Sajeebkhan vs Jasmine

P. Ubaid, J.—The petitioner herein is the respondent in M.C No. 264 of 2010 before the Family Court, Trivandrum, where his wife seeks maintenance for her and the minor child u/s 125 of the Code of Criminal Procedure. Along with the main proceedings, his wife filed I.A No. 521 of 2012 for interim maintenance. After hearing both sides, the learned Judge of the Family Court passed orders on 22.11.2012 in I.A No. 521 of 2012 directing the petitioner to pay maintenance to his wife at the rate of 2000/- per month and to the minor child at the rate of 1500/- per month. The said order is sought to be set aside u/s 482 of the Code of Criminal Procedure, on the ground that the petitioner in the trial court is not entitled to get maintenance u/s 125 of the Code of Criminal Procedure, for the reason that she is a divorced lady.

In spite of notice, the 1st respondent herein who obtained interim order for maintenance, did not turn up to contest this matter.

On hearing the learned counsel for the petitioner and on a perusal of the case records, I find that the petitioner herein had made a vigorous contest in the trial court that he has already divorced his wife, that he has settled all the dues under an agreement, and that she cannot claim maintenance u/s 125 of the Code of Criminal Procedure. This contention was not considered by the learned Judge, when interim order of maintenance was passed. If the 1st petitioner in M.C. 264 of 2010, is in fact a divorced lady, she can find her remedies u/s 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In view of the definite contention raised regarding the status of the 1st petitioner before the trial court, the interim order in her favour will have to be cancelled. However, I thought of making some enhancement in the amount of maintenance awarded to the child. Now, the child is aged 5 years, and must have been admitted in school. I feel that 1500/- per month is insufficient and adequate for the child even by way of interim maintenance. With the consent of the learned counsel, the said amount is being enhanced to 2000/- per month. However, the order granting interim maintenance to the 1st respondent herein will stand cancelled, subject to final decision in the main proceedings. Whether the 1st petitioner in the maintenance claim, is in fact a divorced lady, or whether she can claim maintenance u/s 125 of the Code of Criminal Procedure, will have to be decided on merits by the trial court.

In the result, this petition is allowed in part. The impugned order in favour of the 1st respondent herein, passed by the trial court in I.A. No. 521 of 2012 on 22.11.2012 is hereby set aside. The amount of maintenance ordered to the child will stand enhanced to 2000/- per month. The order in favour of the 1st respondent is cancelled, subject to final decision in the main proceedings by the trial court, as to whether she is, in fact, a divorced lady, and whether she is entitled to get maintenance u/s 125 of the Code of Criminal Procedure.