Kerala High Court
Safiya A.K vs Shameer Babu V.A on 6 February, 2024
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
RPFC NO. 108 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 30.11.2022 IN MC 267/2018 OF
FAMILY COURT, TIRUR
REVISION PETITIONERS/PETITIONERS:
1 SAFIYA A.K., AGED 34 YEARS,
D/O. ASSAINAR, AMBALAKKANDI HOUSE,
ARIKKANCHIRA, PARAVANNA P.O., TIRUR (VIA), TIRUR TALUK,
MALAPPURAM DISTRICT, PIN - 676502
2 SHAHABAS AHAMMED (MINOR),
AGED 17 YEARS,
S/O. SAFIYA A.K., AMBALAKKANDI HOUSE, ARIKKANCHIRA,
PARAVANNA P.O., TIRUR (VIA), TIRUR TALUK,
MALAPPURAM DISTRICT, [REPRESENTED BY MOTHER 1ST
PETITIONER]., PIN - 676502
3 SHAMNAS AHAMMED (MINOR),
AGED 13 YEARS,
S/O. SAFIYA A.K., AMBALAKKANDI HOUSE, ARIKKANCHIRA,
PARAVANNA P.O., TIRUR (VIA), TIRUR TALUK,
MALAPPURAM DISTRICT, PIN - 676502
[REPRESENTED BY MOTHER 1ST PETITIONER]
BY ADVS.
C.M.MOHAMMED IQUABAL
P.ABDUL NISHAD
RAIHANATH T.H.
ISTINAF ABDULLAH
MUHAMMED AMEEN
MUHAMMED ABDUL BASITH.E.A
RESPONDENT/RESPONDENT:
SHAMEER BABU V.A., AGED 40 YEARS,
S/O. ABDU, VADAKKAN HOUSE,
VETTATHUR P.O., EZHUTHALA, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT, PIN - 679326
BY ADVS.
BINU V V VEETTIL VALAPPIL
P.J.STEPHEN
MANEKSHA D.
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RPFC NO. 108 OF 2023
2
ORDER
It is quite unfortunate that an officer in the
Family Court had made his own version without the
support of any cogent or sufficient evidence
pertaining to an illicit relationship alleged by the
husband against the wife in an application for
getting maintenance and on that ground, maintenance
was rejected and application was dismissed. The
discussion is made in paragraph 7 in the following
lines:
" As it is so, the respondent cannot be
fastened with the liability to pay maintenance
to the petitioner. Counsel appearing for the
respondent contented that once the local people
had caught the petitioner and one person with
whom she is keeping illicit relationship from
their house and it was thereafter the said
person was handed over to the police.
According to him, even that incident is seen
admitted by the petitioner herself. Though she
narrated the said incident in a different angle
the same cannot be accepted by a reasonable and
prudent man. According to him, during the
cross examination what the petitioner deposed
is to the effect that the local people after
catching that person brought him to her house
and it was accordingly they created a false
imputation against them. That was the case set
up by the petitioner during her cross-
examination. The counsel for the respondent
submitted that the local people had taken
videos of the incident. That is even seen
admitted by the petitioner. She admitted the
said incident during the course of cross-
RPFC NO. 108 OF 2023
examination as she was very well aware that the
respondent would produce the video before this
Court. According to him, though the respondent
tried to produce the videos recorded at the
time of incident through pendrive, this Court
did not allow it. Even then considering the
admission as seen admitted by the petitioner
herself this Court can take a view that the
petitioner is actually living in adultery."
2. A mere reading of the abovesaid portion of
the judgment would clearly show the way in which the
trial court has misappreciated the facts and evidence
involved in the case. The finding rendered by the
trial court that the petitioner is living in adultery
based on the observation that what she has narrated
pertaining to the incident in a different angle
cannot be accepted by a reasonable and prudent man
would itself show that the trial court did not
understand the evidence/admission, if any involved in
the case. It is highly adventurous to swallow what is
spoken by the husband without having the support of
factual evidence. It is also not permissible to
misappreciate any admission made. The court should
analyse the alleged admission at first so as to
ascertain the elements of admission, if any made.
That noble principle was not followed by the Family
RPFC NO. 108 OF 2023
Court, but simply rejected the version given by the
wife on the sole reason that it cannot be accepted by
a reasonable and prudent man. I am at a loss to
understand what is actually meant by the trial court
in that behalf. What is advanced by the wife is
pertaining to an incident, in which, somebody has
caught hold of a stranger from a nearby place and
brought him before the wife as if he is the
adulterer, that too, without the weight of any
reasonable and sufficient evidence. The incident was
admitted by her by stating that the person was
brought by the nearby residents before her as if he
is the adulterer and he was not caught hold from her
house as alleged by her husband. Mere assertions or
surmises and elements of doubts shall not be
substituted in the place of proof. In fact, there is
no admission from the part of petitioner/wife that
she was caught hold red handed with her alleged
adulterer. On the other hand, the learned District
Judge substituted his own version that what she has
narrated pertaining to the alleged incident cannot be
RPFC NO. 108 OF 2023
accepted by a reasonable and prudent man and it is
not clear as to what kind of prudence or
reasonability has been applied by the learned trial
court in the given circumstances. The submission made
by the counsel for the respondent that the local
people had taken videos of the incident ought not
have been accepted by the trial court unless there is
evidence to show the same either by production of
video or by other evidence. No crime was registered
by the police connected with the said incident and no
complaint was raised by the husband before any
competent authority connected with the alleged
incident and even he did not raise the same as a
ground for getting any relief through the Family
Court for divorce or otherwise or before any
competent court for the offence of adultery. Total
inaction on the part of the husband was not properly
understood by the Family Court. Hence, the impugned
order will stand set aside. The matter is remanded
back to the Family Court for fresh disposal within a
period of three months from the date of appearance of
RPFC NO. 108 OF 2023
parties. The parties shall appear before the Family
Court on 28/02/2024.
The RP(FC) will stand disposed of accordingly.
Sd/-
P.SOMARAJAN
JUDGE
msp
