IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 Mat.Appeal.No. 718 of 2007 E ---------------------------------------------------- OP.408/2006 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): APPELLANT ----------------------------------------- VAIKATHUVALAPPIL ALIKUNJU, S/O.BAPPU, VAIKATHUVALAPPIL HOUSE, P.O.KOKKUR, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SMT.A.R.DIVYA RESPONDENT(S): PETITIONER -------------------------------------------- SUBAIDA, KAVUNKIL HOUSE, NEAR GHS, P.O.KOKKUR, PONNANI TALUK, MALAPPURAM DISTRICT. ADV. SRI.PULIKKOOL ABUBACKER FOR R1 SMT.M.V.SAVEENA FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2010 ALONG WITH RPFC NO. 54 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & P.Q. BARKATH ALI, JJ. -------------------------------------------------- MAT.APPEAL NO.718 OF 2007 E &R.P.F.C.NO.54 OF 2009 --------------------------------------------------- Dated this the 6th January, 2010 JUDGMENT K.M. Joseph, J. Both these cases are connected, they are disposed of by this common Judgment. 2. Mat. Appeal No.718/07 is directed against the order dated 24.10.2007 passed in O.P.No.408/06 on the file of the Family Court, Malappuram, while R.P.F.C.No.54 of 2009 is filed against the order of the Family Court, Malappuram in M.C.No.599/2007. Both these cases were filed by the respondent claiming to be the legally married wife of the appellant. O.P. No.718/07 was filed claiming past maintenance, while M.c. No.599/07 was filed under Section 125 of the Code of Criminal Procedure. The Family Court has found that the appellant and the respondent were married. It is also found that the appellant had financial capacity and ordered past MAT.APP.718/07 & RPFC.54/09 2 maintenance to be paid at the rate of Rs.1,500/= per month and accordingly ordered payment of Rs.54,000/= with interest at 9 per cent. In M.C. No.599/07, taking note of the fact that the appellant/petitioner was employed in Bombay at the relevant time, the Family Court ordered past maintenance at Rs.1,500/= per month, but, thereafter, admittedly he has gone back to Gulf and he is better placed and the claim for maintenance at the rate of Rs.2,000/= per month was found to be not unreasonable and accordingly, maintenance was ordered to be paid at Rs.2,000/= per month. 3. We heard the learned counsel for the appellant and also the learned counsel for the respondent. Learned counsel for the appellant would contend that the finding in O.P. No.408/06 that there was a marriage between the appellant and the respondent, cannot be sustained. He would contend that concubinage is not recognized in Muslim Law. According to him, the appellant was on intimate terms with the respondent, but there was no marriage. He would contend that at the time when the alleged MAT.APP.718/07 & RPFC.54/09 3 marriage was contracted, at any rate, there was an existing marriage between the respondent and one K.P. Moidunni. He would lastly contend that, at any rate, the amount of maintenance ordered is on the higher side. He would submit that the appellant has three children from the marriage with another lady (RW2). He also submitted that though the appellant was in Gulf for some time, he had returned back and his financial condition is not good. He would also contend that the appellant is having health problems and there is partial paralysis. 4. Per contra, learned counsel for the respondent would support the decision taken in both the cases and he would submit that the appellant has financial capacity to pay, and on the other hand, the respondent is having only five cents. 5. The first question to be considered is whether there is a marriage between the appellant and respondent on 18.4.1988 as alleged by the respondent ? 6. The evidence consists of PW1 who is none other than MAT.APP.718/07 & RPFC.54/09 4 the respondent herself. PW2 is the Khatheeb of Kadavanad Juma Ath Palli and PW3 is a witness to the marriage certificate. Ext.A1 is the marriage certificate. Ext.A2 is the jenm assignment deed. Ext.A3 series are letters allegedly written by the appellant. Ext.A4 is yet another letter. RW1, Kunhumon is the power of attorney holder of the appellant. RW2 is the first wife of the appellant. RW3 is none other than the appellant himself. According to the appellant, the respondent first married Alur Mammi about thirtytwo years ago. He divorced her. Then she married Cherupur Ali. It is stated that the appellant does not know whether Ali divorced her. But, K.P. Moidunni married her. K.P. Moidunni expired in 2003. It is stated that the respondent is living in adultery. In the Family Court, the respondent filed application to serve interrogatories on the appellant which was allowed. Affidavit was filed. In the same, it is found that he admitted that the respondent was married by K.P. Moidunni and that he divorced her. He had expired fifteen years ago. Earlier, she had married Alur Mammi in 1972. He MAT.APP.718/07 & RPFC.54/09 5 had also divorced her. She was not married by Cherupur Ali. The Family Court found that the appellant had deviated from his pleadings. The parties are immediate neighbours. There is a case under Section 498 A of the IPC filed by the respondent against the appellant. The Family Court also took note of the letters issued by the appellant to the respondent which are produced as Ext.A3 series. The contents of the letters also appear to probabilise the case of the respondent. As regards the marriage itself which took place on 18.4.1988, the Family Court took note of the evidence of PW2, apart from, of course, the evidence of the respondent herself. The marriage certificate itself was proved as Ext.A1. There is also the evidence of PW3. Ext.A2 is a jenm assignment deed executed by one Ozeer Ali to the parties in the Appeal. Therein, they are described as husband and wife. It is dated 26.12.1992. In the Counter, an attempt was made by the appellant to point out that he had not known about the document. The Family Court takes note of the deposition of RW2 who is the first wife of the appellant which MAT.APP.718/07 & RPFC.54/09 6 would show that the appellant was aware of Ext.A2 in 1992 itself. On a perusal of the evidence, the Family Court found that the marriage was indeed proved. 7. Contrary to the case pleaded by the appellant that K .P. Moidunni had expired in 2003, it is the admitted case that he had expired fifteen years ago, which would show that the case pleaded by the appellant about the death of Moidunni is clearly incorrect. The marriage in question was in 1988. There is no dispute that Moidunni has divorced the respondent. Of course, learned counsel for the appellant would contend that the exact date on which Moidunni divorced the respondent, is not known. But, having regard to the date available about the death of Moidunni and the admitted divorce by Moidunni of the marriage between him and the respondent, we do not think it is a fit case that we should find that the marriage was subsisting between Moidunni and the respondent, when the marriage between the appellant and the respondent took place. In this regard, it is for the appellant to establish by evidence that Moidunni and the MAT.APP.718/07 & RPFC.54/09 7 respondent were married and they were not divorced as on the date of marriage between the appellant and the respondent. We are not shown any material from which we could come to the conclusion that the admitted divorce between Moidunni and the respondent was after the date of the marriage between the appellant and the respondent. In so far as the appellant has not established that the divorce between Moidunni and the respondent took place only after the marriage between the appellant and the respondent, we are not inclined to take a different view from that taken by the Family Court that there was a marriage between the appellant and the respondent. The fact of marriage is seen proved by the deposition of Pws.1 to 3, besides Ext.A1 which is the marriage certificate produced and proved. The Family Court has chosen to derive support from their evidence and it had the opportunity of watching the demeanour of the witnesses also. Since the finding turns substantially on appreciation of oral evidence, as an Appellate Court, this Court would be slow to interfere with the findings MAT.APP.718/07 & RPFC.54/09 8 entered in this regard. 8. The further question which arises is as regards the quantum of maintenance. The Family Court has found that the appellant hails from an aristocratic family and is affluent. Admittedly, as is evident from the order passed in M.C.No.599/07, he was working in Bombay at the time when the question of past maintenance was considered. He is maintaining one family already. The amount of Rs.1,500/= cannot be found to be unreasonable. We also take note of the fact that the respondent is having only five cents of land. But, at the same time, we feel that the appellant need not be burdened with interest at the rate of nine per cent. We reduce the rate of interest from nine per cent to seven per cent. Subject to this Modification, the Appeal is meritless. Accordingly, we modify the order passed in O.P.No.408/06 and direct that the appellant will be liable to pay a sum of Rs.54,000/= (Rupees Fiftyfour Thousand) with interest at seven per cent from the date of filing of the Original Petition till the date of realisation with costs and MAT.APP.718/07 & RPFC.54/09 9 with a charge on the petition schedule property. R.P.F.C.NO.54 OF 2009 9. This is a Revision Petition carried against the order passed in M.C. No.599/07. That was a petition under Section 125 of the Code of Criminal Procedure between the same parties. In this case, there is slight enhancement by the Family Court, taking note of the fact that the appellant is working abroad. We do not see any reason as such to interfere with the said decision, either. However, while confirming the said decision and dismissing the Revision Petition, we make it clear that it will be open to the petitioner to approach the Family Court and plead changed circumstances and to seek variation of the order. Sd/= K.M. JOSEPH, JUDGE Sd/= P.Q. BARKATH ALI, kbk. JUDGE // True Copy // PS to Judge