Dismissed

Shafeek v. Faseela

Kerala HC20 Jul 2023RPFC/49/2020

Case brief

AI extract

What is this about?

In a revision petition challenging a maintenance order, the High Court of Kerala dismissed the appeal. It held that stray instances of immorality do not amount to living in adultery disentitling a wife from maintenance. The court also found the quantum reasonable in the absence of proof of the wife's employment.

What did the court decide?

Revision petition dismissed, maintenance order upholding Section 125 Cr.P.C. award of Rs. 3,500 per month.

Shafeek Vs Faseela — 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 V.G.ARUN

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THURSDAY, THE 20^TH DAY OF JULY 2023 / 29TH ASHADHA, 1945

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R.P.(FC) NO.49 OF 2020

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AGAINST THE ORDER DATED 25.11.2019 IN M.C. NO.124/2016 OF FAMILY COURT, KALPETTA.

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REVISION PETITIONER/COUNTER PETITIONER:

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SHAFEEK, AGED 37 YEARS, S/O. (LATE) KASIM, KUNNAKKAD HOUSE, CHULLIYODE P.O., BATHERY TALUK, WAYANAD DISTRICT, PIN-673 595.

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BY ADV. CELINE JOSEPH

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RESPONDENT/PETITIONER:

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FASEELA, AGED 28 YEARS, EDAVALATH HOUSE, CHULLIYODE P.O., BATHERY TALUK, WAYANAD DISTRICT, PIN-673 595.

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BY ADV. NIRMAL V. NAIR

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.P.(FC) NO.49 OF 2020

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ORDER

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Dated this the 20^th day of July, 2023

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The revision petitioner is aggrieved by the order in M.C. No.124 of 2016 of the Family Court, Kalpetta directing him to pay maintenance to his wife/respondent herein at the rate of Rs.3,500/- per month. The order is challenged mainly on the ground that the wife having lived in adultery, is disentitled for maintenance under Section 125 Cr.P.C.

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Learned Counsel for the petitioner submitted that the Family Court committed gross illegality by holding that the allegation of adultery, for which evidence was let in by the petitioner, to be insufficient to find that the wife to be living in adultery. According to the Counsel, series of other instances where the wife and her paramour Aziz had made the children wait outside the house while they indulged in sex, was also stated in his evidence. Moreover, on 27.05.2016, he had caught his wife red handed with Aziz. The evidence taken as a whole is sufficient to come to the conclusion that

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the wife was living in adultery. It is contended that the

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R.P.(FC) NO.49 OF 2020

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decision relied on by the Family Court has no application, since the facts of those cases are entirely different. The other contention is regarding the quantum of maintenance which the Family Court has fixed at Rs.3,500/- per month. It is submitted that the wife is employed and is capable of maintaining herself. It is also pointed out that, since the children are living with the petitioner, the wife is capable of maintaining herself.

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Learned Counsel for the respondent submits that, except the interested testimony of the husband, there is absolutely no evidence regarding the allegation of adultery. It is submitted that the Family Court having considered the evidence in detail and having applied the law, no interference is warranted in exercise of the revisional power vested with this Court.

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It is true that in his affidavit filed in lieu of chief examination, the petitioner has detailed various instances when the children were made to stand outside the house at night. A specific instance on 27.05.2016 when the petitioner allegedly found his wife in a compromising position with Aziz

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R.P.(FC) NO.49 OF 2020

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is also stated. After appreciating the evidence that the Family Court came to the conclusion of there being no evidence of the wife having lived in adultery.

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The said finding cannot be faulted, as it is trite that stray instances of immorality cannot be termed as 'living in adultery' so as to disentitle a neglected wife from getting maintenance allowance. Although a contention was raised that the wife is employed, no evidence is seen produced before the Family Court in support of the allegation. I also find the quantum of maintenance ordered to be reasonable. As such, there is absolutely no reason to interfere with the judgment. If the petitioner has a case that the wife obtained employment after the order of the Family Court, it is for him to seek modification of the order by approaching the Family Court under Section 127 Cr.P.C.

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The revision petition is dismissed accordingly.

Sd/-

V.G. ARUN

JUDGE

bpr

Shafeek v. Faseela

Case brief

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Shafeek v. Faseela

Case brief

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What did the court decide?

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