Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY,THE25H DAY OF NOVEMBER20144TH AGRAHAYANA, 1936 RPFC.No. 148 of 2014 () ------------------------ AGAINST THE ORDER
IN MC.NO.748/2013 of FAMILY COURT,TIRUR DATED1701-2014 REVISION PETITIONER(S)/RESPONDENT ---------------------------------------------------------- SALAM, AGED43YEARS S/O.HAMZA, POKKARAJINTE PURAKKAL HOUSE, AVIL BEACH KETTUNGAL, PARAPPANANGADI, TIRURANGADI TALUK EAST SIDE OF K S COMPANY BY ADVS.SRI.K.P.SUDHEER SRI.Y.JAFAR KHAN RESPONDENT(S)/1ST PETITIONER ------------------------------------------------- RUKHIYA, AGED37YEARS, D/O.MAMMED KUTTY, THITHEERATHINTE PURAKKAL, VETTOM AMSOM, PARAVANNA DESOM, TIRUR TALUK MALAPPURAM DIST, PIN-676102 BY ADV. SRI.K.M.FIROZ ADV. SMT.M.SHAJNA ADV. SRI.S.KANNAN THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON2511-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Bb K. Ramakrishnan, J.
============================== R.P.(F.C.).No.148 of 2014 ============================== Dated this, the 25th day of November, 2014. ORDER
Counter petitioner in M.C.No.748/13 on the file of the Family Court, Tirur is the revision petitioner herein.
2. The respondent herein is the second wife of the revision petitioner, while he was living away from his first wife, the marriage between the present petitioner and the respondent was solemnized and children were born to them also and they are well off now. Thereafter, he had restored his relationship with the first wife, that prompted the respondent to live away from the revision petitioner. She filed M.C.No.467/05 before the Family Court, Malappuram for maintenance and Family Court had directed the revision petitioner to pay maintenance at the rate of Rs.800/- per month. Thereafter, she again filed M.C.No.921/09 seeking enhancement of the amount awarded and during the pendency of the proceedings, the matter has been settled between the parties and on the basis of the settlement, she withdrew M.C.No.921/09 on 18.02.2010. Thereafter, since no maintenance was paid, she filed present petition for R.P.(F.C.).No.148 of 2014 :
2. : maintenance as M.C.No.748/13 claiming maintenance at the rate of Rs.3,000/- for her and Rs.2,000/- for the child who was aged 16 years at that time. During the pendency of the proceedings, the second respondent became major and he did not independently claim any maintenance. So, the Family Court did not award any maintenance to the second petitioner.
3. The revision petitioner appeared and filed counter contending that after withdrawal of M.C.No.921/09, respondent stayed with the petitioners and first petitioner became pregnant and he had taken the first petitioner to Govt.Hospital, Tirur and D & C has been conducted in order to control bleeding as this has happened as a late pregnancy after 20 years. Thereafter, she made a demand to divorce the first wife as a condition for living with him. He is having three children in the first wife and now he is residing with her and the children. He will have to look after them. He is only an employee in a fishing boat owned by one Kunhimon Haji. He has no fixed income. On the other hand, second petitioner has become major and he is getting Rs.500/- per day and he is also involved in fishing from sea and he can maintain his mother also. So, according to the revision petitioner, he is not R.P.(F.C.).No.148 of 2014 :
3. : liable to pay any maintenance to both the petitioners.
4. First petitioner was examined as PW1 and counter petitioner was examined as RW1 and Exts. A1 and A2 and B1 and B2 were marked on their side. After considering the evidence on record, court below found that second petitioner has become major and he did not pursue his claim for maintenance, and rejected the claim for enhanced maintenance to the second petitioner. But, considering the period between the amount of maintenance ordered and the time lag, court below fixed the maintenance at Rs.3,000/- per month to first respondent which is being challenged by the petitioner before this court.
5. Heard both sides.
6. Counsel for the revision petitioner submitted that though he is prepared to take back his second wife namely, the respondent herein, she is not willing to come and reside with him and her demand was to pronounce talaaq of his first wife who is now living with him with three children and he has purchased a property in her name and constructed house when she filed the second maintenance application for enhancement and it was on that basis, the petition was withdrawn and they R.P.(F.C.).No.148 of 2014 :
4. : started living together and she became pregnant second time, but, that was aborted due to natural reasons. So, she is not entitled to get maintenance. If at all, this court feels that she is entitled for maintenance, the amount fixed is exorbitant.
7. On the other hand, the Counsel for the respondent submitted that though he had a case that the property was purchased with his funds, it will be seen from Ext.A2 that it was purchased by her parents and given to her. So, there is no merit in the submission made and the amount of Rs.800/- was awarded in the year 2005 and considering the cost of living, the present maintenance fixed by the court below is proper and reasonable.
8. It is an admitted fact that while the first marriage of the revision petitioner was subsisting, he married the respondent and a child was also born to them in that wedlock. It is also in a way admitted that when his relationship with the respondent was continuing, he had started his living with his first wife and had three children in that also. So, it is quite natural that, if there is any difference of opinion between two wives of the same person, it is very difficult for the second wife to live in the same roof with her husband sharing the love of R.P.(F.C.).No.148 of 2014 :
5. : her husband. So, living separately by the respondent cannot be said to be unjustifiable or without any reasonable cause. So, the court below was perfectly justified in coming to the conclusion that the respondent is entitled to get maintenance from the revision petitioner.
9. Though it was contended by the revision petitioner that he had purchased the property and constructed the house, which was denied by the respondent, no acceptable evidence was adduced on him to prove those facts. She had produced Ext.A2 to prove that the property was purchased in her name by her parents in 2004 before the maintenance application was filed. It is also an admitted fact that earlier, she filed M.C.No.467/05 claiming maintenance for herself and her child and maintenance was awarded at the rate of Rs.800/- to the respondent herein and Rs.700/- to the child. It is also in a way admitted that she filed M.C.No.921/09 seeking enhancement and it was settled and they started residing together for some time. Thereafter again, they separated. That prompted her to file the present petition for enhancement. The revision petitioner had no case after separation, he had paid any maintenance to the wife or the R.P.(F.C.).No.148 of 2014 :
6. : child. Further, the amount of Rs.800/- fixed in the year 2005 is not sufficient to meet the requirements of a person in 2013 when the present application for enhancement was made. It was admitted by RW1 that he is working and getting Rs.500/- per day. It is true that he will have to maintain his first wife and children, but, that will not absolve him from his liability to pay equal maintenance to his second wife as well, as the Quran says when he married two persons, he is expected to maintain them equally, only if he has the capacity to do that, he can opt for a second marriage at all. So, the expectation of equal status by the second wife cannot be said to be unreasonable. Further, at the same time, the capacity to pay maintenance and the living status has to be considered as well while fixing the quantum of maintenance payable. He had admitted that he is working under one Kunhimon Haji but, he had not produced any document to prove his actual income or he did not examine that person to prove that fact as well. Further, he had no case that he is having any disability to work and deriving any income. The amount of Rs.3,000/- as enhanced maintenance from Rs.800/- appears to be on the higher side. Considering the circumstances of the case and re R.P.(F.C.).No.148 of 2014 :
7. : fixing the same at Rs.2,500/- will be reasonable. So, the revision petition is disposed of by refixing the maintenance payable to the respondent at Rs.2,500/- from Rs.800/-. With the above modification, the revision is disposed of. The amount will have to be paid from the date of petition as ordered by the court below. Any amount deposited by him, will be credited towards this arrears. Communicate this order to the court below at the earliest. Sd/- K.Ramakrishnan, Judge. Bb [True copy] P.A to Judge