IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 RPFC.No. 268 of 2008() ---------------------- MC.226/2007 of FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER/RESPONDENT:- ---------------------------------------------------- POTTENGAL ALI ASKKAR, S/O P. MUHAMMED OZHOOR, OMACHAPUZHA AMSOM, OMACHAPUZHA P.O., THEYYALA TIRUR TALUK, TANUR POLICE STATION. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENT(S)/ PETITIONER/ STATE : ----------------------------------------------- 1. RAHEENA, 27 YEARS, D/O ABDU RAHIMAN, IMMINIYATTIL VEEDU, NIZAR MANZIL K, PURAM AMSOM DESOM. 2. ASHIKH RAHMAN, 9 YEARS, (MINOR), S/O POTTENGAL ALI ASKKAR. 3. ASHIM HAMJATH, 6 YEARS, (MINOR), D/O POTTENGAL ALI ASKKAR, (MINOR RESPONDENTS ARE REPRESENTED BY GUARDIAN MOTHER 1ST RESPONDENT. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.SUNIL NAIR FOR R1 TO 3 SRI.K.N.ABHILASH FOR R1 TO R3 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.P.(F.C.) NO. 268 OF 2008 = = = = = = = = = = = = = = = Dated this the 4th day of March, 2010. O R D E R This revision is preferred against the order of the Family Court, Malappuram in M.C.226/07. The revision petition is the respondent in the M.C. who has been ordered to pay a maintenance at the rate of Rs.2,000/- to the wife and Rs.1,000/- to the first child and Rs.600/- to the 2nd child. It is challenging the liability to pay maintenance to the wife as well as the quantum with respect to all the revision is filed. 2. The Court below did not accept the case of divorce. The learned counsel would contend before me that a divorce has been effected. The Family Court judge had referred to the decision of the Apex Court reported in Shamin Ara v. State of U.P.(2002 (3) KLT 537 wherein it is held that, “Talaque must be for a reasonable cause and it must be preceded by attempts for conciliation between the husband and wife or by two arbitrators, one chosen by the wife from her family R.P.(F.C.) NO. 268 OF 2008 -:2:- and the other by the husband. The Talaque may be effected only on failure of those attempts for reunion.” 3. Here the independent evidence adduced would establish that even during the first time of the Talaque the attempt was for reunion and the matter did not end there. Then it is submitted that wife and members of family did not come and participate on the second occasion. So the very purport and purpose for which a mediation is to be effected has not been done in this case and it is only a unilateral decision. Similarly nothing is forthcoming before the Court to establish that there was a reasonable cause for pronouncement of Talaque. Therefore the Court below held that the case of Talaque cannot be accepted. 4. Now turning to the quantum. The husband is only a 'Mukri' which means he is a man working in the religious field. Normally duty of a 'Mukri' is to announce five times the time for prayers and in addition to that he can attend to other religious functions in private houses. In rural parts it may not be very lucrative and the system that is followed in many R.P.(F.C.) NO. 268 OF 2008 -:3:- places are to instruct the inhabitants of the Mahal to provide food for such people. That itself will show that it is not a post which attracts large amount as income. Even the Family Court has mentioned that the salary for a Mukri is only Rs.1,000/-. But the Court then mathematically calculates about 23½ hours left in a day and comes to the conclusion that it can be utilized for amassing wealth. Therefore the Family Court had gone little beyond the perception of income that is derivable by Mukri work in a local mosque. It is true that he has been a qualified person and he had Visa to go abroad and that he had gone abroad. But now he is only in India and he is doing the work of Mukri. So we have to analyze the probable income that of a Mukri to award maintenance. S.125 Cr.P.C. also enjoins a duty on the Court to consider the potentiality of the person to pay maintenance. So necessity and potentiality has to be taken into consideration together and a balance has to be struck between the two in order to grant a reasonable maintenance. It is true that this Mukri had again married and he is living comfortably with the second wife. So even under R.P.(F.C.) NO. 268 OF 2008 -:4:- the perception under the Mohammedan Law if a person wants to marry second time he should be totally conscious and aware of the fact that he has to maintain all wives equally and he must be sure that he will be able to maintain them properly. This revision petitioner cannot escape from that for the reason he is a person who is to propagate religious principles and to inculcate and pierce it into the local inhabitants. Therefore certainly he should have borne in mind when he married for the 2nd time. So he cannot wash of his hand against his first wife and children. Taking into consideration the totality of the entire circumstances and the possible avenue for this man to earn I feel the amount ordered as maintenance by the Family Court appears to be on the higher side which requires interference. It has to be stated just like in other cases it is only a probable guess that has to be made because concrete materials are not available before Court in the form of evidence. Therefore I refix the maintenance at Rs.1,300/- to the wife, Rs.700/- to the first child, Rs.600/- to the second child. Therefore the R.P.(F.C.) is disposed of by modifying the R.P.(F.C.) NO. 268 OF 2008 -:5:- quantum of maintenance as above. The mother is authorised to draw the amount on behalf of the children and it is to commence from the date of petition. Whatever amount is paid shall be given credit to and adjusted. M.N. KRISHNAN, JUDGE. ul/-