IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 MFA.No. 272 of 2003() --------------------- OP.34/2001 of FAMILY COURT, MANJERI .................... APPELLANT: RESPONDENT: ---------------------- THARAYIL ALI, AGED 35 YEARS, S/O. MOIDEEN, VAILATHUR, P.O. PONMUNDAM, KALPAKANCHERY POLICE STATION. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS: PETITIONERS: ------------------------- 1. MAHRUNNISA, AGED 28 YEARS, D/O. POTTAYIL KASIM, TIRUR AMSOM, POOKAYIL DESOM, NADUVILANGADI, P.O. POOKAYIL, TIRUR TALUK. 2. AMERSHA (MINOR), 1 AND HALF YEARS, REPRESENTED BY MOTHER AND GUARDIAN THE 1ST RESPONDENT. BY ADV. SRI.A.KRISHNAN FOR R1-2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------- M.F.A. NO.272 OF 2003 ---------------------------------------------- Dated 18th June, 2008. J U D G M E N T Harun-Ul-Rashid, J. The appeal is directed against the judgment dated 15.10.2001 in O.P.No.34/2001 on the file of the Family Court, Manjeri. The respondent in the said original petition is the appellant. The first petitioner in the original petition is the wife of the appellant and the second petitioner is the minor child. The parties are referred to as the petitioners and the respondent, as in the original petition. 2. The marriage between the first petitioner and the respondent was solemnized on 29.11.1998. The second petitioner is the child born in the wed-lock. The first petitioner alleges that her husband was ill-treating her demanding more ornaments and money. He used to ill-treat her physically and mentally. Therefore, she was forced to leave the respondent in February, 2000 and she is living separately from that date. It is also contended that the respondent has failed to provide maintenance to her or to her child and that she has no means to maintain herself or her child. Accordingly, the original petition MFA NO.272/2003 2 was filed requesting the court to award maintenance at the rate of Rs.1,000/- and Rs.500/- per month, respectively to the petitioners 1 and 2. It is also submitted by the first petitioner that the respondent is a driver by profession, earning Rs.300/- per day. She also alleged that 16 sovereigns of gold belonging to her was taken by the respondent for the purpose of purchasing a Jeep. Apart from these, Rs.65,000/- given in cash to the first petitioner at the time of marriage was appropriated by the respondent. Moreover, Rs.10,000/- was also borrowed from the family of the first petitioner. Hence, the petitioner prays for passing a decree for Rs.75,000/- towards the value of ornaments and the amounts due to her. 3. Respondent admitted the factum of marriage. He denied the averment that the petitioner was given 25 sovereigns of gold ornaments and Rs.65,000/- at the time of marriage. He had also denied the averments of ill-treatment. The trial court examined the parties as PW1 and RW1 and discussed the facts and circumstances leading to the filing of the case. The trial court noted the fact that the parties are living separately and several litigations are pending between them. It has also come out in evidence that the respondent married another lady and MFA NO.272/2003 3 has four children in that wed-lock. The said wife also filed a petition seeking an order for maintenance for herself and four children. This fact would indicate that the respondent is in the habit of not providing maintenance to his family members, who are his wives and children. The trial court also relied on the evidence of PW1 and came to the conclusion that the first petitioner was forced to take a separate residence from the respondent for valid reasons. The case of ill-treatment and the other marriage and his life with the first wife and children cannot be denied by the respondent. The finding that there are valid reasons for the first petitioner to take separate residence is a finding based on the facts and circumstances emanating from the case. The respondent has no case that he was providing maintenance to the petitioners from the date of separation. Hence, certainly, the respondent is bound to pay maintenance. The court below fixed Rs.400/- and Rs.350/- respectively to the petitioners towards maintenance, considering the means of the respondent and other circumstances. On the basis of the discussions above and on a perusal of the facts and circumstances of the case, we find that the amount fixed by the court below towards maintenance is just and reasonable. We find MFA NO.272/2003 4 no reason to interfere with the said finding. 4. The claim of the petitioner for a decree for Rs.75,000/- towards value of the ornaments was negatived by the court below finding that the first petitioner failed to adduce sufficient evidence in support of the claim. It is submitted that the said portion of the decree dismissing her claim has become final since there is no appeal. In the facts and circumstances, the decree passed by the court below for past maintenance and future maintenance at Rs.400/- and Rs.350/- respectively to the petitioners does not call for any interference. The appeal is devoid of any merit and accordingly, it is dismissed. No order as to costs. KURIAN JOSEPH, JUDGE. HARUN-UL-RASHID, JUDGE. tgs KURIAN JOSEPH & HARUN-UL-RASHID, JJ ---------------------------------------------- M.F.A. NO.272 OF 2003 ---------------------------------------------- J U D G M E N T Dated 18th June, 2008.