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2023 Supreme(Online)(KER) 18785
HIGH COURT OF KERALA
A. BADHARUDEEN, J
NOUSHAD FLOURISH – Appellant
Versus
AKHILA NOUSHAD, – Respondent
RPFC 98 2020
SHAIJAN JOSEPH, JOSEPH VARGHESE MUNDACKAL, SURUMI SHAKEEL, SRI.T.ASAFALI, SMT.LALIZA.T.Y.
A Muslim wife retains entitlement to maintenance after Khula unless evidence of adultery is sufficiently proven, impacting the maintenance claim.
Headnote:
Maintenance - Family Law - Family Courts Act, 1984 (Section 19(4), Dissolution of Muslim Marriages Act, 1939, and Section 125 of the CrPC) - The court analyzed the rights of a divorced Muslim wife to maintenance post-Khula, reaffirming entitlement under certain conditions while clarifying limitations arising from claims of adultery.
Fact of the Case:
The petitioners, a wife and child, sought maintenance from the respondent who was abroad. The respondent contested the claim, alleging the wife was living in adultery, while the Family Court ordered maintenance based on the petitioners' financial need and lack of evidence for adultery.
Finding of the Court:
The Family Court granted maintenance to both petitioners, concluding the wife was entitled to maintenance despite having obtained Khula, as the respondent failed to provide credible evidence of her alleged adultery. The court reduced the maintenance amount for the wife.
Issues: Whether a wife who obtains Khula can claim maintenance from her husband and the impact of alleged adultery on maintenance claims.
Ratio Decidendi: A divorced Muslim wife retains the right to claim maintenance unless sufficient evidence substantiates claims of adultery, which was not established in this case.
Final Decision: The revision petition was partially allowed; maintenance for the wife reduced to Rs. 7,000, while Rs. 10,000 was upheld for the child.
O R D E R
This Revision Petition has been filed under Section 19 (4) of the Family Courts Act, 1984 and revision petitioner is the respondent in M.C.No.106/2019 on the files of the Family Court, Thalassery. The respondents herein are the original petitioners in the above M.C.
2. Heard Dr.Varghese Mundackal, the learned counsel appearing for the revision petitioner as well as Advocate T.Asaf Ali, the learned counsel appearing for the respondents.
3. I shall refer the parties in this Revision Petition as to their status before the Family Court as `petitioners’ and `respondent’.
4. The petitioners, who are the wife and child of the respondent, had approached the Family Court and claimed maintenance @ Rs.15,000/- per month for the 1st petitioner and Rs.12,000/- per month for the 2nd petitioner. According to the petitioners, the respondent married the 1st petitioner and they were residing together as husband and wife at the house of the 1st petitioner. The 2nd petitioner was born during this period. Thereafter, the respondent took the petitioner and the minor to Qatar, where he had been doing business. However, the respondent failed to pay maintenance to the petitioners, though he had an income of Rs.2 lakh per month from his business in Qatar. According to the petitioners, they did not have any means of maintenance and, therefore, the respondent was liable to pay allowance of maintenance for them.
5. The respondent filed objection and resisted the claim for maintenance. It is admitted that the respondent was abroad from 2003 onwards and the respondent had given all his hard earned money to the 1st petitioner. Further the respondent came back from Qatar on 04.06.2018. Thereafter, the petitioner also came from Qatar around 20.06.2018. Later, the petitioner went to Qatar many times without permission of the respondent. Thereafter, the respondent lost his job abroad and he had no contact with the petitioner due to her illegal dealings and in the month of March, 2019, the petitioner went to Qatar along with the minor child. The educational qualification of the 1st petitioner as an MBA degree holder also was pointed out. It was alleged that the respondent incurred loss in the business and thereafter the respondent voluntarily left his company and made relationship with one Kamarudeen.
6. Now the 1st petitioner is in relationship with one Kamarudeen and the said relationship led to marital collapse.
7. The Family Court considered O.P.No.292/2019 and M.C.No.106/2019 together. The 1st petitioner examined as PW1 and Exts.A1 to A7 were marked on the side of the petitioner. The respondent got examined as RW1 and Exts.B1 to B7 were marked on his side.
8. On appreciation of evidence, the Family Court granted maintenance @ Rs.10,000/- each to the petitioners w.e.f 02.04.2019. The said order is under challenge in this Revision Petition.
9. At the time of argument, the learned counsel for the respondent submitted that the 1st petitioner has been living in adultery and, therefore, the respondent is not bound to pay maintenance to the 1st petitioner. In order to ascertain this contention, when the learned counsel was asked to justify the evidence to support adulterous life of the 1st petitioner, he submitted that Crl.M.Appl.No.2/2023 has been filed along with 3 documents as Annexures A1 to A3.
10. It is not in dispute that, in order to prove the adulterous life of the 1st petitioner, convincing evidence to be adduced. In fact, no convincing evidence adduced to prove the adulterous life of the 1st petitioner before the Family Court, rather than the oral version of the respondent, who got examined as RW1. But the specific case put up by the 1st petitioner is that she lived along with RW1 till December, 2018 (this fact is admitted by RW1, the respondent also) and she left the company of the respondent thereafter since the respondent treated her cruelly on alleging extra- marital relationship. In the said circumstances the Family Court found that the 1st petitio
