 9 been adduced on that aspect, then this court can, even in the revision, set right the irregularity committed by the lower court on the basis of the evidence available on record and for that purpose, the question need not be remanded to the court below, for fresh disposal, in order to avoid delay in disposal of the cases of this nature. 13. In the written statement, it was mentioned that there was no marital relationship subsists now between the revision petitioner and the first respondent as he divorced her on 19.07.2008 as per custom. But it may be mentioned here that the counter statement was not filed by the revision petitioner personally, but it was field through his power of attorney. The manner in which the divorce effected, the details or the manner in which it was effected, the circumstances under which it was effected were not specifically pleaded in the counter statement. 14. It is true that in the decision reported in **Aboobaker v. Kadeesa (1966 KHC 203)** , it has been held by this court that if in the written statement field by the R.P.(F.C.). No.269 of 2009 10 husband in a proceeding under Section 488 of the 'Code', (now 125 of the Criminal Procedure Code), if it is mentioned that he had divorced his wife, then it would amount to a unequivocal expression of the desire to divorce and operates as a divorce from that date and the wife is not entitled to claim maintenance thereafter. 15. But this view was not accepted by the Hon'ble Apex court, in the decision reported in **Shamim Ara v. State of U.P. (2002 KHC 829)** . In that decision, it has been observed as follows: “We are also of the opinion that the talaq to be effective has to be pronounced. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to, utter to articulate (see chambers 20[th] century dictionary, new edition, page 1030). There is no proof of talaq having taken place on 11.07.1987. What the High Court has uphold as talaq is, plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 05.12.1990. We are very clear in our mind that mere plea taken in the written statement of a divorce having been pronounced some time in the past cannot by itself be treated as effectuating talaq on the date of the delivery of the copy of the written statement to the wife. The respondent No.2 ought to have R.P.(F.C.). No.269 of 2009 11 adduced evidence and proved the pronouncement of talaq on 11.07.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr.Tahir Muhammed in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement though un-substantiated has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in court followed by a delivery of copy thereof to the wife”. 16. So it is clear from the above dictum that mere taking a plea in the written statement regarding previous pronouncement of talaq is not sufficient to dissolve the marriage with effect from the date of delivery of the copy of the written statement to the wife. It must be specifically pleaded and proved by the husband by adducing cogent evidence. The same view has been followed in the decision reported in **Ummer Farooque v. Naseeme (2005 KHC 1791) and Kunhimohammed v. Ayishakutty** R.P.(F.C.). No.269 of 2009 12 ## **(2010 (2) KHC 63)** by this court. 17. In this case, the revision petitioner did not appear in person. He only filed written statement through his power of attorney . He did not go to the witness box to speak about the divorce alleged to have been effected by him on 19.07.2008 as well. The evidence was given through his power of attorney, who also did not speak about the manner in which the talaq was pronounced by the respondent. PW1 has categorically stated that she was not informed about the divorce and she denied the fact that her marriage was divorced as well. The evidence of RW1, the power of attorney of the revision petitioner on this aspect is as follows: ""തല�ഖ� ച��ല�ല�ഇദമത, , , ഒന�� ച��ട�ത�ട�ല�ല. PW1 ച� അറ�യ� ച�ട�ല�ല മധ�സ�തത�ള ഇന� വച" ഒന�� �ടന�ട�ല�ല.” So it is clear from the above facts that there is no mediation taken place before pronouncing talaq, as required under law as held in the decision reported in Shamim Ara (supra). R.P.(F.C.). No.269 of 2009 13 So under the circumstances, the family court was perfectly justified in proceeding with the case as though the marital tie between the revision petitioner and first respondent is subsisting and rightly directed the revision petitioner to pay maintenance to the first respondent. 18. Once it is proved that, the revision petitioner is liable to pay maintenance to the first respondent, then the question is regarding the quantum of maintenance ordered to be paid by revision petitioner to the first respondent. It is an admitted fact that, even at the time when the case was taken up for trial, the revision petitioner was working abroad. He did not produce any document to prove his income as such. Only his power of attorney was examined as RW1, whose evidence is not sufficient to prove the actual income derived by the revision petitioner from his employment abroad. There is no evidence adduced on the side of the revision petitioner to prove that the first respondent is having sufficient means to maintain herself, so as to avoid payment of maintenance to her by the R.P.(F.C.). No.269 of 2009 14 husband as well. So under the circumstances, the family court was perfectly justified in directing the revision petitioner to pay maintenance to the first respondent. 19. It was admitted by RW1 that the revision petitioner married his 4[th] wife. Further considering the fact that the revision petitioner was working abroad and getting good income, as he is capable of marrying 4[th] wife, the amount of ₹ 3,000/- awarded by the family court as maintenance to the first respondent cannot be said to be excessive as well. The amount awarded to the minor children also cannot be said to be excessive and he has admitted his liability to pay maintenance to the children. Merely because he had sent some amount as maintenance, evidenced by Ext.B2 and B2(a) are not sufficient to come to the conclusion that he had not neglected to maintain his wife and children. It is true that PW1 had admitted that the address mentioned therein is her address. But she had categorically stated that she had not received such money order and she never refused the same. Further it is seen R.P.(F.C.). No.269 of 2009 15 from Ext.B2 and B2(a) that only merge amounts were sent, which cannot be said to be a proper maintenance sent by the husband to the wife so as to come to the conclusion that he had not neglected to maintain his wife. So under the circumstances, there is no illegality committed by the family court in passing an order directing the revision petitioner to pay the maintenance to the respondents and the quantum of maintenance awarded by the family court also cannot be said to be excessive and there is no interference called for in the order passed by the family court. There is no merit in the revision petition and the same is liable to be dismissed. In the result, the revision petition is dismissed and the order passed by the family court, directing te revision petitioner to pay maintenance to the respondents is hereby confirmed. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss