IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 RPFC.No. 42 of 2011() -------------------------- MC.218/2010 of FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER/RESPONDENT --------------------------------------------- KOLKALATHIL BASHEER, S/O. MUHAMMED, AGED 36 YEARS, KAPPU POORODUKKUNNU, THELAKKADU POST, PATTIKKAD VIA, MALAPPURAM DIST. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENT(S): 1ST PETITIONER ----------------------------------------- PARAPPURATH RASEENA, D/O. ABOOBACKER, MELKULANGARA, THELAKKAD, PATTIKKAD VIA. MALAPPURAM DISTRICT. ADV. SRI.P.VENUGOPAL (1086/92) THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/08/2011, THE COURT ON 29/08/2011 PASSED THE FOLLOWING: svs R.P.(FC). NO.42/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1:COPY OF THE ORDER AND JOINT PETITION DATED 03/07/2009 IN O.P. NO.151/2009. ANNEXURE A2:COPY OF THE ORDER DATED 03/07/2009 AND JOINT PETITION IN M.C. MO.110/2009. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE. svs S.S.SATHEESACHANDRAN, J -------------------------------------- R.P(F.C). No.42 OF 2011 ----------------------------------------- Dated this the 29th day of August 2011 ORDER The respondent in M.C No.218/2010, a proceeding under Section 125 of the Code of Criminal Procedure, is the revision petitioner. The above petition was filed by his divorced wife claiming maintenance for her and two minor children, conceding another child born to the spouses is under his custody and also maintained by him. The claim for maintenance as above was considered with another petition filed by her seeking past maintenance. The original petition moved for claiming past maintenance and also the claim made for maintenance of the children were turned down under the common order passed by the learned Judge, Family Court, Malapuram. Claim of maintenance by the divorced wife, fixing an amount of Rs.2,000/-, per month alone was granted, partly allowing the aforesaid M.C. The legality, propriety and correctness of the aforesaid order awarding maintenance to the divorced wife is challenged in the revision by her former husband. R.P.F.C. No.42 OF 2011 2 2. Previously, the wife had commenced a proceeding for claiming maintenance for herself and also for a child, who alone was then under her custody, and while that claim was pending consideration with another O.P moved by her setting forth other claims for refund of gold ornaments, dowry etc., the parties entered into an agreement by which the revision petitioner, husband, agreed to provide maintenance at the rate of Rs.500/- to the child involved in the proceedings, and the respondent/wife gave up her claim for maintenance on the terms settled with the husband that if a sum of Rs.1,40,000/- is paid by her, he would execute a sale deed in her favour, in respect of a property which was purchased in their joint names, is not under dispute. In view of the settlement as aforesaid, giving up of the claim of maintenance by the wife, though the terms under the settlement over the execution of the sale deed has not been, admittedly, fulfilled, for which blame is imputed on the wife for nonpayment of the sum agreed, the wife is not entitled to claim any maintenance from the husband, and, the awarding of maintenance under the impugned order is, therefore, improper and unsustainable under law, is the submission of the learned counsel for the husband. Photo copies of Exts.B1 and B1(a), the joint statement filed by the parties in the previous proceedings before the Family Court, R.P.F.C. No.42 OF 2011 3 Malappuram, one of which related to the claim of the wife along with a child for maintenance from the husband as M.C No.110/2009, were handed over to me by the learned counsel for the revision petitioner/husband, for perusal. Going through those documents and also the order impugned in the revision passed by the learned Judge, Family Court, I find no impropriety or illegality in the awarding of maintenance to the wife upholding her claim thereof against her former husband – the revision petitioner. She gave up the previous proceeding on an agreement that the husband would execute a sale deed, collecting the amount fixed, in respect of a property which, admittedly, stood in the joint names of both the parties. Even assuming that there was default on her part to pay the sum agreed for completion of the sale, the remedy of the husband is to enforce that agreement by taking appropriate steps as provided by law, and it cannot be set up as a ground to deny her maintenance, which he is statutorily bound if she is unable to maintain herself. She gave up her previous claim on a settlement effected by the parties is not a ground to defeat her entitlement to claim maintenance, when the terms of the settlement itself have not been fulfilled, whoever be the defaulting party thereof. R.P.F.C. No.42 OF 2011 4 3. The only question then to be looked into is whether there is neglect to maintain, and also the quantum of maintenance fixed and awarded in the case. The respondent is the divorced wife and she is not possessed of means for sustenance and she has been neglected to be maintained by the revision petitioner, her former husband, on the materials tendered in the case, was accepted by the learned Judge, Family Court; nothing has been brought to my notice to show that the conclusion so formed suffers from any infirmity. The revision petitioner/husband has resisted the claim contending that he has two other wives with his present wife now carrying, and apart from maintaining the above said two wives he has to look after his parents also. Though he has contended that he is only a coolie, his own evidence as RW1 indicated that he is wellversed in carrying out different types of work including putting of 'panthals', giving credence to the case of the divorced wife that he is a 'shamiana worker'. He had been previously working in a gulf country for a period of four years is also borne out by his evidence before the court. It was in that back drop, considering the needs of the divorced wife also, the court below has fixed Rs.2,000/- as monthly maintenance payable to her from the former husband, the revision petitioner. Income potentiality of the petitioner to provide the R.P.F.C. No.42 OF 2011 5 quantum of maintenance fixed to his divorced wife, having regard to his capability to do different works, particularly that he was employed in a gulf country for a period of four years, as admitted by him in his evidence, need not at all be doubted. I do not find any impropriety in the quantum of maintenance fixed by the court below, thus, partly allowing the claim to the respondent/divorced wife. There is no merit in the revision, and it is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge