Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY,THE 30TH DAY OF JULY2013/8TH SRAVANA, 1935 RPFC.No. 213 of 2010 ( ) ------------------------- MC.NO. 688/2009 OF FAMILYCOURT, MALAPPURAM ------------------ PETITIONER : --------------------- MUSTHAFA, S/O. MUHAMMED, KALLIDUMBIL HOUSE, MOORKANAD AMSOM, PALAKAPARAMB DESOM, PERINTHALMANNA TALUK. BY ADV. SRI.K.K.MOHAMMED RAVUF RESPONDENT(S): ---------------------------- 1. RAMLA, D/O. MOYINKUTTY, PALOTH HOUSE, KARUVAMBALAM AMSOM DESOM, K.P. KULAMBU KARUVAMBALAM P.O., PERINTALMANNA TALUK.
2. SHAMEEM, S/O. MUSTHAFA DO. DO. DO. MINOR, REPRESENTED BY MOTHER FIRST RESPONDENT 3 SHAMEEL, S/O. MUSTHAFA, DO. DO. DO. MINOR, REPRESENTED BY MOTHER IST RESPONDENT R1 TO R3 BY ADV. SRI.U.K.DEVIDAS THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn K.HARILAL, J.
= = = = = = = = = = = = = R.P.(F.C).No.213 of 2010 = = = = = = = = = = = = = = = = Dated this the 30th day of July, 2013 ORDER
The Revision petitioner is the respondent in M.C.No.688 of 2009 on the files of the Family Court, Malappuram. He is the husband of 1st respondent and the father of respondents 2 and 3. The above petition was filed under Sec.125 of the Code of Criminal Procedure by the respondents seeking maintenance allowance from the Revision petitioner. According to the respondents, the Revision petitioner has been neglecting her and refused to pay maintenance allowance to the respondents. He has sufficient means to pay maintenance allowance. So also, he is statutorily liable to do so. They claimed 3,000/- to 1st respondent and 2,000/- each for respondents 2 and 3 as maintenance allowance.
2. It is a case of the 1st respondent that the Revision petitioner married her on 10/01/1993 and respondents 2 R.P.(F.C).No.213 o”
2. and 3 are the children born in that wedlock. They are totally deserted by the Revision petitioner from 01/01/2009 onwards. The 1st respondent has no job or income and now the respondents are totally depending upon the 1st respondent's close relatives. Respondents 2 and 3 are minors aged 9 and 5 years respectively; whereas the Revision petitioner is employed as a cook in Saudi Arabia and he has 45 cents of landed property with a terraced house thereon. He has an autorickshaw also. His approximate monthly income is 50,000/-. The respondents are in need of 3,000/- and 2,000/- each respectively.
3. The Revision petitioner filed a counter statement admitting the marriage and paternity of the respondents 2 and 3. But denied the allegations levelled against him. According to him, he had divorced 1st respondent by pronouncing Talaque as she was caught red handed with her paramour. So, he is not liable to pay maintenance allowance to his divorced wife. He denied the allegation that he has sufficient means to pay maintenance allowance. R.P.(F.C).No.213 o”
3. The allegations that he is getting 50,000/- per month is false and untrue. The amount of maintenance claimed are excessive and beyond his capacity. He is getting 100/- per day. Thus, he prayed for dismissal of the M.C.
4. In view of the rival contentions, the only question to be considered is whether there is any illegality or impropriety in the impugned order under challenge. Put it differently, whether the quantum of maintenance allowance granted to the respondents is justifiable.
5. Going by the impugned order, it could be seen that the marriage had been broken irretrievably and other cases are also pending in connection with the dispute between the Revision petitioner and 1st respondent. However, the Revision petitioner himself admitted that he had pronounced Talaque and he contends that he is not liable to pay maintenance allowance. Though he contended that the 1st respondent was caught red handed with her paramour, no evidence had been adduced to prove the said contention. The settled legal position is that though he had pronounced R.P.(F.C).No.213 o”
4. Talaque and thereby divorced 1st respondent he is statutorily liable under 125 of the Cr.P.C to pay maintenance allowance to his divorced wife also, unless he paid, the benefits due to a divorced wife under Sec.3 of the Muslim Women (Protection of Rights on Divorce) Act. Here, the Revision petitioner has no case that he has paid the amount due to divorced wife under the said Act. Therefore, no doubt, the Revision petitioner is statutorily liable to pay maintenance allowance to the 1st respondent.
6. The next point raised for consideration is whether the quantum of amount directed to be paid is just and proper. Admittedly, the 1st respondent has no job or sources of income and respondents 2 and 3 are minor children studying at school level. The Revision petitioner was employed in Saudi Arabia admittedly for a long period. He is a cook cum autorickshaw driver. He has contracted another marriage also. Therefore, it could be reasonably presumed that he was so confident of his income so as to maintain two families, when he contracted the second R.P.(F.C).No.213 o”
5. marriage. The Revision petitioner has no case that he is unhealthy or physically incapacitated to do work, so as to earn his livelihood. A healthy able bodied man is presumed to be a man having sufficient earning capacity to provide maintenance to his family.
7. Having regard to the standard of life of the respondents, their living expenses and the probable income of the Revision petitioner, I find that the amount directed to be paid as maintenance allowance to the respondents is just and proper and I do not find any illegality or impropriety in the determination of the quantum of maintenance allowance. Consequently, this revision petition is devoid of merits and dismissed accordingly. K.HARILAL, JUDGE. Stu //True copy// P.A to Judge.