Jainalabudeen Vs. Kathija Ammal and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/828494
SubjectFamily
CourtChennai High Court
Decided OnJun-07-2001
Reported in(2001)3MLJ247
AppellantJainalabudeen
RespondentKathija Ammal and ors.
Cases ReferredK. Zunaideen v. Ameena Begum and Anr.
Excerpt:
- v. kanagaraj, j.1. this appeal suit is directed against the judgment and decree dated 25.1.1988 rendered in o.s.no. 93 of 1985 by the court of subordinate judge, nagapattinam, wherein in the suit filed for maintenance by the respondents herein as the plaintiffs claiming maintenance of rs. 500 in favour of the first plaintiff and rs. 300 in favour of each of plaintiffs no. 2 and 3, the lower court has passed a decree granting a total monthly maintenance amount of rs. 450 in favour of the plaintiffs and a further amount of rs. 16,200 as past maintenance besides making provision to adjust the amount of rs. 15,000 already deposited in the indian overseas bank by the defendant and the amount ordered as per the order made by the sub divisional magistrate, nagapattinam in c.m.p.no. 52 of 1981 and further directing the defendant to bear the court fees and parties to bear their respective costs.2. tracing the history of the case as pleaded in the plaint, the first plaintiff has submitted that the marriage between the first plaintiff and the defendant was solemnized on 21.1.1971 as per mohammedan customs and rituals and in accordance with mohammedan law at thopputhurai village and from and out of the wedlock, four female children were born of whom the first two children are plaintiffs 2 and 3; that inspite of the first plaintiff having acted as a dutiful mohammedan wife, since the defendant aimed at marrying another woman, taking advantage of the destruction of the residential building in the cyclone that occurred in the year 1977, he sent the first plaintiff to her parents abode; that thereafter the defendant started discarding the plaintiffs and all his attempts to get married a second time having been failed with the help of the jamath on 1.7.1979, after reconstruction of the house, when the defendant was celebrating the house warming ceremony, the first plaintiff who went there was ill-treated, beaten up and humiliated, besides being bundled lock stock and barrel and sent back to her parents' abode deliberately.3. the first plaintiff would further submit that she initiated measures for getting maintenance in the sub divisional magistrate's court, nagapattinam in c.m.p.no. 52 of 1981, wherein it was ordered granting a maintenance of rs. 80 per month towards the first plaintiff and rs. 40 per month each in favour of plaintiffs 2 and 3, which is inadequate and insufficient for having a decent livelihood; that thereafter the defendant made frantic efforts to divorce the first plaintiff stating that on 16.2.1981 he pronounced triple talaq at the velankanni mosque followed by a suit filed in o.s.no. 491 of 1981 on the file of the court of district munsif, nagapattinam for the relief of dissolution of marriage; that though the same was granted by the trial court, the appellate court in a.s.no. 66 of 1982 reversed the finding of the trial court and dismissed the suit; that the plaintiffs are unable to manage themselves and on the contrary, the defendant is in affluent circumstance taking out an income of rs. 20,000 per month from and out of fancy stores run by him under the name and style of m.s.j. fancy stores besides having a house at velankanni and also having an agricultural land at chinnathambu village; that in consideration of all these facts and circumstances, the plaintiffs would pray for the reliefs extracted supra.4. on the contrary, the appellant as defendant in the suit would admit in his written statement regarding the marriage held between himself and the first plaintiff and the birth of the children. but he would deny it as false that the first plaintiff was behaving as a dutiful wife; that instigated by her brother, she was acting according to his dictates without coping with the appellant. this defendant would also deny the other allegations such as that he was always having the idea to get married a second time, that she had been ill-treated and humiliated and deliberately sent to thopputhurai on 1.7.1979, which are all created ones for the purposes of the suit; that she also registered a false criminal case in c.c.no. 59 of 1980 and the same had been dismissed as not proved; that the grant of maintenance in m.c.no. 52 of 1981 by the sub divisional magistrate, nagapattinam, is falsely attributed as insufficient and the said amount had not even been deducted in the suit claim.5. the further case of the defendant is that the divorce granted based on the triple talaq pronounced on 16.2.1981 though set aside on appeal, the same is pending before the high court in s.a.no. 2182 of 1984; that it is further false to allege that the first plaintiff is poor and without income; that though it is true that this defendant has fancy stores at velankanni, it is purely false to allege that the monthly income from the said fancy stores is rs. 20,000; that he does not have any land at chinnathambu village; that the claim as made is not sustainable besides being barred by limitation. with these averments, the defendant would seek to dismiss the above suit with costs,6. the first plaintiff would file a reply statement in which she would allege that it is false on the part of the defendant to allege that she is instigated by her brother to indulge in acts against the interest of the defendant; that on the contrary her brother helped to compromise in between them and to withdraw the case registered against each other. but such a move was made on the part of her brother only on the bona fide impression that the defendant would reform himself, as a result of which, a compromise was reached on 30.6.1985 in the presence of panchayatdars based on which the defendant issued a legal notice dated 9.1.1986 but has completely burked all these in his written statement; that in furtherance of the compromise, the maintenance amount for the month of january 1986 had been deposited in which, he has requested that the interest of the amount of rs. 15,000 should not be paid in favour of the first plaintiff and hence a reply dated 21.1.1986 was sent besides requiring the defendant to take his wife and children and live a happy marital life; that from the attitude of this defendant, it comes to be known that the very compromise dated 30.6.1985 itself had been violated and gone back by the defendant; that the case for dissolution of marriage is pending before the high court; that it is false to allege that he is unable to afford the maintenance claim by the plaintiffs; that the defendant in another case has admitted that he has spent several lakhs in his business; that for 36 months prior to 24.2.1983, the plaintiffs are entitled to the past maintenance; that the suit is not barred by limitation and on such averments the plaintiffs would pray for the relief as prayed for.7. in the additional written statement filed by the defendant, he would allege that it was not decided to go in compromise in all the litigations pending between themselves; that the panchayatdars neither heard the parties in full nor went through the documents; that the compromise dated 30.6.1985 was not acted upon as per the first plaintiff's lawyer's notice dated 21.1.1986; that there is no provision in law to get two reliefs for maintenance, one in the magistrate's court and the other before this court; that the divorce case is still pending in the second appeal in s.a.no. 2182 of 1984 in the high court of madras; that the maintenance amount sent by this defendant in accordance with the orders passed by the magistrate's court has been accepted by the plaintiffs; that only the amount for the month of january 1986 had not been accepted by the plaintiffs, which he is ready to pay; that from the correspondence it comes to be known that it is the first plaintiff's brother abubucker, who is behind everything.8. during arguments, both the learned counsel besides laying emphasis on the factual position of their respective cases, as pleaded and insisted on the part of the learned counsel for the appellant before the lower court; that the present second and third plaintiffs having become majors and have also got married and therefore, the question of maintenance regarding the children does not arise at all. but except to make an oral statement, the learned counsel would not file materials in proof of this statement. again the learned counsel would point out that the parties have been divorced and there is no question of any maintenance. in replay, the learned counsel appearing on behalf of the respondents would not only state that even in the event that the appellant would come forward to prove that respondents no. 2 and 3 are married and settled, still till the day that they got married, the appellant is bound to pay the maintenance. moreover, the learned counsel would rely upon para 14 of the judgment reported in k. zunaideen v. ameena begum and anr. wherein it is held that regarding the statement of objects and reasons within the meaning of section 3 of the muslim women protection of rights act 1986 has to be liberally interpreted in order to help divorced women.9. in consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both what comes to be known is that the respondents herein, who are respectively mother and daughters have filed the suit claiming maintenance of rs. 500 for the first plaintiff and rs. 300 each in favour of plaintiffs no. 2 and 3 as against the defendant, who is none other than the husband of the first plaintiff and the father of plaintiffs no. 2 and 3. on the part of the plaintiffs it would be alleged that the defendant with intent to get married a second time even during the life time of the first plaintiff started ill-treating the first plaintiff and separated them by deliberately sending them to the first plaintiff's parents abode and the plaintiffs do not have anything for their upkeep and maintenance or for having a decent livelihood. but the defendant is in affluent circumstance having a lucrative business besides owning properties and therefore he could easily afford to provide with the maintenance sought for and would pray for the same to be granted. on the contrary, the defendant would not only deny the allegations but also would attribute such of the behaviours exhibited on the part of the first plaintiff to the instigation of her brother. even a compromise held in the presence of respected members of the locality has not yielded any good result except to deposit some mount for the maintenance of the plaintiffs, but no finality of decision had been taken to solve the entire dispute in between the plaintiffs and the defendant.10. in the mean time, a maintenance petition has been filed in the magistrate's court in c.m.p.no. 52 of 1981 on the part of the plaintiffs in which the sub divisional magistrate, nagapattinam has ordered granting a maintenance of rs. 80 per month in favour of the first plaintiff and rs. 40 per month in favour of each of the plaintiffs no. 2 and 3 and stating that the same is inadequate, insufficient and not commensurate the status of the defendant, the plaintiffs have come forward to file a suit in o.s.no. 93 of 1985 in the court of subordinate judge, nagapattinam, thereby seeking the maintenance of rs. 500 for the first plaintiff and rs. 300 for each of plaintiffs n.2 and 3 and an amount of rs. 52,800 as past maintenance from the year 1979 onwards.11. the lower court in consideration of the pleadings by parties and having framed six issues for determination of the questions involved in the suit, had conducted a thorough trial into the same, allowing the parties to record their evidence in which on the part of the first plaintiff, besides examining herself as p.w.1 would also examine yet another witness on her side for oral evidence. on the part of the defendant, he would examine himself as dw1, the sole witness on his side. for documentary evidence, five documents would be marked on the part of the plaintiffs as exs.a-1 to a-6 and seven documents would be marked on the part of the defendant as exs.b-1 to b-7. so far as the oral evidence adduced on the part of both parties and an independent witness examined as p.w.2 are concerned, they would confirm the pleadings with no more information made available. in the documentary evidence submitted on the part of the plaintiffs, ex.a-1 is an agreement dated 30.6.1985. ex.a-2 is the adangal register for falsi 1391. ex.a-3 series are the receipts dated 6.2.1975 and 9.2.1976. ex.a-4 is the copy of the plaint in o.s.no. 25 of 1986 dated 12.2.1986. ex.a-5 is the legal notice dated 12.1.1986 and ex.a-6 is the complaint given by abubucker to the muslim panchayatdar dated 25.6.1987. likewise, regarding the b series of documents filed on the part of the defendant ex.b-1 is the account book and ex.b-2 is the diary of the defendant. ex.b-3 is the letter from the electricity board dated 8.6.1987. ex.b-4 is the photostat copy of a mortgage deed dated 7.11.1986. exs.b-5 and b-6 are the petitions filed in crl.m.p.no. 2856 of 1986, dated 29.7.1986 and 2.4.1987 and ex.b-7 is the assessment order from the commercial tax officer dated 15.10.1987.12. the lower court having considered the above evidence placed on record and having had its own discussions on the oral and documentary evidence would consider that p.w.1 in her oral evidence would depose that to the status of the defendant and his earning, he is capable of paying total maintenance of rs. 1,100 as prayed for and would also consider the evidence of d.w.1, the defendant that he is having a monthly income from the fancy stores only ranging from rs. 300 to 350; that the house is belonging to his mother as evidenced by ex.b-3 and that too it had been pledged and in consideration of all other ex.b series documents, the lower court would arrive at the conclusion that it is not possible from the stores to fetch an income of rs. 20,000 as claimed on the part of the plaintiffs and therefore, the defendant is not in a position to pay rs. 1,500 per month as maintenance in favour of the plaintiffs.13. in further consideration of the facts and circumstances and also in consideration of the compromise dated 30.6.1985 which would become valid only in the event of the first plaintiff coming forward to have a marital life with the defendant and since he did not fructify the amount agreed upon by the defendant himself in the compromise being rs. 450 per month in terms of which on 24.6.1985, a deposit of rs. 15,000 had also been made in the indian overseas bank and would ultimately arrive at a conclusion that the defendant is capable of giving a maintenance of rs. 450 per month and making further provisions to adjust the maintenance amount ordered by the criminal court and the deposit amount already made to the lower court and on such terms would ultimately decree the suit granting a monthly maintenance of rs. 450 per month, and for past maintenance rs. 16,200 to be paid in favour of the plaintiffs further directing that the amount of rs. 15,000 already deposited be deducted from and out of the past maintenance amount and would pass a decree to the said effect. it is only aggrieved against the judgment and decree as made on the part of the trial court, the defendant in the suit has come forward to refer the above appeal suit on certain grounds as brought forth in the grounds of appeal.14. in these circumstances the only point that arises for determination in the above appeal suit is that whether the judgment and decree as passed by the court of subordinate judge, nagapattinam in o.s.no. 93 of 1985, dated 25.1.1988 is not sustainable in law and whether it is necessary on the part of this appellate court to interfere with the said judgment and decree passed by the trial court?15. in the facts and circumstances already discussed supra and in the light of the evidence placed on record, what is disclosed in the above appeal suit is that it is the case for maintenance by wife and the children as against the respondent. on account of difference of opinion that arose in between the first plaintiff and the defendant, they are not able to live together. it is an admitted case regarding the marriage and begetting children numbering four. only two children have joined hands with the mother in the maintenance suit and the other two might have been with the father. the main reason that is attributed on the part of the first plaintiff is the difference of opinion and ultimately for the separation from her husband with the children is that the defendant attempted to get married a second time but till the last, there was no second marriage held nor is it reported on the part of the first plaintiff even during the pendency of the suit and after decision till this date. however, the parties were not able to live together and even the divorce has been granted by the court ultimately as it comes to be reported on the part of the learned counsel from the appellant with no denial by the respondents.16. in these circumstances, the only question that is to be answered is whether the lower court is right in granting maintenance of rs. 450 in favour of the respondents particularly since the first plaintiff is a divorced muslim woman in the light of the laws and legal propositions applicable to the parties, who are all muslims? in the only judgment of a division bench of this court cited on the part of the learned counsel for the respondents in k. zunaideen v. ameena begum and anr. it is held that,the very purpose of the act was to protect the rights of muslim women, who have been divorced and to make provision for them for their future livelihood. in this connection, the statement of object and reasons for the enactment of the said law after shah banu's case 1985 l.l.j. 875 is worth noticing. in particular we refer to the following passage in the statement of 'objects and reasons.the bill accordingly provides for the following among other things namely:(a) a muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband and in case she maintained the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. she will also be entitled to mahar or dower and all the properties given to her by her relatives, friends, husband and the husband's relatives. if the above benefits are not given to her at the time of divorce, she is entitled to the magistrate for an order directing her former husband to provide for such maintenance, the payment of mahar or dower or the delivery of the properties.(b) where a muslim divorced woman is unable to maintain herself after the period of iddat, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to muslim law in the proportion in which they would inherit her property. if any one of such relatives is unable to pay his or her share on the ground or his or her not having the means to pay, the magistrate would direct the other relatives who have sufficient means to pay share of these relatives also. but where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives, the magistrate would order the state wakf board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.' we are therefore constrained to observe that section 3 has to be given a broader interpretation with a view to help the divorced women.17. in consideration of the above judgment and the facts and circumstances encircling the whole case and having regard to the evidence placed on record and in consideration of the totality of the circumstances that prevailed through out the case, this court is of the view that the trial court has done what should be legally done in the circumstances of the case in providing with a total maintenance of rs. 450 per month, which is quite legal and acceptable for both parties and therefore, the interference that is sought to be made into such a well considered and well merited judgment of the trial court, is not only unnecessary but also uncalled for as well.in result,(i) the above appeal suit fails and the same is dismissed with costs throughout.(ii) the judgment and decree dated 25.1.1988 rendered in o.s.no. 93 of 1985 is confirmed.
Judgment:

V. Kanagaraj, J.

1. This appeal suit is directed against the judgment and decree dated 25.1.1988 rendered in O.S.No. 93 of 1985 by the Court of Subordinate Judge, Nagapattinam, wherein in the suit filed for maintenance by the respondents herein as the plaintiffs claiming maintenance of Rs. 500 in favour of the first plaintiff and Rs. 300 in favour of each of plaintiffs No. 2 and 3, the lower Court has passed a decree granting a total monthly maintenance amount of Rs. 450 in favour of the plaintiffs and a further amount of Rs. 16,200 as past maintenance besides making provision to adjust the amount of Rs. 15,000 already deposited in the Indian Overseas Bank by the defendant and the amount ordered as per the order made by the Sub Divisional Magistrate, Nagapattinam in C.M.P.No. 52 of 1981 and further directing the defendant to bear the Court fees and parties to bear their respective costs.

2. Tracing the history of the case as pleaded in the plaint, the first plaintiff has submitted that the marriage between the first plaintiff and the defendant was solemnized on 21.1.1971 as per Mohammedan Customs and Rituals and in accordance with Mohammedan Law at Thopputhurai village and from and out of the wedlock, four female children were born of whom the first two children are plaintiffs 2 and 3; that inspite of the first plaintiff having acted as a dutiful Mohammedan wife, since the defendant aimed at marrying another woman, taking advantage of the destruction of the residential building in the cyclone that occurred in the year 1977, he sent the first plaintiff to her parents abode; that thereafter the defendant started discarding the plaintiffs and all his attempts to get married a second time having been failed with the help of the Jamath on 1.7.1979, after reconstruction of the house, when the defendant was celebrating the house warming ceremony, the first plaintiff who went there was ill-treated, beaten up and humiliated, besides being bundled lock stock and barrel and sent back to her parents' abode deliberately.

3. The first plaintiff would further submit that she initiated measures for getting maintenance in the Sub Divisional Magistrate's Court, Nagapattinam in C.M.P.No. 52 of 1981, wherein it was ordered granting a maintenance of Rs. 80 per month towards the first plaintiff and Rs. 40 per month each in favour of plaintiffs 2 and 3, which is inadequate and insufficient for having a decent livelihood; that thereafter the defendant made frantic efforts to divorce the first plaintiff stating that on 16.2.1981 he pronounced triple talaq at the Velankanni Mosque followed by a suit filed in O.S.No. 491 of 1981 on the file of the Court of District Munsif, Nagapattinam for the relief of dissolution of marriage; that though the same was granted by the trial Court, the appellate Court in A.S.No. 66 of 1982 reversed the finding of the trial Court and dismissed the suit; that the plaintiffs are unable to manage themselves and on the contrary, the defendant is in affluent circumstance taking out an income of Rs. 20,000 per month from and out of Fancy Stores run by him under the name and style of M.S.J. Fancy Stores besides having a house at Velankanni and also having an agricultural land at Chinnathambu village; that in consideration of all these facts and circumstances, the plaintiffs would pray for the reliefs extracted supra.

4. On the contrary, the appellant as defendant in the suit would admit in his written statement regarding the marriage held between himself and the first plaintiff and the birth of the children. But he would deny it as false that the first plaintiff was behaving as a dutiful wife; that instigated by her brother, she was acting according to his dictates without coping with the appellant. This defendant would also deny the other allegations such as that he was always having the idea to get married a second time, that she had been ill-treated and humiliated and deliberately sent to Thopputhurai on 1.7.1979, which are all created ones for the purposes of the suit; that she also registered a false criminal case in C.C.No. 59 of 1980 and the same had been dismissed as not proved; that the grant of maintenance in M.C.No. 52 of 1981 by the Sub Divisional Magistrate, Nagapattinam, is falsely attributed as insufficient and the said amount had not even been deducted in the suit claim.

5. The further case of the defendant is that the divorce granted based on the triple talaq pronounced on 16.2.1981 though set aside on appeal, the same is pending before the High Court in S.A.No. 2182 of 1984; that it is further false to allege that the first plaintiff is poor and without income; that though it is true that this defendant has fancy stores at Velankanni, it is purely false to allege that the monthly income from the said fancy stores is Rs. 20,000; that he does not have any land at Chinnathambu village; that the claim as made is not sustainable besides being barred by limitation. With these averments, the defendant would seek to dismiss the above suit with costs,

6. The first plaintiff would file a reply statement in which she would allege that it is false on the part of the defendant to allege that she is instigated by her brother to indulge in acts against the interest of the defendant; that on the contrary her brother helped to compromise in between them and to withdraw the case registered against each other. But such a move was made on the part of her brother only on the bona fide impression that the defendant would reform himself, as a result of which, a compromise was reached on 30.6.1985 in the presence of panchayatdars based on which the defendant issued a legal notice dated 9.1.1986 but has completely burked all these in his written statement; that in furtherance of the compromise, the maintenance amount for the month of January 1986 had been deposited in which, he has requested that the interest of the amount of Rs. 15,000 should not be paid in favour of the first plaintiff and hence a reply dated 21.1.1986 was sent besides requiring the defendant to take his wife and children and live a happy marital life; that from the attitude of this defendant, it comes to be known that the very compromise dated 30.6.1985 itself had been violated and gone back by the defendant; that the case for dissolution of marriage is pending before the High Court; that it is false to allege that he is unable to afford the maintenance claim by the plaintiffs; that the defendant in another case has admitted that he has spent several lakhs in his business; that for 36 months prior to 24.2.1983, the plaintiffs are entitled to the past maintenance; that the suit is not barred by limitation and on such averments the plaintiffs would pray for the relief as prayed for.

7. In the additional written statement filed by the defendant, he would allege that it was not decided to go in compromise in all the litigations pending between themselves; that the panchayatdars neither heard the parties in full nor went through the documents; that the compromise dated 30.6.1985 was not acted upon as per the first plaintiff's lawyer's notice dated 21.1.1986; that there is no provision in law to get two reliefs for maintenance, one in the Magistrate's Court and the other before this Court; that the divorce case is still pending in the second appeal in S.A.No. 2182 of 1984 in the High Court of Madras; that the maintenance amount sent by this defendant in accordance with the orders passed by the Magistrate's Court has been accepted by the plaintiffs; that only the amount for the month of January 1986 had not been accepted by the plaintiffs, which he is ready to pay; that from the correspondence it comes to be known that it is the first plaintiff's brother Abubucker, who is behind everything.

8. During arguments, both the learned Counsel besides laying emphasis on the factual position of their respective cases, as pleaded and insisted on the part of the learned Counsel for the appellant before the lower Court; that the present second and third plaintiffs having become majors and have also got married and therefore, the question of maintenance regarding the children does not arise at all. But except to make an oral statement, the learned Counsel would not file materials in proof of this statement. Again the learned Counsel would point out that the parties have been divorced and there is no question of any maintenance. In replay, the learned Counsel appearing on behalf of the respondents would not only state that even in the event that the appellant would come forward to prove that respondents No. 2 and 3 are married and settled, still till the day that they got married, the appellant is bound to pay the maintenance. Moreover, the learned Counsel would rely upon para 14 of the judgment reported in K. Zunaideen v. Ameena Begum and Anr. wherein it is held that regarding the statement of objects and reasons within the meaning of Section 3 of the Muslim Women Protection of Rights Act 1986 has to be liberally interpreted in order to help divorced women.

9. In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned Counsel for both what comes to be known is that the respondents herein, who are respectively mother and daughters have filed the suit claiming maintenance of Rs. 500 for the first plaintiff and Rs. 300 each in favour of plaintiffs No. 2 and 3 as against the defendant, who is none other than the husband of the first plaintiff and the father of plaintiffs No. 2 and 3. On the part of the plaintiffs it would be alleged that the defendant with intent to get married a second time even during the life time of the first plaintiff started ill-treating the first plaintiff and separated them by deliberately sending them to the first plaintiff's parents abode and the plaintiffs do not have anything for their upkeep and maintenance or for having a decent livelihood. But the defendant is in affluent circumstance having a lucrative business besides owning properties and therefore he could easily afford to provide with the maintenance sought for and would pray for the same to be granted. On the contrary, the defendant would not only deny the allegations but also would attribute such of the behaviours exhibited on the part of the first plaintiff to the instigation of her brother. Even a compromise held in the presence of respected members of the locality has not yielded any good result except to deposit some mount for the maintenance of the plaintiffs, but no finality of decision had been taken to solve the entire dispute in between the plaintiffs and the defendant.

10. In the mean time, a maintenance petition has been filed in the Magistrate's Court in C.M.P.No. 52 of 1981 on the part of the plaintiffs in which the Sub Divisional Magistrate, Nagapattinam has ordered granting a maintenance of Rs. 80 per month in favour of the first plaintiff and Rs. 40 per month in favour of each of the plaintiffs No. 2 and 3 and stating that the same is inadequate, insufficient and not commensurate the status of the defendant, the plaintiffs have come forward to file a suit in O.S.No. 93 of 1985 in the Court of Subordinate Judge, Nagapattinam, thereby seeking the maintenance of Rs. 500 for the first plaintiff and Rs. 300 for each of plaintiffs N.2 and 3 and an amount of Rs. 52,800 as past maintenance from the year 1979 onwards.

11. The lower Court in consideration of the pleadings by parties and having framed six issues for determination of the questions involved in the suit, had conducted a thorough trial into the same, allowing the parties to record their evidence in which on the part of the first plaintiff, besides examining herself as P.W.1 would also examine yet another witness on her side for oral evidence. On the part of the defendant, he would examine himself as DW1, the sole witness on his side. For documentary evidence, five documents would be marked on the part of the plaintiffs as Exs.A-1 to A-6 and seven documents would be marked on the part of the defendant as Exs.B-1 to B-7. So far as the oral evidence adduced on the part of both parties and an independent witness examined as P.W.2 are concerned, they would confirm the pleadings with no more information made available. In the documentary evidence submitted on the part of the plaintiffs, Ex.A-1 is an agreement dated 30.6.1985. Ex.A-2 is the adangal register for falsi 1391. Ex.A-3 series are the receipts dated 6.2.1975 and 9.2.1976. Ex.A-4 is the copy of the plaint in O.S.No. 25 of 1986 dated 12.2.1986. Ex.A-5 is the legal notice dated 12.1.1986 and Ex.A-6 is the complaint given by Abubucker to the Muslim Panchayatdar dated 25.6.1987. Likewise, regarding the B series of documents filed on the part of the defendant Ex.B-1 is the account book and Ex.B-2 is the diary of the defendant. Ex.B-3 is the letter from the Electricity Board dated 8.6.1987. Ex.B-4 is the photostat copy of a mortgage deed dated 7.11.1986. Exs.B-5 and B-6 are the petitions filed in Crl.M.P.No. 2856 of 1986, dated 29.7.1986 and 2.4.1987 and Ex.B-7 is the assessment order from the Commercial Tax Officer dated 15.10.1987.

12. The lower Court having considered the above evidence placed on record and having had its own discussions on the oral and documentary evidence would consider that P.W.1 in her oral evidence would depose that to the status of the defendant and his earning, he is capable of paying total maintenance of Rs. 1,100 as prayed for and would also consider the evidence of D.W.1, the defendant that he is having a monthly income from the fancy stores only ranging from Rs. 300 to 350; that the house is belonging to his mother as evidenced by Ex.B-3 and that too it had been pledged and in consideration of all other Ex.B series documents, the lower Court would arrive at the conclusion that it is not possible from the stores to fetch an income of Rs. 20,000 as claimed on the part of the plaintiffs and therefore, the defendant is not in a position to pay Rs. 1,500 per month as maintenance in favour of the plaintiffs.

13. In further consideration of the facts and circumstances and also in consideration of the compromise dated 30.6.1985 which would become valid only in the event of the first plaintiff coming forward to have a marital life with the defendant and since he did not fructify the amount agreed upon by the defendant himself in the compromise being Rs. 450 per month in terms of which on 24.6.1985, a deposit of Rs. 15,000 had also been made in the Indian Overseas Bank and would ultimately arrive at a conclusion that the defendant is capable of giving a maintenance of Rs. 450 per month and making further provisions to adjust the maintenance amount ordered by the Criminal Court and the deposit amount already made to the lower Court and on such terms would ultimately decree the suit granting a monthly maintenance of Rs. 450 per month, and for past maintenance Rs. 16,200 to be paid in favour of the plaintiffs further directing that the amount of Rs. 15,000 already deposited be deducted from and out of the past maintenance amount and would pass a decree to the said effect. It is only aggrieved against the judgment and decree as made on the part of the trial Court, the defendant in the suit has come forward to refer the above appeal suit on certain grounds as brought forth in the grounds of appeal.

14. In these circumstances the only point that arises for determination in the above appeal suit is that whether the Judgment and decree as passed by the Court of Subordinate Judge, Nagapattinam in O.S.No. 93 of 1985, dated 25.1.1988 is not sustainable in law and whether it is necessary on the part of this appellate Court to interfere with the said judgment and decree passed by the trial Court?

15. In the facts and circumstances already discussed supra and in the light of the evidence placed on record, what is disclosed in the above appeal suit is that it is the case for maintenance by wife and the children as against the respondent. On account of difference of opinion that arose in between the first plaintiff and the defendant, they are not able to live together. It is an admitted case regarding the marriage and begetting children numbering four. Only two children have joined hands with the mother in the maintenance suit and the other two might have been with the father. The main reason that is attributed on the part of the first plaintiff is the difference of opinion and ultimately for the separation from her husband with the children is that the defendant attempted to get married a second time but till the last, there was no second marriage held nor is it reported on the part of the first plaintiff even during the pendency of the suit and after decision till this date. However, the parties were not able to live together and even the divorce has been granted by the Court ultimately as it comes to be reported on the part of the learned Counsel from the appellant with no denial by the respondents.

16. In these circumstances, the only question that is to be answered is whether the lower Court is right in granting maintenance of Rs. 450 in favour of the respondents particularly since the first plaintiff is a divorced Muslim woman in the light of the laws and legal propositions applicable to the parties, who are all Muslims? In the only judgment of a Division Bench of this Court cited on the part of the learned Counsel for the respondents in K. Zunaideen v. Ameena Begum and Anr. it is held that,

The very purpose of the Act was to protect the rights of Muslim Women, who have been divorced and to make provision for them for their future livelihood. In this connection, the statement of object and reasons for the enactment of the said law after Shah Banu's case 1985 L.L.J. 875 is worth noticing. In particular we refer to the following passage in the statement of 'objects and reasons.

The bill accordingly provides for the following among other things namely:

(a) A Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband and in case she maintained the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahar or dower and all the properties given to her by her relatives, friends, husband and the husband's relatives. If the above benefits are not given to her at the time of divorce, she is entitled to the Magistrate for an order directing her former husband to provide for such maintenance, the payment of mahar or dower or the delivery of the properties.

(b) Where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in the proportion in which they would inherit her property. If any one of such relatives is unable to pay his or her share on the ground or his or her not having the means to pay, the Magistrate would direct the other relatives who have sufficient means to pay share of these relatives also. But where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives, the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.' We are therefore constrained to observe that Section 3 has to be given a broader interpretation with a view to help the divorced women.

17. In consideration of the above judgment and the facts and circumstances encircling the whole case and having regard to the evidence placed on record and in consideration of the totality of the circumstances that prevailed through out the case, this Court is of the view that the trial Court has done what should be legally done in the circumstances of the case in providing with a total maintenance of Rs. 450 per month, which is quite legal and acceptable for both parties and therefore, the interference that is sought to be made into such a well considered and well merited judgment of the trial Court, is not only unnecessary but also uncalled for as well.

In result,

(i) the above appeal suit fails and the same is dismissed with costs throughout.

(ii) The judgment and decree dated 25.1.1988 rendered in O.S.No. 93 of 1985 is confirmed.