Partly allowed

Saleena v. Nisar M.P

Kerala HC1 Aug 2023RPFC/28/2023

Case brief

AI extract

What is this about?

High Court of Kerala disposed of two revision petitions regarding maintenance in a family dispute. The court dismissed the husband's challenge to the enhanced wife maintenance but allowed the wife's filing to further increase the minor child's maintenance due to insufficient funds for education and livelihood.

What did the court decide?

Maintenance for the wife remains at Rs 5000/month; child's maintenance enhanced to Rs 5000/month. Husband to pay 50% arrears in 45 days.

Saleena Vs Nisar M.P — Maintenance and Alimony | Kerala HC (2023)

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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 A. BADHARUDEEN

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TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945

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RPFC NO. 325 OF 2022

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AGAINST THE ORDER/JUDGMENT IN MC 96/2021 OF FAMILY COURT, MALAPPURAM

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REVISION PETITIONER/S:

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NISAR M.P.
AGED 46 YEARS
S/O. ALAVI, MANNAMPARAMBATH HOUSE, CHOORAPPATTA, AKKODU POST,
KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 673640

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BY ADV K.RAKESH

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RESPONDENT/S:

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1SALEENA
AGED 42 YEARS
D/O. MUHAMMED K.V., MELEAARODI HOUSE, KARAD POST, KONDOTTY TALUK,
MALAPPURAM DISTRICT, PIN - 679339
2ASHIR MUHAMMED
AGED 12 YEARS
(MINOR), S/O. NISAR M.P., REPRESENTED BY HIS MOTHER, SALEENA, AGED
42 YEARS, D/O. MUHAMMED K.V., MELEAARODI HOUSE, KARAD POST,
KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 679339
BY ADVS.
K.P. SUDHEER ADVOCATE
J.RAMKUMAR(K/376/2013)

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP
FOR ADMISSION ON 01.08.2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

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..2..

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RPFC Nos. 325/2022 & 28/2023

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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 A. BADHARUDEEN

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TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945

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RPFC NO. 28 OF 2023

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AGAINST THE ORDER/JUDGMENT IN MC 96/2021 OF FAMILY COURT, MALAPPURAM

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REVISION PETITIONER/S:

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1SALEENA
AGED 36 YEARS
D/O. MUHAMMED K.V., RESIDING AT MELEAARODI HOUSE, KARAD POST,
KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN - 679339
2ASHIR MUHAMMED ( MINOR )
AGED 12 YEARS
S/O NISAR M.P., REPRESENTED BY HIS MOTHER 1ST REVISION
PETITIONER SALEENA, , D/O. MUHAMMED K.V., RESIDING AT MELEAARODI
HOUSE, KARAD POST, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN -
679339
BY ADVS.
K.P.SUDHEER
P.ANIRUDHAN

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RESPONDENT/S:

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NISAR M.P
S/O. ALAVI, MANNAMPARAMBATH HOUSE, CHOORAPPATTA AKKODU POST,
KONDOTTY TALUK, MALAPPURAM DISTRICT,, PIN - 673640

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THIS REV.PETITION(FAMILY COURT) HAVING
COME UP FOR ADMISSION ON 01.08.2023, THE
COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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RPFC Nos. 325/2022 & 28/2023

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..3..

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C O M M O N O R D E R

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Dated this the 01^st day of August, 2023

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RPFC No. 325/2022 is at the instance of the respondent in

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MC 96/2021, on the files of the Family Court, Malappuram, challenging the order dated 10^th August 2022 passed by the Family Court, Malappuram after considering a petition filed under Section 127 of the Code of Criminal Procedure, by the respondents herein, whereby the Family Court increased maintenance to the wife at the rate of Rs.5,000/- and Rs.3,000/-

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to the minor child with effect from 18.03.2021, modifying the earlier order in MC 439/2013, by which the Family Court granted maintenance at the rate of Rs.3,000/- to the wife and Rs.1500/- to the child. The respondents in this revision petition are the wife and the minor child.

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Highlighting the inadequacy in the quantum of

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maintenance granted in MC 96/2021, which is the subject matter

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RPFC Nos. 325/2022 & 28/2023

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..4..

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of challenge in RPFC 325/2022, the wife and the child filed

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RPFC 28/2023 arraying the husband/revision petitioner in RPFC 325/2022 as the respondent.

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For convenience, I shall refer the parties as ‘husband’ and ‘wife’ hereinafter for convenience.

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The Wife had approached the Family Court and filed a petition under Section 127 of the Code of Criminal Procedure with a prayer to modify and enhance the quantum of maintenance awarded in MC 439/2013 on the ground that the wife and the child did not have any means of maintenance, apart from the maintenance allowed as per MC 439/2013 on asserting that the said amount is insufficient for their sustenance. It was contended before the Family Court that the husband, who had been working as a building contractor and earning Rs.2,00,000/- per month would pay Rs.15,000/- and Rs.10,000/- each as maintenance.

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The husband filed objection opposing the contention of

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RPFC Nos. 325/2022 & 28/2023

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..5..

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the wife pointing out that he did not have any permanent job or income as alleged and therefore, the amount sought to be enhanced at the instance of wife and child cannot be allowed.

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The Family Court recorded the evidence of the wife as

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PW1 and Exts. P1 to P4 were marked on the side of the wife. The husband was examined as RW1. Thereafter, the Family Court enhanced the maintenance at the rate of Rs.5,000/- as against Rs.3,000/- granted earlier and Rs.3,000/- as against Rs.1,500/with effect from 18.03.2021.

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The learned counsel for the husband submitted that going by the order impugned, there is no discussion regarding the evidence rendered and the Family Court enhanced the maintenance without assigning reasons. Therefore, the order impugned is liable to be set aside is the submission of the learned counsel for the husband. He also submitted that the wife neglected the husband and accordingly he again married and he

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RPFC Nos. 325/2022 & 28/2023

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..6..

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had four children in the said wedlock, apart from the ailed mother to look after. Therefore, the order under challenge requires modification by reducing the quantum of maintenance.

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Opposing the contention, the learned counsel for the wife submitted that, as of now, the minor child is studying in seventh standard, and in order to meet the expenses for food, medicine, education etc., the amount granted by the Family Court by way of enhancement is insufficient and therefore, the amount is liable to be increased to meet the expenses.

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The crux of the dispute is that the wife sought enhancement of maintenance to herself as well as the child, on the assertion that the maintenance granted in MC 439/2013 is insufficient in view of the present living index and in consideration of the expenses to be inquired for the livelihood of the wife and the child. While deposing as PW1, the wife supported the contention and she also produced Exts.P1 to P4

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RPFC Nos. 325/2022 & 28/2023

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..7..

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series medical documents to substantiate that she has been suffering from asthma. Even though the husband raised a contention that the wife is doing the job of tailoring, no question was asked during cross-examination to the wife, as regards to such employment and as such the evidence of PW1 that she did not have any job or income, in fact, even not remotely disputed during the cross-examination. Coming to the evidence of RW1, the specific case of the husband before the Family Court is that his health condition is not so good as of now and he had no job or income.

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The learned counsel for the husband submitted that after the hesitance of the wife to rejoin with the husband, he married again and in the said wedlock, he had four children. Apart from that nothing substantiated to show any sort of serious ailment to the husband. Thus it appears that the health condition of the husband is fit to earn a substantial sum to provide maintenance to

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..8..

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RPFC Nos. 325/2022 & 28/2023

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the wife and the child in the present case.

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In view of the matter, the RPFC 325/2022 at the instance of the husband, challenging the quantum of maintenance is found unsustainable, and accordingly, RPFC 325/2022 stands dismissed.

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Coming to RPFC 28/2023, Rs.5,000/- per month is the amount granted to the wife, I am not inclined to revisit the same since the same is reasonable. The maintenance granted to the child, who admittedly studying in seventh standard, at the rate of Rs.3000/- per month appears to be not sufficient since the minor child requires expenses for education, medicine, and for his livelihood. Therefore, the said amount is enhanced from Rs.3000/- to Rs.5,000/- per month.

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In the result, RPFC 325/2022 stands dismissed and RPFC 28/2023 stands allowed. Accordingly, it is ordered that the respondent in MC. 96/2021 shall pay the maintenance at the rate

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RPFC Nos. 325/2022 & 28/2023

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..9..

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of Rs.5,000/- per month each to the petitioners in MC with effect from 18.03.2021.

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It is submitted by the learned counsel for the revision petitioner/husband in RPFC 325/2022 that the husband needs time to deposit the arrears of maintenance. In view of the above submission, the revision petitioner (husband) in RPFC 325/2022 is directed to deposit 50% of the arrears of maintenance within a period of forty-five days from today and the remaining 50% thereafter, within a period of forty-five days. The maintenance arrears will not be paid as directed above and on failure to pay the 1^st instalment , the petitioners in RPFC 28/2023 are at liberty

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to execute the modified order in accordance with law.

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Sd/-

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A. BADHARUDEEN JUDGE

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RMV

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TRUE COPY

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P.A.TO JUDGE

Saleena v. Nisar M.P

Case brief

What is this about?

What did the court decide?

Saleena v. Nisar M.P

Case brief

What is this about?

What did the court decide?

What the court decided

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