Shemitha and others v Abdul Shukkur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **RPFC.No.261 OF 2020** **AGAINST THE ORDER IN M.C.NO.141/2016 DATED 07-05-2020 OF FAMILY COURT, IRINJALAKUDA** ## **REVISION PETITIONERS/PETITIONERS:** **1 SHEMITHA, AGED 35 YEARS, D/O PALAKKAL BAVA AND W/O PALLAYI PEEDIKAYIL SHUKKUR, VELLANCHIRA DESOM, ALOOR VILLAGE, CHALAKUDY TALUK. 2 SHEMINA, AGED 12 YEARS, MINOR, D/O SHEMITHA AND SHUKKUR, REP. BY GUARDIAN AND MOTHER, SHEMITHA. 3 AJMALKHAN, AGED 17 YEARS, S/O ABDUL SHUKKUR, RESIDING WITH 1ST PETITIONER BY ADVS. SRI.NIRMAL.S SMT.VEENA HARI SMT.RIA ELIZABETH JOSEPH SMT.IRENE ELZA SOJI** ## **RESPONDENT/RESPONDENT:** **ABDUL SHUKKUR, AGED 45 YEARS, S/O PALLAYIPEEDIKAYIL KUNJUMOHAMMED, VELLANCHIRA DESOM, ALOOR VILLAGE, CHALAKKUDY TALUK, PRESENT ADDRESS P.K.SHUKKUR, S/O KUNJUMOHAMMED, PALLAYIPEEDIKAYIL, HAYATH AL-JOWDHA, AL-GHURAIN ROAD, AL-RASS-AL QASIM, K.S.A** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20.11.2020, ALONG WITH RPFC.160/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RPFC.No.261/2020 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** **RPFC.No.160 OF 2020** **AGAINST THE ORDER IN M.C.NO.141/2016 OF FAMILY COURT, IRINJALAKUDA** ## **REVISION PETITIONER/RESPONDENT:** **ABDUL SHUKKUR, AGED 45 YEARS, S/O. PALLAYIPEEDIKAYIL KUNJUMOHAMMED, VALLANCHIRA DESOM, ALOOR VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT.** **PRESENT ADDRESS-P.K. SHUKKUR, S/O.KUNJUMOHAMMED, PALLAYIPEEDIKAYIL, HAYATH AL-JOWDHA, AL-GHURAIN ROAD, AL-RASS-AL-QASIM, K.S.A.** **BY ADVS.SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN SRI.RAFEEK. V.K. SMT.P.PARVATHY SMT.SURYA P SHAJI SHRI.MANAS P HAMEED SMT.AATHIRA SUNNY SHRI.GAUTHAM MOHAN H.** ## **RESPONDENTS/PETITIOONERS:** **1 SHEMITHA, AGED 36 YEARS, D/O. PALAKKAL BAVA AND W/O.PALLAYI PEEDIKAYIL SHUKKUR, VELLANCHIRA DESOM, ALOOR VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT-680 602.** **2 SHEMINA, AGED 8 YEARS, (MINOR), REPRESENTED BY MOHTER THE 1ST RESPONDENT.** **3 AJMAL KHAN,AGED 15 YEARS, (MINOR), REPRESENTED BY MOHTER THE 1ST RESPONDENT.** **R1-3 BY ADVS. SRI.NIRMAL. S SMT.VEENA HARI SMT.IRENE ELZA SOJI SMT.RIA ELIZABETH JOSEPH** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20.11.2020, ALONG WITH RPFC.261/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -:3:- ## **ORDER** **[ RPFC.261/2020, RPFC.160/2020 ] Dated this the 20[th] day of November, 2020** An order passed by Family Court, Irinjalakuda on 07.05.2020 in M.C.No.141 of 2016 is taken up in challenge in revisions on hand both by the petitioners and the respondent. 2. For the sake of clarity the parties to these revisions will hereinafter be referred to as petitioners and respondent in accordance with their respective status before the Family Court in the M.C. R.P.(F.C) No.261 of 2020 is filed by the petitioners in M.C.No.141 of 2016 raising contentions as follows:- 1. Maintenance ought to have been awarded by the Family Court from the date of the petition. 2. The Family Court ought to have considered that the 1[st] petitioner, who has no source of income to maintain herself is surviving at the mercy of her parents and therefore, has the entitlement to live in the status of the respondent, while they were living together. The respondent having been proved as well placed with reasonable income from his employment, landed property and **RPFC Nos.160&261/2020** -:4:- other concerns, the amount claimed by the petitioners as such ought to have been awarded by the Family Court. 3. R.P.(F.C) No.160 of 2020 was filed by the respondent in M.C.No.141 of 2016 and the challenge raised was mainly on the findings of the Family Court that the petitioners are entitled to get maintenance and fixation by it of the quantum of maintenance. 4. According to the respondent, the finding of the Family Court that the respondent was a man of sufficient means and therefore liable to pay maintenance at the rates fixed is devoid of any basis. According to him, the contentions raised by the 1[st] petitioner that the respondent was getting Rs.1,00,000/- from his supermarket business in Saudi Arabia, Rs.50,000/- from his contract work and Rs.50,000/- from his deposits of money with different concerns were not substantiated by her by adducing cogent evidence and therefore, the Family Court was perfectly unjustified in arriving at a finding that the respondent is a man with sufficient income and thereby fixing Rs.10,000/- to the 1[st] petitioner and Rs.8,000/- each to 2[nd] and 3[rd] petitioners as the monthly maintenance payable. 5. According to the respondent, a specific contention was taken by him before the Family Court that the 1[st] petitioner was living in adultery and a note book which was written by the 3[rd] petitioner was also **RPFC Nos.160&261/2020** -:5:- produced to establish that. But the application filed by him in his attempt to prove the note book by examining the 3[rd] petitioner was dismissed by the Family Court. According to him, if he was permitted to examine the 3[rd] petitioner, the 1[st] petitioner's adulterous life could have been established before the Family Court and the 1[st] petitioner's claim for maintenance would have been dismissed by the Family Court. 6. The learned counsel for the respondent has also urged that the Family Court ought to have relied on Ext.D1, the salary certificate produced by him to establish that he has only Rs.27,000/- as his monthly income. The learned counsel has relied on **National Insurance Company Ltd Vs. Thalassery V. Ramla and Others** [2016(4) KHC 891] to contend that a document attested in front of the Consulate can be taken as a document admissible in evidence to ascertain salary of a person employed abroad without formal proof. It is contended by the learned counsel that Ext.D1 being one such document, it ought to have been relied on by the Family Court to take a view that the respondent was only having a monthly salary of Rs.27,000/-. According to him, the Family Court failed to advert to the oral evidence of RW1 that he has also to maintain his wife and child in the 2[nd] marriage. According to him the Family Court failed to give due effect to the evidence tendered by PW2 during cross examination that **RPFC Nos.160&261/2020** -:6:- the Fortuner Car possessed by the respondent was a used car and bought on loan, dues of which are not properly paid and therefore in arrears. The learned counsel contended that in view of the adulterous life of the 1[st] petitioner, she would not be entitled to get maintenance and the impugned order awarding maintenance is liable to be reversed. He also canvassed that if her claim is found sustainable, the quantum of maintenance fixed being on the higher side is required to be reduced. 7. The marriage of the 1[st] petitioner with the respondent and the birth of a daughter and son in the said marriage and the re-marriage of the respondent and birth of a child in that wedlok are not matters of controversy. Initially the marital life was smooth and relationship started to ruin in view of allegations of extra-marital relationship of either parties. The averment of the 1[st] petitioner was that due to the mental torture of respondent based on allegations of unchastity, she left his company. According to her, the respondent remarried a lady with whom he had maintained relationship while the marriage with her was subsisting. Respondent admitted the second marriage and birth of a child in that wedlock. According to the respondent, the 1[st] petitioner was living in adultery. According to him because of her adulterous life, she was sent from Gulf to her native place, but, there also she developed intimacy with a driver and continued to live in adultery. To prove the **RPFC Nos.160&261/2020** -:7:- factum, he had also filed an application seeking for examination of the 3[rd] petitioner, who according to him, has acquaintance of the same. According to him Ext.D3, a note book wherein the 3[rd] petitioner had reduced his information about the adulterous life of the 1[st] petitioner into writing was intended to be proved through him, but the court has discarded his prayer by dismissing the application. It is true that the application filed for the purpose was dismissed by the court, but the respondent failed to challenge the order declining his prayer and therefore the note book stands disproved. The respondent failed to adduce any other evidence to substantiate his contention that the 1[st] petitioner was living in adultery. Therefore, the contention now raised by the learned counsel that the court below has allowed the claim of the 1[st] petitioner without basis is devoid of any merits and is discarded. 8. Therefore, the question to be considered is whether the court has appreciated the evidence in its correct perspective while fixing the quantum payable as monthly maintenance in favour of the petitioners. 9. The evidence on record convincingly establish the factum that the 1[st] petitioner failed to establish her plea on the sources of income and the quantum of monthly income earned by the respondent at the relevant time when the petition seeking maintenance was filed by her. The respondent by producing a certificate attempted to establish that **RPFC Nos.160&261/2020** -:8:- he was having only Rs.27,000/- as salary from his job as Marketing Specialist at Saudi Arabia. The certificate was marked as Ext.D1. It was suggested by the 1[st] petitioner to the respondent that Ext.D1 is forged by him for the purpose of the case. Despite the opposition, the respondent failed to examine the alleged employer of him, who had signed and issued it. The court below did not place credence on Ext.D1 for the reason that the employer was not examined to prove it. Though the learned counsel urged to rely on Ext.D1 on the strength of the dictum in **National Insurance Company Ltd** supra, Ext.D1 being a document not attested in front of the Consulate, the argument does not hold good. The Family Court has correctly discarded Ext.D1. 10. The Manager of ICICI Bank was examined by the 1[st] petitioner to establish that the Fortuner Car was owned by the respondent himself. During cross examination the respondent successfully brought out that the car is a used one and was purchased on loan availed from the bank. PW2 had also gone to the extent of stating that some cheques given towards repayment of loan instalments were bounced. 11. The learned counsel urged on the basis of the above evidence that the respondent does not have sufficient money in his credit to repay the loan installments and therefore, the cheques were bounced. **RPFC Nos.160&261/2020** -:9:- 12. The oral evidence of PW2 that some of the cheques issued by the respondent towards repayment of loan dues were bounced is insufficient to take a view that the respondent was not having sufficient income. Admittedly, loan was availed by the respondent for purchase of the car and the EMI payable is Rs.41,306/-. For availing loan with EMI of Rs.41,306/-, the respondent must have sufficient income. Cheques can be bounced for different reasons and for what reason the cheques issued by the respondent were bounced was not explained by PW2. If the respondent had actually defaulted the payment towards loan installments, undoubtedly the bank must have re-possessed the vehicle. PW2 does not have a say that the car was re-possessed by the bank. Exts.X1 and X2 got marked through PW2 to establish the repayment of the loan dues by the respondent. 13. If he has no capacity to pay Rs.41,306/- as EMI, the loan would not have been availed by him. Admittedly, the respondent's residence is situated in 70 cents of property and agricultural land comprising of 50 cents is also owned by him. Therefore, the Family Court is justified in taking a view that the respondent is a man having sufficient income. 14. It is pertinent to note that the respondent is remarried and has a child born in that wedlock. Therefore, with his earnings, he has to **RPFC Nos.160&261/2020** -:10:- maintain his second wife and child. The Family Court has not made any discussion on that aspect while fixing the quantum payable as monthly maintenance. 15. Since the 2[nd] and 3[rd] petitioners are school going ones, Rs.8,000/- fixed as monthly maintenance in favour of each of them is a reasonable sum and this Court is declined to interfere with the same. The sum ordered as monthly maintenance in favour of the 1[st] petitioner being Rs.10,000/-, this Court is inclined to modify the same by reducing Rs.2,000/- therefrom. 16. In view of the direction issued in **Rajnesh v. Neha and another [2020 (6) KHC 1 (SC)]** by the Apex Court, the monthly maintenance maintained and modified shall be payable from the date of the petition itself. 17. For the reasons stated above, the claim of the 1[st] petitioner in R.P.(FC) No.261 of 2020 seeking for a hike in the maintenance amount from the already awarded sums cannot be entertained and therefore, is disallowed. The contention of the learned counsel for the petitioners that due to Covid 19 pandemic, the respondent lost his employment and that the 3[rd] petitioner is now missing cannot be considered in the revision on hand, those being developments occurred after passing of the impugned order by the Family Court. The learned counsel for the **RPFC Nos.160&261/2020** -:11:- petitioners has contended that the 3[rd] petitioner was missing but was traced out and is in the custody of his mother as directed by the Court before whom he was produced. In the result, R.P.(FC) No.261 of 2020 is dismissed and R.P.(FC) No.160/2020 is allowed in part. Rs.10,000/- stands ordered as monthly maintenance to the 1[st] petitioner alone is reduced to Rs.8,000/-. Liberty is reserved to the respondent/husband to project and establish any change in circumstances before the Family Court in an application preferred under Section 127 Cr.P.C and to get corresponding modifications. ## **MARY JOSEPH, JUDGE** JJ/NAB/ttb **Continued at page 12** **RPFC Nos.160&261/2020** -:12:- The common final order dated 20/11/2020 in R.P.(F.C) No.261/2020 and R.P.(F.C) No.160/2020 is corrected by substituting the words 'both revisions stand allowed in part' in the place of R.P.(F.C) No.261/2020 is dismissed and R.P.(F.C) No.160/2020 is allowed in part' occurring in the last paragraph of the impugned order after the words, 'In the result' as per orders dated 12/01/2021 and 13/01/2021 in Crl.M.A No.1/2021 in R.P.(F.C) No.261/2020 and R.P.(F.C) No.160/2020 respectively. **Sd/Deputy Registrar**