Kerala High Court
H.Muhammed Farooq vs A.Nilavarnneesa on 24 July, 2008
Author: R.Basant
Bench: R.Basant
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 234 of 2008()
1. H.MUHAMMED FAROOQ, AGED 40 YEARS,
... Petitioner
Vs
1. A.NILAVARNNEESA, D/O.ABDUL KARIM,
... Respondent
2. M.SABITHA, 9 YEARS (MINOR),
3. M.MUHAMMEDRAFI 6 YEARS (MINOR)
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.SAJAN VARGHEESE K.
The Hon'ble MR. Justice R.BASANT
Dated :24/07/2008
O R D E R
R.BASANT, J
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R.P.F.C.No.234 of 2008
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Dated this the 24th day of July 2008
O R D E R
This R.P.F.C is filed by the petitioner to assail an order passed under Section 125 Cr.P.C directing him to pay maintenance at the rate of Rs.750/- , Rs.500/- and Rs.500/- per mensum respectively to the claimants, his wife and two minor children.
2. Marriage is admitted. Separate residence is not disputed. Paternity is also conceded. A contention was raised that the petitioner has divorced the first claimant. The first claimant contested that assertion and stated that there was no divorce at all and that she continues to be the spouse of the petitioner herein.
3. The parties went to trial on these contentions. The petitioner was not able to adduce any evidence to support and establish his contention that there was a valid divorce. In these circumstances, the court below came to the conclusion that the alleged divorce has not been proved.
R.P.F.C.No.234/08 2
4. The court then proceeded to consider the quantum of maintenance payable. There was evidence to show that the petitioner was engaged in the activity as a footwear vendor. No better evidence was adduced. The wife asserted that his monthly income was Rs.10,000/-, the petitioner asserted that he was getting an income of Rs.50/- to Rs.60/- only per day. The court below in these circumstances directed payment of maintenance at the rates referred above.
5. The finding regarding marriage is found to be absolutely reasonable, fair and just. I find absolutely no reason to interfere with that finding of fact. The Muslim husband does of course have in his armory an extra judicial right to pronounce talaq and liquidate the marriage. But it is incumbent that he must prove that there has been such a divorce. The mere raising of a plea in the proceedings before court does not at all amount to a valid divorce, it is trite by now. The petitioner, I agree with the court below has totally failed in establishing his plea of divorce. A prayer is made that further opportunity may be granted to establish the plea of divorce. I am not persuaded to agree that any further opportunity can, need or deserves to be granted.
R.P.F.C.No.234/08 3
6. Coming to the quantum of maintenance, the amount awarded is only Rs.750/-, Rs.500/- and Rs.500/- respectively. Even reckoning the petitioner as just an able bodied person I must hold that the quantum of maintenance fixed cannot by any stretch of imagination be held to be grossly erroneous or perverse as to persuade me to invoke the revisional jurisdiction of superintendence and correction.
7. The learned counsel for the petitioner prays that some breathing time may be granted to the petitioner to make the payment and avoid coercive steps. It is for the petitioner to show his bona fides by depositing a substantial portion of the amount in arrears and seek further time from the court. If the petitioner does so, I have no hesitation that the learned Judge of the Family Court shall consider the prayer for breathing time fairly and in accordance with law. No further or specific directions appear to be necessary.
8. This R.P.F.C is in these circumstances dismissed.
(R.BASANT, JUDGE) jsr R.P.F.C.No.234/08 4 R.P.F.C.No.234/08 5 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008