IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 104 of 2008()
1. KAMALUDEEN, AGED 34 YEARS,
... Petitioner
Vs
1. JUMAILA, AGED 25 YEARS,
... Respondent
For Petitioner :SRI.K.SHIBILI NAHA
For Respondent :SRI.BABU S. NAIR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :04/03/2010
O R D E R
M.N. KRISHNAN, J.
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R.P.(F.C).No.104 OF 2008
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Dated this the 4th day of March, 2010.
O R D E R
This revision is preferred against the order of the
Family Court, Malappuram in M.C.No.526/2007. This case
picturises loss of moral values in the society and how the
provisions of law are circumvented ultimately leading to
personal gains. I say so for the reason that it was a case of
love or it was a case of forcible sexual intercourse and
ultimately the man got into trouble by registration of a
crime under Section 376 of the I.P.C. Then, in order to get
over the situation, it appears that the parties have
compromised the matter and moved a petition under Section
482 of the Cr.P.C to quash the proceedings under Section 376
on the ground that the man has married the victim and thus
put an end to the same getting a clean chit. Thereafter the
husband would contend that the wife insisted that he
should go and reside in her house for which he was not
prepared and it is submitted that after mediation talaq has
been pronounced putting an end to the marriage. The man
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had married another lady and is living with her. So he is
free from the criminal case and now the lady is knocking
at the doors of the court for justice. It is in this background
the contention of pronouncement of talaq was considered
by the court below. Two alleged mediators, RWs 2 and 3
were examined. A reading of the evidence of RWs 2 and 3
would show that they had no consideration for keeping the
matrimonial relationship united. Neither the husband nor
the wife was a party to the alleged mediation. None of
them were consulted also. It is just stated that in the
residence of RW2 a meeting was called where these people
participated and father of the wife was also in the said
assembly. The dispute was whether the husband should
go to the house of the wife or not. It is submitted that when it
was stated that it was not possible, an advice was given to
pronounce the talaq. It has to be remembered that the
will and pleasure of the parties were not exchanged in the
discussion. What was the reasonable cause for separation
also did not come up for consideration. The Hon’ble Apex
Court held that mediation means pertaining to subsistence
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of the matrimonial relationship and not for an advice to
pronounce talaq. The matrimonial harmony is not only the
subject matter of two individuals but the society concerned
and that is why the Apex Court held that there should be a
real talk and mediation to compromise the matter and only
when it goes out to such an extent, the question of
pronouncement of talaq arises.
2. Here neither the husband nor the wife is consulted.
Therefore, the views are not obtained. Some people gathered
together and decided that the method is to pronounce
talaq. So,I have no hesitation to hold that the methodology
adopted is absolutely against the dictum laid down by the
Supreme Court and so it has to be held that it cannot be
considered as a valid pronouncement of the talaq.
3. Now turning to the quantum. The misery which the
wife had undergone is evident. The husband is working
abroad and he had married another lady and is living
comfortably there. It is the paramount duty of the husband
to maintain his first wife. It is submitted that he is in
India now, what ever it may be, he is the person who is
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capable of looking after the second wife. It is his duty to
look after the first wife. He has also stated in examination
that the amount of Rs.2,000/= claimed as maintenance per
month does not appear to be excessive and beyond the
capacity of the husband to spare. When it is so, the quantum
also does not call for any interference.
Therefore the revision lacks merit and the same is
dismissed.
M.N. KRISHNAN, JUDGE
cl
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