IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RPFC.No. 313 of 2007() -------------------------------- M.C.NO.454/2006 OF FAMILY COURT, MALAPPURAM. ............................. REVISION PETITIONER/RESPONDENT: ------------------------------------------------------- THUMBIL HAMZA, 50 YEARS, S/O. AVUDALU, THUMBIL HOUSE, P.O. VALAKKULAM, KARUMBIL VIA., CHULLIPPARA, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENT/RESPONDENT: -------------------------------------------- AREAKKATTU SAINABA, D/O. KUNHIMOIDEEN KUTTY A.K., AGED 40 YEARS, AREAKKATTU HOUSE, CHERUMUKKU, TIRURANGADI VIA., NANNAMBRA AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.E.NARAYANAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ R. BASANT, J. ------------------------------------------------- R.P.(FC)No. 313 of 2007 ------------------------------------------------- Dated this the 19th day of November, 2008 ORDER In this RP(FC) the petitioner assails an order passed under Sec.125 Cr.P.C. obliging him to pay maintenance at the rate of Rs.1,500/- per mensem to the claimant – allegedly his wife. 2. Marriage is admitted; but it is contended that the marriage does not subsist now. The marriage took place in 1979 admittedly. But according to the petitioner, the marital tie was brought to an end by a unilateral pronouncement of talak by him. The claimant disputed the alleged talak and took up a plea that she continues to be the wife of the petitioner. According to her, a son was born in the wed-lock and he was looking after her. But as he got married, she was not able to look up to him for maintenance. It was hence that she turned to the petitioner and claimed maintenance. R.P.(FC)No. 313 of 2007 -: 2 :- 3. Parties went to trial on these contentions. The claimant examined herself as P.W.1. The petitioner examined himself as R.W.1. R.W.2 - an official from the local body – Secretary of the Grama Panchayat, was examined. 4. P.W.1 and R.W.1 gave evidence in support of their respective contentions about the continuance of the marriage and termination of marriage. R.W.2 was examined in an attempt to contend that the claimant/wife had described herself to be a widow and had claimed financial assistance by way of widow pension and economic aid for construction of a house. Exts.D1 to D2(c) and Exts.X1 to X2(f) were marked in an attempt to contend that the claimant had described herself to be a widow which according to the petitioner, indicated that the marital tie was not subsisting. 5. The learned Judge of the Family Court took note of the fact that the marriage stands admitted. The learned Judge took the view that the burden was on the husband to plead and prove divorce. The learned Judge took note of the fact that in the counter statement there is no specific pleading of the date and the manner in which divorce was effected. In fact, it is pointed R.P.(FC)No. 313 of 2007 -: 3 :- out that in the counter statement the word “talak” is not even specifically employed. The learned Judge, in these circumstances, came to the conclusion that the petitioner has not succeeded in discharging his burden to show that the claimant had been divorced by the petitioner prior to the petition. 6. I agree with the learned Judge of the Family Court that the burden to plead and prove divorce must rest squarely on the shoulders of the husband who claimed to have effected unilateral divorce. No document is examined to prove such divorce. No letter to prove divorce is produced. Though it is contended evasively that amounts have been paid at the time of divorce, no receipt or other document is produced to prove such payment and settlement of claim on divorce. 7. In addition to the oral evidence of R.W.1, we have only the circumstance that though the parties were residing separately, nothing has been produced by the claimant to show that the marital tie was subsisting. The petitioner also relies on the fact that the wife had described herself to be a widow in Ext.D1 series and Ext.X1 series documents. 8. Even assuming that the wife had described herself to be R.P.(FC)No. 313 of 2007 -: 4 :- a widow, that cannot support the case of the petitioner that there was a divorce. In order to facilitate claims being staked for economic assistance from the local authority if the neglected claimant had described herself to be a widow, it cannot by any stretch of imagination be held that the theory of divorce vaguely advanced by the petitioner herein is established. I am, in these circumstances, in agreement with the learned Judge of the Family Court that the divorce has not been pleaded and proved satisfactorily by the petitioner. The mere fact that in Ext.D1 series and Ext.X1 series the claimant/wife had described herself to be a widow to facilitate drawal of financial assistance from the local authority is, in the facts and circumstances of this case, too meager an indication to enter any specific finding in favour of the petitioner that divorce had been effected by him as contended by him. 9. The claimant is shown to be aged about 40 years. It is not disputed that the petitioner is a much married man. The evidence indicates that he had married at least 4 women. That can safely be reckoned as an indication of his own assessment about his financial capacity. Admittedly he was employed R.P.(FC)No. 313 of 2007 -: 5 :- abroad for fairly a long period of 10 years. In these circumstances, I am of opinion that the quantum of maintenance awarded – Rs.1,500/- per mensem does not also warrant interference by invoking the revisional jurisdiction of superintendence and correction. 10. It follows from the above discussions that the impugned order does not warrant interference. This RP(FC) is, in these circumstances dismissed upholding the impugned order. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC)No. 313 of 2007 -: 6 :-