IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Mat.Appeal.No. 200 of 2009() ---------------------------- OP.758/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): RESPONDENT ------------------------- ASHRAF ANKATHIL, 31 YEARS, S/O.ALIKUTTY APPADA, ANKATHIL HOUSE, OZHOOR AMSOM, ERANALOOR DESOM, TIRUR TALUK, MALAPPURAM, REP.BY POWER OF ATTORNEY HOLDER THITHEEMU, RESIDING DO. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): PETITIONER ------------------------- SALEENA, 29 YEARS, D/O.MUHAMMED KUTTY, NECHIKKATTU VADUTHALA, NANNAMBRA AMSOM DESOM, THEYYALA, NEAR S.M.U.P.SCHOOL, TANUR POLICE STATION, THIRURANGADI. ADV. SRI.VINOD VALLIKAPPAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/10/2009, ALONG WITH MA NO. 202 OF 2009 RPFC NO. 94 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 ------------------------------------------------- Dated this the 7th day of October, 2009 JUDGMENT Basant,J. These appeals and revision petition arise from a common order passed by the Family Court, Malappuram. By the impugned order, the appellant/husband was directed to pay past maintenance for a period of two months to his wife as also two minor children at the rate of Rs.2,000/-, Rs.700/- and Rs.500/- per mensem respectively. Past maintenance was awarded for a period of two months. The total amount comes to Rs.6,400/-, though erroneously in the operative portion of the impugned order, it is referred to as Rs.64,000/-. All parties are in agreement that only an amount of Rs.6,400/- is due as past maintenance under the impugned order. Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 2 :- 2. The claimant/wife had claimed return of an amount of Rs.2 lakhs which was allegedly paid to the appellant/husband by her and her father. She had also claimed return of gold ornaments belonging to her which were allegedly in the possession of the appellant/husband. The court below had directed return of only an amount of Rs.2 lakhs and the claim for return of gold ornaments was rejected by the court below. Rejection of the said claim has now become final without challenge. 3. The eldest child Uvaise was allegedly living with the mother of the child. After the relationship between the parties got strained, the appellant had filed C.M.P.No.1850/08 before the learned JMFC-I, Perinthalmanna, alleging that the child was wrongfully confined by the claimant/wife and her father and the learned Magistrate by Ext.A1 order had dismissed the said petition holding that the child is not wrongfully confined by respondents 1 and 2 therein. The wife contended that after Ext.A1 order the appellant/husband had forcibly taken away the eldest child. She claimed that the child may be returned to her custody. Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 3 :- 4. The wife also staked a claim for maintenance for herself and all the three children under Sec.125 Cr.P.C. According to her, she was residing along with her two younger children; whereas the eldest child was admitted to a school and he was continuing his education there. That the appellant/husband was making payment to the school for such an education/residence was not denied. That eldest child used to come to the house of its mother/wife and maintenance was claimed for him also in the petition under Sec.125 Cr.P.C. 5. The appellant/husband resisted all the three proceedings. He contended that he has divorced his wife. He contended that she was leading an immoral life. According to him, he was entitled to the custody of the eldest child. He was looking after the said child. He has put the child in a boarding school and is meeting his expenses. In these circumstances, she contended that the wife is not entitled to get the custody of the eldest child. He further contended that he is not liable to pay past or future maintenance. According to him, he had divorced his wife. She was leading an immoral life and, in these circumstances, she is not entitled to claim maintenance. Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 4 :- 6. Parties went to trial on these contentions. On the side of the claimants, the wife examined herself as P.W.1 and her father as P.W.2. On the side of the appellant/husband, his mother/Power-of-Attorney holder was examined as R.W.1. Exts.A1 to A3 were marked on the side of the claimants; whereas Exts.B1 to B10 were marked on the side of the appellants herein. 7. The court below, on an anxious consideration of all the relevant circumstances, came to the conclusion that the wife and two younger children are entitled for past maintenance at the rate of Rs.2,000/-, Rs.700/- and Rs.500/- per mensem respectively. The court below further found that the wife is entitled to custody of the eldest minor child. The court below also came to the conclusion that an amount of Rs.2 lakhs is liable to be returned by the appellant/husband to his wife. The court below further found that all the claimants are entitled to future maintenance under Sec.125 Cr.P.C. at the rate of Rs.2,000/-, Rs.500/-, Rs.700/- and Rs.500/- per mensem respectively. 8. The appellant claims to be aggrieved by the impugned order. The learned counsel have advanced their arguments before us. The learned counsel for the appellants assails the Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 5 :- impugned order on the following grounds: (1) The court below erred in coming to the conclusion that the wife is entitled for past and future maintenance. (2) The court below erred in coming to the conclusion that an amount of Rs.2 lakhs is liable to be returned by the appellant to the claimant/wife. (3) The court below erred in coming to the conclusion that the eldest child who was being looked after by him is entitled maintenance at the rate of Rs.500/- per mensem. The question of maintenance awarded to the claimants is, at any rate, excessive. (4) The court below erred in coming to the conclusion that the wife is entitled to the custody of the eldest male child. 9. Ground No.1: The claim for maintenance of the claimant/wife is resisted on two grounds. First of all, it is contended that she is no more a wife as she has been divorced by pronouncement of Talaq. No semblance of evidence adduced to show that there has been a valid Talaq. After the decision in Shamim Ara v. State of U.P. (2002 (3) KLT 537 (SC)), the husband/appellant herein is bound to adduce satisfactory Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 6 :- evidence of divorce in terms of the said decision. In the total absence of any such evidence, we concur with the conclusion of the court below that there is nothing to show that a valid divorce by pronouncement of Talaq had taken place in accordance with the Muslim Personal Law. The contention that the wife has already been divorced was rightly found against by the court below. 10. Secondly, it is contended that the wife is leading an unchaste life. Except some publications in newspapers, absolutely no satisfactory evidence is tendered in support this assertion. Needless to say, the said plea has not been established at all. To resist the claim for maintenance of the wife under Sec.125 Cr.P.C. it is incumbent on the husband to prove that the wife is living in adultery. Such plea has not been specifically raised and there is not a scintilla of evidence in support of such contention. The latter contention raised to resist the claim for past and future maintenance of the wife, that she is leading a unchaste life was also rightly found against by the court below. The challenge on this ground does, in these circumstances, fail. Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 7 :- 11. Ground No.2: The court below relying on the evidence of P.Ws.1 and 2 and the total absence of any satisfactory rebuttal evidence came to the conclusion that it is safe to conclude that the appellant/husband is liable to return an amount of Rs.2 lakhs to his wife. The court felt that Ext.A3 though it does not strictly afford corroborative evidence, indicates the acceptability of the evidence of P.Ws.1 and 2. Our attention has been drawn to Ext.A3 that only shows that there was withdrawal of an amount of Rs.50,000/- on 29/7/2000. Much support cannot, in these circumstances, be drawn from Ext.A3 for the oral evidence of P.Ws.1 and 2. But still we do note that there is no rebuttal evidence adduced and the oral evidence of P.Ws.1 and 2 rhyme well with probabilities. At any rate, invoking the appellate jurisdiction under Sec.19 of the Family Courts Act, we are not persuaded to reject the evidence of P.Ws.1 and 2 in the total absence of the contra evidence adduced by the appellant. The court below, we must note, had the evident advantage of seeing the witnesses perform in the witness stand before it. In a transaction like this, it would be idle and myopic for the court to expect any documentary Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 8 :- evidence to support such payment. In the totality of circumstances, we hold that the court below has not committed any error warranting appellate interference in accepting and acting upon the oral evidence of P.Ws.1 and 2 that Rs.2 lakhs had been handed over by the claimant/wife and her father to the appellant/husband. The challenge on the second ground must also, in these circumstances, fail. 12. Ground No.3: The court below has granted maintenance to the wife and all the three children. We have already noted that the plea of divorce and the wife is living in adultery cannot be accepted. The appellant is employed abroad. He has married again. He is certainly bound to pay maintenance to his wife living apart and also the minor children born to him. Considering the nature of evidence available about the means of the appellant/husband and the needs of the wife and three children, we are certainly satisfied that the court below was justified in directing payment of past and future maintenance to the wife and children. The amount of Rs.2,000/- for the wife, Rs.700/- for the second child and Rs.500/- for the third child are found to be absolutely fair, reasonable and just. No interference Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 9 :- is warranted at the instance of the appellant. 13. The learned counsel for the appellants contends that the eldest child is admittedly being educated in a residential school. Admittedly the appellant/husband is meeting the expenses of the child. Still the court below had granted maintenance at the rate of Rs.500/- per mensem to the child. The reasons for grant of such maintenance is explained in para-18 of the judgment. The father is employed abroad. The child is residing in a hostel. The child comes to the house of the mother. The child has to be maintained. Food and clothing have to be provided by the mother. It is, taking into account all the circumstances, that the learned learned Judge of the Family Court awarded maintenance at a nominal amount of Rs.500/- per mensem to the eldest child. In any view of the matter, we are satisfied that the maintenance awarded to the wife and the three children do not warrant interference. 14. Ground No.4: We now come to the dispute regarding custody of the child. The respondent/wife contended that after Ext.A1 order, the child was removed from her custody by the appellant taking law into his own hands. Ext.A1 clearly reveals Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 10 :- that the child was in the custody of the mother till that date. Evidently the appellant had come into custody of the child later otherwise than according to law. In a claim for custody of the child, the crucial and paramount question is not the respective rights of the parents; but the welfare of the child. So reckoned, we find that the child is aged about 9 years. His father, the appellant herein is not available in India. His mother is available in India. The mother is in a better position hence to look after the interest of the child. The child is now getting educated in a residential school. The father is meeting the expenses of the child. The court below did not evidently want to disturb that situation. Maintenance awarded under Section 125 Cr.P.C for the said child also takes note of the fact that the father is looking after the educational and residential needs of the child. The court below, of course, does appear to have thought that the child is aged only 5 years. That is evidently an erroneous statement as admitted by all concerned. But, in any view of the matter, we are satisfied that custody of the child by the claimant/mother will advance the interest of the child. The impugned direction regarding custody is hence absolutely Mat. Appeal Nos.200 & 202/09 & R.P.(FC) No.94 of 2009 -: 11 :- justified and the same does not warrant interference in appeal. 15. In the result, Mat.Appeal Nos.200 & 202 of 2009 and R.P.(F.C) No.94 of 2009 are dismissed. R. BASANT (Judge) M.C. HARI RANI (Judge) Nan/