IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 RPFC.No. 140 of 2004(E) ---------------------------------- MC.513/2002 of OF THE FAMILY COURT, MANJERI. .................... REVISION PETITION (S)/ RESPONDENT ------------------------------------- P.C.MOOSAKUTTY, 35 YEARS, S/O. SAIDALAVI HAJI, PULPATTA P.O., RESIDING AT KOOTAVIL, VIA MANJERI. BY ADV. MR.K.P.MUJEEB RESPONDENT(S): PETITIONERS -------------------------- 1. C.A.JAMEELA, 29 YEARS, D/O. ELAYODATHU ABOOBACKER MUSALIYAR, P.O.MANHAPATTA, ALUNGAL, RESIDING AT ELAMKOOR, ERNAD TALUK. 2. MUHSEENASHAFIYA, 6 YEARS (MINOR) D/O. P.C.MOOSAKUTTY (MINOR PETITIONER REPRESENTED BY MOTHER/ GUARDIAN 1ST PETITIONER) ADV. SMT.K.V.RESHMI FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13/03/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- R.P(F.C)No. 140 OF 2004 --------------------------------- Dated this the 13th day of March, 2009 O R D E R This revision is preferred against the order of the Family Court, Manjeri in M.C. 513/2002. The revision petitioner had married the 1st respondent and a child is born to them in the wedlock. The marriage took place on 22.05.1995. The court below granted maintenance at the rate of Rs. 500/- each and it is against that decision the husband has come up in revision. 2. The basic contention of the husband is that he had effected a divorce of the wife by pronouncing Talaq as early as on 8.1.2002 and therefore she is not entitled to claim maintenance. His specific contention is that he had pronounced Talaq thrice in the presence of the witnesses in accordance with the religious custom and had intimated the wife about the same. If it is done, then there is a proper divorce, otherwise not. It is a settled principle that a divorce must be pronounced orally in the presence of the competent witnesses and a Talaq communicated in writing is not valid unless the husband is incapable of R.P.(F.C) 140/2004 -2- pronouncing it orally. It is also a settled proposition that before effecting a valid divorce there must be a conciliation also. So far as this case is concerned, there is no positive evidence to prove the pronouncement of the Talaq. The husband when examined as RW1 had deposed before the court that he had intimated the Mosque, but no steps have taken to produce the communication. He admits that the wife had not heard the pronouncement of the Talaq. He had admitted that the name of the witnesses is not mentioned in the counter statement. It is also admitted the reason for the Talaq is not stated. Further about the mediators also no mention is made. So the important ingredients necessary to constitute a valid divorce is totally absent. Then what will be the legal position when such a divorce is pleaded in the written statement is the question. This has been answered by the apex court in the decision reported in Shamim Ara v. State of U.P [2002 (3) KLT 537(SC)]. The apex court held that: “The talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate. A mere plea taken in the written statement of a divorce having been pronounced R.P.(F.C) 140/2004 -3- sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife” In this case also the particulars of the date of Talaq is in the written statement and as held by the apex court it is not sufficient. So the conclusion of the trial court that no valid Talaq had been pronounced is only to be upheld. 3. Next question is about the quantum of maintenance. A perusal of evidence of RW1 would establish that he is aged 35 and he is an authorickshaw driver by profession. He had remarried and he is leading a matrimonial life. The profession of an autorickshaw driver is equally remunerative now a days and the direction of a court to pay maintenance at the rate of Rs. 500/- each to the wife and child cannot be considered to be excessive by any stretch of imagination. Therefore the quantum awarded is only reasonable. Therefore the order under challenge does not require any interference. Therefore the R.P(F.C) is dismissed. M.N. KRISHNAN, JUDGE vkm