Karnataka High Court
Mohammed Iqbal Ahmed vs Smt Jabeen Begum on 17 March, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
R.P.F.C. NO. 133/2012
BETWEEN:
MOHAMMED IQBAL AHMED
S/O ABDUL RAHEEM @ JAMI
AGED ABOUT 46 YEARS
R/O NO.56, CENTRAL STREET
NEELASANDRA
BANGALORE-47
... PETITIONER
(By Sri: R A CHANDRASHEKARA REDDY, ADV.)
AND:
1. SMT JABEEN BEGUM
W/O MOHAMMED IQBAL AHMED
AGED MAJOR
2. ARBAS AHMED
AGED ABOUT 17 YEARS
3. SHABAZ AHMED
AGED ABOUT 17 YEARS
RESPONDENTS 2 & 3 ARE MINORS
REPRESENTED BY THEIR NEXT FRIEND
MOTHER i.e., IST RESPONDENT
ALL ARE R/O NO.61
CENTRAL STREET
NEELASANDRA
BANGALORE-47
... RESPONDENTS
2
(RESPONDENTS SERVED)
RPFC FILED UNDER SEC.19(4) OF FAMILY COURT
ACT, AGAINST THE JUDGMENT AND ORDER
DATED:19.07.2012 PASSED IN C.MISC.456/2006 ON THE FILE
OF THE IVTH ADDL. JUDGE, FAMILY COURT, BANGALORE,
ALLOWING THE PETITION FILED UNDER SEC.127 OF
Cr.P.C.,
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF ORDERS, THIS DAY
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
ORDER
The present petition is filed under Section 19 (4) of the Family Courts Act, 1988, challenging the order passed by the Judge, Family Court, Bengaluru, in Crl.Misc.456/06 dated 19.7.2012. By virtue of the said order, the learned judge of the Family Court has enhanced maintenance from Rs.1,500/- p.m. to Rs.8,000/- p.m. under Section 127, Cr.P.C. Being aggrieved by the said order, the respondent therein has filed this petition.
2. The petitioner herein was the respondent in the said case and respondents 1 to 3 herein were petitioners in Crl.Misc.456/06, a petition filed under Section 127, Cr.P.C. Parties will be referred to as petitioners 1 to 3 and respondent as per their ranking before the trial court.
3
3. The 1st petitioner is the legally wedded wife of the respondent and petitioners 2 and 3 are the children born out of the said wedlock. Since the respondent had neglected to maintain them, they had to file a petition under Section 125, Cr.P.C. in Crl.Misc.512/96 before the Family Court, Bengaluru. The said petition was contested by the respondent and ultimately Rs.500/- each came to be awarded as maintenance in favour of petitioners 1 to 3 vide order dated 22.1.2002.
4. since the cost of living has gone up manifold, the petitioners chose to file a petition under Section 127, Cr.P.C. seeking enhancement of maintenance from Rs.500/- p.m. to Rs.10,000/-. After contest, the said petition has been allowed granting Rs.4,000/- to the 1st petitioner and Rs.2,000/- each to petitioners 2 and 3 who are children of the 1st petitioner and respondent. It is this order which is called in question in this petition in various grounds as set out in the memorandum of revision petition.
5. Heard the learned counsel for the petitioner. The respondents though served, are unrepresented. 4
6. The entire focus of the arguments advanced by the learned counsel for the revision petitioner is in regard to the quantum of maintenance awarded and not with regard to any other point. According to the respondent (petitioner herein), he has taken a second wife after properly divorcing his wife, i.e. 1st respondent herein, by means of pronouncing Talaq and therefore there is no relationship of husband and wife between them, and therefore she is not entitled to claim maintenance. He is stated to have returned the Mehr through a cheque along with Talaqnama. Even otherwise he does not have income as pleaded by the petitioners and he is finding it very difficult to pay the earlier maintenance awarded by the Family Court. He is stated to have again married and has two daughters and mother who are depending upon him. With these pleadings, he had requested the trial court to dismiss the petition.
7. Ultimately the learned judge has held that the 1st petitioner is entitled to maintenance even if one were to accept that she has been divorced by pronouncing proper Talaq. It is contended that the respondent has not placed any acceptable material in regard to the alleged divorce and that she is still entitled to claim maintenance.
5
8. As rightly pointed out by the trial court, material evidence like Talaqnama is produced to demonstrate the alleged divorce. The respondent had sent a notarized copy of the Talaqnama dated 1.2.2007 along with the notice got issued by his advocate on 5.2.2007. The said notice sent through post was personally signed by the 1st petitioner and that is evident from ex.R4-postal acknowledgement. Consequent upon receipt of Talaqnama along with the cheque for Rs.11,786/- towards Mehr, the petitioner got issued a reply on 14.2.2007 through her advocate, denying the very divorce. The said cheque was returned denying the divorce.
9. Mere production of Talaqnama would be insufficient. He should have corroborated the same by producing supportive evidence. Even if one were to accept for argument sake that the 1st petitioner has been divorced, whether she would still be entitled to claim maintenance under Section 125, Cr.P.C. or enhancement under Section 127, Cr.P.C., is the question. This aspect of the matter has been dealt with at length in the case of SHABANA BANO .vs. IMRAN KHAN ([2010] 1 SCC 666). While elaborately discussing the provisions of Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, it is made 6 clear that even a divorced Muslim woman can claim maintenance beyond the Iddat period and she would be entitled to be maintained till she re-marries. Thus she is entitled to claim maintenance for herself and children.
10. The petition for maintenance had been filed under Section 125, Cr.P.C. in Crl.Misc.512/96 which was also a contested petition. The said petition has been disposed of on 22.1.2002 granting maintenance at Rs.500/- p.m. each. At the time when maintenance petition was filed, her two sons were hardly 8 months and they were twins. Considering the totality of the case, the learned judge of the Family Court had granted Rs.500/- each to the petitioners therein. Section 127, Cr.P.C. provides for enhancement or alteration of maintenance. In the present case, the circumstances enabling them to seek enhancement is that the cost of living has gone up manifold and it is very difficult to maintain their lives. Admittedly both the children of the 1st petitioner are school going children and they have to be maintained till they attain majority since they are boys.
11. The case put forth by the respondent before the trial court in regard to his income is that he is not earning anything since the 7 business house in which he was working has been closed. He has relied on Ex.R7 dated 12.1.2006 issued by the proprietor of M/s Jaysons Traders, wherein it is mentioned that Iqbal Ahmed was working as a salesman from January 2005 and his conduct was good and satisfactory and he was drawing Rs.2,800/- p.m. as salary. Ex.R8 is another letter dated 31.3.2010 issued by the same Jaysons Traders stating that their organization was closed on 31.3.2010 due to business loss and as such he was not working any more with them.
12. Mere production of Exs.R7 and R8 would be insufficient. He has not examined anybody to vouch-safe the contents of the same. Therefore much reliance cannot be placed on Exs.R7 and R8. Insofar as the contention of the 1st petitioner that he is running an automobile shop and earning Rs.60,000/- p.m. is concerned, no evidence is placed to probablise the same even remotely. The respondent has admitted that he has married again and has two children and they are school going. At the time when he led evidence, one daughter was in II Standard and another was in IV Standard. He has admitted that he is paying Rs.350/- p.m. 8 to each of them as monthly fees to them and that his mother is totally dependent upon him.
13. Insofar as the income of the respondent is concerned, there is oath and counter oath. Therefore under such circumstances the income of the respondent will have to be assessed on the basis of broad preponderance of probabilities. It is not the case of the respondent that he is too weak and infirm or unable to work at all. He has taken the calculated risk of having one more wife who has given birth to two children. Admittedly he has been sending his two children born to his second wife by paying Rs.350/- p.m. as tuition fees. This would give an indication that though he is not substantially well-off, still he is capable of maintaining his mother, wife and two children who are virtually depending on him.
14. The learned judge of the Family Court has awarded Rs.4,000/- to the 1st petitioner and Rs.2,000/- each to petitioners 2 and 3. Considering the cost of living of these petitioners who are living in Bengaluru and the need to educate the children in a good school, a sum of Rs.10,000/- is required per month. But whether the respondent has capacity to pay Rs.10,000/- as 9 claimed by the petitioner, or Rs.8,000/- as awarded by the trial court, is the question.
15. No material is placed on record by the respondent to show that the 1st petitioner is an earning lady and therefore she cannot claim maintenance. Admittedly the 1st petitioner is a housewife and does not have an independent source of income. The two children are dependent upon her and he is liable to maintain petitioners 2 and 3 till they attain majority. Even otherwise, no other material is placed on record to show that the 1st petitioner has an independent house of her own. Taking all these into consideration, awarding Rs.3,000/- p.m. to the 1st petitioner and Rs.1,500/- each to petitioners 2 and 3would meet the ends of justice. This reduction is required because the respondent has to look after his aged mother and second wife and the two children out of his second marriage.
16. In the result, I pass the following order:
ORDER The revision petition is allowed in part, reducing maintenance from Rs.4,000/- p.m. to Rs.3,000/- p.m. insofar as the 1st petitioner-Jabeen Begum is concerned. Maintenance 10 awarded to each of petitioners 2 and 3 is reduced from Rs.2,000/- p.m. to Rs.1,500/- p.m. each till they attain majority. Parties to bear their own costs.
The learned judge to enforce the order of maintenance as modified by this court, in terms of Section 128, Cr.P.C. keeping in mind the principles enunciated by the Hon'ble apex court in the case of KULDIP KAUR .v. SURINDER SINGH (AIR 1989 SC 232).
Send a copy of this order to the Family Court, Bengaluru, at the earliest.
Sd/-
JUDGE vgh*