ORDER

(Dated this the 20th day of December 2021)

The petitioner herein is the respondent in M.C. No.143 of 2015 on the files of the Family Court, Tirur. The challenge herein is in respect of the order dated 16.10.2014 by which he was directed to pay future maintenance at the rate of Rs.3,000/-, Rs.2,500/- and Rs.500/- to petitioner Nos.1 to 3 respectively from the date of petition. (The parties are referred to in the order as they appeared in the proceedings before the court below).

2. The marriage between the first petitioner and the husband was solemnised on 14.5.1998. The second petitioner was born in the wedlock. Due to the harassment of the respondent, the marital tie was dissolved on

14.2.2001. Thereafter, they lived separately till 16.3.2008. Again married the first petitioner and in that wedlock, the third petitioner was born. On 10.3.2010, the respondent attacked the first petitioner demanding Rs.2,00,000/- and she was admitted in a hospital and the police registered a crime against the respondent as FIR No.197 of 2010 for the offence punishable under Section 498A IPC, since they are living separately and no maintenance was granted to the petitioners.

3. The respondent appeared before the court and admitted the marriage and paternity of the children. He denied the matrimonial cruelty against the first petitioner. He contended that he is a coolie worker in a tea stall and it is the only source of income as his livelihood. The first petitioner has opted to stay at her home without any valid reason. He offered to look after the petitioners according to his financial capacity. But they refused and hence, they are not entitled to any maintenance.

4. Before the Family Court, this case was tried along with three other cases, namely O.P. Nos.74 of 2013, 88 of 2013 and 89 of 2013. O.P. No.74 of 2013 was in respect of return of gold ornaments and house-hold appliances. O.P. No.88 of 2013 was filed claiming past maintenance at the rate of Rs.3,000/-, Rs.2,000/- and Rs.500/- respectively to the petitioners. O.P. No.89 of 2013 was filed for dissolution of marriage under the provisions of the Muslim Marriage Act.

5. The Family court considered all the four cases together and allowed O.P. No.88 of 2013 directing him to pay Rs.70,199/- as past maintenance for the period from 10.3.2010 to 8.3.2011. O.P. No.89 of 2013 was decreed dissolving the marriage between the first petitioner and the respondent. M.C. was allowed granting future maintenance at the rate of Rs.3,000/-, Rs.2,500/- and Rs.500/- each respectively to the petitioners from the date of petition. 6. Heard the learned counsel for the petitioner and the respondents.

7. The counsel for the petitioner submitted that the first respondent is not entitled to claim any maintenance as she is living separately from the petitioner without any valid reason. The reason put forward was not proved nor convincingly substantiated with materials. Even though a case was registered under Section 498A IPC against the respondent, the same entered into an acquittal in C.C.No.469 of 2010 by the Judicial Magistrate of First Class, Parappangadi on 26.6.2014 holding that the prosecution has miserably failed to prove the offence alleged against the accused.

8. The counsel for the petitioner argued that the only reason for living separately was due to the cruelty meted out to the first petitioner, which can be seen from FIR. Since, the court has acquitted the accused, the story put forward by her regarding cruelty and separate residence is found to be wrong. Hence, the court below was wrong in entering into a finding that there is sufficient reason for the first petitioner to live separately due to cruelty and that she is entitled to maintenance.

9. The counsel for the respondent, on the other hand, submitted that even though the respondent was acquitted of the criminal offence alleged against him, O.P. No.89 of 2013 is a petition filed for dissolution of marriage on the ground of cruelty. The Family court cl