Yousuff v. Nafeesakutty (RP(FC) 179 of 2014)

1 RP(FC) 179 of 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **RPFC.No.179 OF 2014** **AGAINST THE ORDER/JUDGMENT IN MC 16/2013 DATED 05-03-2014 OF FAMILY COURT, OTTAPPALAM** ## **REVISION PETITIONER/S:** **YOUSUFF, AGED 49 YEARS S/O. ABDUTTY, PALLIYALIL HOUSE, PATTITHARA POST, NOW RESIDING AT THENKULAM KOYA'S HOUSE, THALAKKASSERY POST, PATTITHARA VILLAGE, (VIA)THRITHALA, PALAKKAD DISTRICT-679 534.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** ## **RESPONDENT/S:** |**1**|**NAFEESAKUTTY, AGED 39 YEARS**| |---|---| ||**D/O. UMMATHU, VAZHIYILETHIL HOUSE, PATTITHARA POST, PATTITHARA**| ||**VILLAGE, (VIA)THRITHALA, PALAKKAD DISTRICT-679 534.**| |**2**|**NIYAZ, AGED 21 YEARS**| ||**S/O. NAFEESAKUTTY, VAZHIYILETHIL HOUSE, PATTITHARA POST,**| ||**PATTITHARA VILLAGE, (VIA)THRITHALA, PALAKKAD DISTRICT-679 534.**| |**3**|**MUBASHEERA, AGED 19 YEARS**| ||**D/O. NAFEESAKUTTY, VAZHIYILETHIL HOUSE, PATTITHARA POST,**| ||**PATTITHARA VILLAGE, (VIA)THRITHALA, PALAKKAD DISTRICT-679 534.**| |**4**|**NASEERA (MINOR), AGED 12 YEARS**| ||**D/O. NAFEESAKUTTY, VAZHIYILETHIL HOUSE, PATTITHARA POST,**| ||**PATTITHARA VILLAGE, (VIA)THRITHALA, PALAKKAD DISTRICT-679 534.**| ||**(4TH RESPONDENT IS REPRESENTED BY MOTHER AND GUARDIAN 1ST**| ||**RESPONDENT).**| ||**R1 BY ADV. SRI.P.K.ABDU RAHEEM**| ||**R1 BY ADV. SRI.P.CHANDRASEKHAR**| ||**R1 BY ADV. SMT.P.M.MAZNA MANSOOR**| ||**R1 BY ADV. SRI.S.PRASANTH**| |**THIS **|**REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON**| |**04.12.2019,**|**THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**| 2 RP(FC) 179 of 2014 ## **“CR”** ## **ORDER** The respondent in MC No.16/2013 on the file of the Family Court, Ottapalam, is the revision petitioner. The petitioners in the Maintenance Case (in short “MC”) are the respondents in this revision petition. 2. The petitioners filed the M.C seeking separate monthly maintenance from the revision petitioner at the rate of Rs 4,000/- to the first petitioner, Rs 3,000/- to the second petitioner and Rs 2,000/- to the third and fourth petitioners, respectively. The parties are referred to as the “petitioners” and “respondent” as per their status 3 RP(FC) 179 of 2014 in the MC. 3. The petitioners filed the M.C contending that the respondent is a driver by profession, and is employed in the Gulf. He earns a monthly income of Rs 45,000/-. They averred that the respondent, despite having sufficient means, has willfully refused to maintain them. The respondent harassed the first petitioner and went away to the Gulf. The first petitioner has no source of income; the petitioners 2 to 4 are students and require maintenance allowance as claimed in the M.C. 4. The respondent opposed the M.C by filing a counter statement. He admitted the marriage and the paternity of the children. His defense was that the first petitioner was leading an immoral life with a taxi driver; that the second petitioner was 4 RP(FC) 179 of 2014 employed in a stationery shop and was getting Rs 200/- per day, and that the respondent was only working as a salesman and drawing a salary of Rs 12,500/- per month. Hence he prayed that the M.C be dismissed. 5. The first petitioner was examined as PW1. The respondent did not let in oral evidence but produced and marked Exts D1 to D5. 6. The Family Court after considering the pleadings and evidence on record came to the conclusion that the respondent is liable to pay an amount of Rs 2,500/- to the first petitioner, Rs 1,500/- to the second petitioner and Rs 1,000/each to the petitioners 3 and 4. 7. It is assailing the impugned order, that this revision petition (R.P(FC)) is filed. 5 RP(FC) 179 of 2014 8. Heard Sri.P.K.Mohanan, the learned counsel for the revision petitioner and Sri.P.Chandrasekhar, the learned counsel for the respondents. 9. The counsel for the revision petitioner/respondent submits that, during the pendency of this R.P(FC), the second petitioner passed away, in a road accident on 3.9.2016. He concedes that the marriage and the paternity of the children are not disputed. He also admitted that the respondent has re-married. 10. On going through the records, it is seen that the respondent had not mounted the box. He had only produced Exts D1 to D5. The only document that could be relied on is Ext D2 statement issued by the Union Bank of India, 6 RP(FC) 179 of 2014 Pattithara, which is certified under the banker's book of evidence. Exts D1, D3 to D4 are not proved through the proper person and, therefore, cannot be relied. 11. Even though the counsel for the respondent argued that the first petitioner was living in adultery, I do not find any material to accept the said argument. Merely by making an aspersion is not sufficient to prove the grave allegation of adultery. Then the counsel contended that by the passing away of the second petitioner, the respondent's liability as against the deceased son stands extinguished. He also argued that during the pendency of the proceedings, the third petitioner attained majority. Thus, by virtue of Sec.125 (1)(c) of the Code of Criminal Procedure, 7 RP(FC) 179 of 2014 the respondent is not liable to maintain the third petitioner. 12. As already pointed out, the respondent had not mounted the box and let in any contra evidence. Therefore, the allegation that the first petitioner is deriving income or living in adultery, as pleaded in the counter statement, has not been proved. During the course of cross-examination, another defense was attempted to built, that the first petitioner had an autorickshaw registered in her name, which she has given on hire, and that she was getting sufficient income from the vehicle. The respondent also produced Ext D2 to establish that certain amounts were remitted in the bank account of the first which were petitioner, withdrawn by her, which shows that she has 8 RP(FC) 179 of 2014 sufficient means to maintain herself. 13. The counsel for the petitioners, on the other hand, argued that the order passed by the Family Court is perfectly legal and just and does not warrant any interference by this Court in exercise of its revisional jurisdiction. He relied on the decision of the Hon'ble Supreme Court in **Noorsaba Kathoon vs Mohammed Kasim (AIR 1997 SC 3280)** and contended that the liability of a Muslim father is to maintain his daughter till she gets married, even though the daughter has attained majority. 14. The counsel for the petitioners also argued that the respondent had not proved any aspect concerning the allegation of adultery, the income of the first petitioner from the 9 RP(FC) 179 of 2014 autorickshaw, or from the business that she is allegedly engaged. The respondent has refused to mount the box and let in contra evidence, and therefore the respondent's defense is worthless the piece of paper it is written. Merely by producing certain documents is not sufficient. Exts D1, D3 to D5 have not been proved in evidence. 15. I am conscious of the decision of the Hon'ble Supreme Court **in Pyla Mutyalamma alias Satyavathi v. Pyla Suri Demudu and another [(2011) 12 SCC 189],** wherein it is declared that the High Court in revisional jurisdiction has no power to reassess evidence and substitute it with its own findings, particularly with regard to marriage and patronage of a child. 16. In light of the above declaration of law, 10 RP(FC) 179 of 2014 only the following questions are formulated. 17. The questions are: (i) Whether the petitioners one and four are entitled to maintenance as ordered by the Family Court? - (ii) Whether the claim of the second petitioner has abated on his death and till which date the respondent is liable to pay maintenance to him? (iii) Whether the third petitioner's right to claim maintenance has extinguished on attaining majority? 18. As the above three are questions intertwined, they are considered together. 19. The oral testimony of the first petitioner, who was examined as PW1, though she was crossexamined, nothing incriminating was brought to 11 RP(FC) 179 of 2014 disprove her evidence. The glaring infirmity in the defense of the respondent is that he refused to mount the witness box and subject himself to cross-examination. All that he had done was to produce Exts.D1 to D5 documents. As already pointed out, other than for Exts.D2 statement, none of the other documents were not proved through the proper person or by the respondent. It is true that the rigour of the strict rules of evidence as contemplated under the Indian Evidence Act, 1872, has been watered down by Section 14 of the Family Courts Act. But, Sec.14 leaves it to the discretion of the Family Court to receive any document in evidence, which would assist the Court to effectually deal with the dispute, whether or not the same would be 12 RP(FC) 179 of 2014 otherwise relevant or admissible. Nevertheless, this does not give an unbridled leeway to the Family Courts to accept any document without following the rudimentary principles of procedure. The respondent ought to have mounted the box and substantiated his contentions in the written objection. Having failed to do so, the oral testimony of the first petitioner stands uncontroverted. 20. The Family Court, after appreciating the evidence on record, rightly came to the conclusion that there is no material to prove that the first petitioner has any avocation to maintain herself. 21. The defense that the respondent attempted to establish was that as per Ext.D2 statement, certain remittances were made to the 13 RP(FC) 179 of 2014 first petitioner's bank account. She has given a plausible explanation to shift the onus of proof in this regard. Another allegation that was levelled was that the first was a petitioner leading licentious life-style and that she was deriving income from an autorickshaw and a car that were given on hire. The respondent also alleged that the first petitioner is running a goat farm, and was deriving income from the business. There is no evidence to prove any of the above allegations. In the aforesaid circumstances, I am of the view that the respondent has miserably failed to substantiate that the first petitioner has sufficient income to maintain herself. 22. As regards the claim of the second petitioner, who unfortunately passed away in a 14 RP(FC) 179 of 2014 road accident on 3.9.2016, during the pendency of this R.P (FC), the respondent's liability to maintain him continued from the date of order till the date of his death i.e. from 5.3.2014 till 3.9.2016. The learned Judge had in the impugned order permitted the first petitioner to collect the monthly maintenance from the respondent, for and on behalf of the petitioners 2 to 4. Thus, the respondent is liable to pay the amount of Rs.1500/during the period from 5.3.2014 till 3.9.2016, to the first petitioner, as maintenance allowance for the second petitioner. 23. With reference to the claim of the third petitioner, who is the daughter of the couple, the counsel for the respondent contended that as per the law declared in **Noorsaba Kathoon** (supra), 15 RP(FC) 179 of 2014 the respondent's liability to maintain her continues, even though she has attained majority. 24. The learned counsel for the respondents, on the contrary relied on the decisions of this Court in **Muhammed v. Kunhayisha [2003 (3) KLT 106) and Pathummamma @ Pathumma v. Cholamarakkar [2008 (3) KLT 887],** wherein, this Court has succinctly laid down the law that a legitimate or illegitimate child (not being a married daughter), who has attained majority, where such child is by reason of any physical or mental abnormality or injury unable to maintain himself alone is entitled to maintenance, after attaining majority. This Court in the above decisions has distinguished **Noorsaba Kathoon** (supra) and held that a major unmarried daughter 16 RP(FC) 179 of 2014 is not entitled to claim maintenance from her parents unless her inability to maintain herself is attributable to her physical or mental abnormality or injury and that her mere status as unmarried daughter-whatever be a religion - does not entitle her to claim maintenance under Section 125 Cr.P.C. In the light of the declaration of law in the aforesaid decisions, the respondent's liability to maintain the third petitioner is limited till the date she has attained majority. 25. Now we are left with only the claim of the fourth petitioner, who admittedly is still a minor. The Family Court has awarded her an amount of Rs.1000/- per mensum. I feel that the amount is reasonable and just. 26. Taking into consideration the pleadings, 17 RP(FC) 179 of 2014 evidence on record, the findings of the Family Court in the impugned order and also the status in the standard of living of the parties in the case, I hold that the maintenance allowance awarded by the Family Court to the petitioners is reasonable and in tune with the income of the respondent. The only interference that is required is to modify the order directing the respondent to pay maintenance to the second petitioner, which is to be limited from the date of order till the date of his death i.e. from 5.3.2014 to 3.9.2016 and the order directing the respondent to pay maintenance to the third petitioner, which is to be limited from the date of order till the date of her majority. 27. The respondent is directed to pay the entire maintenance amount due as per the order, 18 RP(FC) 179 of 2014 subject to the modification mentioned above, within a period of three months from the date of receipt of a copy of this order. 28. I make it clear that both parties would be at liberty to approach the Family Court, in case of any change of circumstances to seek for the modification of the impugned order. 29. With the above observations, this R.P(FC) is disposed of, as follows: (i). The respondent is directed to pay maintenance to the first and fourth petitioners at the rate of Rs.2500/- and Rs.1000/- per month, respectively. (ii) The respondent is directed to pay to the first petitioner the maintenance allowance ordered to the second petitioner at the rate of Rs.1500/- 19 RP(FC) 179 of 2014 per mensum for the period from 5.3.2014 to ## 3.9.2016. (iii) The respondent is directed to pay the first petitioner, the maintenance allowance of the third petitioner at the rate of Rs.1000/- per month, from the date or order till the date she has attained majority. (iv) The parties are directed to bear their respective costs. **Sd/-** **C.S.DIAS** **JUDGE** SKS/5.12.2019 20 RP(FC) 179 of 2014