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Sulaikha vs Saidalikutty on 26 June, 2008

Kerala High Court
Sulaikha vs Saidalikutty on 26 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RPFC.No. 101 of 2003()


1. SULAIKHA, D/O.MEKKATTUKALATHIL SAIDALAVI
                      ...  Petitioner

                        Vs



1. SAIDALIKUTTY,
                       ...       Respondent

                For Petitioner  :SRI.K.M.SATHYANATHA MENON

                For Respondent  :SRI.T.KRISHNAN UNNI (SR.)

The Hon'ble MR. Justice R.BASANT

 Dated :26/06/2008

 O R D E R
                             R.BASANT, J
                          ----------------------
                      R.P.F.C.No.101 of 2003
                    ----------------------------------------
               Dated this the 26th day of June 2008


                               O R D E R

In this R.P.F.C, the petitioner assails the order passed by

the Family Court rejecting her claim for maintenance under

Section 125 Cr.P.C.

2. Marriage is admitted. The claim was made on behalf

of the petitioner herein and her two children. For the children

maintenance was awarded under the impugned order. Claim of

the petitioner alone was dismissed on the short ground that the

respondent/husband had set up a plea that he had divorced her.

There is nothing to show that the fact of divorce was intimated to

the first claimant/wife by the husband. But it was revealed that

in an earlier suit filed by the respondent/husband as also in the

counter statement filed by him in this petition under Section 125

Cr.P.C, the husband had pleaded an earlier act of divorce on

10/3/2000. Except such averments made in that earlier plaint

and counter statement of an anterior divorce, absolutely no

material was placed before court to show that there was actually

such a divorce effected. The learned Judge of the Family Court

took the view that the divorce has not been proved. But the

R.P.F.C.No.101/03 2

learned Judge took the view that the plea in the plaint and

counter statement constituted a valid divorce. It is true that

there was some confusion relating to the law on the point and

the claimant herself had filed an affidavit which suggested that

she may not be entitled to claim maintenance in view of such

plea of divorce taken in the earlier suit and in the counter

statement filed in this petition. But evidently on better advice

and counsel, that plea was given up and claim for maintenance

was pressed in this petition under Section 125 Cr.P.C.

3. After the decision in Shamim Ara v. State of U.P

[2002(3) KLT 537(SC) there can be no semblance of a doubt

that such a plea of divorce taken in the plaint in the earlier suit

and in the counter statement in the petition under Section 125

Cr.P.C by the respondent cannot operate as a valid talaq. It is

for the husband to prove that there in fact was a talaq in

accordance with law on the date of talaq pleaded in the

statements – plaint and counter statement filed by him. The

mere fact that such a plea has been taken will not ipso facto

amount to a valid divorce or relegate the claimant/petitioner

herein to the status of a divorced wife. Law on the point is

absolutely clear now and after the decision in Shamim Ara

R.P.F.C.No.101/03 3

(Supra) there can be no semblance of a doubt on that aspect.

The Supreme Court in a later decision reported

in Iqbal Bano v. State of U.P. [2007(3) KLT 63 (SC) has also

reiterated the principle in Shamim Ara (Supra) that an

unsubstantiated plea of an anterior divorce taken up in pleadings

filed before court cannot have the effect of a legal divorce. The

crucial question is not how the claimant/petitioner understood

the law and what she stated in the affidavit filed by her which

was later not pressed by her. The question is whether in law,

there was a valid divorce or not. As stated earlier, Shamim Ara

(Supra) concludes the issue that the plea of divorce taken in the

counter statement in the claim under Section 125 Cr.P.C or in

the plaint filed by the husband in an earlier civil proceedings

cannot operate and shall not bring into effect any valid divorce in

law.

4. It follows therefore that there has been no valid

divorce proved by the husband as contended by him in the

counter statement. Consequently, the petitioner/claimant’s

status as wife will have to be accepted by the court. There are

no other circumstances pleaded which can justify the rejection of

her claim for maintenance.

R.P.F.C.No.101/03 4

5. The learned counsel for the petitioner submits that

even admittedly the petitioner is occupying a house along with

her two children and that house belongs to the

respondent/husband. The fact that she is enjoying the shelter

provided by the husband will not by itself deprive her of her

claim for maintenance. This factor which is not disputed shall

certainly be taken into account while fixing the quantum of

maintenance payable.

6. The claimant/wife is not shown to have any means.

She is a woman unable to maintain herself. The husband is

employed abroad. He did not examine himself. His power of

attorney holder admitted that he gets an income of Rs.7,000/-.

The power of attorney holder, examined as RW1, could not deny

the specific suggestion that the husband gets an income of

Rs.30,000/- per mensum. I take note of the evidence available

about the needs of the claimant as also the materials available in

support of the income earned by the husband abroad. I take

note of the further circumstance that the claimant/wife is

occupying the house belonging to the respondent/husband. I am

in these circumstances satisfied that a direction to pay

maintenance at the rate of Rs.1,500/- per mensum will be

R.P.F.C.No.101/03 5

absolutely fair, reasonable and just. She had claimed the amount

of Rs.1,500/- per mensum only. The mere fact that she had

claimed only a reasonable amount cannot persuade me to slash

the amount claimed by any extent. There is no contention that

any amount has been paid during the pendency of the

proceedings. The order directing payment of maintenance shall

hence take effect from the date of the petition, that is 7/8/2000.

7. This petition is accordingly allowed. The impugned

order in so far as it rejects the claim for maintenance of the first

claimant/wife is set aside. The respondent is directed under

Section 125 Cr.P.C to pay maintenance to the first claimant/wife

at the rate of Rs.1,500/- per mensum from the date of the

petition that is 07/08/2000.

(R.BASANT, JUDGE)

jsr

R.P.F.C.No.101/03 6

R.P.F.C.No.101/03 7

R.BASANT, J

R.P.F.C.No.

ORDER

11/02/2008

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