IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 RPFC.No. 246 of 2009() ---------------------- MC.327/2006 of FAMILY COURT AT ERNAKULAM .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- ABDUL AZEEZ, AGED 33 YEARS, S/O.ABDUL KHADER, PAREKKATTIL, KARIMAKKAD, THRIKKAKKARA P.O. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENT(S): PETITIONERS-STATE -------------------------------- 1. NISA, AGED 26 YEARS, W/O.ABDUL AZEEZ, SUHAIL COMPLEX, VEEGALAND ROAD, KAKKANAD. 2. ALFA AZEEZ (MINOR), AGED 3 YEARS, REPRESENTED BY MOTHER NISA, -DO- -DO- -DO- 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.AYSHA YOUSEFF FOR R1 & 2 SMT.MOLLY JACOB FOR R1 & 2 SMT.RABIA BEEGAM T.K. FOR R1 & 2 SMT.FOUSIA SATHAR FOR R1 & 2 SRI.JOBI.A.THAMPI FOR R1 & 2 SMT.BOBY M.SEKHAR FOR R1 & 2 SMT.M.P.SEETHA FOR R1 & 2 SMT.K.C.MANJU FOR R1 & 2 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J ---------------------------------------- R.P.(F.C.) No.246/2009 ---------------------------------------- Dated this the 17th day of September, 2009 ORDER The Revision Petitioner is the respondent in M.C.No..327/2006 on the file of the Family Court, Ernakulam. Respondents one and two filed the above petition before the trial court alleging that they are wife and daughter of the revision petitioner and that they were deserted by him and sought for an order for maintenance at the rate of Rs.5,000/- and Rs.2,500/- respectively. 2. The revision petitioner interalia contended in his counter statement that the first respondent deserted the revision petitioner and the respondents are residing separate without any just and reasonable cause and that first respondent was divorced and hence not entitled to get any maintenance under section 125 of Criminal Procedure Code. 3. The trial court after due enquiry arrived a finding that the respondents are entitled to separate maintenance. In arriving such a conclusion the revision petitioner's plea that the first respondent was divorced by pronouncing Talak was declined by the trial court.The revision petitioner was directed to pay monthly maintenance at the rate of Rs.1,500/- to the first respondent and at the rate of Rs.500/- to the second respondent.Assailing the legality, correctness and propriety of the said order this revision petition was filed. 2. The main contention that was advanced by the learned counsel is that since the the first respondent was divorced the revision petitioner is not bound to provide any maintenance under section 125 of the Code of Criminal Procedure, but liable to pay only what is due under section 3 of the Muslim Women (Protection of Rights on Divorce) Act and he would apprehend institution of that proceedings. In the event of such claim is coming the revision petitioner is prepared to pay maintenance at the rate ordered in the order impugned. On the other hand, the learned counsel for the respondents would contended that there is no divorce and that first respondent is still the wife of the revision petitioner and hence the institution of petition under section 3 of the Muslim Women (Protection of Rights on Divorce) Act does not arise at all. Having heard either side, I find that the apprehension of the revision petitioner is out of place and without any basis. Once marriage is admitted, unless it is established that there is divorce, it is to be presumed that the marital tie continues as contended by the respodents. Here, evidence of the revision petitioner regarding divorce was disbelieved by the trial court. I find that in this proceeding I need not delve deep into that aspect because the first respondent still asserts that she was not at all divorced and as things now stand, there is little chance for filing petition under section section 3 of the Muslim Women (Protection of Rights on Divorce) Act. I find that in the absence of further proof regarding divorce, the submission of the first respondent can be recorded and, it can be safely concluded that the marital tie is still continuing and until the revision petitioner pronounces talak hereafter, or the first respondent gets the marriage divorced according to the law, the revision petitioner who is the husband and father respectively, is liable to pay maintenance to the respondents as ordered in the impugned order, which I find just and reasonable and within the means of the revision petitioner. The amount awarded would meet only the minimum requirement of the respondents. 3. The revision petitioner also concedes that the quantum awarded is not exhorbitant. In the above circum- stances,I find no merit in the revision petition. Accordingly it is dismissed. In the event, later the first respondent files any petition under section 3 of the Muslim Women (Protection of Rights on Divorce) Act alleging pronouncement of Talak and the revision petitioner had paid any maintenance in pursuance of the impugned order after the divorce, if any, the revision petitioner would be at liberty to seek for adjustment of the amount paid under the impugned order. P.S.GOPINATHAN, JUDGE ssn