IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Mat.Appeal.No. 123 of 2003(F) ----------------------------- OP.36/2003 of FAMILY COURT, MALAPPURAM .................... APPELLANT/PETITIONER: ------------------------------------ PALLIPATTU KADEEJA, D/O. ASSAINAR, CHENKUMBAT HOUSE, P.O. PAIYANANGADI, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN RESPONDENT: RESPONDENT: -------------------------- K. BEERAN, S/O. MOHAMMED, KALLADATH HOUSE, P.O. MEENADATHOOR, MUCHICKAL - TIRUR, MALAPPURAM DISTRICT. ADV. SRI.K.P.MUJEEB FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23/5/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== MAT. A. NO. 123 OF 2003 ============================ DATED THIS THE 23RD DAY OF MAY 2009 JUDGMENT Basant,J. Aggrieved by the rejection in part of her claim for maintenance part and future, the appellant/wife has preferred this appeal. 2. It is admitted that the appellant and the respondent were married. The appellant/wife asserted in the petition that the marriage was subsisting and that the respondent/husband employed abroad was committing breach of his duty to maintain her. Petition was filed on 18-1-2003. Maintenance for the past three years from 18-1-2000 till the date of the petition as also future maintenance was claimed at the rate of Rs.2000/- per mensem. The appellant was employed abroad and was earning a handsome income, it was asserted. 3. The respondent/husband entered appearance and MAT.A.123/2003 -2- resisted the claim. He contended that the marriage between the spouses had been dissolved with effect from 2-9-2000. According to him, intimation of divorce was given to the appellant/wife as also the local Juma Masjid Committee. He further contended that he was not having income as claimed. He admitted that he had married again and is maintaining such subsequent wife. He thus disputed the liability to pay any amount as maintenance. 4. The learned Judge of the Family Court on these contentions raised three issues appearing in paragraph 4 of the impugned judgment for consideration. There was only oral evidence of the claimant/wife as PW1 and the oral evidence of the respondent/husband as RW1. No other evidence was adduced . 5. The court below found that the appellant was entitled for maintenance at the rate of Rs.1,000/- per mensem from 18-1-2000 to 2-9-2000. In short the court found that there was a valid dissolution of marriage on 2-9-2000. Hence, the respondent/husband was not liable to pay any maintenance MAT.A.123/2003 -3- thereafter, it was concluded. To arrive at this conclusion, though no better evidence was produced by the respondent, the learned Judge of the Family Court appears to have placed reliance on certain statements made by the claimant-wife when she was cross examined as PW1. Accordingly, the learned Judge proceeded to pass the impugned order. 6. Before us, the learned counsel for the appellant-wife and the respondent-husband have advanced their arguments. The learned counsel for the appellant-wife assails the impugned order on the following grounds: 1) The court below erred grossly in coming to the conclusion that the marital tie was dissolved on 2-9-2000. 2) At any rate the quantum of maintenance awarded is inadequate. 7. It is the specific contention of the appellant-claimant that the marital tie was subsisting on the date of the petition, i.e. 18-1-2003. There is no plea that the marital tie had been dissolved subsequent to the filing of the petition. A contention was raised that long prior to the petition, the marital tie had been MAT.A.123/2003 -4- dissolved on 2-9-2000. 8. The marriage is admitted. The wife asserts that the marital tie subsists on the date of the petition and is not dissolved. The respondent-husband contends that there has been a valid divorce. Needless to say, it is fundamental and elementary that the burden is on the respondent-husband to satisfactorily establish that the marital tie has, in fact, been dissolved and that such dissolution is valid and legal. 9. The claimant-wife asserts that the marital tie has not been dissolved. She had stated so clearly in her chief examination. The husband-respondent, who contends that the marital tie has been dissolved, has not chosen to produce copy of the letter of divorce(talak) or anything to show that such letter of talak had been communicated to the wife. This is indeed of crucial vital significance. During the course of examination of the claimant-wife/PW1, there is not even a specific suggestion that intimation of divorce was issued to her or that she had received and acknowledged the same. This to our mind is of crucial significance. MAT.A.123/2003 -5- 10. Unilateral divorce, in spite of the progressive winds of change that blow in modern societies may still be valid under Mohammedan law. But it is only reasonable to expect a husband pleading such divorce to establish such divorce satisfactorily. He must show that he had pronounced the talak and intimated the talak to his wife. There is not a scintilla of evidence to show that talak was communicated to the wife. The court below placed reliance on certain alleged admissions made by the wife in the course of cross examination. In the first line in cross examination, the wife stated that the husband had informed the Mosque that there was a divorce effected on 2-9-2000. Later, in the course of cross examination, she stated that after the divorce she had not gone to the house of the husband. From these two statements made by her in the cross examination, the learned Judge of the Family Court came to the conclusion that the appellant had admitted the divorce and that such divorce is valid. 11. We are unable to agree with the view taken by the learned Judge. These statements can only be said to refer to the MAT.A.123/2003 -6- alleged divorce claimed by the husband. It would be puerile, harsh and insensitive to come to the conclusion on the basis of these lines in cross examination that the appellant had admitted the fact of divorce or the legality of the same. We cannot lose sight of the fact that in chief examination, she had specifically asserted that the marital tie is subsisting even now. The husband had contended that he had effected a divorce. These statements cannot, in these circumstances, be reckoned as admissions at all. They can only be said to refer to the alleged divorce as contended by the husband. These statements made in cross examination, reasonably read, cannot be reckoned as admission of any divorce in fact as the validity of such divorce. The argument that there was a divorce as alleged was raised before the Masjid Committee also and after the date on which the alleged divorce took place, there bas been no cohabitation. This is all what these statements mean, read in the context and in the nature of the contentions raised and the other evidence placed before court. These statements by PW1 cannot be said to absolve the husband of his obligation to prove divorce to the MAT.A.123/2003 -7- satisfaction of the court. 12. When the husband was examined as RW1, he set up a contention that the divorce have been effected on 2-9-2000 and intimation was sent to the Mosque as also the wife. Such a specific suggestion was not even thrown at the wife that divorce was communicated to her. As noted earlier no evidence is produced to prove such pronouncement or communication of the talak. In the course of cross examination a specific suggestion was thrown at the husband/RW1 that he was setting up a plea of divorce only to avoid the obligation to pay maintenance. Semantic inadequacy notwithstanding, it must certainly be held that there was a specific denial and not an admission of the divorce or its validity. The learned Judge of the Family Court, according to us, erred grossly and totally in jumping to the conclusion that there was an admission about the fact of divorce or the validity of the same. The respondent must be held to have totally and completely failed to his attempt to prove the alleged theory of the fact of validity of divorce. 13. The learned counsel for the appellant submits that even MAT.A.123/2003 -8- assuming that there has been pronouncement of talak, such pronouncement cannot be held to be valid in the light of the decisions in Shamim Ara v. State of U.P. [2002(3) KLT 537 (SC)] and Ummer Farooque v. Naseema (2005(4) KLT 565). It is unnecessary to delve deeper into that controversy as we have chosen to take the view that the divorce as required under law has not been established at all. However, we may say that we find force in the submission that in the total absence of even a plea that any mediation/arbitration had preceded the alleged divorce, the dictum in Shamim Ara's case (supra) will have to be applied directly and the alleged divorce even if proved on facts, has to be held to be not valid under law. 14. Counsel for the respondent submits that the respondent had contended that the appellant was mentally insane and that is a valid reason for divorce and in such circumstances, even without mediation/arbitration, it must be held that the divorce is valid notwithstanding the dictum in Shamim Ara and Ummar Farooque (supra). We are unable to agree. There is not a MAT.A.123/2003 -9- scintilla of valid evidence even remotely to suggest that the appellant-wife was suffering from any mental ailment in order to show that divorce was effected on that ground. We find force in the contention of the learned counsel for the appellant that even if divorce were pronounced by the respondent, it must be held to be insufficient to constitute a valid divorce in accordance with law. 15. The court below directed payment of an amount of Rs.1,000/- per mensem as maintenance against the claim of Rs.2,000/- per mensem. There are indications to show that the respondent husband had returned to India and does not continue to be employed abroad. He is bound to maintain his wife by working and earning his livelihood. There is nothing to show that he does not have the health and the faculties to work and earn his livelihood. If that can be reckoned as an indication of his financial affluence, it must be seen that he has remarried and has voluntarily undertaken the responsibility to maintain yet another wife after the estrangement of his relationship with the appellant. That gives us an indication of his own assessment of his financial MAT.A.123/2003 -10- capacity. In any view of the matter, the amount of maintenance awarded at the rate of Rs.1,000/- per mensem cannot be held to be excessive. 16. Though the appellant-wife contends that the amount of maintenance awarded is inadequate, in the facts and circumstances of the case and in the light of the unambiguous admission that the husband had returned to India and is without any specific employment, that contention cannot be accepted. Award of maintenance at the rate of Rs.1,000/- per mensem for the period from 18.1.2000 to 2.9.2000 is found to be absolutely justified. We are of the opinion that the appellant is entitled for maintenance beyond 2.9.2000 till the date of the petition and for future maintenance thereafter at the same rate. 17. No other contentions are raised. The appeal succeeds to the above extent. In the result a) the appeal is allowed. b) The impugned order is modified and the respondent is directed to pay maintenance at the rate of Rs.1,000/- per MAT.A.123/2003 -11- mensem from 18.1.2000 to 18.1.2003 and thereafter until further orders at the rate of Rs.1,000/- per mensem. c) The appellant shall also be entitled to interest at the rate of 6% per annum from the dates on which the amounts fall due till the date of payment. She shall also be entitled to the costs throughout. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.