The High Court dismissed the husband's appeal against the Family Court's order dissolving the marriage and awarding maintenance. The Court upheld the dissolution based on grounds of neglected maintenance, failure to perform marital obligations, and cruelty due to the husband's second marriage.
The appeal was dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA 1933
MA.No. 177 of 2004 ( )
OP.190/2003 of FAMILY COURT, MALAPPURAM
APPELLANT/APPELLANT:
ABDURAHIMAN, S/O.RAIMARAKKAR VEETTIL KUNHIMOHAMMED, AGED 32 YEARS, EDAKKAZHIYOOR AMSOM DESOM, CHAVAKKAD.
BY ADVS.SMT.K.V.RESHMI SRI.C.S.SULEKHA BEEVI
RESPONDENT/PETITIONER:
1 AYISHA.K., AGED 26 YEARS, D/O.KANHULLIYIL KUHNI BAPU, ERAMANGALAM AMSOM, DESOM PONNANI TALUK.
BY SRI.DILIP J. AKKARA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/1/2012, THE COURT ON 03/02/2012 DELIVERED THE FOLLOWING:
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
Mat.Appeal No.177 of 2004
Dated 3rd February, 2012
J U D G M E N T
Joseph Francis, J.
This is an appeal filed by the respondent/husband in O.P.190/2003 on the file of the Family Court, Manjeri. The respondent/wife herein was the petitioner in that Original Petition, which was filed by her for dissolution of marriage and also for past and future maintenance.
herein before the court below was that the marriage between the petitioner/respondent and the appellant was solemnized in accordance with the Islamic rites and ceremonies on 12.3.2000. The respondent herein gave Rs.1,00,000/- and 32 sovereigns of gold ornaments at the time of marriage. The appellant herein appropriated the money and the ornaments to start a duty paid shop of foreign goods. Further an amount of Rs.6,000/- was also entrusted to the appellant by the family members of the respondent. The petitioner had obtained Rs.1,00,000/- out of the amount obtained by the respondent/husband, on the basis of a mediation. The petitioner filed O.P.310/02 before the
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Family Court, Manjeri to get back the balance amount and the gold ornaments. The life of the petitioner at the house of the respondent was ordeal. The respondent used to ill treat the petitioner. The petitioner had to undergo treatment at the hospital consequent to the ill treatment. The respondent has contracted another marriage and is living with his new wife. He is performing his obligations towards that wife properly. He is bound to look after the petitioner also in the same manner. But he is not giving any consideration to the petitioner. The marital relationship that now exists between the petitioner and the respondent is only namesake. The marriage is irretrievably broken. The petitioner cannot lead a marital life with the respondent in future. Therefore, the marriage between the petitioner and the respondent is to be dissolved. Since February, 2001, the appellant and the respondent are living separately due to differences of opinion. The appellant did not pay any maintenance to the respondent after separation. The respondent/petitioner requires Rs.1,500/- a month for her maintenance. She has no income of her own. She has to
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depend on her father for her livelihood. It was further contended that the appellant herein is earning an amount of Rs.75000/- per month from his duty paid shop. He has got 1 acre of property and also contracted another marriage. She further claimed an amount of Rs.39,000/- from the appellant towards the past maintenance for 26 months prior to the filing of the petition.
below that the case of the respondent herein that she was given Rs.1,00,000/- and 32 sovereigns of gold ornaments at the time of marriage is incorrect because, in the case filed before the Judicial First Class Magistrate Court, Chavakkad under Section 498A of the Indian Penal Code, the specific case of the respondent was that she was given 50 sovereigns of gold at the time of marriage. Further in the said case she also implicated all the family members of the appellant. In a mediation talk between the appellant's family members with that of the respondent's family members, they made the appellant herein to sign some blank stamp papers and some other papers.
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Nothing was written on the said papers. She left the matrimonial home of her own. The appellant had been maintaining the respondent within the limits of his capacity. The respondent herein had obtained Rs.1.5 lakhs when she got the previous marriage dissolved. Apart from that the appellant herein also paid Rs.1,00,000/- to the respondent. The amounts are in deposit and she is also drawing interest. Further, the respondent herein is working in a STD booth and is earning Rs.1,250/- per month. Though the appellant contracted another marriage, he is ready and willing to take the respondent along with him and to perform his obligations as a husband.
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the petitioner at the rate of Rs.250/- per month from the date of the petition to the date of the order. Against that order, the respondent/husband filed this appeal.
Marriages Act, 1939 (for short, 'the Act') provides that a woman married under Muslim Law shall be entitled to obtain a decree of dissolution of her marriage on the ground that the husband has neglected her or failed to provide her maintenance for a period of two years. According to the petitioner, she left the matrimonial home in February, 2001 and she continued to reside in her house after that, except for the stay of three days in the house of the respondent/husband in pursuance of the mediation. The respondent has no case that he paid
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maintenance to the petitioner after she started to live separately. The petitioner/wife filed M.C.203/02 before the Family Court, Manjeri on 12.6.2002 and she was allowed to have maintenance at the rate of Rs.250/- per month, as per order dated 13.2.2003. The respondent admitted that he has not paid the amount due as per that order. Therefore, it is clear that the respondent/husband has neglected to pay maintenance to the petitioner for more than two years. Therefore, as found by the Family Court, the petitioner is entitled to get an order for dissolution of marriage on that ground.
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the date of separation. There is no case for the respondent that he used to visit the petitioner and performed his marital obligations. Of course, the petitioner has got a case that for 3 days, there was a reunion between her and the respondent. However, this reunion for a short spell of time need not be taken into account while considering the period during which the respondent has neglected to perform his marital obligations. In fact, the respondent has no case that there was such a reunion. Again, according to the petitioner, even if there was a reunion, she was ill treated during this period and this has resulted in the separation again. So even during the period of reunion, if any, there was no act on the part of the respondent which leads to an inference that he performed his marital obligations during this period. Therefore, the Family Court is justified in finding that the petitioner is entitled to get a decree of dissolution of marriage on that ground also.
married under Muslim Law is entitled to get a decree of dissolution of marriage, if the husband treated her with cruelty.
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If the husband has more wives than one and does not treat her equitably in accordance with injunction of Quran, it is also an act of cruelty. RW1 admits in cross-examination that he has now contracted one more marriage and this wife is now living with him. He has got a child also in this wife. He is treating this wife properly. He neither paid maintenance to the petitioner nor performed his marital obligations towards her, while all along he was treating his last wife in a befitting manner. Therefore, it is clear that the respondent/husband was not treating the petitioner equitably with his new wife in accordance with the injunctions of Quran. According to the respondent/husband, he is even now willing to take the petitioner with him and to maintain her along with the new wife. But, the petitioner is not amenable for such a reunion. The fact that a Mohammedan is permitted to have another marriage in certain circumstances does not mean that the marriage itself is to be accepted by the existing wife without any demur. It does not mean that the marriage will not cause any mental pain to her. A Mohammedan is permitted to have one more marriage
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only under exceptional circumstances. He should be able to treat both wives without discrimination and to give both of them equal convenience and consideration in life.
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order as to costs.
Sd/-
K.M.JOSEPH, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs
(true copy)
P.S. to Judge.
2 issues framed by the court
Whether to interfere with the Family Court’s order dissolving the marriage and directing maintenance.
Whether the husband neglected to provide maintenance and performed marital obligations for the required period.
ABDURAHIMAN
AYISHA K.
K.M.JOSEPH
M.L.JOSEPH FRANCIS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
