Kerala High Court
Moosa Koya Kootungal Parambu vs Nisha on 20 March, 2012
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935
RPFC.No. 82 of 2013 ()
-----------------------
AGAINST THE ORDER IN MC 766/2010 of FAMILY COURT,
MALAPPURAM DATED 20-03-2012
REVISION PETITIONER/RESPONDENT:
--------------------------------
MOOSA KOYA KOOTUNGAL PARAMBU, AGED 51 YEARS,
S/O.SAIDALI, REPRESENTED BY ASAMBI,
POWER OF ATTORNEY HOLDER, ROSE MAHAL SENHA,
HOUSE NO.IX/326, NEAR BEPUR HIGH SCHOOL,
KOZHIKODE DISTRICT.
BY ADV. SRI.SANTHARAM.P
RESPONDENT/PETITIONER:
----------------------
NISHA, AGED 27 YEARS,
D/O.MOOSA KOYA, KOOTUNGAL PARAMBU,
C/O.ASHRAF MADAYI,
MADAYI HOUSE, MANJERI P.O.,
MALAPPURAM DISTRICT-676 505.
BY ADV. SRI.K.M.JAMALUDHEEN
BY ADV. SMT.LATHA PRABHAKARAN
THIS REV.PETITION(FAMILY COURT) HAVING BEEN
FINALLY HEARD ON 16-08-2013, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
K. HARILAL, J.
------------------------------------------------------
R.P.(FC) No. 82 of 2013
------------------------------------------------------
Dated this the 16th day of August, 2013
ORDER
The revision petitioner is the respondent in M.C.No.766/10 on the files of the Family Court, Malappuram. He is the father of the respondent in this revision petition. The above M.C. was filed under Sec.125 (1) of the Code of Criminal Procedure by the respondent herein to seek maintenance from the revision petitioner. According to the respondent, she is the unmarried daughter of the revision petitioner and she is unable to maintain herself. But the revision petitioner, who is liable to pay maintenance allowance, has been neglecting to maintain her and refused to pay maintenance allowance since the last three years. She claimed maintenance allowance at the R.P.(FC) No. 82 of 2013 -: 2 :- rate of Rs.7,000/- per month for the last three years and Rs.7,500/- per month for future maintenance from the date of petition. The court below directed the revision petitioner to pay maintenance allowance at the rate of Rs.4,000/- per month from the date of filing the M.C. This order is under challenge in this revision petition.
2. It is the case of the respondent that she is having no job or source of income for her maintenance. Thus, she is unable to maintain herself. Though she is aged 27 years, she is unmarried and living with her step father. She is in need of food, cloth, shelter, medicine etc. Now she is depending upon the step father; whereas, the revision petitioner is working at Kuwait as Manager and drawing salary in lakhs. He owns three buildings and having landed properties. The paternity of the respondent is undisputed. But, according to the revision petitioner, a major unmarried daughter is not entitled to claim maintenance from her parents, unless she is suffering from any physical or mental abnormality or injury unable to maintain herself under Sec.125 Cr.P.C. In addition to this, he contended that he R.P.(FC) No. 82 of 2013 -: 3 :- has been working at Kuwait and having only salary of 7000/- Indian rupees. He denied the averment that he is working as Manager and drawing salary in lakhs. According to him, the amount claimed as maintenance allowance per month is also excessive and disproportionate.
3. The main thrust of the argument advanced by the learned counsel for the revision petitioner is that under Sec.125 of the Code of Criminal Procedure a major child is not entitled to get maintenance, unless she is disabled by physical or mental abnormality or injury unable to maintain herself. The court below found that the respondent herein is not entitled to get maintenance under Sc.125 of the Cr.P.C., but further went wrong by finding that an unmarried daughter is entitled to get maintenance allowance under Sec.374 of the Mohammedan Law by Mulla. He further contended that though the provisions under Sec.370 of the Mohammedan Law provides maintenance to daughters till their marriage, Sec.374 of the Mohammedan Law limits the maintenance to the children who are unable to maintain themselves. The bar under Sec.125 Cr.P.C. ought to have R.P.(FC) No. 82 of 2013 -: 4 :- been adopted by the court below, while considering the maintenance under the Personal Law also. Further, the learned counsel advanced arguments challenging the quantum of amount directed to be paid to the respondent.
4. Per contra, the learned counsel for the respondent submits that the claim of maintenance under Sec.125 Cr.P.C. and Sec.374 of the Mohammedan Law are mutually exclusive, different and distinct, as the sources of right are different. Even though an unmarried Muslim major daughter is not entitled to claim maintenance allowance under Sec.125 of the Cr.P.C., unless she is physically or mentally abnormal, she is entitled to claim maintenance allowance as per her Personal Law. According to Sec.374 of the Mohammedan Law (Mulla's), the father is liable to pay maintenance to the daughter till her marriage. The learned counsel further drew my attention to the petition filed by the respondent before the court below and submits that the maintenance was claimed both under Sec.125 of the Code of Criminal Procedure as well as Sec.374 of the Mohammedan Law. The learned counsel cited the decisions R.P.(FC) No. 82 of 2013 -: 5 :- reported in Yousaf v. Rubeena (2010 (4) KLT 1); K.K. Parmar v. H.C. of Guujarat (2006 (5) SCC 789) and Raj Kumari Awasthi v. State of U.P. (2008 KHC 5753).
5. In view of the rival contentions, the preliminary question to be considered is whether the respondent, an unmarried major daughter, is entitled to get maintenance under the Muslim Personal Law.
6. Going by Sec.125(1)(b) and (c) of the Cr.P.C., undoubtedly, a major daughter is not entitled to get maintenance from the father, unless the daughter is disabled by physical or mental abnormality or injury unable to maintain herself. In the decision in Noor Saba Khatoon v. Mohd. Quasim (AIR 1997 SC 3280), the Supreme Court placed reliance on a text book "Statute Law relating to Muslims in India" (1995 Edn.) by Prof. Tahir Mahamood. Going by the book, maintenance (nafaqa) is a birth right of children and an absolute liability of the father. Daughters are entitled to maintenance till they get married if they are bakira (maiden), or till they get remarried if they are thayiba (divorce/widow). Sons are entitled to it till they attain R.P.(FC) No. 82 of 2013 -: 6 :- bulugh if they are normal: and as long as necessary if they are handicapped or indigent. Providing maintenance to daughters is a great religious virtue. The Prophet has said:
"Whoever has daughters and spends all that he has on their upbringing well, on the Day of Judgment, be as close to me as two fingers of a hand.
If a father is poverty stricken and cannot therefore provide maintenance to his children, while their mother is affluent, the mother must provide them maintenance subject to reimbursement by the father when his financial condition improves."
(Emphasis added)
7. In the above view of the Muslim Personal Law, it is beyond controversy that Muslim daughters are entitled to get maintenance from their father till they are married, though they attained majority. In view of the argument advanced by the learned counsel for the revision petitioner another question also is to be considered i.e., whether Sec.125 Cr.P.C. override, obliterate or nullify the claim for R.P.(FC) No. 82 of 2013 -: 7 :- maintenance under the Personal Law. This question is answered by a Division Bench of this Court Yousaf v. Rubeena (2010 (4) KLT 1). In this decision this Court held that:
"There is nothing in S.125 Cr.P.C. or Chapter IX of Cr.P.C. to indicate that the provisions of the said Chapter would override the stipulations under the personal law. The provisions of Chapter IX of Cr.P.C. has a very significant secular purpose to serve. It has nothing to do with the personal law applicable to the parties. Whether under the personal law a person is liable to pay maintenance or not, his liability to pay maintenance under the secular law of the land in Chapter IX Cr.P.C. would continue. Thus, we find absolutely no merit in the contention that the liability under the personal law would stand extinguished, overrided or obliterated by the provisions of Chapter IX Cr.P.C."
8. The learned counsel for the revision petitioner further contended that had the claim been raised under the Personal Law, the petition should have been filed under R.P.(FC) No. 82 of 2013 -: 8 :- Sec.374 of the Mohammedan Law only, instead of filing both under Sec.125 of the Cr.P.C. and Sec.374 of the Mohammedan Law. This is a question based on technicality. Going by the petition, it could be seen that the petition was filed under Sec.125(1) of the Code of Criminal Procedure 1973 read with Secs.370 and 374 of the Mohammedan Law and Sec.7(2) of the Family Courts Act. Then the question is, can a rightful claim be denied on the basis of the wrong quoting of another provision also along with the correct provision. The Apex Court has considered this question in K.K. Parmar v. H.C. of Guujarat (2006) 5 SCC 789) and observed as below:
"21. The superior court exercising its power of judicial review is not concerned as to whether a wrong provision of law has been taken recourse to, but is only concerned with the question as to whether the authority passing the order had the requisite jurisdiction under the law to do so or not. In the event, it is found that the impugned order is not ultra vires or illegal or without jurisdiction, the same would not R.P.(FC) No. 82 of 2013 -: 9 :- be interfered with only because it at one point of time proceeded on a wrong premise. A jurisdictional question, in our opinion, can always be permitted to be raised. We, therefore, do not find any substance in the said contention of Mr. Kapur."
9. In view of the above decision, the next point arises for consideration is, whether the Family Court has jurisdiction to entertain a claim for maintenance under Secs.370 and 374 of the Mohammedan Law? Jurisdiction conferred to the Family Court under Sec.7 of the Family Courts Act reads as follows:
"7. Jurisdiction.-- (1) Subject to the other provisions of this Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and R.P.(FC) No. 82 of 2013 -: 10 :-
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.-- The suits and proceedings are referred to in this sub-section are suits and proceedings of the following nature, namely:-
(a) x x x x x x
(b) x x x x x x
(c) x x x x x x
(d) x x x x x x
(e) x x x x x x
(f) a suit or proceeding for
maintenance;
x x x x x x x
x x x x x x x
x x x x x x x"
On a treading of Sec.7(1)(a), (b) and 7(1)(f) of the Family Courts Act together in juxtaposition, I am of the opinion that a Family Court has jurisdiction to entertain a petition under Secs.370 and 374 of the Mohammedan Law. Thus, I find that the Family Court which passed the impugned order R.P.(FC) No. 82 of 2013 -: 11 :- has the power and jurisdiction to pass such an order under Secs.370 and 374 of the Mohammedan Law (Mulla's) and the impugned order is not vitiated by lack of jurisdiction. Thus, I find that the petition praying for direction to pay maintenance allowance under the Muslim Personal Law is maintainable before the Family Court and the wrong quoting of Section 125 of the Cr.P.C. also along with the provisions under Mohammedan Law is of no consequence at all.
10. Coming to quantum of maintenance allowance, the question is, is the quantum of maintenance directed to be paid justifiable and proper? Admittedly, he has been working in Kuwait since the last so many years. The respondent has no job or sources of income. Her evidence shows that now she is living with his step father and depending upon him. She is aged 27 years. She has to meet the expenses of food, cloth, shelter, treatment etc. She has the right to live with the standard of life at par with the standard of life of her father who is working abroad since last so any years. He has no case that he is physically R.P.(FC) No. 82 of 2013 -: 12 :- unhealthy or disabled or incapacitated to do work so as to work and earn livelihood for his daughter. The evidence shows that he married again and living with his wife and children. The respondent is entitled to get the same treatment and consideration from her father as that of, which he gives to the children of his second marriage. Considering the standard of life, living expenses of a major woman and also the income of the father, I am of the opinion that the direction to pay maintenance at the rate of Rs.4,000/- per month is just and proper and not liable to be interfered with.
This revision petition is meritless and dismissed accordingly.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge