Kerala High Court
Mohammed Musthafa K vs Safiya T on 11 July, 2018
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940
RPFC.No. 405 of 2017
AGAINST THE ORDER/JUDGMENT IN MC 451/2014 of FAMILY COURT, MALAPPURAM
REVISION PETITIONER(S)/RESPONDENT:
MOHAMMED MUSTHAFA K.
AGED 44 YEARS, S/O.KADEEJA, KUNNATH VEEDU,
KUTTIL PO,
MANKADA AMSAM, KUTTIL DESAM,
PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT,
MANKADA POLICE LIMIT
BY ADVS.DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
SRI.S.K.ADHITHYAN
SRI.MUHAMMED IBRAHIM ABDUL SAMAD
RESPONDENT(S)/PETITIONERS:
1. SAFIYA T.
AGED 40 YEARS, D/O.MOOSANNI, THAYYIL VEEDU,
MULLYAMKRUSHI AMSAM, PATTIKKAD DESOM,
PATTIKAD PO, MALAPPURAM DISTRICT PIN 679 325
2. SHADIYA JABIN
AGED 19 YEARS, D/O.MUHAMMED MUSTHAFA K,
W/O.KHALEEL RAHMAN K,
PRESENTLY RESIDING AT KUNNATH HOUSE,
KOOTIL PO, MANKADA, MALAPPURAM DISTRICT,
PIN 679 324.
3. SHAMEEM ROSHAN
AGED 16 YEARS (MINOR),
S/O.MOHAMMED MUSTHAFA K,
THAYYIL VEEDU, MULLYAMKRUSHI AMSAM, PATTIKKAD DESOM,
PATTIKAD PO, MALAPPURAM DISTRICT, PIN 679 325
4. SHAMILA, AGED 12 YEARS(MIMOR)
D/O.MUHAMMED MUSTHAFA K,
THAYYIL VEEDU, MULLYAMKRUSHI AMSAM, PATTIKAD DESOM,
PATTIKKAD PO, MALAPPURAM DISTRICT, PIN 679 325
R. BY ADV. SRI.K.DILIP
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11-07-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SUNIL THOMAS, J.
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R.P(F.C).No.405 of 2017
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Dated this the 11th day of July, 2018
ORDER
Petitioner herein is the respondent in M.C.No.451 of 2014 of the Family Court, Malappuram. Respondents herein are the wife and three children. Respondents claimed maintenance from the petitioner herein. It was contended that, petitioner herein was a driver by profession, had his own vehicle and had landed properties. He was getting Rs.20,000/- per month. He had huge deposits in his name. Hence, respondents claimed Rs.3,000/- for the first respondent and Rs.2,500/- to the respondents 2 to 4 as maintainable.
2. Petitioner appeared and controverted the above contentions. He contended that, he did not have landed properties, that, he was not employed and that, to an extent, he was disabled and hence, not earning anything. He also claimed that, he did not have any deposits in his name. He was only a coolie worker getting Rs.400/- per day. He also contended that, he could not get employment every day.
3. On the basis of the above pleadings, parties went for trial and the case was tried along with O.P.No.692 of 2014. R.P(F.C)405/17 2
4. Though contentions were set up regarding divorce and talaq, for the purpose of the maintenance, I am not inclined to go into the rival contentions set up by both parties regarding the above issue. Matrimonial relationship is not disputed. Paternity of the children are also not in dispute. According to PW1, he was employed as a driver. He gave evidence in support of his pleadings. On the other hand, petitioner herein admitted that, he was working as a waiter to painter. According to him, he only used to get Rs.400/- per month. Though he had claimed that he has sustained injury and consequent disability and cannot do any work, it was brought out in the course of examination that, he came driving a motor cycle on the day of his examination. It was also brought out in evidence that, he has got a driving license to drive three wheeler and four wheeler vehicle.
5. In the light of absence of any cogent and convincing evidence regarding the income of the husband, court below assumed that, he must be getting a notional income of Rs.500/- per day. Reckoning 24 working days, Court calculated the amount as Rs.12,000/-. Accordingly, maintenance @Rs.2500/- to the first respondent and Rs.2,000/- to the remaining respondents were ordered.
R.P(F.C)405/17 3
6. Assailing the above finding, learned counsel for the revision petitioner contended that, court below went thoroughly wrong in fixing an amount of Rs.12,000/- as the monthly income. It was also contended that the court below, even assuming that, Rs.12,000/- to be the correct income, went wrong in ordering payment of Rs.8500/- in lump to the respondents thereby taking away major chunk of the amount earned by him every month.
7. It seems that, husband did not adduce convincing evidence regarding his income. Though he claimed disability, it was disproved by his own evidence. Hence, even the amount of Rs.500/- per day calculated by the Court was the minimum that the Court had taken and the income of Rs.12,000/- fixed by the court below can only be considered as the rough bottom limit. Hence, I am not attracted by the contention of the learned counsel for the petitioner that the amount ordered by the court below forms the major chunk of the income of the petitioner herein.
8. It is also brought on record that the first respondent is aged 36 years. The elder child was 16 years at the time of filing the application and is reported to have attained majority. Hence, she is not entitled for the maintenance after the attainment of the age of majority. Remaining children were 13 years and 9 years R.P(F.C)405/17 4 respectively, in the year 2014. Definitely, their needs have increased. Having considered this, I find that the amount of Rs.2500/- ordered to the first respondent and Rs.2,000/- to the third and fourth respondents do not call for any interference.
9. Apparently, it appears that the petitioner herein is a able bodied person. Hence, I find no merit in the revision, which is accordingly dismissed, confirming the impugned order. However, petitioner herein is granted three months time to discharge the entire liability.
Accordingly, revision petition is dismissed.
Sd/-
SUNIL THOMAS Judge Sbna/12/7/18 True Copy / P A to Judge