Karnataka High Court
Mohammedrafiq S/O. Noormohammed ... vs Master Mohammed Mubarak on 1 March, 2023
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RPFC No. 100008 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REV.PET FAMILY COURT NO. 100008 OF 2023 (-)
BETWEEN:
SHRI. MOHAMMEDRAFIQ S/O. NOORMOHAMMED KHONDU
AGE- 34 YEARS,OCC- PRIVATE SERVICE
R/O: YELLAPUR,DIS:KARWAR
NOW R/O: SHAIKH ZAYED UNIVERITY
P/O. BOX NO. 1982,
DUBAI AMIRATE
...PETITIONER
(BY SRI. U.G. KATTIMANI.,ADVOCATE)
AND:
1. MASTER MOHAMMED MUBARAK
S/O. MOHAMMEDRAFIQ KHONDU
AGE: 07 YEARS,MINOR
R/BY HIS MOTHER
SANA @ ROHIN DIVORCED W/O. MOHAMMEDRAFIQ
KHONDU, AGE: 30 YEARS, OCC: PVT.SERVICE
R/O. C/O. MOHIN UDDIN MULLA
H NO. 919/18, BEHIND WIRELESS
Digitally
signed by
NEAR PANTHA CROSS,PANTHA BALEKUNDRI
ANNAPURNA
CHINNAPPA
ANNAPURNA DANDAGAL BELGAUM
CHINNAPPA
DANDAGAL Location:
HIGH
COURT OF
KARNATAKA
DHARWAD
2. SANA @ ROHIN DIVORCED W/O. MOHAMMEDRAFIQ
KHONDU, AGE: 30 YEARS,OCC: PVT.SERVICE,
R/O. C/O. MOHIN UDDIN MULLA H NO. 919/18,
BEHIND WIRELESS NEAR PANTHA CROSS, PANTHA
BALEKUNDRI BELGAUM
...RESPONDENTS
(BY SRI. SANTOSH .B. RAWOOT.,ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO ALLOW THE REVISION PETITION AND
THEREBY SET ASIDE THE ORDER PASSED BY THE FAMILY COURT,
BELGAUM, DATED 02.06.2014 IN CRL.MISC.NO.420/2013 AND
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RPFC No. 100008 of 2023
THEREBY DIRECT THE RESPONDENT NO.2 SANA AT ROHIN NOT TO
INTERFERE WITH THE PETITIONER TO MEET HIS MINOR SON
MOHAMMED MUBARAK AS PER THE COMPROMISE DECREE IN
CRL.MISC.NO.374/2010 DATED 17.01.2011.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner who is the husband of respondent No.2 and father of respondent No.1 represented by his mother natural guardian - respondent No.2, assailing the order dated 02.06.2014 in Crl.Misc.No.420/2013 on the file of the Family Court, Belgaum, whereby the Family Court has awarded a maintenance of Rs.5,000/- p.m. from the date of order till the Master Mohammad Mubarak herein attains the age of majority.
2. It is undisputed that the petitioner is the husband of Smt. Sana Rohin who was divorced by way of Khula-Nama which was entered into between the parties in Crl.Misc.374/2010 by way of compromise on 17/01/2011, wherein the petitioner herein had agreed to pay a sum of Rs.4,25,000/- towards Iddat period -3- RPFC No. 100008 of 2023 amount including life maintenance amount of respondent No.2 and litigation expenses including the maintenance amount of respondent No.2 who is the son of the parties till he attains the age of majority. As the facts stood thus, the first respondent through his natural guardian - mother respondent no.2, filed a petition under Section 125 of Cr.P.C. seeking monthly maintenance of Rs.15,000/- on the ground that the life alimony given under the Khula-Nama which was executed on 17.01.2011 between the petitioner and respondent No.2 herein, and due to the efflux of time, the maintenance awarded to the first respondent is not enough to provide food and clothing and educational expenses having been increased and as such, sought for Rs.15,000/- as maintenance to be awarded to the son -first respondent.
3. It stated in the petition that the alimony of Rs.4,25,000/- paid to respondent No.2 while executing the Khula-Nama is meager and respondent No.2 was -4- RPFC No. 100008 of 2023 misguided while executing Khula-Nama and the same is against the interest of the respondent No.1.
4. The petition was heard by the Family Court and considering the material on record and rival contentions urged by learned counsel for the parties, the Family Court has come to the conclusion has held that the petitioner herein has to pay monthly maintenance of Rs.5,000/- from the date of order to the son - respondent no.1 till he attains the age of majority.
5. Aggrieved by awarding of maintenance of Rs.5,000/- to son, the present petition is preferred.
6. Heard the learned counsel for the parties at lis.
7. Learned counsel for the petitioner would submit that the joint memo for compromise entered before the Family Court was at the instance of respondent No.2 and their respected advocates, this being so, the Family Court while passing an interim -5- RPFC No. 100008 of 2023 order of maintenance of Rs.5,000/- to the son is contrary to Clause-ii of the compromise petition which was entered into between the respondent No.2 and on behalf of respondent No.1 towards the maintenance amount and final settlement. It is also stated that the Family Court while allowing the petition filed under Section 125 of Cr.P.C., failed to consider that the petition is not maintainable since the Khula-Nama entered into by the respondent No.2 wife was without any coercion. It is also stated that the respondent No.2 has not placed any material on record to show that the Khula-Nama executed between the parties was by without any coercion or undue influence and in the absence of the pleadings to that effect the Family Court was not justified in awarding further maintenance of Rs.5,000/- per month to the son.
8. Per contra, learned counsel appearing for the respondent-wife would justify the order passed by the Family Court and contend that the permanent -6- RPFC No. 100008 of 2023 alimony of Rs.4,25,000/- given to the respondent No.2 for having executed a Khula-Nama and the same cannot be treated as a maintenance to the son and deprived the first respondent of her legal and legitimate right.
9. Having heard the learned counsel for parties and perused the material on record.
10. The material on record would reflect that it is not in dispute that the marriage of the parties was solemnized on 18.05.2003 and there were differences between husband and wife and Criminal Miscellaneous was filed by the second respondent seeking maintenance under Section 125 of Cr.P.C. in Crl.Misc. No.374/2010 and the matter was settled by way of joint memo for compromise and clause ii of the joint memo for compromise states that Rs.4,25,000/- is received by the second respondent wife towards iddat period including life maintenance amount and litigation expenses including the maintenance amount of the -7- RPFC No. 100008 of 2023 respondent No.1 till he attains the age of majority in lieu of khula-nama.
11. In the backdrop of this, it is to be stated that respondent No.2 wife filed petition before the Family Court on the ground that the son of the petitioner is claiming maintenance for education, food and timely medical attendants and she being the mother, she is unable to meet educational expenses and provide food, education to the son and petitioner herein has neglected to maintain his minor son. This being so, it is relevant to note that the khula-nama has been entered between the petitioner and the respondent No.2 and the alimony of Rs.4,25,000/- was paid to the respondent No.2 for the khula-nama and the same cannot be construed as maintenance having been given to the respondent No.1 and the mother cannot act against the interest of the minor son.
12. The Family Court taking into consideration the escalation in the prices and education expenses -8- RPFC No. 100008 of 2023 that would have to be meted by the father of respondent No.1/petitioner herein the Family Court has rightly awarded monthly maintenance of Rs.5,000/- which does not call for any interference.
13. Accordingly, this Court pass the following:
ORDER
a) The petition stands dismissed as devoid of merits.
b) The impugned order dated 02.06.2014 in Crl.Misc.No.420/2013 on the file of Family Court, Belgaum stands confirmed.
(Sd/-) JUDGE VMB List No.: 1 Sl No.: 13