IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Mat.Appeal.No. 217 of 2007() ---------------------------- OP.535/2006 of FAMILY COURT, MALAPPURAM .................... PETITIONER: APPELLANT/RESPONDENT ----------------------------------- KODASSERI ABDUL HAMEED, S/O.MUHAMMED KUTTY HAJI, POTHANCHIRI HOUSE, KOORIYAD POST, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER RESPONDENT: PETITIONER --------------------------------------- 1. CHEMBAN IMTHIHASUNNISA, D/O.ALIKUTTY, KANATHIYIL HOUSE, P.O.PARA, PARAMBIL PEEDIKA, VELIMUKKU VIA, MALAPPURAM DISTRICT. 2. FATHIMA HUSNA (MINOR), D/O.ABDUL HAMEED, REPRESENTED BY MOTHER IMTHIHASUNNISA. 3. MUHAMMED ITHI SAM (MINOR), S/O.ABDUL HAMEED, REPRESENTED BY MOTHER IMTHIHASUNNISA. ADV. SRI.BABU S. NAIR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20/11/2009, ALONG WITH WPC NO. 18051 OF 2007 RPFC NO. 89 OF 2007 WPC NO. 19092 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------- Mat.Appeal No.217 of 2007, W.P.(C) Nos. 18051 of 2007 & 19092 of 2008 & R.P.(FC) No. 89 of 2007 ---------------------------------------- Dated this the 20th day of November, 2009 JUDGMENT Harun-Ul-Rashid,J. The parties hereinafter are referred to as appellant and respondents as arrayed in Mat.Appeal No. 217/2007. The appellant in Mat Appeal No. 217/2007 is the respondent in O.P No. 535/2006 on the file of the Family Court, Malappuram. The appellant married the 1st respondent on 30.1.1994. On 27.4.2005, the appellant divorced the 1st respondent by pronouncing talaq. Two children were born in the wedlock. The children are minors. O.P No. 535/2006 was filed by the 1st respondent and her children for past maintenance. The same was allowed by the Family Court granting past maintenance. Mat.Appeal No. 217/2007 is directed against the judgment in O.P No. 535 of 2006. 2. O.P No. No. 28/2007 was filed by the 1st respondent for the recovery of money and gold ornaments and the same is pending before the Family Court, Malappuram. W.P.(C) No. 18051 is filed by the appellant and his father against the order in I.A No. 461/2007 in O.P No. 28/2007. 3. M.C. No. 679/2005 on the file of the same court was also filed by the 1st respondent and her children seeking maintenance under Section 125 of the Code of Criminal Procedure. The said M.C. was allowed directing the appellant to pay maintenance at the rate of Rs. 2000/- to the 1st respondent and Rs.1,000/- and 800/- respectively to the two minor Mat.Appeal No. 217 of 2007 -2- & Connected cases children. R.P.(FC) No.89 of 2007 was filed against the said order. 4. The appellant filed O.P No. 538/2005 for custody of the two minor children .O.P No. 538/2005 filed under Sections 12 and 25 of the Guardian and Wards Act was settled and the said Original Petition was allowed in terms of the joint statement filed by the appellant and 1st respondent. Writ petition No. 19092/2008 was filed challenging Exts. P2 and P4 orders passed by the Family Court in execution in O.P No. 538 of 2005. 5. The parties appeared before us on several days during the pendency of the proceedings before this Court. We have interacted with the parties on all such occasions. The parties agreed to settle all the disputes between them. As part of the settlement the appellant agreed to pay Rs. 3,50,000/- in full and final settlement of all claims of the 1st respondent and the two minor children as against him. The terms of settlement was recorded by this Court in the interim order dated 19.12.2008. This Court granted six months time to the appellant for making the payment. The appellant/husband also agreed to pay the monthly maintenance to the minor children. With regard to the custody of the minor children, the parties agreed that the custody of the minor children shall remain with the 1st respondent/wife and the appellant/husband shall have temporary custody of the children in second and fourth Saturday between 10 a.m and 5 p.m. The parties have also Mat.Appeal No. 217 of 2007 -3- & Connected cases agreed to settle all the cases pending between them before the various courts pursuant to the interim order thus passed. The appellant/husband was directed to pay Rs.3.5 lakhs to the respondents. Out of the said amount, a further direction was issued to deposit Rs.1 lakh in the name of the two minor children in fixed deposit. 6. Subsequently, the 1st respondent-wife filed a petition (I.A. No. 3195 of 2009) seeking to modify the order dated 19.12.2008 with respect to the monthly maintenance payable to the minor children and further prayed that the monthly maintenance may be re-fixed at the rate of Rs.1200/- and 800/- per month respectively. 7. After the passing of the interim order dated 19.12.2008 the parties appeared in person again in chambers on several occasions. The appellant filed I.A No. 113/2009 in Mat. Appeal No. 217/2007 seeking to modify the order dated 19.12.2008 .The prayers in I.A. No. 113/2009 are as follows: “(i) appellant shall deposit Rs.1,00,000/- in the name of his two children in Fixed Deposit” may be corrected as “appellant shall deposit Rs. 1,00,000/- in the name of the 2nd respondent and Rs.50,000/- in the name of the 3rd respondent in Fixed Deposit and Rs. 2,00,000/- to be paid to the 1st respondent” “(ii) father shall have temporary custody of the children on the second and fourth Saturday between 10 a.m. to 5 p.m.“may be corrected as “father shall have temporary custody of the children on the second and fourth Mat.Appeal No. 217 of 2007 -4- & Connected cases Saturdays from 10 a.m. to 5 p.m. on the following Sundays” . “(iii). all further proceedings in C.C. No. 84 of 2006” may be corrected as “all further proceedings in C.C. No. 184 of 2006” 8. The learned counsel for the 1st respondent-wife submitted that the two minor children are under her care and protection. The appellant has reported the deposit of Rs.3,50,000/- in favour of the 1st respondent and her two minor children. The 1st respondent submitted that she intends to purchase a property for the purpose of constructing a house and therefore requested this Court to issue a direction to permit her to withdraw the amount in deposit. The request to withdraw the amount is granted. It is directed that the 1st respondent shall purchase the property in the joint names of herself and her children. The share of the property to be purchased shall be in the ratio of 4/7, 2/7 and 1/7 respectively. The amounts in deposit of the minor children shall be utilised for the purchase of property and for construction of the building. The divorce effected on 27.4.2005 is recorded. It is made clear that the payment of Rs. 3.5 lakhs by the appellant to the 1st respondent is in full and final settlement of all claims as against the appellant, except the maintenance. The appellant/father shall have temporary custody of the two minor children on the second and fourth Saturdays , from 10 a.m. to 5 p.m. 9. In view of the settlement as above, for securing the ends of Mat.Appeal No. 217 of 2007 -5- & Connected cases justice O.P No. 538/2005, E.P.No.73/2007 in the said O.P and O.P No. 28/2007 pending before the Family Court, Malappuram, are struck off from the files. C.C. No. 184 of 2006 pending on the file of the Judicial First Class Magistrate's Court, Malappuram, is quashed. Considering the prayer of the 1st respondent-wife in I.A. No. 3195/2009, the quantum of monthly maintenance payable as per the order dated 19.12.2008, requires modification. The modification was necessitated since the amount fixed in the order dated 19.12.2008 is inadequate for the reason that the education expenses and other expenses to be met by the 1st respondent-wife is far above the amount fixed by this Court. Accordingly, the monthly maintenance is re-fixed at the rate of Rs. 800/- and 700/- respectively to the minor children for a period of 3 years from 19.12.2008 and Rs. 1200/- and 800/- respectively thereafter. In case the appellant defaults payment of the maintenance amount the 1st respondent-wife is at liberty to move the execution court. Mat.Appeal No. 217/2007 and Writ petition Nos. 19092/2008, 18051/2007 and R.P(F.C). No. 87/2007 are disposed of as above. (KURIAN JOSEPH,JUDGE) (HARUN-UL-RASHID, JUDGE) es. KURIAN JOSEPH & HARUN-UL-RASHID, JJ. --------------------------- Mat.Appeal No.217 of 2007, W.P.(C) Nos. 18051 of 2007 & 19092 of 2008 & R.P.(FC) No. 89 of 2007 ---------------------------- JUDGMENT 23rd November, 2009