IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 MFA.No. 1293 of 2002() ---------------------- OP.48/2000 of FAMILY COURT, MANJERI .................... APPELLANT: RESPONDENT: ---------------------- THARAYIL ALI, AGED 42 YEARS, S/O. MOIDEEN, THARAYIL HOUSE, P.O.PONMUNDAM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS: PETITIONERS: ------------------------- 1. NARANGAVIL CHAKKUTTIKKAL RYHANATH, D/O. KUNHIMUHAMMED, AGED 25 YEARS, P.O. KAVAPURA, TIRUR TALUK. 2. RASHIDA, AGED 9 YEARS, MINOR. 3. RAJILA, AGED 8 YEARS, MINOR. 4. RAHIBA, AGED 4 YEARS, MINOR. . MINOR PETITIONERS ARE REPRESENTED BY GUARDIAN, MOTHER THE 1ST RESPONDENT. BY ADV. SRI.A.KRISHNAN FOR R1 TO 4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------- M.F.A. NO.1293 OF 2002 ---------------------------------------------- Dated 18th June, 2008. J U D G M E N T Harun-Ul-Rashid, J. The appeal is directed against the judgment dated 4.4.2002 in O.P.No.48/2000 on the file of the Family Court, Manjeri. The appellant is the respondent in the said original petition. The parties are referred to as the petitioners 1 to 4 and the respondent as in the original petition. 2. The first petitioner is the wife of the respondent and the petitioners 2, 3 and 4 are their minor children. The case set up by the petitioners is that the marriage between the first petitioner and the respondent was solemnized on 7.7.1991. Petitioners 2 to 4 and Rabiya, who is not a party herein are the children born in that wed-lock. It is the further case of the first petitioner that at the time of marriage, she was given 25 sovereigns of gold and that the entire gold ornaments were misappropriated by her husband within one year of the marriage. It is her case that Rs.25,000/- given as gift by her father was also taken by her husband. The petitioner further submitted that the respondent is regularly ill-treating her both physically and MFA NO.1293/02 2 mentally. Since she was unable to co-habit with him, she was forced to leave the matrimonial home and live separately from May, 1997. Therefore, maintenance is claimed at the rate of Rs.1,000/- to the first petitioner and Rs.750/- per month to the petitioners 2 to 4. 3. The respondent in the counter statement denied the misappropriation of gold and money. He also denied the paternity of the 4th petitioner. It is alleged that the first petitioner used to have extra marital relationship with another man and when the same was found out, she left the matrimonial home along with her two children. Since her leaving the matrimonial home is for the above said reason, she is not entitled to claim maintenance from him. According to him, he is getting a monthly salary of Rs.1,250/- and he has to maintain his elder child Rabia and also the second wife and child. 4. The trial court considered the evidence in detail. The first petitioner was examined as PW1. On the side of the respondent, RW1 to RW3 were examined. It is not disputed that the marriage between the parties was solemnized on 7.7.1991. Petitioners 2 and 3 are admittedly the children born to the respondent in the first petitioner. The trial court found that the evidence of the respondent regarding his contentions in the MFA NO.1293/02 3 counter statement is very vague and not convincing. The evidence tendered by RWs.2 and 3 in support of his contention regarding illegal relationship with one Mustafa is also not proved. It appears to the trial court that the case set up alleging illegal relationship is a false-one foisted to escape from the liability to pay maintenance. The court below also noted the inconsistency in the evidence of the respondent and RW2. The court below held that the evidence of RW3 is also not inspiring. On the basis of the discussion of the evidence on record, the trial court came to the conclusion that the first petitioner was able to prove that she left the matrimonial home for the reasons stated in the original petition and that the case set up by the respondent in his counter statement stands unproved. The trial court also examined the contention that the 4th petitioner minor child is not born out of the wed-lock between the first petitioner and the respondent. The trial court held that there is no evidence available in this regard apart from the interested version of the respondent and his constant companion, RW2. The court refused to believe the version of RWs.1 and 2 and held that the respondent failed to discharge the burden of rebutting the presumption available to the first petitioner under Section 112 of the Indian Evidence Act. Regarding the quantum of maintenance, MFA NO.1293/02 4 though the claim was for Rs.1,000/- and Rs.750/- respectively to the first petitioner and petitioners 2 to 4, considering the income of the first respondent as a driver, the court fixed the maintenance amount due to the petitioners at the rate of Rs.200/- each. 5. The finding recorded by the trial court as to whether the first petitioner and her children are entitled to maintenance and the quantum fixed by the court below are just and reasonable. The maintenance is awarded at the rate of Rs.200/- each, touching the bottom level. We find no reason to interfere with the findings entered by the court below and the quantum fixed by the court below. There is no merit in the appeal. Accordingly, the appeal is dismissed. No order as to costs. KURIAN JOSEPH, JUDGE. HARUN-UL-RASHID, JUDGE. tgs KURIAN JOSEPH & HARUN-UL-RASHID, JJ ---------------------------------------------- M.F.A. NO.1293 OF 2002 ---------------------------------------------- J U D G M E N T Dated 18th June, 2008.