Kerala High Court
Mohamed Rashid M.P vs Fathima K on 21 November, 2019
Equivalent citations: AIRONLINE 2019 KER 1112
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941
RPFC.No.120 OF 2019
AGAINST THE ORDER/JUDGMENT IN MC 320/2017 DATED 03-12-2018 OF
FAMILY COURT, TIRUR
REVISION PETITIONER/RESPONDENT:
MOHAMED RASHID M.P.
AGED 32 YEARS, S/O MOHAMED M.P.
MANNOOPARAMBIL HOUSE,
THIRUNAVAYA AMSOM, KARATHUR DESOM,
CODACAL (PO), THIRUNAVAYA VILLAGE,
TIRUR TALUK, MALAPPURAM DISTRICT,
PIN 676 108
BY ADV. SRI.JOSEPH M.P.
RESPONDENTS/PETITIONERS:
1 FATHIMA K.
AGED 27 YEARS, D/O HAMZA HAJI,
KAVUMPURATH HOUSE, KALPAKANCHERY AMSOM,
KURUKA DESOM, KURUKA (PO)
KALPAKANCHERY VILLAGE, TIRUR TALUK,
MALAPPURAM DISTRICT, PIN 676 551.
2 AISHA DIYANA M.P.
AGED 2 YEARS, KAVUMPURATH HOUSE,
KALPAKANCHERY AMSOM, KURUKA DESOM,
KURUKA (PO), KALPAKANCHERY VILLAGE,
TIRUR TALUK, MALAPPURAM DISTRICT
PIN 676 551,
(REPD. BY MOTHER FATHIMA K, 1ST RESPONDENT )
R1-2 BY ADV. SRI.V.A.AJMAL
THIS REV. PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
21.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RPFC.No.120 OF 2019
2
ALEXANDER THOMAS, J.
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R.P.(FC)No.120 of 2019
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Dated this the 21st day of November, 2019
ORDER
The aforecaptioned revision petition filed under Sec.19(4) of the Family Court Act, 1984 has been filed to impugn the final order dated 03.12.2018 rendered by the Family Court, Tirur in M.C.No.320/2017. Whereby, the revision petitioner herein (respondent therein) has been directed to pay maintenance at the rate of Rs.8,000/- per month to R-1 herein and at the rate of Rs.4,000/- per month to R-2 herein with effect from the date of the maintenance claim petition (31.08.2017).
2. Heard Sri.M.P.Joseph, learned counsel appearing for the revision petitioner and Sri.V.A.Ajmal, learned counsel appearing for the respondents. The case of the respondents herein, who are the petitioners in the abovesaid M.C filed before the Family court is to the effect that the revision petitioner herein (respondent therein) has neglected maintenance to them from 06.05.2016 onwards and that the petitioner herein is a B.Tech graduate and that he is conducting his own RPFC.No.120 OF 2019 3 business at Thiruvananthapuram and that he is earning around Rs.2,00,000/- per month. On this basis, the respondents herein/petitioners therein had claimed maintenance at the rate of Rs.25,000/- per month to R-1 herein and Rs.5,000/- per month to R-2 herein (minor son). Further that, R-1 herein is now a BDS student, who require substantial amount for her education and for her day-to-day expenses, etc. Initially, the Family Court had directed the revision petitioner herein to pay interim maintenance to R-2 herein (minor son). But the revision petitioner had failed to pay the said interim maintenance properly even after repeated directions. Later, he abstained from participating the court proceedings and accordingly, the Family Court had set him ex-parte. Thereafter, the revision petitioner had filed an application to set aside the ex-parte order and the said application to set aside the ex-parte order was allowed on condition that the revision petitioner should pay the entire arrears of interim maintenance to the minor son. Later, the revision petitioner had filed yet another application seeking extension of time, which was extended by the Family Court. The Family Court has noticed that even thereafter the revision petitioner has failed to pay the interim maintenance and RPFC.No.120 OF 2019 4 hence the application to set aside the ex-parte order was dismissed. The R-1 herein had filed proof affidavit. The Family Court found that the respondents herein have no sufficient evidence to establish their claim that they are entitled for the maintenance at the rate of Rs.25,000/- per month and Rs.5,000/- per month respectively and it was found that the said claimed amounts are excessive. The Family Court has noted that though R-1 herein was a student of BDS course, there is no justification for claiming such a huge amount. After taking into account, the social and economic backgrounds of both the parties and the attendant circumstances, the Family Court has ordered to grant maintenance at the rate of Rs.8,000/- per month to R-1 herein and at the rate of Rs.4,000/- per month to R-2 herein from the date of the petition. This Court while admitting the above revision petition has passed interim order dated 29.03.2019 in Crl.M.A.No.1/2019 in this R.P(F.C) directing that the operation, enforcement and execution of the impugned order dated 03.12.2018 rendered by the Family Court, Tirur in the said M.C will stand stayed, subject to the condition that the revision petitioner herein should pay an amount of Rs.20,000/- within one month and a further amount of Rs.20,000/- within another one month and should RPFC.No.120 OF 2019 5 pay monthly maintenance at the rate of Rs.3,000/- per month to the respondents. The respondents had earlier complained that the revision petitioner has not complied with the terms and conditions imposed thereon in the order dated 29.03.2019 in this R.P(F.C). On 08.07.2019, when the matter was taken up for consideration, the learned counsel for the respondents submitted that the petitioner has already paid an altogether amount of Rs.10,000/-, etc. Now Sri.M.P.Joseph, learned counsel appearing for the revision petitioner would submit that the petitioner has paid the entire up-to-date arrears, except for an outstanding balance of Rs.20,000/- per month. Thus it is seen that even today, the petitioner has not complied with the conditional interim order and hence, it is not right and proper for this Court to keep this revision petition and the stay orders pending. Both sides have made their submissions.
3. Taking note of the conduct of the revision petitioner, this Court is not persuaded to remit the matter to the Family Court on the ground that the impugned order is ex-parte, as the matter would only be unnecessarily prolonged and such a course of action may not be just and fair to the respondents herein.
RPFC.No.120 OF 2019 6
4. The learned counsel for the revision petitioner has pleaded that the petitioner is facing great financial difficulties. This is strongly denied by the learned counsel appearing for the respondents. That it is reliably learnt that the revision petitioner herein is in a Gulf country and that he is an engineering graduate holding a B.Tech degree.
5. After hearing both sides and after having due regard to the facts and circumstances of the case, this Court is of the view that the maintenance amounts awarded by the Family Court could be slightly modified. Accordingly, it is ordered that the petitioner shall pay maintenance at the rate of Rs.6,000/- per month to R-1 herein and at the rate of Rs.2,500/- per month to R-2 herein from the date of the petition (31.08.2017) onwards. The revision petitioner should deposit 50% of the entire unpaid arrears calculated at the abovesaid rate for the period from 01.09.2017 to 31.12.2019 before the Family Court, within six weeks from the date notified for receiving a certified copy of this order and the balance 50% in that regard should be deposited by the petitioner before the said court, within six weeks thereafter. On such deposit, the Family Court will release the said amounts to the respondents herein through R-1 herein. Of course, the maintenance RPFC.No.120 OF 2019 7 amounts already paid by the petitioner to the respondents herein for the abovesaid period could be adjusted. In case, the revision petitioner does not comply with the abovesaid directions either in whole or in part, then the respondents herein will be at liberty to file execution petition before the Family Court, so as to seek execution of the directions made by this Court hereinabove.
6. Registry will forward a copy of this order to the Family Court, Tirur, who will dealt with M.C.No.320/2017. The Family Court will ensure that the matter is posted before the said court immediately on expiry of the abovesaid six weeks time limit and may issue notice to both sides and ascertain whether the petitioner has complied with the abovesaid directions. The impugned order will stand modified to the abovesaid limited extent.
With these observations and directions, the above R.P(F.C) will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd