Sulaiikha, d/o Mekkattukalathil Saidalavi v. Saidalikutty

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 RPFC.No. 101 of 2003() ---------------------MC.363/2000 of Family Court, Manjeri .................... : PETITIONER/PETITIONER. --------------------------------------- SULAIKHA, D/O.MEKKATTUKALATHIL SAIDALAVI TIRUR TALUK, NADUVATTOM AMSOM DESOM, NADUVATTOM P.O. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: ------------- SAIDALIKUTTY, S/O.PARATHIPRA POCKER, TIRUR TALUK, NADUVATTOM AMSOM DESOM, P.O.NADUVATTOM. BY ADV. SRI.T.KRISHNAN UNNI (SR.) FOR R1 SRIC.M.MOHAMMED IQUABAL THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J** ## **----------------------** R.P.F.C.No.101 of 2003 ---------------------------------------Dated this the 26[th] day of June 2008 ## **O R D E R** In this R.P.F.C, the petitioner assails the order passed by the Family Court rejecting her claim for maintenance under Section 125 Cr.P.C. 2. Marriage is admitted. The claim was made on behalf of the petitioner herein and her two children. For the children maintenance was awarded under the impugned order. Claim of the petitioner alone was dismissed on the short ground that the respondent/husband had set up a plea that he had divorced her. There is nothing to show that the fact of divorce was intimated to the first claimant/wife by the husband. But it was revealed that in an earlier suit filed by the respondent/husband as also in the counter statement filed by him in this petition under Section 125 Cr.P.C, the husband had pleaded an earlier act of divorce on 10/3/2000. Except such averments made in that earlier plaint and counter statement of an anterior divorce, absolutely no material was placed before court to show that there was actually such a divorce effected. The learned Judge of the Family Court took the view that the divorce has not been proved. But the R.P.F.C.No.101/03 2 learned Judge took the view that the plea in the plaint and counter statement constituted a valid divorce. It is true that there was some confusion relating to the law on the point and the claimant herself had filed an affidavit which suggested that she may not be entitled to claim maintenance in view of such plea of divorce taken in the earlier suit and in the counter statement filed in this petition. But evidently on better advice and counsel, that plea was given up and claim for maintenance was pressed in this petition under Section 125 Cr.P.C. 3. After the decision in **Shamim Ara v. State of U.P [2002(3) KLT 537(SC)** there can be no semblance of a doubt that such a plea of divorce taken in the plaint in the earlier suit and in the counter statement in the petition under Section 125 Cr.P.C by the respondent cannot operate as a valid talaq. It is for the husband to prove that there in fact was a talaq in accordance with law on the date of talaq pleaded in the statements - plaint and counter statement filed by him. The mere fact that such a plea has been taken will not ipso facto amount to a valid divorce or relegate the claimant/petitioner herein to the status of a divorced wife. Law on the point is absolutely clear now and after the decision in **Shamim Ara** R.P.F.C.No.101/03 3 (Supra) there can be no semblance of a doubt on that aspect. The Supreme Court in a later decision reported in **Iqbal Bano v. State of U.P. [2007(3) KLT 63 (SC)** has also reiterated the principle in **Shamim Ara** (Supra) that an unsubstantiated plea of an anterior divorce taken up in pleadings filed before court cannot have the effect of a legal divorce. The crucial question is not how the claimant/petitioner understood the law and what she stated in the affidavit filed by her which was later not pressed by her. The question is whether in law, there was a valid divorce or not. As stated earlier, **Shamim Ara** (Supra) concludes the issue that the plea of divorce taken in the counter statement in the claim under Section 125 Cr.P.C or in the plaint filed by the husband in an earlier civil proceedings cannot operate and shall not bring into effect any valid divorce in law. 4. It follows therefore that there has been no valid divorce proved by the husband as contended by him in the counter statement. Consequently, the petitioner/claimant's status as wife will have to be accepted by the court. There are no other circumstances pleaded which can justify the rejection of her claim for maintenance. R.P.F.C.No.101/03 4 5. The learned counsel for the petitioner submits that even admittedly the petitioner is occupying a house along with her two children and that house belongs to the respondent/husband. The fact that she is enjoying the shelter provided by the husband will not by itself deprive her of her claim for maintenance. This factor which is not disputed shall certainly be taken into account while fixing the quantum of maintenance payable. 6. The claimant/wife is not shown to have any means. She is a woman unable to maintain herself. The husband is employed abroad. He did not examine himself. His power of attorney holder admitted that he gets an income of Rs.7,000/-. The power of attorney holder, examined as RW1, could not deny the specific suggestion that the husband gets an income of Rs.30,000/- per mensum. I take note of the evidence available about the needs of the claimant as also the materials available in support of the income earned by the husband abroad. I take note of the further circumstance that the claimant/wife is occupying the house belonging to the respondent/husband. I am in these circumstances satisfied that a direction to pay maintenance at the rate of Rs.1,500/- per mensum will be R.P.F.C.No.101/03 5 absolutely fair, reasonable and just. She had claimed the amount of Rs.1,500/- per mensum only. The mere fact that she had claimed only a reasonable amount cannot persuade me to slash the amount claimed by any extent. There is no contention that any amount has been paid during the pendency of the proceedings. The order directing payment of maintenance shall hence take effect from the date of the petition, that is 7/8/2000. 7. This petition is accordingly allowed. The impugned order in so far as it rejects the claim for maintenance of the first claimant/wife is set aside. The respondent is directed under Section 125 Cr.P.C to pay maintenance to the first claimant/wife at the rate of Rs.1,500/- per mensum from the date of the petition that is 07/08/2000. ## **(R.BASANT, JUDGE)** jsr R.P.F.C.No.101/03 6 R.P.F.C.No.101/03 7 ## **R.BASANT, J** R.P.F.C.No. ORDER 11/02/2008