IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 85 of 2010()
1. AHAMMAD SUBAIR, AGED 36 YEARS,
... Petitioner
Vs
1. NAFSIYA, AGED 29 YEARS,
... Respondent
For Petitioner :SRI.K.ABDUL JAWAD
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :20/07/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal No.85 of 2010& R.P.F.C.No.259 of 2010
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Dated this the 20th day of July 2010
J U D G M E N T
Basant,J
This appeal and the R.P.F.C are directed against a common
order passed by the Family Court, Malappuram. Past
maintenance for 25 months was claimed in O.P.No.141/09.
Future maintenance under Section 125 Cr.P.C was claimed in
M.C.No.143 of 2009. An amount of Rs.5,000/- per mensum for
the wife and Rs.1,500/- per mensum was awarded for the wife
and child as past and future maintenance.
2. The appellant claims to be aggrieved by the impugned
order. Marriage is admitted. Separate residence is also
admitted. There was a contention that divorce has been
effected. This was denied by the wife. No worthwhile material
was adduced in support of the plea of divorce. In the light of the
decision in Shamim Ara v. State of U.P [2002(3)KLT 537
(S.C)], the appellant/petitioner-husband cannot be heard to
contend that on the available materials divorce has been
established as insisted by law.
3. There was a contention that the wife is employed. In
support of that assertion also, no material whatsoever has been
Mat.Appeal No.85/10 & R.P.F.C No.259/10 2
adduced. The court below did not accept that assertion. The claim
for maintenance of the child is conceded and the order passed is
not challenged before us in the course of arguments.
4. Thus, in the course of arguments before us, the short
question canvassed is that the quantum of past and future
maintenance for the wife at the rate of Rs.5,000/- per mensum is
excessive. This is the short question that falls for consideration in
this Mat.Appeal and the R.P.F.C.
5. The husband is employed abroad. He was so employed
even prior to his marriage with the claimant/wife. He has been
employed abroad for the past about two decades, without any
disputes. The wife asserted that the husband’s monthly income
exceeds Rs.1,00,000/-. She tendered her own oral evidence in
support of that assertion. A power of attorney holder of the
husband was examined as RW1. Even in the counter, the vague
allegation is after deducting all expenses, his income is only
Rs.5,000/- per mensum. RW1 did not adduce any satisfactory
evidence – oral or documentary, on that aspect. The court below
mainly relying on broad probabilities came to the conclusion that
the appellant can reasonably be directed to pay an amount of
Rs.5,000/- per mensum as past and future monthly maintenance
to his wife .
Mat.Appeal No.85/10 & R.P.F.C No.259/10 3
6. We have been taken through the impugned common
order. We find absolutely no circumstances that can persuade us
to take any contra view. The degree of affluence of the husband is
revealed from the fact that he has been employed abroad for the
past about two decades admittedly. He did not adduce any better
evidence to prove his precise income. It would be idle to expect
the wife, left in India, to adduce evidence about the precise income
of the husband, employed abroad. The burden was undoubtedly on
the husband to adduce evidence, if he had a contra case to about
his actual income. He did not discharge that burden on him.
7. In any view of the matter, we are satisfied that the
quantum of maintenance fixed by the court below cannot be held
to be incorrect, inappropriate or perverse as to warrant invocation
of our appellate jurisdiction under Section 19 of the Family Courts
Act or our revisional jurisdiction under Section 401 Cr.P.C.
8. This appeal and the R.P.F.C are, in these circumstances,
dismissed.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
jsr
// True Copy// PA to Judge
Mat.Appeal No.85/10 & R.P.F.C No.259/10 4
Mat.Appeal No.85/10 & R.P.F.C No.259/10 5
Mat.Appeal No.85/10 & R.P.F.C No.259/10 6
R.BASANT & M.C.HARI RANI, JJ.
.No. of 200
ORDER/JUDGMENT
19/07/2010