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2014 DIGILAW 1947 (MAD)

S. Obaidulla v. Minor. Mohammed Ajim @ Oyz

2014-07-04

C.S.KARNAN

body2014
Judgment 1. The petitioner/respondent has preferred the present revision against the order passed by the Family Court, Coimbatore in M.C.No.10 of 2006. 2. The short facts of the case are as follows:- The first petitioner and respondent married each other on 16.06.2002. At the time of wedding, the father of the petitioner gave sreedhana of 80 sovereigns of gold jewellery, Rs.80,000/-in cash and Rs.50,000/- worth of household articles. The petitioner and respondent lived happily for about six months. Even though, additional dowry and gifts were given by the father of the first petitioner, the mother of the respondent was not satisfied with it. The respondent was working at Saudi Arabia and earning Rs.10,000/- per month. On 22.11.2003, the respondent beat the first petitioner and left her at her parents house and told her that she could return to his house only after getting a sum of Rs.5,00,000/- from her father for starting his business. The respondent and his parents did not even come to see the child born to her. On 28.03.2004, after mediation conducted by the jamath, both of them agreed to live together. On 15.04.2004, the respondent returned the sreedhana articles received by him to the first petitioner. On 15.05.2004, the Radan watch and gold bangles were returned to the first petitioner in front of elders. On 19.05.2004, all items given during the wedding was returned back by the father of the first petitioner. On 02.06.2004, jamathdars advised the elders of the family to let the first petitioner and respondent lead their life together and advised the elders not to interfere in their family life. On 20.07.2004, the respondent after reciting Thalak nama thrice to her, sent her a sum of Rs.2,500/- to her through registered post and deserted her. The respondent, without citing any reasons had deserted the first petitioner and her child. On 22.02.2005, the first petitioner registered a complaint before the Pothanur Police Station. The first petitioner does not have any source of income and is depending on her parents for the livelihood of her child and herself. The respondent gets a rental income of Rs.20,000/- per month and also gets income through investment of money earned by him, by working in Saudi Arabia for 10 years, at Companies, viz., Optic Garden and Premier Pipe Company. Hence, the petitioner has filed the maintenance claim claiming monthly maintenance of a sum of Rs.5,000/- from the respondent. The respondent gets a rental income of Rs.20,000/- per month and also gets income through investment of money earned by him, by working in Saudi Arabia for 10 years, at Companies, viz., Optic Garden and Premier Pipe Company. Hence, the petitioner has filed the maintenance claim claiming monthly maintenance of a sum of Rs.5,000/- from the respondent. 3. The respondent, in his counter has admitted that the marriage between him and the petitioner took place on 16.06.2002. It was submitted that right from the date of wedding, the petitioner did not show any interest in living with him. It was submitted that the petitioner had filed many false cases against him and his parents at different police stations. Due to the problems created by the petitioner, this respondent is also unable to go back to Saudi Arabia and also unable to get any job even here and is not in a position to take care of himself. It was submitted that the petitioner is living in a comfortable manner and that she had not asked for maintenance for 3½ years after they separated. It was submitted that the first petitioner's family gets a rental income of Rs.10,000/- through their house and that the first petitioner had invested her money in a glass shop. Hence, it was prayed to dismiss the petitioner. 4. The Family Court Judge framed an issue, viz., “Whether the petitioner is entitled to get monthly maintenance? If so, what is the quantum?” 5. On the petitioner's side, four witnesses were examined and eight documents were marked as Exs.P1 to P8, viz., Ex.P1-wedding invitation, Ex.P2-copy of thalak notice, Ex.P3-copy of agreement entered after mediation at Jamath, Ex.P4-copy of birth certificate of Mohamed Hasim, Ex.P5-copy of letter sent by first petitioner to the respondent, Ex.P6-copy of nikah register, Ex.P7-copy of F.I.R and Ex.P8-copy of F.I.R., dated 22.02.2005. On the respondent's side, the respondent was examined as R.W.1 and three documents were marked as Exs.R1 to R3, viz., Ex.R1-copy of complaint given by the first petitioner before the Pothanur Police Station, Ex.R2-copy of articles list, Ex.R3-copy of letter sent by first petitioner to head of Jamath. 6. P.W.1, the first petitioner had adduced evidence which is corroborative of the statements made by her in the claim. She further deposed that the respondent had sent the thalak notice on 20.07.2004 and that she had received it. 6. P.W.1, the first petitioner had adduced evidence which is corroborative of the statements made by her in the claim. She further deposed that the respondent had sent the thalak notice on 20.07.2004 and that she had received it. She deposed that as per the Islamic Laws, her marriage had been annulled and that she and the respondent can marry another person. She deposed that she is interested in leading her marital life with the respondent, but as per Islamic Law, she cannot lead her marital life immediately with the respondent and that as per Islamic Laws they cannot lead the life as husband and wife. She further deposed that she had received her articles from the respondent on 29.06.2004 as per Ex.R2. 7. P.W.2, the father of the petitioner had adduced evidence that on 20.07.2004, the respondent had sent a Thalak notice along with a cheque for Rs.2,500/-and that he has still not encashed the cheque. P.W.3 and P.W.4 had adduced evidence that the respondent had filed a case in C.C.No.3122 of 2004, before the Coimbatore First Additional Munsif Court for grant of order to state that the talak notice given by him is valid and that the respondent had got an exparte decree in his favour. They further submitted that the first petitioner had filed a case in C.C.No.3298 of 2008 to set-aside the exparte order. 8. R.W.1, the respondent had adduced evidence that he had married the first petitioner on 16.06.2002 and that the second petitioner was born to them. He deposed that right from the date of marriage, the petitioner did not show interest in leading her marital life with him and insisted on him to set up a separate house to lead their life. He deposed that in the year 2003, in the month of ramzan, the petitioner had taken her child and gone to her parents place and did not return. He deposed that the petitioner had threatened him by approaching the jamath. He deposed that even after he took a place for rent, in order to lead his life with the petitioner, the petitioner had refused to come to his house and had taken her articles on 15.04.2004. He deposed that he had given the thalak notice to the petitioner on 20.07.2004 to annul the marriage. He deposed that even after he took a place for rent, in order to lead his life with the petitioner, the petitioner had refused to come to his house and had taken her articles on 15.04.2004. He deposed that he had given the thalak notice to the petitioner on 20.07.2004 to annul the marriage. He deposed that he did not have any job or income at present and hence, the petitioner cannot claim any maintenance from him. 9. The learned Family Court Judge, on scrutiny of oral and documentary evidence held that the respondent had divorced the petitioner as per Ex.P2. The learned Judge, relying on the judgment reported in 1997 Supreme Court Cases (Crl) 924, and observing that as per Muslim Women Act, a divorced muslim woman cannot apply for maintenance by invoking the provisions of Section 125 of Cr.P.C., held that the first petitioner is not entitled to get maintenance from the respondent. The learned Judge, on scrutiny of oral and documentary evidence and on observing that the respondent had admitted that he is living in his own house and that he is in good health and on considering that he would have invested the money earned while he was in Saudi Arabia held that the notional income of the respondent could be fixed at Rs.15,000/- per month. Hence, the learned Judge directed the respondent to pay a monthly maintenance of Rs.3,000/- per month to the second petitioner from the date of filing the petition till date on which the second petitioner becomes a major on or before 10th of every English calendar month. The claim of the first petitioner was dismissed. 10. Aggrieved by the order passed by the trial Court, the respondent has preferred the present revision. 11. The learned counsel for the revision petitioner has contended in his revision that the Court below erred in fixing the income of the petitioner as Rs.15,000/-per month, without any basis and had fixed the same on assumption, which is unsustainable in law. It was contended that the Court below erred in ordering to pay maintenance from the date of petition, which is against law and without jurisdiction. It was contended that the Court below erred in ordering to pay maintenance from the date of petition, which is against law and without jurisdiction. It was contended that the order of the Court below in awarding a sum of Rs.3,000/- as monthly maintenance to the respondent is contrary to law, unsustainable and hence, it was prayed to set-aside the order passed by the Family Court, Coimbatore. 12. At the time of final hearing, on the respondent's side, no one had appeared. Hence, this Court is constrained to pass final orders. 13. On considering the factual position of the case and arguments advanced by the learned counsel for the petitioner and on perusing the impugned order of the trial Court, this Court is of the view that no documents had been marked on the side of the respondents to prove the income of the petitioner. However, considering that the respondent/minor son is aged about 5 years at the time of filing the main case, this Court is of the view that the minor child has to be taken care of by his mother till he reaches the age of a major. Besides, the minor child has to be provided with education, clothes, shelter, medical care, uniform, entertainment, communication, dress etc., However, on considering that no document has been marked to prove the income of the petitioner, this Court reduces the monthly maintenance awarded by the trial Court from Rs.3,000/- per month to Rs.2,800/- per month as it is found to be appropriate in the instant case. This Court directs the revision petitioner herein to deposit the entire arrears of monthly maintenance amount, as per this Court's modified order, within a period of six weeks from the date of receipt of this order, subject to deduction of earlier deposits made, if any. Thereafter, the petitioner shall deposit the monthly maintenance regularly on or before 10th of every English calendar month. After such deposit has been made, the mother of the minor is permitted to withdraw the said maintenance, after filing a Memo before the trial Court. 14. In the result, the above revision is partly allowed. Consequently, connected miscellaneous petitions are closed.