Partly allowed

Mohammed Basheer v. Shahida Beevi

Kerala HC22 Mar 2019RPFC/379/2014

Case brief

AI extract

What is this about?

The High Court allowed the revision petition partially, setting aside maintenance for two major daughters who were not disabled. It upheld the maintenance for the wife and minor daughter, clarifying that liability includes a prior civil decree and shall not be reduced by changes in circumstances like retirement.

What did the court decide?

Award set aside for petitioners 2 and 3. Maintenance upheld for petitioner 1 (wife) and 4 (minor daughter). Revisioner to be at liberty to move under Section 127(1) CrPC for changed circumstances.

Mohammed Basheer Vs Shahida Beevi — 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 T.V.ANILKUMAR

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FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941

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RP(FC).No. 379 of 2014

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M.C.NO.461/2013 of FAMILY COURT, NEDUMANGAD, DATED 30-07-2014

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REVISION PETITIONER/COUNTER PETITIONER:

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MOHAMMED BASHEER, AGED 54 YEARS, S/O.ABOOBACKER, MEKKUMKARA PUTHENVEEDU, ELIKODU, NEDUMANGAD, TRIVANDRUM.

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BY ADVS. SRI.M.D.SASIKUMARAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.K.S.HARIHARAPUTHRAN SHRI.SUNIL KUMAR A.G

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RESPONDENTS/PETITIONERS:

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1 SHAHIDA BEEVI, AGED 42 YEARS, D/O.ARIFA BEEVI, BISMILLAH MANZIL, KIDARAKUZHI PERUMALA MANCHA, NEDUMANGAD, TRIVANDRUM. PIN – 695 016

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2 FATHIMA BEEGUM, AGED 21 YEARS, D/O.SHAHIDA BEEVI, RESIDING -DO- -DO-

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3 HASEENA BEEGUM, AGED 19 YEARS, D/O.SHAHIDA BEEVI, RESIDING -DO- -DO-

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4 RASHIDA BEEGUM, AGED 17 YEARS, D/O.SHAHIDA BEEVI, RESIDING -DO- -DOBY ADV. SMT.N.RENJU

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RP(FC).No. 379 of 2014 : 2 :

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O R D E R

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The sole respondent, husband-cum-father in M.C.No.461/2013 before the Family Court, Nedumangad, challenges the Award dated 30.7.2014 granting monthly maintenance of 2,000/- to his wife, the 1<sup>st</sup> petitioner, 3,000/- to the 2^nd petitioner major daughter, 2,000/- to the 3<sup>rd</sup> petitioner who is also a major daughter and 1,500/- to the 4^th petitioner, who is a minor daughter.

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When this matter was taken up for argument, there was no representation on the side of the respondents and accordingly, the learned counsel for the revision petitioner alone was heard in the matter.

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There is no dispute about the matrimonial relationship between the revision petitioner and the 1^st respondent herein. Though dispute on paternity was raised in the court below, the said court, on evidence, according to me, rightly held that the denial was not substantiated. The court below rightly held that the petitioners 2 to 4 in the M.C. petition are the children born to the revision petitioner.

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RP(FC).No. 379 of 2014 : 3 :

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The learned counsel for the revision petitioner advanced three arguments in this revision.

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i) The court below went wrong in awarding monthly maintenance to petitioners 2 and 3 who were major on the date of institution of the M.C. proceedings.

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ii) The quantum of maintenance awarded by the court below was unreasonable and exorbitant.

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iii) The court below failed to take into account the decree for maintenance passed by the same court in O.S.No.33/2005 awarding maintenance to the mother and three children at the monthly rate of ` 350/- each.

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The M.C. petition shows that monthly maintenance was claimed on behalf of the daughters who had already attained majority on the date of institution of the M.C. petition. The 2^nd petitioner was aged 21 years and the third was 19 years. Under Section 125(1) of the Code of Criminal Procedure, daughters having attained the majority would be entitled to maintenance only when they, by reason of any physical or mental abnormality or injury, were unable to maintain themselves. Looking at the averments in the M.C.

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RP(FC).No. 379 of 2014 : 4 :

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petition, one fails to find out that any of these petitioners 2 and 3 are either mentally and physically infirm or disabled. The learned Judge of the Family Court, Nedumangad failed to take note of this legal position and erred in granting monthly maintenance to petitioners 2 and 3. The finding of the learned Judge to this extent is clearly wrong and it requires to be interfered with.

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The contention raised by the learned counsel for the revision petitioner that the maintenance amount fixed is quite unreasonable does not appear to be sound when the evidence on record is put to scrutiny. The learned Judge of the Family Court, after perusing the evidence, held that the revision petitioner is having a monthly salary of 18,500/-. This factual position is not disputed before me as well. Considering the cost of living of the parties as well as the status, the rate of monthly maintenance of 2,000/- to the 1^st petitioner, the wife and ` 1,500/- to the minor 4^th petitioner cannot be said to be exorbitant at all. Therefore, the argument that unreasonable amount of maintenance awarded has no legs to stand and is therefore liable to be

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RP(FC).No. 379 of 2014 : 5 :

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rejected. The view taken by the court below in this respect needs to be upheld and I do so.

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Lastly, it was argued that the decree passed in O.S.No.33/2005 by the same Family Court granting Award to the mother and three children at the rate of ` 350/- each per month was not taken into consideration at all in fixing the quantum of maintenance under the impugned order of the court below. The learned counsel for the revision petitioner, to a query put by this court, admitted that the decree dated 13.11.2007 in O.S.No.33/2005 has become final and conclusive in as much as no appeal or revision has been taken challenging the correctness of the decree. In that event, it naturally follows that the liability of the revision petitioner, who is the sole defendant in O.S.No.33/2005, too,

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has become undeniable. Taking the submission of the learned counsel for the revision petitioner into account, I considered the decree of maintenance passed in favour of the respondents as per Ext.R2 judgment in O.S.No.33/2005 also and I am of the opinion that a very lesser amount of maintenance was awarded by the civil court. Considering the

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RP(FC).No. 379 of 2014 : 6 :

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cost of living and the status of parties, maintenance granted by the civil court is only a meager amount. Even if that amount is also taken into account, there is no legitimate reason to reduce the rate of maintenance awarded by the Family Court, Nedumangad as per the impugned order of maintenance dated 30.07.2014. In other words, the liability of the revision petitioner under the decree in O.S.No.33/2005 is in addition and supplemental to the impugned order of maintenance challenged in this case. A plea advanced by the learned counsel for the revision petitioner to give credit to the amount of maintenance deposited as per decree in O.S.No.33/2005 cannot therefore be accepted in as much as it would tantamount to foiling a decree which the respondents in this case obtained in their favour in the civil proceedings.

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In view of the discussion made by me on facts, evidence and law in extenso as above, I am of the opinion that the impugned order of maintenance dated 30.7.2014 in M.C.No.461/2013 could be interfered only to a limited extent as already indicated above. The liability of the revision petitioner to maintain the respondents will stand confined

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RP(FC).No. 379 of 2014 : 7 :

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only to respondents 1 and 4 in this revision. The rate of maintenance fixed as per the impugned order of maintenance will stand unaltered. The liability of the revision petitioner under this impugned order, I make it clear, shall be in addition to Ext.R2 judgment in O.S.No.33/2005. The learned counsel for the revision petitioner submitted that the revision petitioner retired out of service and the 4^th respondent has already attained majority and these subsequent changes of circumstances may also be reckoned in this proceeding for the purpose of fixing the quantum of maintenance. I find my way difficult to agree with this submission in as much as this court is bound to consider only the facts of the case as it stood with reference to the date on which the M.C. proceedings were instituted before the court below. However, the revision petitioner will be at liberty to move the concerned court invoking Section 127(1) of the Code of Criminal Procedure if such a remedy is available under law.

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In the result, this revision petition is allowed in part upholding the decision of the court below to the extent it fixed rate of maintenance in favour of the 1^st petitioner, wife and the

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RP(FC).No. 379 of 2014 : 8 :

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4^th petitioner, minor daughter. The Award granted in favour of

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petitioners 2 and 3 will stand set aside and M.C. petition to that extent will also stand dismissed. It is further made clear that, if there is substantial change of circumstances in favour of the revision petitioner, he will be at liberty to invoke Section 127(1) of the Code of Criminal Procedure and move the concerned court in that respect.

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Sd/- T.V.ANILKUMAR

JUDGE

[True copy]

P.A to Judge

Mohammed Basheer v. Shahida Beevi

Case brief

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Mohammed Basheer v. Shahida Beevi

Case brief

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