Dismissed

Alankottu Rashid, v. Naseena T.V.

Kerala HC6 Aug 2019RPFC/35/2019

Case brief

AI extract

What is this about?

The High Court dismissed a revision petition challenging a Family Court order granting monthly maintenance to a divorced Muslim wife and minor son. The High Court upheld the Family Court's finding that the husband failed to prove the wife's pre-marital mental illness and that the wife was entitled to maintenance under Section 125 CrPC as per the precedent in AIR 2010 SC 305.

What did the court decide?

The revision petition failed and was dismissed; the Family Court order dated 27.10.2018 stands confirmed.

Alankottu Rashid, Vs Naseena T.V. — Maintenance and Alimony | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941

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RPFC.No.35 OF 2019

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AGAINST THE ORDER/JUDGMENT IN MC 10/2017 DATED 27-10-2018 OF FAMILY COURT, KANNUR

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REVISION PETITIONER/S:

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ALANKOTTU RASHID, AGED 31 YEARS S/O C.K. AIMU, RUKHIYA MANZIL, NIRANTHODU, P.O. CHERUPAZHASSI, KANNUR-670601.

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BY ADVS. SRI.K.ASHIS SRI.NANDAGOPAL S.KURUP

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RESPONDENT/S:

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1 NASEENA T.V., AGED 24 YEARS, D/O T.C. MOIDU, THUPPINACHAL HOUSE, KUTTIYATTOOR P.O., KANNUR670602.

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2 MUHAMMAD RANANUL AZAN T.V., S/O RASHEED, MINOR, REPRESENTED BY GUARDIAN MOTHER 1ST RESPONDENT NASEEMA T.V., AGED 24 YEARS, THUPPINACHAL HOUSE, KUTTIYATTOOR P.O., KANNUR-670602.

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R1-2 BY ADV. SRI.V.RAMKUMAR NAMBIAR

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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R.P(F.C).No. 35 of 2019

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==================

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Dated this the 6^th day of August, 2019

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O R D E R

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The aforecaptioned R.P(F.C). has been filed under Sec. 19(4) of the Family Courts Act, 1984 to impugn the final order dated 27.10.2018 rendered by the Family Court, Kannur in M.C.No. 10/2017. The respondents herein have filed the abovesaid M.C.No. 10/2017 before the Family Court, Kannur, seeking grant of maintenance @ Rs. 6,000/- per month and Rs. 4,000/- per month respectively. The Family Court, after appreciating the evidence has found that R-1 herein is the legally wedded wife of the petitioner and R-2 is the minor son born in the said wedlock and that there is no dispute with regard to the fact that the respondents herein had been residing separately from the petitioner herein since January, 2015. It was further found that soon after the petitioner herein had dissolved the marriage with the 1^st respondent by pronouncing talaq, R-1 herein in the mediation proceedings had expressed her willingness to go and reside with the petitioner herein, who was not ready to accept that offer and thereafter, he did not prosecute the application for restitution of conjugal rights filed by him. Accordingly, the Family

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R.P(F.C).35/19 - : 3 :-

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Court found that the wife cannot be found fault with for not having resided with the husband. Further the Family Court has also found that a divorced Muslim lady can invoke the plea for grant of maintenance under Sec. 125 of the Cr.P.C. in the light of the dictum laid down by the Apex Court in the decision reported in AIR 2010 SC 305, wherein it has been held that the wife can maintain petition under Sec. 125 of the Cr.P.C. till her husband pays her dues under Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act.

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As regards the plea of the husband that the wife was suffering from mental illness even before her marriage, etc., the Family Court has found that she has denied the said case of the husband that she had mental illness prior to her marriage and that according to her, she was suffering from certain mental illness only after the delivery of the child in the month of December 2012 and the medical documents produced by the husband are only from the year 2013 and that the husband has not adduced any evidence to prove his claim that even prior to the marriage, the wife was suffering from mental illness and that his consent for marriage was obtained by suppressing the said fact, etc. Further the Family Court has also noted that, except making the said unsubstantiated and bald allegations, the

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R.P(F.C).35/19 - : 4 :-

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husband has not filed any petition to declare the marriage as null and void and that the abovesaid plea of mental illness of the wife has been made by the husband only to wriggle out his liability to provide maintenance to her.

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As regards the plea of the petitioner herein that R-1 herein is getting income from the readymade business, etc., the Family Court has noted that the petitioner herein has not adduced any evidence to substantiate his claim and in the counter statement, he could not even mention the name of the business concern of his wife.

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As regards the income of the petitioner herein, the Family Court has found that the nature of the business of the petitioner herein is not mentioned in the maintenance petition and in the affidavit filed in lieu of chief examination and at the time of cross examination, P.W-1 would state that formerly her husband was working abroad and after his return from gulf country, he has been working in a furniture shop of one Moideen at Kambil. However, the Family Court has noted that the petitioner herein is an able bodied person and that even an ordinary coolie would be able to get at least Rs. 600/- per day and that therefore, it can be safely inferred that the petitioner herein would earn at least Rs.18,000/- per month.

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R.P(F.C).35/19 - : 5 :-

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Accordingly, the Family Court has ordered that the petitioner herein should pay maintenance at least @ Rs.3,000/- per month and Rs. 2,000/- per month respectively to R-1 and R-2 herein. The said directions issued by the Family Court cannot be said to be perverse or unreasonable. No proper grounds have been made out by the petitioner herein to exercise the revisional powers so as to interdict the said considered findings of the Family Court. There is no merit in this petition and hence the petition fails and therefore the same will stand dismissed.

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sdk+

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Sd/- ALEXANDER THOMAS, JUDGE

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R.P(F.C).35/19 - : 6 :-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE I COPY	OF	THE ORDER I	N MC.10/2017 DATED
27.10	.2018	OF THE FAMILY	JUDGE, KANNUR
ANNEXURE II TRUE WITNE PETIT	COPY SS L IONER	OF CMP NO.4 IST PREFERRED	48/2018 TO RECEIVE BY THE REVISION
ANNEXURE III TRUE PREFE	COPY RRED	OF CMP 449/201 BY THE REVISION	8, LIST OF DOCUMENTS PETITIONER

Alankottu Rashid, v. Naseena T.V.

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Alankottu Rashid, v. Naseena T.V.

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