THARIK ALI v. ISHAAN A. THARIK

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 ``` ## **`RPFC NO. 23 OF 2023`** ## **`M.C.NO.100/2019 OF FAMILY COURT,ERNAKULAM`** ## **`PETITIONER/RESPONDENT:`** ``` THARIK ALI AGED 40 YEARS S/O.ALI, ANDETH HOUSE, NEAR TAJ METALS, MEKALADY, MANIKKAMANGALAM.P.O., PIN-683 574 BY ADVS. P.K.IBRAHIM SREEJI K.B. ``` ## **`RESPONDENT/PETITIONER:`** ``` ISHAAN. A.THARIK AGED 14 YEARS S/O.THARIK ALI, PADINJARECHALIL HOUSE,VALLAKADAPARAMBU ROAD, ELAMAKKARA, PIN-682 026, REPRESENTED BY HIS MOTHER RINUSA.P.A, PADINJARECHALIL HOUSE,VALLAKADAPARAMBU ROAD, ELAMAKKARA, PIN-682 026 BY ADVS. M.S.UNNIKRISHNAN M.R.ANISON ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.23 of 2023 2 ## A.BADHARUDEEN, J. ----------------------------------------- ## R.P.(FC)No.23 of 2023 -----------------------------------------Dated this the 25[th] day of January, 2023 ## ORDER This revision has been filed under Section 19(4) of the Family Courts Act and the revision petitioner is the respondent in M.C.No.100/2019 on the files of the Family Court, Ernakulam. He impugns order, dated 16.2.2022 in the above M.C., arraying the petitioner in the M.C. as respondent. 2. Heard the learned counsel for the revision petitioner as well as the learned counsel for appearing for the respondent, in detail. 3. Summary of the case put up by the respondent before the Family Court is as under: Admittedly, the respondent, a minor, aged 8 years, represented by his mother and natural guardian, filed petition under Section 125 of the Code of Criminal Procedure, before the Family Court and claimed maintenance to the tune of Rs.30,000/- from the revision petitioner, on raising specific allegations that he had been earning Rs.1,00,000/- per month. R.P.(FC)No.23 of 2023 3 4. The revision petitioner filed objection and resisted the contentions. The specific contention was that the revision petitioner had been paying Rs.6,000/- to the minor child towards maintenance without any neglect or refusal. Further, the mother of the minor had been practicing as a busy lawyer for a period of 10 years. Further contention was that, since divorce, the revision petitioner got married on 14.11.2014, and he had a child in his second marriage. Further contention was that, although he secured an employment abroad (UAE), he could not continue the job and thereafter, he returned back to native place in July 2018 and he had no avocation or income at present. At present, he had been working as a Supervisor in a hollow block factory for a meager income, to support his family. The learned counsel for the revision petitioner reiterated the contentions raised in the objection, while attempting to reduce the quantum of maintenance granted by the Family Court, at the rate of Rs.15,000/- per month to the minor. 5. The Family Court followed the ratio of Rajnesh v. Neha and Another [ILR 2020 (4) 579] as well as the evidence confined to that of the mother of the respondent and the revision petitioner. Further, Exts.A1 and B1 to B4 also were referred. The Family Court found that, as per Ext.A1, the R.P.(FC)No.23 of 2023 4 common judgment in O.P.Nos.2452/2011 and 2447/2011, the Family Court observed that, as per the mutual agreement entered into between the parties, the revision petitioner agreed to pay Rs.6,000/- as monthly maintenance to the minor child, then aged 5 years. As per the mutual agreement, it was agreed by the revision petitioner that, he would pay maintenance to the minor child at a reasonable enhanced rate after 3 years. Accordingly, during cross examination, he offered Rs.1,000/- more towards maintenance. The Family Court taken note of the fact that, even according to RW1, the revision petitioner, his parental uncle Jaffer Khan was managing the crusher unit of his father from 2012 to 2019 and they had to pay a sum of Rs.1,23,00,000/(Rupees One Crore Twenty Three Lakhs only) as share to his paternal uncle, to leave away from the said trade. Taking note of the factual circumstances in this scenario, the Family Court found that RW1 deliberately suppressed his financial potential to pay adequate maintenance to the minor child. 6. While arguing to sustain, the order of the Family Court granting Rs.15,000/- as maintenance, learned counsel for the respondent would submit that, as per the mutual agreement also, the revision petitioner offered a higher amount as maintenance after 3 years. It is submitted that the child is a person with learning disability and he needs special attention. The termly tuition fee R.P.(FC)No.23 of 2023 5 would come to Rs.14,770/- and van fee would come to Rs.2,000/- per month, apart from the other expenses. Therefore, a major portion of the expenses required for the minor has been met by the mother. The moral as well as the legal responsibility of the father to contribute his share to the minor, with learning disability has been recognized by the Family Court to disbelieve the version of RW1 and to hold that he had deliberately suppressed his financial potential to pay adequate maintenance to the minor child. Therefore, the said order may be maintained. 7. Admittedly, the revision petitioner and the guardian of the minor got divorced by way of Talaq, years ago. Thereafter, their liabilities were mutually settled which led to rendering of common decree in O.P.Nos.2452/2011 and 2447/2011. As per the agreement, the revision petitioner agreed to pay Rs.6,000/- per month as maintenance and also offered reasonable enhancement after 3 years. 8. The contention raised by the revision petitioner through out the proceedings that he had lost his job abroad and at present, he had been working as a Supervisor in a hollow block factory. But, PW1 given evidence that the revision petitioner had been successfully running his business and had been earning income more than Rs.1,00,000/-per month. In paragraph No.9, ## R.P.(FC)No.23 of 2023 6 the learned Family Court Judge appraised the said contention and held as under: `“` 9. According to PW1, the respondent is successfully running his business and he earns an income more than Rs.1 lakh per month. To refute this contention he preferred to testify that he is working as a supervisor under his father and brother in their hollow block unit. According to PW1, the respondent is running a hollow brick unit and a crusher unit as his proprietorship business. He denied this aspect. Though he claimed himself to be a man of insufficient means, he preferred to get married soon after his divorce and he has got a child in that wedlock. For no reason he can be absolved from his liability to pay reasonable quantum of maintenance to the petitioner child. Even according to RW1, his paternal uncle Jaffer Khan was managing the crusher unit of his father from 2012 to 2019. They had to pay, a sum of Rupees One crore twenty three lakhs only as share to his paternal uncle to leave away from the said trade. In his anguish to show himself and his father as financially unsound, he at the very first blush voiced that the said amount was taken as loan from several persons and by selling vehicles. On an over all analysis of the oral testimony of RW1 it is clear and precise that he is eagerly attempting to hide so many material facts reflecting his sound financial status. So, without further discussions I am inclined to hold that RW1 is deliberately suppressing his financial potential to pay adequate maintenance to the petitioner/minor child.” 9. The question that arises for consideration is as to whether Rs.15,000/- per month granted as maintenance by the Family Court to the minor child is on higher side. When the status of the minor, as a person with R.P.(FC)No.23 of 2023 7 learning disability is concerned, the contention raised by the minor to get more amount as maintenance to oversee his learning disability, is having force. However, the mother, being a practicing lawyer can also a share portion of the expenses of the minor. The entire evidence discussed in detail by the learned Family Court Judge would go to show that the revision petitioner is a man with sufficient financial background and he could easily pay a reasonable sum to the needs of the minor with learning disability. However, I am inclined to modify the quantum of maintenance to the tune of Rs.13,000/- (Rupees Thirteen Thousand only) per month and the respondent is entitled to get the said amount from the date of the petition. In the result, the revision stands allowed, as indicated above. Sd/- A. BADHARUDEEN JUDGE Bb R.P.(FC)No.23 of 2023 8 ## **`APPENDIX OF RPFC 23/2023`** ``` PETITIONER’S ANNEXURES ANNEXURE-A1TRUE COPY OF THE MEMORANDUM OF AGREEMENT UNDER SEC. 89 OF THE CPC R/W RULES 24 AND 25 OF THE CIVIL PROCEDURE (MEDIATION) RULES, 2005 ANNEXURE-A2TRUE COPY OF THE COMMON JUDGMENT DATED 11.06.2013 IN O.P NO. 2452/2011 AND O.P. 2447/2011 ANNEXURE-A3TRUE COPY OF THE M.C NO.303/2017 FILED BY THE MOTHER OF THE PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM ANNEXURE-A4TRUE COPY OF THE OBJECTION DATED 04.08.2018 WITHOUT DOCUMENTS IN ANNEXURE- A3 ANNEXURE-A5TRUE COPY OF THE M.C NO. 100/2019 FILED BEFORE THE FAMILY COURT, ERNAKULAM ANNEXURE-A6TURE COPY OF THE OBJECTION DATED 19.10.2019 FILED BY THE PETITIONER IN ANNEXURE A5 ANNEXURE-A7TRUE COPY OF THE RENT AGREEMENT DATED 01.02.2020 ANNEXURE-A8COMPLAINT DATED 05.03.2016 FILED BY THE MOTHER OF RESPONDENT BEFORE THE CIRCLE INSPECTOR OF POLICE, THRIKKAKKARA. RESPONDENTS’ NIL ANNEXURES ``` //TRUE COPY// PA TO JUDGE