IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 RPFC.No. 326 of 2009() ---------------------- M.C.NO.298 OF 2006 OF FAMILY COURT, PALAKKAD REV.PETITIONER/PETITIONER --------------------------------------------- HAMSA, S/O.EBRAHIM @ IBRAHIMKUTTY, VAZHATHOPPIL VEETTIL, MANGALAM DESOM, LAKKIDI AMSOM, OTTAPALAM TALUK, PALAKKAD DIST. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENT(S): RESPONDENTS -------------------------- 1. NOORJAHAN, D/O.SAINABA UMMA, PULLIKKAL VEETTIL, EAST OTTAPALAM, OTTAPALAM AMSOM, OTTAPPALAM TALUK NOW RESIDING AT PULINCHODU, PLATHARA, CHUNANGAD PO, OTTAPPALAM PALAKKAD. 2. MUHAMMED GAFOOR, AGED 16 YEARS, (MINOR)S/O.NOORJAHAN, -D0- MINOR REP.BY GUARDIAN/MOTHER, THE FIRST RESPONDENT ADV. SHRI G.SREEKUMAR (CHELUR) THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28/08/2009, ALONG WITH RP(FC) NO.327/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P. (FC) Nos.326 of 2009 & 327 of 2009 -------------------------------------- Dated this the 28th day of August, 2009. ORDER Advocate Shri G.Sreekumar (Chelur) appears for the respondents. Heard both sides. 2. These revisions arise from the common order passed by the Family Court, Palakkad in M.C.Nos.294 of 2006 and 298 of 2006. As per a joint statement filed by the parties learned Judge of the Family Court ordered maintenance to respondents, wife and son in M.C.No.68 of 1995 at the rate of Rs.200/- and Rs.130/- respectively, per month. Respondents filed M.C.No. 294 of 2006 for enhancement of maintenance allowance already granted. Petitioner filed M.C.No.298 of 2006 for cancellation of the order of maintenance in M.C.No.68 of 1995 contending that he divorced respondent No.1 by pronouncing talaq on 6.7.1999 and in connection with that settled all claims of respondents under the provisions of Protection of Muslim Women’s (Rights on Divorce) Act (for short, “the Act”). Both sides adduced evidence. Court below was not impressed by the contentions of petitioner and dismissed M.C.No.298 of 2006. M.C.No.294 of 2006 was allowed and maintenance was enhanced to Rs.600/- and Rs.400/- respectively, per month. These orders are under challenge in these revisions at the instance of petitioner. It is contended by learned counsel RP(FC)Nos.326 & 327 of 2009 2 that there was settlement between the parties following which petitioner pronounced talaq on 6.7.1999 and an agreement was executed between the parties on 28.7.1999 as per which a sum of Rs.45,000/- was paid to respondent No.1 towards expenses during the period of idat, reasonable and fair provision for future maintenance and all other claims. Learned counsel submitted that the agreement could not be produced in the trial court and marked in evidence. Learned counsel seeks an opportunity to adduce further evidence in support of the contention. It is submitted by counsel for respondents that no such agreement has been executed , no such agreement is produced in the trial court and attempt of petitioner is to delay payment. It is also contended that there is no valid talaq pronouncement on respondent No.1 and hence respondent No.1 continued to be the legally wedded wife of the petitioner. 3. Learned counsel for petitioner has produced a photocopy of the agreement allegedly executed between petitioner and respondent No.1 where there is a reference to the settlement pleaded by petitioner. I am not going into the genuineness of the agreement in this proceeding for, the question raised for consideration here is whether petitioner should be given an opportunity to adduce further evidence. Having regard to the facts and circumstances of the case I am inclined to think that petitioner has to be given an opportunity to adduce further evidence. 4. Learned counsel for respondents submitted that petitioner has not RP(FC)Nos.326 & 327 of 2009 3 so far paid any amount by way of maintenance to the respondents and while allowing the request of the petitioner to adduce further evidence, the plight of the respondents has also to be borne in mind. There is no evidence before me to show that petitioner paid any maintenance allowance to the respondents. Hence while remitting the case for further evidence petitioner has to pay maintenance to the respondents. 5. In the facts and circumstances of the case I direct that petitioner has to pay maintenance as ordered in M.C.No.68 of 1995 right from the date fixed in that order till 31.8.2009. Petitioner shall continue to pay maintenance to the respondents at the aggregate rate of Rs.750/- per month from 1.9.2009 onwards until disposal of the proceeding in the court below. Resultantly, these revision petitions are allowed and the impugned orders are set aside and the matter is remitted to the court below for fresh consideration and disposal after giving opportunity to both sides to adduce further evidence on condition that petitioner deposited in the court below the amount of maintenance payable by him as per order in M.C.No.68 of 1995 and payable till 31.8.2009 within one month from this day. It is also directed that by way of interim maintenance petitioner shall deposit in the court below maintenance to the respondents at the aggregate sum of Rs. 750/- per month from 1.9.2009 onwards until disposal of the proceeding in the court below. It is made clear that if the amount payable till 31.8.2009 is not deposited by the RP(FC)Nos.326 & 327 of 2009 4 petitioner within the above said period, the revision petitions will stand dismissed in confirmation of the orders under challenge. The amount if any on deposit shall be released to the respondents. THOMAS P.JOSEPH, Judge. cks