IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 RPFC.No. 395 of 2007() ---------------------- MC.120/2007 of FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER/RESPONDENT -------------------- RAFEEQ, S/O.HAMZA, NALAKATH HOUSE, PATTAPARAMB, CHEMMANKADAVU, MALAPPURAM (DT), BY POWER OF ATTORNEY HOLDER MUHAMMED @ KUTTIPPA, S/O.PUZHAKKATHODI HUSSANKUTTY, MUNDUPARAMBA, KEEZHUMURI DESOM, MALAPPURAM AMSOM, MALAPPURAM DT. BY ADV. SRI.T.K.AJITH KUMAR SRI.P.VINODKUMAR RESPONDENT(S):PETITIONERS --------------- 1. ASHIDA.K, D/O.AZEEZ, KAVUNGAL HOUSE, MAKADA ROAD, MAKKARAPARAMBA, MALAPPURAM DT. 2. HIBA, 3 ½ YEARS (MINOR), D/O.RAFEEQ, (MINOR IS REPRESENTED BY GUARDIAN, MOTHER-1ST RESPONDENT) ADV. SRI.SOJAN MICHEAL FOR R.1,2 SRI.V.S.BOBAN FOR R.1,2 SRI.P.S.PRADEEP FOR R.1,2 SRI.SHOJAN JACOB FOR R.1,2 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.C. No.395 of 2007 ------------------------------------- Dated this the 3rd day of February, 2009 ORDER In this revision petition the petitioner assails an order under Section 125 Cr.P.C obliging him to pay maintenance to his wife and child @ Rs.2,500/- and Rs.1,200/- per mensem respectively. 2. Marriage and paternity are admitted. But a contention was raised that there was a divorce in accordance with law. The wife disputed that assertion and took the stand that there has been no valid divorce and she continues to be the legally wedded wife of the petitioner herein. Parties went to trial on those contentions. The claimant/wife examined herself as PW1. The petitioner was not available to be examined. Instead, he examined a witness as RW1. Exts.B1 to B3 were marked. Ext.B1 is a letter under which the unilateral talaq pronounced by the petitioner was conveyed to the claimant/wife. Ext.B2 is an acknowledgment of that letter by the wife. Ext.B3 is a letter from the Secretary of the Mahal Committee to confirm that the petitioner had claimed/reported that there has been a divorce. R.P.F.C. No.395 of 2007 2 3. The learned Judge of the Family Court considered the question whether there is a valid divorce and an end to the liability to pay maintenance under Section 125 Cr.P.C. The learned Judge took note of the decision in Shamim Ara v. State of U.P [2002(3) KLT 537(S.C)]. The learned Judge found that no valid reason is even advanced in the letter of talaq. The learned Judge further found that no arbitration/mediation at least to settle the disputes had preceded the unilateral pronouncement of talaq under Ext.B1. In these circumstances following the dictum in Shamim Ara v. State of U.P (supra), it was held that the alleged divorce is not a valid divorce under law and cannot be countenanced as a circumstance putting to an end the liability of the husband to pay maintenance under Section 125 Cr.P.C. Admittedly the petitioner is employed abroad and the quantum of maintenance was fixed at the rates mentioned above. 4. The petitioner claims to be aggrieved by the impugned order. What is the grievance ? The counsel contends that the disputed questions of status - as to whether there was a valid divorce, ought not to have been considered by the Family Court in exercise of its jurisdiction under Section 125 Cr.P.C. This contention cannot obviously be accepted. Incidental to its R.P.F.C. No.395 of 2007 3 jurisdiction to decide whether a direction under Section 125 Cr.P.C to pay maintenance can or ought to be issued, the Family Court certainly has such obligation/jurisdiction to consider the question of status of the parties. Of course final and authentic pronouncement on the question of disputed status is to be made by civil courts in exercise of their exhaustive jurisdiction under the civil law. But for the purpose of Section 125 Cr.P.C, the court under Section 125 Cr.P.C has the jurisdictional competence to come to findings on the disputed status of the parties. That position of law is too well established to justify a challenge against the same now. It is of course trite that finding of the court under Section 125 Cr.P.C may at worst only cast a shadow on the disputed status of the parties which shadow can be removed by initiation of appropriate proceedings before the civil court (or the Family Court in exercise of its civil jurisdiction). But at any rate, there is no merit in the contention that for the purpose of Section 125 Cr.P.C a finding on the disputed questions of status cannot be rendered by the Family Court under Section 125 Cr.P.C. 5. In the light of the decision in Shamim Ara v. State of U.P the finding of the Family Court that there is no valid R.P.F.C. No.395 of 2007 4 divorce and the marital tie continues without interruption does appear to me to be absolutely correct, valid, just and fair. No interference is warranted. 6. Coming to the question of quantum, on the materials presently available and taking note of the undisputed circumstance that the petitioner is employed abroad, I am satisfied that the quantum of maintenance fixed does not also warrant interference invoking the revisional jurisdiction of superintendence and correction. 7. This R.P.F.C is accordingly dismissed. (R.BASANT, JUDGE) rtr/-