IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 RPFC.No. 80 of 2005() --------------------- MC.7/2003 OF THE FAMILY COURT, KOZHIKODE. .................... REVISION PETITIONER: ---------------------------------------- M.C. MUHAMMED, S/O. ALI, MATHIRUR CHALIL, (CHAKKARA) HOUSE, THADAPPARAMBIL HOUSE, KUMARANELLUR P.O., MUKKOM, KOZHIKODE DISTRICT. BY ADV. SRI.P.M.MOHAMED ALI SRI.AYPE JOSEPH RESPONDENT(S): --------------- 1. SAIFUNNISA, D/O. MOOSA, THASDAPPARAMBIL HOUSE, KUMARANALLUR P.O., MUKKAM, KOZHIKODE. 2. JIFFIN (MINOR), S/O. SAIFUNNISA, THADAPPARAMBIL HOUSE, KUMARANALLUR P.O., MUKKAM, KOZHIKODE. 3. RIFNA, (MINOR), D/O. SAIFUNNISA, THADAPPARAMBIL HOUSE, KUMARANALLUR P.O., MUKKAM, KOZHIKODE. 4. RAHFA, D/O. SAIFUNNISA, THADAPPARAMBIL HOUSE, KUMARANALLUR P.O., MUKKAM, KOZHIKODE. (MINORS 3 TO 4 REP. BY MOTHER AND GUARDIAN 1ST RESPONDENT SAIFUNNISA, D/O. MOOSA, THADAPPARAMBIL HOUSE, KUMARANALLUR P.O., MUKKOM, KOZHIKODE. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 TO 4 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 80 of 2005 ------------------------------------------------- Dated this the 1st day of January, 2009 ORDER In this RP(FC) the petitioner assails an order passed under Sec.125 Cr.P.C. by the Family Court obliging him to pay maintenance at the rate of Rs.2,000/- per mensem to his wife and Rs.1,500/- per mensem each to his three minor children. 2. Marriage, paternity and separate residence are admitted. The husband took up a stand that the wife was residing separately without sufficient cause and this had obliged him to pronounce divorce. He contended that he has no liability to pay maintenance to his divorced wife. 3. Parties went to trial on these contentions. The 1st claimant/wife examined herself as P.W.1. The petitioner did not examine himself as a witness. He examined R.W.1 and proved Exts.B1 and B2. R.W.1 is a functionary at the Mosque R.P.(FC) No. 80 of 2005 -: 2 :- and Ext.B1 is the letter of divorce allegedly sent by the petitioner to R.W.1 and Ext.B2 is the acknowledgment for the same by R.W.1. 4. The learned Judge of the Family Court, on an anxious consideration of all the relevant inputs, came to the conclusion that the alleged divorce has not been proved satisfactorily to satisfy the requirement of the dictum in Shamim Ara v. State of U.P. (2002 (3) KLT 537 (SC)). Accordingly, the court found that all the four claimants are entitled for maintenance. The court took note of the fact that admittedly the husband/the petitioner was employed abroad. He has a house of his own at his native place. In these circumstances, the court proceeded to issue the impugned directions. 5. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner, after detailed discussions at the Bar, assails the impugned order on the ground that the quantum of maintenance awarded is excessive. Even though there is a contention that the wife is not entitled for separate maintenance, in the light of the decision in Shamim Ara, the contention of the petitioner that there has been a legal and valid dissolution of marriage cannot be accepted. There is no contention even to suggest that R.P.(FC) No. 80 of 2005 -: 3 :- there was any attempt to mediate and settle the dispute and divorce was pronounced after such efforts of mediation were found to be unsuccessful. In these circumstances, the court below is eminently justified in coming to the conclusion that there has been no valid divorce. 6. The only question to be considered hence is the quantum of maintenance. Admittedly, the petitioner has a plot of land and in that a house has been built. Admittedly, the petitioner was employed abroad when the petition was filed. He did not tender evidence before court. The difficulty of the estranged wife to prove the income of her divorced husband residing abroad has to be realistically taken note of by the court. According to her, her husband gets an income of Rs.50,000/- per mensem. Better evidence to support that assertion has not been placed before court. But the fact remains that the petitioner has also not chosen to adduce any evidence on this aspect. 7. Admittedly, the petitioner is employed abroad for some length of time. He was a coolie/head load worker at the time when he was in India. In any view of the matter, I am not persuaded to agree that the quantum of maintenance awarded to the claimants – Rs.2,000/- per mensem to the wife and Rs.1,500/- per mensem each for the three minor children is grossly R.P.(FC) No. 80 of 2005 -: 4 :- excessive or perverse as to justify the invocation of the revisional jurisdiction of superintendence and correction. Conscious of the nature, quality and contours of the jurisdiction of this Court as a court of revision, I am not persuaded to agree that the quantum of maintenance fixed warrants interference. 8. The learned counsel for the petitioner submits that the petitioner has now returned to India and has no employment abroad. That is a subsequent development. It is for the petitioner, if that assertion be true, to move the Family Court to modify the maintenance amount awarded. 9. In the result: (a) This RP(FC) is dismissed. (b) But I may hasten to observe that if there has been any significant change in circumstances after the disposal of the petition under Sec.125 Cr.P.C. the dismissal of this RP(FC) will not in any way fetter the right of the petitioner to move the Family Court under Sec.127 Cr.P.C. to modify the order in the light of such subsequent development. Sd/- (R. BASANT, JUDGE) Nan/- //true copy// P.S. to Judge R.P.(FC) No. 80 of 2005 -: 5 :-