Dismissed

Sri. Arif. H v. Smt. Rahmath Ashiya

Karnataka HC7 Jul 2021RPFC/53/2017

Case brief

AI extract

What is this about?

A revision petition was filed challenging a Family Court maintenance order. Upholding the impugned order despite the revision petitioner's claim of reduced income due to loss of employment, the High Court found the awarded maintenance amount was neither excessive nor exorbitant and did not call for interference.

What did the court decide?

The petition is rejected; the maintenance order remains effective. Arrears, if any, must be compiled within 30 days before the Family Court.

Sri. Arif. H Vs Smt. Rahmath Ashiya — Maintenance and Alimony | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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RPFC No.53/2017

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BETWEEN:

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SRI. ARIF. H S/O LATE HUSSAINABBA AGED ABOUT 43 YEARS R/A DOOR NO.8-35, 8^TH BLOCK CHIKKABETTU KRISHNAPURA BEHIND HIGHER PRIMARY SCHOOL MANGALURU TALUK D K DISTRICT-575 201.

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...PETITIONER

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(BY SRI B LETHIF, ADVOCATE)

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AND:

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SMT. RAHMATH ASHIYA D/O K ALIABBA AGED ABOUT 36 YEARS R/AT PADRENGI THENKAYEADAPADAVU VILLAGE SHIBRIKERE POST MANGALURU TALUK D K DISTRICT-575 234. ...RESPONDENT

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(BY SMT. MAMATHA ROY, FOR SRI I THARANATH POOJARY, ADVOCATE)

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THIS RPFC IS FILED UNDER SECTION 19(4) OF THE FAMILY COURT ACT, AGAINST THE JUDGMENT AND

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DECREE DATED 03.02.2017 PASSED IN CRL.MISC.NO.51/2016 ON THE FILE OF THE PRL. JUDGE, FAMILY COURT, D.K., MANGALURU, ALLOWING THE PETITION FILED UNDER SEC.125 OF CR.P.C, FOR MAINTENANCE.

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THIS RPFC COMING ON FOR ADMISSION THIS DAY THROUGH VIDEO CONFERENCING THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed under Section 19(4) of the Family Court Act, against the judgment and decree dated 03.02.2017 passed in Crl.Misc.No.51/2016 by the Principal Judge, Family Court, D.K., Mangaluru, allowing the petition filed under Section 125 of Cr.P.C, for maintenance.

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The parties are referred in accordance with their status and relationship before the family court in order to avoid confusion and overlapping.

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The substance of the case in brevity is that, Smt. Rahamath Ashiya is a legally wedded wife of Mr.Arif H as their marriage was solemnized on 26-5-

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2003 at bridegrooms residence as per customs prevailing in Islam. Petitioner-wife claims that after the marriage she was looking after her husband with utmost love and affection. The further facts as submitted by learned counsel for petitioner is that petitioner-wife was earlier married and her marriage came to an end by virtue of death of her first husband. She had begotten two children through her first marriage. After the first marriage was dissolved due to death of her husband, she married the respondent-husband. Similarly, Mr.Arif-husband

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earlier had married another lady and through the first marriage he begotten two children and after the death of first wife he married the petitioner.

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It is the further allegation of the petitioner-

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wife that she is entitled to be maintained by her husband Arif as she is not having sufficient means to maintain herself nor has any source of income. The

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case of the petitioner-wife is that, her husband Arif is working as fisherman, owns a boat and earns Rs.80,000/- per month.

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The respondent-husband filed his objection

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admitting the marital relationship between them and denied other allegations made in the petition and contends that petitioner-wife is having sufficient means having moveable and immoveable properties of her own and she herself neglected and refused to live with him and prayed to dismiss the petition.

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The learned judge, Family court, on the basis of the oral and documentary evidence adduced and produced by both the parties, allowed the petition and directed the respondent-husband to pay maintenance of Rs.5,000/- to the petitioner till her lifetime or until her remarriage.

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Aggrieved by the said judgment and order, respondent-husband has presented this revision

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petition seeking to set aside the same.

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Mr. Lethif, learned counsel appearing for

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respondent-husband submits that a criminal case was lodged against the husband at the instance of the petitioner-wife because of which husband has to surrender the passport to comply with the conditions imposed by the court while granting anticipatory bail. It is further submitted that, by virtue of loosing pass port, he could not go back to his employment at Dubai and at present he is doing coolie work at Mangalore port and is unable to maintain the petitioner.

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The learned counsel for petitioner-wife submits that, husband- Arif is working as fisherman owns a boat and earns Rs.80,000/- per month and he has means to maintain the petitioner.

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Thus, as per the submissions of both the

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counsel, the marital relationship between the parties is admitted. There is no legal impediment for widower marrying a widow. The claim of the petitioner-wife is that, the husband Arif who is legally liable to maintain her has neglected her to maintain with the full knowledge of she not being possessing other means of

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income.

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It is the submission of the learned counsel for respondent-husband that, husband is not getting even a reasonable income as he is doing work of coolie and paying Rs.5,000/- as maintenance to the wife is working out very hard on him as it is excessive and exorbitant.

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The means to maintain includes capacity to maintain, The real capacity to work, attending circumstances, social and economic back ground of he

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parties, availability of avenues to work, probable amount of means for skilled and unskilled labourer are all the reckoning factors to come to a finding regarding the maintenance. Considering the pandemic situation, the price of necessaries including medicine which are sky rocketing, I find the amount of maintenance of Rs.5,000/- granted by the family court is neither exorbitant nor excessive. Even a unskilled labourer in the rural side earns Rs.300/- to 400/- per day. In the said circumstances, the claim of the revision petitioner/husband cannot be accepted. The order passed by the learned judge, family court, Mangalore is in the year 2017 and we are in the year 2021. Therefore, I find the order passed by the learned judge, Family Court, does not call for interference that too, after four years after the order is passed.

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Hence, the petition is rejected.

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If there is any arrears of maintenance payable by the revision petitioner/husband to the revision respondent/wife, the same shall be complied with along with the memo of calculation within 30 days from today before the family court.

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Sd/JUDGE

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tsn*

Sri. Arif. H v. Smt. Rahmath Ashiya

Case brief

What is this about?

What did the court decide?

Sri. Arif. H v. Smt. Rahmath Ashiya

Case brief

What is this about?

What did the court decide?

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