IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 Mat.Appeal.No. 351 of 2007() ---------------------------- OP.537/2006 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): RESPONDENT; -------------------------- MUHAMMED KUTTY HAJI @ KUNHUTTY, S/O.KUNIMUHAMMED, ARAKKAL PURAI, YERATHUMPADI, HYNDRU POKKOTTU HOUSE, P.O. A.R.NAGAR, A.R.NAGAR AMSOM, TIRURANGADI TALUK. BY ADV. SRI.T.M.MOHAMED YOUSEFF (SR.) SMT.MOLLY JACOB SMT.ASHIFA YOUSEFF SMT.U.M.FOUSIA SMT.M.KABANI DINESH SMT.AYSHA YOUSEFF RESPONDENT(S): PETITIONERS: --------------------------- 1. SAFIYA CHELUPADATH, D/O.MUHAMMEDAJI, ERATHODU HOUSE, P.O. A.R.NAGAR, A.R.NAGAR AMSOM, PUTHIYATHUPURAI, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. MANSUR ALI, 16 YEARS, (MINOR). 3. RASHIDA, 14 YEARS, (MINOR). 4. MAHRUF, 13 YEARS, (MINOR). ADV. SRI.E.NARAYANAN FOR R1 TO 4 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, ALONG WITH RPFC NO. 358 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1533/2007 IN MAT.APPEAL No.351/2007 CLOSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 28/10/2008 \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Mat.Appeal No.351/2007 and R.P (F.C) No.358/2007 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of October, 2008. J U D G M E N T Ramachandran Nair, J. The common order passed by the Family Court, Malappuram, in O.P.No.537/2006 and M.C.No.549/2006 is under challenge herein. In O.P.No.537/2006, the wife and three children claimed past maintenance totalling Rs.3,15,000/- for a period of 311/2 months from 13/02/2004 and the M.C is filed seeking maintenance under Section 125 of the Code of Criminal Procedure. The claim was at the rate of Rs.2,500/- each for the petitioners before the Family Court. After considering the evidence in detail in O.P.No.537/2006, past maintenance has been awarded at the rate of Rs.800/- to the mother, Rs.1,000/- to the second petitioner, Rs.900/- to the third petitioner and Rs.800/- to the fourth petitioner, per month for 311/2 months totalling Rs.1,10,250/-. The family court has awarded interest at the rate of 9% per annum from the date of filing of O.P. In M.C No.549/2006, maintenance has been awarded at the same rate, from the date of filing of the said case. 2. Mainly, the attack against the grant of maintenance is on the plea that the appellant has been maintaining the wife and children till 2006 and, Mat.Appeal No.351/2007 and R.P (F.C) No.358/2007 -:2:- therefore, no amount is liable to be awarded towards past maintenance. It is also contended that the wife is having her own income from landed property and, therefore, she is not entitled for grant of any amount towards maintenance. 3. Going by the case pleaded by the respondents, she was driven out along with her children from the matrimonial home on 13/02/2004 and, thereafter, he has not looked after them. The husband was employed in Gulf and he was having good amount by way of savings also. 4. In his objection, the husband denied the case pleaded by the wife. According to him, he had divorced her by pronouncing talak on 28/02/2006 and he thereafter married another woman and is living with her. Till divorce, he was maintaining the family of the former wife. It is also contended that his former wife is a tailor with an income of Rs.3,000/- per month. She is having income from shop rooms which are rented out. It is also submitted that he is prepared to look after the children. 5. Both the parties adduced evidence and PW.1 was examined on the side of the respondents/petitioners and Exts.A1 to A5 were marked on their side. RW.1 was examined on the side of the appellant/respondent and Exts.B1 to B2 have been marked. Mat.Appeal No.351/2007 and R.P (F.C) No.358/2007 -:3:- 6. The court below has arrived at the quantum after analysing the oral and documentary evidence and after finding that the wife is owning some landed property, held that she is not entitled for the amount at the rates claimed in the application. 7. We heard both sides. The learned counsel for the appellant submitted that there is no evidence in the case to show that they were driven out from the matrimonial home on 13/02/2004. The true fact is that the husband was maintaining the family till the date of talak and his remarriage. It is therefore submitted that the award towards past maintenance cannot be justifiable at all. It is also submitted that the wife and children are residing in a house belonging to him having an extent of one acre and 30 cents and they are taking the income from the said property. The learned counsel appearing for the respondent supported the reasoning adopted by the court below. 8. It is true that in Ext.B1 Commission Report, the Commissioner reported about the possession of the building and property by the wife. In fact, the court below has adverted to the plea raised by the husband regarding talak executed by him. His case was disbelieved. There is no evidence worth to prove that talak was done properly. If, as a matter of fact, he was maintaining the children till 28/02/2006, he could have led evidence to that effect. In a Mat.Appeal No.351/2007 and R.P (F.C) No.358/2007 -:4:- matter like this, where the appellant has not chosen to adduce any independent evidence, we can only go by the oral and documentary evidence available before us. The court below is, therefore, not wrong in accepting the case pleaded and spoken to by the wife. Ext.A1 to A5 shows that the husband is having various items of properties in his ownership and possession. The fact that the wife is having some items of property is also proved in evidence which weighed with the court below in reducing the quantum. 9. We are not impressed by the arguments raised by the learned counsel for the appellant that the grant of maintenance has to be interfered in toto. The appellant disowned the responsibility mainly on the plea that the wife is well maintained by the son and also by the fact that she is taking yield from the property. But there is no evidence as regards the improvements if at all in the property or the income there from. In such circumstances, the respondents are entitled to be granted maintenance. The appellant's plea of absence of any income to pay the maintenance is not proved in evidence. He has already married another woman. The plea raised is only to shirk his responsibility. There is no evidence to prove that she is doing the job of a tailor. Hence, there is no merit in the appeal. Mat.Appeal No.351/2007 and R.P (F.C) No.358/2007 -:5:- 10. After considering all aspects we modify the order granting past maintenance in the following manner:- The first petitioner will be entitled for maintenance at the rate of Rs.800/-, the second petitioner Rs.800/-, the third petitioner Rs.750/- and the fourth petitioner Rs.700/- per month. Amount will carry interest as directed by the court below. The order passed by the court below is modified accordingly. Mat.Appeal No.351/2007 is partly allowed as above. 11. As regards the RP(FC) No.358/2007 the maintenance granted is at Rs.800/- to the first petitioner, Rs.1,000/- to the second petitioner, Rs.900/- to the third petitioner and Rs.800/- to the fourth petitioner per month from the date of filing of the MC. Even though the learned counsel for the appellant pleaded for reducing the amount of maintenance, we are not inclined to grant the said request. The reasons already stated by us justify the grant of maintenance. Therefore, RP(FC) No.358/2007 is dismissed. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.) ms