Kerala High Court
Sainul Abid vs Bushra on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
RPFC NO. 146 OF 2019
AGAINST THE ORDER DATED 13.12.2018 IN MC NO.456/2016 OF FAMILY
COURT, TIRUR
PETITIONER/RESPONDENT IN THE M.C:
SAINUL ABID,
AGED 33 YEARS,
S/O.JAMAL, POURATHODI HOUSE, VARUTHOOR AMSOM, MANGALAM
DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT, REP.BY HIS
POWER OF ATTORNEY HOLDER, JAMAL, S/O. KUNHAHAMMED
MUSALIYAR, AGED 70 YEARS, PURITHODIYIL HOUSE, PARUTHUR
P.O., MANGALAM, PATTAMBI, PALAKKAD DISTRICT.
BY ADV SMT.DEEPA NARAYANAN
RESPONDENTS/PETITIONERS IN THE M.C:
1 BUSHRA,
AGED 35 YEARS,
D/O. MOIDEEN KOYA, KANIYANI HOUSE, IRIMBILIYAM AMSOM,
VALIYAKUNNU DESOM, VALIYAKUNNU P.O., TIRUR,MALAPPURAM
DISTRICT,PIN-676 101
2 MUHAMMED ASIF,
AGED 13 YEARS,(MINOR),
REP.BY HIS MOTHER,BUSHRA,DO-DO-
BY ADVS.SRI.JAMSHEED HAFIZ
SMT.T.S.SREEKUTTY
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
06.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
R.P.(FC)No.146 of 2019
2
ORDER
Dated this the 6th day of October, 2021
This revision is directed against an order passed by Family
Court, Tirur on 13.12.2018 in M.C.No.456/2016.
M.C.No.456/2016 is an application filed by the 1 st respondent
for and on behlaf of the 2 nd respondent under Section 127 of
the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.')
and the Family Court vide order passsed as above enhanced the
monthly maintenance allowance to Rs.4,000/- from Rs.2,000/-
ordered originally.
2. The parties to this revision will hereinafter be
referred to as the respondent and the petitioners in accordance
with their statuts in the M.C.
3. The averment of the 1 st petitioner before the Family
Court was that the respondent was a JCB Opeartor and was
getting a decent income to maintain the 2 nd petitioner.
According to the 1st petitioner she is unemployed and is unable
to maintain the 2nd petitioner and therefore had approached the
R.P.(FC)No.146 of 2019
Family Court seeking for modification of the monthly
maintenance allowance stands ordered in M.C.No.336/2014 as
Rs.2,000/-. According to her the cost of living has been
considerably increased with passage of time and therefore the
monthly maintenance allowance stands ordered as Rs.2,000/- is
insufficient to meet the increase in expenditures.
4. The respondent had submitted that Rs.2,000/- stands
ordered by the Family Court as monthly maintenance allowance
is being paid to the 2 nd petitioner. According to him one year
has already been elapsed after passing of the order in
M.C.No.336/2014 and no change in circumstances was brought
in for getting the sum modified and enahanced. According to
him he has no financial capacity to pay huge amount as per the
demand of the petitioners and accordingly seeks for dismissal of
the M.C.
5. Before the Family Court the 1 st petitioner was examined
as PW1 and father of the respondent as RW1. Apart from the
oral evidence any documentary evidence has not been let in.
The 1st petitioner has deposed in tune with her averments in the
R.P.(FC)No.146 of 2019
M.C but failed to adduce any evidence to establish the job of
the respondent as a JCB operator and earning of income. The
respondent on the contrary has denied the averment of the 1 st
petitioner that he is a JCB operator. According to him he is only
an assistant to a JCB operator abroad. But regarding the
monthly income earned, not even a mention was made.
6. The 2nd petitioner at the time of filing of the M.C. was
aged 11 years and has reached 13 years at the relevant time
of consideration of the M.C. and passing of the impugned order.
The fact that he was studying in 8th standard is not disputed.
The Family court was convinced from the evidence that
Rs.2,000/- stands orderd as monthly maintenance allowance in
the original M.C. is insufficient to meet the expenses of the 2 nd
petitioner and accordingly modified it to Rs.4,000/-. True that
the paternity was denied by the respondent but, he failed to
attend the DNA test, though had undertaken to attend.
Therefore, the respondent has no locusstandi to raise the
contention now.
R.P.(FC)No.146 of 2019
Absolutely no reason is found to interfere with Rs.4,000/-
stands ordered as the monthly maintenance allowance by the
impugned order. Revision is only to be dismissed and this Court
does so.
Sd/-
MARY JOSEPH
JUDGE
MJL
R.P.(FC)No.146 of 2019
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE-1 TRUE COPY OF THE COMPROMISE ALONG WITH THE
ORDER IN M.C.NO.778/2008 ON THE FILE OF THE
FAMILY COURT MALAPPURAM, DATED 06.07.2009
ANNEXURE-2 TRUE COPY OF THE BIRTH CERTIFICATE ISSUED
BY THE REGISTRAR OF BIRTH AND DEATH,
NAGALASSERY GRAMA PANCHAYAT, DATED
19.12.2018.
ANNEXURE-3 TRUE COPY OF THE JUDGMENT IN
S.C.NO.536/2011 ON THE FILE OF THE SESSIONS
COURT,PALAKKAD DIVISION AT OTTAPALAM, DATED
18.03.2015
RESPONDENTS' ANNEXURES: NIL
TRUE COPY
P A TO JUDGE
