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2010 DIGILAW 71 (KER)

Fathimath Sahira v. Hakkem

2010-01-21

M.N.KRISHNAN

body2010
ORDER : 1. This revision petition is preferred against the order of the Family Court, Kasargod in M.C.No.204 of 2007. The wife and a six months old child had knocked at the doors of the Family Court for maintenance to avoid destitution and the Family Court refused maintenance to the wife and granted a sum of Rs.500/- as maintenance to the minor child. The unfortunate couple got married and the wear and tear of the matrimonial life grew beyond the realm of tolerance which ultimately led into separation and finally for the matrimonial cause of action of maintenance. The wife is aged 22 years and the husband is aged 32 years. The wife would contend that immediately after a few days from the date of marriage, the matrimonial disharmony in the form of physical and mental torture started which grew beyond dimensions. Whatever it may be, in the conjugal relationship, a child had been born. The cradle ceremony of the child was conducted in the house of the husband and thereafter estrangement continued and not able to bear the cruelty the wife states that she left the matrimonial home. But, on the other hand, the husband would contend that the wife is a sensitive lady, not prepared to live with the parents and she never wanted to reside in the matrimonial home. It has to be remembered that the materials available in the case would reveal that there were misunderstanding between the couples and efforts had been made to resume relationship. Under ordinary circumstances, a wife aged 22 years with a child aged 1 or 2 years would not leave in the matrimonial home unless there are sufficient reasons for the same. The Family Court went on to observe regarding the pomp and glory in which cradle ceremony was celebrated and even had gone to the extent of saying that the wife had been instrumental for the polygamous instinct of her husband. No relationship or no society would ever cherish or appreciate the polygamy now a days. Time has changed, law has changed and even under Mohammedan Law the basic principle is that a wife should not be left alone and never should be made to become a destitute. No relationship or no society would ever cherish or appreciate the polygamy now a days. Time has changed, law has changed and even under Mohammedan Law the basic principle is that a wife should not be left alone and never should be made to become a destitute. To borrow the expression, the Hon’ble Mr.Justice V.R.Krishna Iyer in Aboobaker Haji v. Mamu Koya( 1971 KLT 663 ) had held that “the philosophy of justice in the matrimonial jurisdiction behaves the court to strive to restore conjugal harmony. The family being the unit of the nation, its internal unity is the strength of the nation. A Judge may actively stimulate a rapproachment process without involvement in any specific proposal in the spirit”. So, this is a sanctity that is attached to any form of marriage and under the Indian society even though the muslim marriage is of not a sacramental nature but a contractual nature, separation is always deprecated. When a young lady aged 22 years with a few months old child is unable to bear the blunt of the matrimonial life in the matrimonial home, she cannot be blamed tor living apart. In our Indian condition ladies are generally very tolerant and they always consider the normal quarrels as an ordinary wear and tear of the matrimonial life. Since the situation had gone beyond that in this case also the petitioner has left the matrimonial home. 2. Therefore I disagree with the finding of the Family Court and hold that the wife has reasonable cause to live separately and she is entitled to maintenance. It is true that regarding the income of the husband, there is no positive evidence before the Family Court. But the husband is a young, able bodied man and he has to toil hard to maintain his wife. Considering the present day set up, I feel at least a minimum amount of Rs.750/- can be granted to the wife as maintenance. -. In the result the revision petition is allowed and the order of the Family Court refusing to grant maintenance to the wife is set aside and she is awarded a maintenance of Rs,750 - per month from the date of petition, I make it very clear that the amount of maintenance awarded to the child is not disturbed and the mother can continue to receive the same on behalf of the minor child.