IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 RPFC.No. 379 of 2009() --------------------------------- MC.364/2009 of THE FAMILY COURT, MALAPPURAM. .................... REVISION PETITIONER (S)/RESPONDENT --------------------------------------- RAHMATHULLA, AGED 42 YEARS, S/O.ALI, PALAMBADIYAN VEEDU, ADHIKARATHODI, MELMURI, ALATHOORPADI PP.O., MALAPPURAM. BY ADV. MR.P.SAMSUDIN RESPONDENT(S): PETITIONER'S -------------------------- 1. RASIYA P.B, AGED 36 YEARS, D/O. MOHAMMED KUTTY (LATE) PALLIPPARAMBAN VEEDU, WEST KODOOR P.O., MALAPPURAM DISTRICT. 2. THASLEEM, AGED 14 YEARS, D/O. RAHMATHULLA (MINOR) 3. MOHAMMED NASHEED, AGED 10 YEARS, S/O. RAHMATHULLA (MINOR) (MINOR RESPONDENTS ARE REP.BY THE MOTHER IST RESPONDENT) R1 TO R3 BY ADVS.MR.P.VIJAYA BHANU, MR.P.VENUGOPAL (1086/92). THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.10171/2008 IN RPFC. NO.379/2009 DISMISSED 21/01/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... R.P(F.C)No.379 OF 2009 ............................................. Dated this the 21st day of January, 2010. O R D E R This revision is preferred against the order of the Family Court, Malappuram in M.C.No.364/2009. The wife and two children aged 14 years and 10 years at the time of the petition had moved an application for maintenance at the rate of Rs.5,000/=, Rs.4,000/= and Rs.3,000/= and the court below ordered maintenance at the rate of Rs.2,500/=, Rs.1,200/= and Rs.800/= respectively. It is against that decision, the husband has come up in revision challenging the liability to maintain as well as the quantum. 2. It is the case of the husband that he had effected a divorce by pronouncement of Talaqu and therefore, being a divorced Muslim wife, she is not entitled to claim maintenance. It has come out in evidence that the factum of divorce has not been intimated to the wife. Talaqu Nama is not produced. Over and above all these things there is no case or evidence to show that there had been a talk of mediation or conciliation between the spouses or by the mediators and the result of which later lead into : 2 : R.P(F.C)No.379 OF 2009 pronouncement of Talaqu. The reasonable cause for pronouncement of the Talaqu also does not stand established. So it has to be stated that evidence is lacking even for the pronouncement of Talaqu and even it is conceded for argument sake, it is against the dicutm laid down by the Supreme Court in Shamin Ara v. State of Uttar Predesh (2002 (3) KLT 537). Therefore the case of divorce has been rightly turned down by the family court. 3. The next question is regarding the right to live separately by the wife. Under Section 125(4) of the Cr.P.C if the wife is living separately without any reasonable cause then she is not entitled to get maintenance. It is the case of the wife that the husband had treated her with mental and physical cruelty and that is why she had left the matrimonial home. The very attribution of unchastity on a woman would amount to very deep cruelty which will pierce into matrimonial life and any one with dignity and self respect would not be able to withstand such an allegation. Mere allegation is not sufficient. There must be at lest circumstances to prove. It is certain that in case of extra : 3 : R.P(F.C)No.379 OF 2009 marital relationship or adultery, there may not be any direct evidence available. It is the circumstances which will lead to conclusion regarding the conduct of the wife which will ultimately lead to the inference of living a loose life. 4. Here there is absolutely no evidence to do so and therefore it cannot be also accepted. What ever it may be, attribution of very serious allegation itself is a sufficient cruelty which would entitle a wife to live separately and claim maintenance. 5. Lastly on the quantum. According to the wife, the husband is a very affluent man. He is a driver in Saudi Arabia and owning a restaurant therein and also having some fancy stores at Malappuram. Except mere oral assertion regarding the income, nothing solid is forthcoming to establish the fact. The factum that the husband is in Gulf country and is employed there is admitted but, according to him, he is a driver by profession having an income of 1200 Saudi Rials. It has come out in evidence that the fund received from the Gulf country has been utilised for purchasing landed property, constructing building and even : 4 : R.P(F.C)No.379 OF 2009 for conducing marriage of the eldest daughter. The attempt of the husband is to prove that he is a man without means. It is also submitted and admitted that he had remarried and leading a happy matrimonial life with her. Striking the balance with respect to the income and the evidence available, I feel that it is a fit case where modification can be done with respect to maintenance by reducing the quantum to wife as Rs.2,000/= per month, Rs.1,000/= to the first child and Rs.800/= to the second child. The order is modified accordingly and it shall be paid from the date of the petition. M.N. KRISHNAN, JUDGE cl : 5 : R.P(F.C)No.379 OF 2009