IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Mat.Appeal.No. 72 of 2004() --------------------------- OP.235/2003 of FAMILY COURT, MANJERI .................... APPELLANT/RESPONDENT: ----------------------------------- PICHAN VEEDAN MOHAMED, AGED 38, S/O. KUNHIMU HAJI, POOLAKKALL HOUSE, KOONOORMADU, PALLIKKAL BAZAR POST. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): PETITIONER ------------------------- M.SAKEENA, AGED 26 YEARS, D/O. ABDULLAKUTTY, MUNDODAN HOUSE, KUNHALI SMARAKA ROAD, NEDIYIRUPPU AMSOM DESOM, P.O.KONDOTTY. ADVS. SRI.SAJU.S.A SRI.P.M.ZAFARULLAH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1496 OF 2004 IN MAT. APPEAL NO. 72 OF 2004. DISMISSED 6.1.2009 Sd/-(P.R. RAMAN, JUDGE) Sd/-(C.T. RAVIKUMAR, JUDGE) P.R. RAMAN & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- MAT. APPEAL NO. 72 OF 2004 --------------------------------------------------------- Dated this the 6th day of January, 2009 JUDGMENT Raman J. The appellant is the respondent in O.P. No.235 of 2003 on the file of the Family Court, Manjeri, a proceeding initiated by the wife, respondent herein, claiming both past and future maintenance and also for realisation of the amount alleged to be due and for other consequential reliefs. 2. As per the averments made in the petition filed by the respondent, the appellant married her on 28.7.1991 in accordance with Islamic rites and customs. On that day during the Nikah ceremony, an amount of Rs.1,00,000/- was paid to the appellant which was used by him for repairing the tarwad house. Out of 50 sovereigns of gold ornaments given to the respondent, 25 sovereigns were taken by the appellant for going abroad and the remaining 25 sovereigns were made use of for raising funds for construction of a house. No child was born in the wedlock. In the year 2000, the appellant took the respondent to his place Mat. Appeal No.72/2004 2 of work abroad and in 2002 they returned. Thereafter, he took her to her house and subsequently did not come to take her back. In the meanwhile, the appellant contracted a second marriage. Though the respondent also started living with him, she had to go back to her house on 17.4.2003 unable to hear the ill treatment. The respondent, therefore, claimed Rs.2,00,000/- towards the value of 50 sovereigns of gold ornaments and an amount of Rs.1,00,000/- said to have been obtained by the appellant. She also claimed Rs.6,000/- towards past maintenance for the period from 18.4.2003 to 17.6.2003 and also future maintenance at the rate of Rs.3,000/- per month. 3. In the counter statement filed by the appellant, he has denied the allegations. According to him, no ill treatment was meted out to the respondent. It is further averred that the respondent was subjected to treatment, but no child was born to them. The second marriage contracted by the appellant was with the consent of the respondent, that the second wife was living in her own house and the appellant used to visit her twice or thrice a week. According to the appellant, after the second marriage, the attitude of the respondent changed and she left his house as he did not agree to dissolve the marriage with the second wife. The appellant is employed in Saudi Arabia and is earning 800 Saudi Riyals as salary. He is Mat. Appeal No.72/2004 3 also undergoing treatment for heart ailment. The Family Court framed four issues for trial. Evidence in this case consists of the sworn in testimony of the petitioner examined as PW.1 and that of the respondent as RW.1. 4. The Family Court awarded Rs.1,500/- towards past maintenance with interest at the rate of 6% per annum from the date of the petition and Rs.850/- per month towards future maintenance. All other reliefs were declined. The appellant, aggrieved by the award granting maintenance, has preferred this appeal. 5. The point which arises for consideration is as to whether the respondent is entitled for the maintenance as awarded by the Family Court. 6. We have heard both sides. Admittedly, the appellant and respondent are husband and wife, that the appellant had contracted a second marriage and the respondent is living separate. Even though it is contended by the appellant that he had contracted the second marriage with the consent of the respondent, acceptable evidence in this regard by examining any independent witness has not been done. According to the appellant, the respondent is living away from him without any justifiable Mat. Appeal No.72/2004 4 cause and, therefore, she is not entitled for any maintenance. The very fact that the appellant had contracted a second marriage itself is a reasonable ground for the first wife to live separately unless it is established on evidence that the second marriage was contracted with the full consent of the first wife. That apart, the appellant's liability to maintain the first wife is not absolved on the mere pretext that she is living away from him. In this regard, the court below has found that the appellant had contracted a second marriage immediately after returning from abroad and he is living with his second wife. The case of the appellant that he contracted a second marriage with the consent of the respondent was not accepted by the court below in the absence of any evidence adduced by the appellant. The court below also found that the evidence of the appellant is suggestive of the fact that he was not willing to treat the respondent in equal terms with his second wife. In cross-examination also, the appellant stated that he was not willing to take another house for the separate residence of the respondent herein. The appellant admittedly was working abroad and according to the respondent he had received an amount of Rs.15,00,000/- as retirement benefits and is now doing trade in hill produce besides owning properties. Though this is denied by the appellant, the fact that he has got 38 cents of land with a house and another 2 1/2 cents of land with a building and that he was drawing 800 Saudi Riyals as salary are beyond Mat. Appeal No.72/2004 5 serious dispute. Though according to the appellant, the properties were sold to discharge the debts, no documentary evidence in this regard is produced. The contention of the appellant that he was receiving only 800 Saudi Riyals is also not supported by any documentary evidence. The court below in such circumstances assumed that the financial status of the appellant was much higher than what he claims to be. Even though the appellant would say that he had been undergoing treatment for some cardiac problem, no medical certificate is produced to prove the same. On a consideration of the totality of the circumstances as substantiated by the evidence on record, the court below came to the conclusion that the appellant is a man having sufficient means capable of paying maintenance to the respondent and awarded Rs.1,500/- towards past maintenance for the period from 18.4.2003 to 17.6.2003 as against a claim of Rs.6,000/- and Rs.850/- per month towards future maintenance. 7. The evidence as discussed by the court below in paragraph 10 of the judgment would clearly show the appellant's ability to pay maintenance. At any rate, if the appellant is incapable of maintaining his first wife, contracting a second marriage may not be justified. Admittedly, when he is maintaining his second wife, he cannot wash off his hands by saying that he is not capable of maintaining his first wife. Considering the Mat. Appeal No.72/2004 6 quantum of maintenance awarded by the Family Court, we cannot say that Rs.850/- per month is on a higher side. What is now awarded is only the minimum. The findings entered by the court below cannot be said to be perverse. We find no merit in the contentions raised in the appeal. The appeal is accordingly dismissed. However, in the circumstances of the case, there will be no order as to costs. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ Mat. Appeal No.72/2004 7 P.R. RAMAN & C.T. RAVIKUMAR, JJ. MAT.APPEAL NO.72/04 JUDGMENT 6th January, 2009