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
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R.P.F.C.No.101 of 2003
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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
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R.P.F.C.No.101/03 7
R.BASANT, J
R.P.F.C.No.
ORDER
11/02/2008