Kerala High Court
Ismail vs Hajisha on 13 January, 2021
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
RPFC.No.73 OF 2020
AGAINST THE ORDER DATED 30.11.2019 IN M.C.NO.311/2007 OF
FAMILY COURT, MALAPPURAM
REVISION PETITIONER/RESPONDENT IN THE M.C:
ISMAIL,
AGED 43 YEARS,
S/O. MOIDHEEN BAVA, CHERUPURAKKAL HOUSE, VAKKAD P.O.,
PACHATTIRI AMSOM, PARAVANNA DESOM, TIRUR TALUK,
MALAPPURAM DISTRICT
BY ADVS.
SMT.DEEPA NARAYANAN
SMT.ASHA MARIAM MATHEWS
RESPONDENT/PETITIONER IN THE M.C:
HAJISHA,
AGED 21 YEARS,
D/O.ISMAIL, KUTTIYALIKADAVATH HOUSE,
MANGALAM AMSOM, KOOTTAYI P.O., TIRUR TALUK,
MALAPPURAM DISTRICT - 676 561
BY ADV. SRI.P.T.SHEEJISH
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
13.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RPFC.No.73 OF 2020
2
ORDER
Dated this the 13th day of January, 2021 Aggrieved by the order passed by Family Court, Malappuram on 30.11.2019 in M.C.No.311 of 2007, the respondent therein has preferred the revision on hand. The respondent in the revision is the petitioner therein.
2. For the sake of clarity, the parties to this revision will hereinafter be referred to as the respondent and the petitioner in accordance with their status in the M.C. before the Family Court.
3. Petitioner was aged 8 years at the relevant time of filing of the M.C and being minor was represented by her mother as next friend. M.C was originally filed under Section 125 Cr.P.C. and it was allowed ex parte in the year 2007. Thereafter, the ex parte order was set aside by the respondent by paying the entire arrears of maintenance allowance at the monthly rate of Rs.1,500/- till that date. Thereafter an application under Section 127 Cr.P.C was filed seeking for enhancement of the maintenance allowance stands ordered in favour of the minor child by the RPFC.No.73 OF 2020 3 original order. The Family Court has enhanced the sum to Rs.3,000/- on 05.04.2011 when the minor girl was aged 12 years. Again enhancement was sought on the minor girl reached 15 years and the Family Court on 05.04.2014, modified the sum by enhancing it to Rs.5,000/-. The order is under challenge in the revision on hand.
4. The contention of Smt.Deepa Narayanan, the learned counsel for the respondent is that the respondent was a fisherman but has no regular work at the relevant time when the M.C was filed. According to her he was getting only meager sum as monthly income and therefore he was unable even to pay Rs.5,000/- stands ordered by the Family Court by the impugned order. Accordingly she seeks for reduction of the maintenance allowance. It is also submitted by the learned counsel that the minor girl got married on 28.04.2019 and therefore the order granting monthly maintenance allowance will be in force only till the date of her marriage.
5. The learned counsel for the petitioner has contended that the respondent being a fisherman cannot be said to be without sufficient income. According to her, the monthly RPFC.No.73 OF 2020 4 maintenance allowance stands ordered by the Family Court in favour of the 2nd petitioner must be a reasonable sum, capable to meet all reasonable and normal expenditures of a girl aged 15 years and studying in 10th Standard and the Family Court has fixed Rs.5,000/- as payable monthly.
6. In the backdrop of the rival contentions raised before this Court, this Court had a glance at the evidence on record to see which submissions advanced by the counsel are meritorious. It is pertinent to note that the parties have adduced oral as well as documentary evidence before the Family Court.
7. On the petitioner's side, the next friend of the minor was examined as PW1 and on the respondent's side, himself was examined as RW1. On the petitioner's side Ext.P1 was also marked. It was brought out in evidence that the respondent was a fisherman. It was also brought out in evidence that the minor child is in the custody of the next friend and is being maintained by her. Minor girl was also established from evidence as studying in 10th Standard. The respondent has no case that he is of poor health or is suffering from some physical ailments preventing him from doing extra work and earning more income. Therefore, RPFC.No.73 OF 2020 5 evenif it is established that the respondent does not have reasonable income, he being an ablebodied man, he will have to find out sources of income to meet payment of a reasonable sum as monthly maintenance allowance to the minor girl. It is only an obligation of the respondent recognized by the Code of Criminal Procedure to maintain his neglected minor daughter. Therefore, this Court finds nothing unreasonable and infirm about the fixation of the quantum of monthly maintenance allowance.
For the above reasons, the revision fails and is dismissed. The Family Court has ordered to pay monthly maintenance allowance only till 05.04.2017, the date of attainment of age of majority by the petitioner and therefore, the modification of the order sought for by restricting the payment till date of her marriage is not warranted. It is submitted by the learned counsel that in view of Covid-19 Pandemic, the respondent is not in a position to pay the arrears of maintenance in a lumpsum. According to her, the arrears could be paid in installments, if permitted. The total arrears according to both counsel is around Rs.1,35,000/- and therefore, the Family Court shall permit the respondent to remit the arrears of monthly maintenance RPFC.No.73 OF 2020 6 allowance in three equal monthly installments and the first one necessarily shall on March, 2021.
Sd/-
MARY JOSEPH JUDGE NAB