IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Mat.Appeal.No. 434 of 2007() ---------------------------- OP.551/2006 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): APPELLANT ------------------------ MUHAMMED BASHEER MAULAVI, S/O LATE M.K.ALAVIKUTTY MULLA, MADANIKUZHIYIL HOUSE, VADAKKUMPURAM P.O., VALANCHERY, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SMT.R.MEERA SMT.A.R.DIVYA RESPONDENT(S): PETITIONERS -------------------------- 1. RUKHIYA, D/O KUNHIMOHAMMED HAJI, VETTIKKATTIL HOUSE, ATHAVANADU P.O., TIRUR TALUK, MALAPPURAM DISTRICT. 2. MUFEEDA, (MINOR), D/O.MUHAMMED BASHEER MOULAVI, REPRESENTED BY THE FIRST RESPONDENT, DO. DO. ADV. SRI.BABU S. NAIR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2007, ALONG WITH RPFC NO.471 OF 2007 THE COURT ON 07/08/2009 PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.434 of 2007 & R.P.F.C.No.471 of 2007 ---------------------------------------- Dated this the 7th day of August 2009 J U D G M E N T BASANT,J In these proceedings, the petitioner/appellant/father/ husband assails a common order under which the 1st respondent has been awarded past and future maintenance at the rate of Rs.1,500/- per mensum and the 2nd respondent minor child has been awarded maintenance at the rate of Rs.600/- per mensum. Future maintenance is awarded under Section 125 Cr.P.C whereas past maintenance is awarded under the civil law. 2. Marriage is admitted. Paternity is admitted. Separate residence is also admitted. 3. What then is the dispute between the parties? The short contention raised is that there has been a valid divorce in accordance with the Muslim law with effect from 19/9/2006 under Ext.B3. The wife disputed the legal validity of the said divorce. 4. The wife claimed a higher amount. The court below awarded only an amount of Rs.1,500/- to the wife and Rs.600/- to the child per mensum as past and future maintenance. The Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 2 husband contends that the quantum of maintenance awarded is excessive. 5. The parties are hereafter referred to as the appellant/husband/father and claimants/respondents. The appellant contended that the wife had some mental aberrations and that that constituted valid reason for divorce. He further contended that prior to the divorce, there was mediation and it was only after such mediation that the divorce under Ext.B3 was effected. 6. The wife contended that she did not suffer from any mental aberrations and that there was hence no reasonable cause to justify the divorce. More importantly, she contended that there was no valid mediation in accordance with law before divorce was effected under Ext.B3. The law on the point is available in Shamim Ara v. State of U.P. [2002(3)KLT 537 (SC)]. It is trite, and that position of law is not disputed in this case, that a unilateral divorce by the husband by pronouncement of talaq to be valid must satisfy the following ingredients: i) There must be a reasonable cause. ii) A mediation by arbiters - one nominated by the husband and the other by the wife must precede the divorce and Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 3 only after such mediation can such unilateral pronouncement of talaq be resorted to. 7. The learned counsel for the petitioner/husband contends that the reasonableness of the cause is not justiciable by the courts. Under Muslim law, no cause is declared specifically to be reasonable cause justifying divorce. Whether the cause is reasonable or not must be decided by the husband himself and the courts are not invested with jurisdiction to go into the reasonableness of the cause, contends counsel. We do not intend to go into that question in greater detail in this case as we find that the validity of the divorce allegedly effected can be considered and the case disposed of on the latter ground. We are not hence going in detail into this aspect of the matter. 8. The next question is whether a mediation by arbitrators as insisted condition No.2 stipulated in Shamim Ara (Supra) had preceded before divorce is effected under Ext.B3. The wife does not accept that there was any such mediation/arbitration. The husband relies on Exts.B1 to B4 in addition to his own oral evidence. Ext.B1 is a lawyer notice issued by the counsel for the husband to the wife. In that, he calls upon the wife to go to the house of the husband/uncle on Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 4 17/6/2006 for mediation/settlement. She is requested to go over for such mediation along with her relatives or father. Even the oral evidence shows that notice was issued and the wife did not turn up and it is hence that the divorce under Ext.B3 was pronounced. 9. The wife complains that Ext.B1 notice did not reach her prior to 17/6/2006, the date of the proposed mediation. We have Ext.B4 which shows that the said notice Ext.B1 dated 11/6/2006 issued to the wife was returned on the ground that the address shown is insufficient. After return of Ext.B4, a fresh notice was issued under Ext.B1. Ext B1 shows that it was only another copy of the notice which was sent under Ext.B4. The postal receipt shows that that notice was issued on 11/7/2006. The acknowledgment card shows that it was received by the wife on 13/7/2006. We have already seen that Ext.B4 was not served and was returned unserved for the reason that address was insufficient. Ext.B1 is nothing but another copy of Ext.B4 dated 11/6/2006 and that was put into post on 11/7/2006 and was received by the wife on 13/7/2006. Ext.B1 calls upon the wife to go along with her father/relatives on 17/6/2006 to the house of the husband/uncle. Nothing could be more preposterous than Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 5 this notice sent on 11/7/2006 received by the wife on 13/7/2006 which notice calls upon her to travel back in time and appear for mediation on 17/6/2006. In these circumstances, the learned Judge of the Family Court, we conclude unhesitatingly, was absolutely justified in coming to the conclusion that Ext.B1 cannot be reckoned as valid notice for arbitration/mediation as insisted by Shamim (Supra). 10. The alleged divorce under Ext.B3 is effected on 19/9/2006 after the husband gets Ext.B2 reply notice to Ext.B1. Interestingly in Ext.B2, the wife points out the unsustainability of the demand in Ext.B1 and states that it was impossible for her after receipt of the notice on 13/7/2006 to appear for the mediation/conciliation on 17/6/2006 as demanded in Ext.B1. In Ext.B2, the wife had expressed her willingness to resume co- habitation with the husband. It was after receipt of Ext.B2 that without any further attempt to mediate/arbitrate, the husband resorted to his unilateral right of resolving marriage by talaq under Ext.B3. 11. The second ingredient of Shamim Ara (Supra), at any rate, had not been complied with. There was total non- compliance of latter insistence made by Shamim Ara (Supra). Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 6 No reasonable attempt for mediation has been conducted. The alleged divorce must hence fail for the simple reason that the latter insistence under Shamim Ara (Supra) has not been complied with. 12. The learned counsel for the husband contends valiantly that earlier, there were attempts to mediate. The wife has denied the same. There were certain earlier disputes and attempts were made to settle them; but Exts.B1 and B4 clearly show that whatever had happened earlier was not sufficient and even the husband had felt that there must be a fresh mediation before divorce is effective. In these circumstances, the alleged earlier attempts to mediate, which is totally denied by the wife, cannot be reckoned as valid reason to justify absence of a mediation after the date of Ext.B1 that is 11/6/2006 and before divorce was effected under Ext.B3 dated 19/9/2006. Therefore in law, the wife continues to be the wife of the husband and there is no valid termination of the marriage between them. 13. It is next contended that the quantum of maintenance awarded is excessive. The husband was employed abroad. According to him, he is an autorickshaw driver. Admittedly, he gets Rs.75/- per day from his employment. Ext.A2 and the oral Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 7 evidence of PW1 and RW1 clinchingly and unambiguously shows that the husband has other sources of income. His father expired and he continued the family tradition of treatment. Ext.A2 shows that he was pursuing that occupation also. 14. In any view of the matter, we are satisfied that the quantum of maintenance fixed at the rate of Rs.1,500/- and Rs.600/- per mensum respectively for the wife and child cannot be said to be excessive as to warrant interference by invocation of the revisional jurisdiction of superintendence and correction. The quantum fixed does appear to us to be absolutely fair, reasonable and just. 15. In the result, a) R.P.F.C.No.471 of 2007 is dismissed. b) Mat.Appeal No.434 of 2007 is dismissed. 16. Parties shall suffer the respective costs. Needless to say, all amounts in deposit before the court below in the case shall forthwith be released to the claimants/respondents. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 8 Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 9 Mat.Appeal No.434/07 & R.P.F.C.No.471/2007 10 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009