IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 RPFC.NO. 251 OF 2009() ----------------------------------- MC.665/2007 OF FAMILY COURT, MALAPPURAM .................... REVN.PETITIONER/RESPONDENT ---------------------------------------------- NEDUMKANDATHIL MUSTHAFA,S/O.N.K.AHAMMAD, MAJEEDU KUNDU,KADAMPUZHA (VIA) P.O., KAREKKAD-676553,MALAPPURAM DISTRICT. BY ADV. SRI.T.K.SAIDALIKUTTY RESPONDENT(S): PETITIONERS --------------------------------------------- 1. KADEEJA,27 YEARS,D/O.KARIMBANAKKAL AHAMMAD,KARIMBANAKKAL (H),MARAKKARA AMSOM,DESOM, P.O.KAREKKAD,TIRUR TALUK,KADAMPUZHA. 2. MUHAMMAD SHERIF,12 YEARS, S/O.NEDUMKANDATHIL MUSTHAFA (MINOR), 3. FATHIMA SABANA,2 YEARS, D/O.NEDUMKANDATHIL MUSTHAFA (MINOR), MINOR RESPONDENTS ARE REP.BY GUARDIAN MOTHER FIRST RESPONDENT. 4. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P. (FC) NO.251 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of July, 2009 O R D E R -------------- This revision is in challenge of the order passed by learned Judge of the Family Court, Malappuram in M.C. No.665 of 2007 in favour of respondent Nos.1 and 3, wife and child of petitioner. Respondent Nos.1 to 3 claimed maintenance from petitioner alleging that he subjected respondent No.1 to cruelty, neglected and refused to maintain the respondents. They also alleged that petitioner is working abroad earning substantial income and has landed properties as well. Petitioner entered appearance through his father and Power of Attorney holder and opposed the application contending that respondent No.2, son of petitioner is staying with him and that petitioner has divorced respondent No.1. Petitioner denied that he is having any job or income as pleaded by respondent No.1. Respondent gave evidence as P.W.1 and proved Ext.P1 series. Father and Power of Attorney holder of petitioner gave evidence as R.W.2. He also examined R.Ws.1, 3 and 4 to prove the alleged Talaq. Court below found that there is no evidence to show that Talaq was actually pronounced and it was conveyed to respondent No.1. At any rate, the R.P(FC) No.251 of 2009 -: 2 :- essential requirements of pronouncing Talaq were not complied by petitioner. Court below found that since respondent No.2 is staying with petitioner, he is not entitled to get maintenance. For respondent Nos.1 and 3 maintenance was awarded at the rate of Rs.2,000/- and Rs.750/- per month, respectively. That order is under challenge in this revision. It is contended by learned counsel for petitioner that court below went wrong in holding against Talaq pronounced by petitioner. Further contention is that amount awarded to respondent Nos.1 and 3 is excessive. 2. So far as the contention regarding pronouncement of Talaq is concerned it is stated that petitioner while abroad pronounced Talaq of respondent No.1. R.W.2, father and Power of Attorney holder of petitioner was not able to give any satisfactory evidence regarding that. At one stage he stated that he had not heard petitioner pronouncing Talaq of respondent No.1 but at another stage he stated that he heard that. Evidence of R.W.2 was not accepted by the learned Judge and, rightly. R.W.1, Secretary of Masjid Committee was examined to prove Exts.X1 and X2. Exhibit X1 is a letter and Ext.X2 is the Nikkah register dated 12.10.1995. R.W.1 was also sure that the alleged Talaq was not communicated to respondent No.1. Nor did he enquire about the contents of Ext.X1. Learned Judge observed from the evidence that essential requirements of R.P(FC) No.251 of 2009 -: 3 :- pronouncement of a valid Talaq as laid down by the Apex Court in Shamin Ara v. State of Uttar Pradesh (2002 (3) KLT 537) are not complied with and hence petitioner cannot refuse to pay maintenance to the wife under his claim of pronouncement of Talaq. Having heard counsel for petitioner and on going through the order under challenge I find no reason to interfere with that finding. 3. What remained for consideration is whether maintenance awarded to respondent Nos.1 and 3 is excessive or beyond the capacity of petitioner. It is not disputed that petitioner is working abroad since 12 years before filing of application in the court below. It has also come in evidence that he holds a NRI account and has purchased 16½ cents of land in the year 2006. Some of his brothers are also working abroad. Evidence shows that petitioner hails from reasonably good social and financial background. There is no acceptable evidence as to the nature of employment and income of petitioner abroad. Respondent No.1 cannot be found fault with for not proving the same since evidence regarding that ought to have came from petitioner himself. Petitioner did not produce sufficient evidence to show what exactly is the nature of his employment abroad and income therefrom. He is otherwise capable of earning. Hence I am not inclined to think that the aggregate sum of Rs.2,750/- R.P(FC) No.251 of 2009 -: 4 :- awarded as maintenance is beyond his paying capacity requiring interference in revision. 4. On the question whether maintenance awarded is excessive, it is seen from Ext.P1 series that respondent No.1 is undergoing continuous treatment in connection with some mental infirmity. She was aged 27 years at the time of filing petition. Maintenance awarded must take care of basic needs like food, shelter, clothing, medicines, and all such other requirements. What is awarded to respondent No.3, daughter aged 2 years at the time of filing petition is only Rs.750/-. Even on the aggregate what petitioner has to spend out from his pocket for maintenance of his wife and daughter is less than Rs.100/- per day. The amount awarded is not excessive requiring interference in revision by this Court at the instance of petitioner. There is no merit in the revision. Revision fails. It is dismissed. THOMAS P.JOSEPH, JUDGE. vsv