Mujib Rahiman vs Kaja Hussain Aline Nahas

A. Badharudeen, J

This Original Petition (Criminal) has been filed under Article 227 of the Constitution of India at the instance of the respondent in M.P.No.1165/2019 in M.C.No.423/2019 on the file of Family Court, Ernakulam, and he impugns order dated 21.04.2021 in the above petition.

The respondents herein, who are wife and minor children, had approached the Family Court and pressed for grant of allowance of maintenance under Section 125 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for short). Along with the main petition, MP.No.1165/2019 also was filed seeking interim maintenance @ Rs.1 lakh each per month to the 2nd and 3rd minor respondents. The specific contention raised by the respondents before the Family Court was that even at the time of marriage and thereafter for a long period, the spouses resided in a studio apartment in Dubai and employed there. Thereafter, the relationship was strained. The specific case of the respondents is that the petitioner as well as the 1st respondent are Chartered Accountants and the petitioner has been earning Rs.15 lakh per month.

The petitioner filed objection admitting their marriage as well as paternity. It has been contended that the 1st respondent is the gold medal winner for Kerala topper for C.A intermediate and Final Exams and she has been getting a very high income. In the lengthy objection filed, in paragraph 41 of the objection the income of the 1st respondent has been highlighted as under:

“41. It may be worthy to note that the 1st petitioner and her parents are very rich and they are well off. The 1st petitioner is entitled to her share which runs into crores of Rupees. In fact, the 1st  petitioner and her sister own a residential building namely `Mirage 49/2011' situated in a property at Edappally near Changampuzha Park, Edappally, which is given for rent for a rent of around Rs.40,000/- per month. Another of their property is the entire 3rd floor in Citi Point Building, DH Road, Jose Junction, Ernakulam, which is leased out to several companies and they are getting a rent of more than Rs.60,000/- per month from the said building. Besides that, the respondent and her sister own two apartments in Changampuzha Nagar and the same are rented out. The said apartments would get around a sum of Rs.40,000/- per month as rent.”

Similarly, in paragraph 45 of the objection, it has been contended that the petitioner herein is jobless from 2017 onwards as he could not run the hotel business due to the losses incurred. Paragraph 45 is extracted below:

“45. It is humbly submitted that the respondent is jobless from September 2017 onwards and he could not run the hotel business due to the losses incurred. The only source of income was the rent received from one flat owned by him at Kakkanad and another flat jointly owned by him with his friend Sunil John at Kakkanad. As the 1st petitioner and her mother prevented the tenants to deposit the rent amounts in the respondent's account from December 2019 onwards, he did not get the rent and he is struggling hard for the loan repayment. The respondent has no financial capacity or capability or source of income to pay a sum of Rs.1 lakh each to the petitioners Nos.: 2 & 3 as sought by the 1st petitioner.”

The Family Court appraised the contention based on the averments in the petition and the objection. The Family Court observed that the spouses were maintaining high standard of living in Dubai with the children and they are at present living separately due to marital discord. The Family Court observed that the children are studying in 9th and 5th standards respectively and school fee of the elder child would come to Rs.82,000/- and that of the younger child would come to Rs.80,400/-. It was observed by the Family Court further that the mother was also financially sound and well placed and had the moral duty to share her income for the welfare of the children. It was observed further that the employment and income of the wife is not a reason for the father to evade from his moral and legal responsibilities to provide a reasonable amount for the maintenance of the children. The learned Family Court Judge appraised the documents produced as Exhibits A1 to A4 showing payment of Rs.4,06,220/- by the 1st petitioner for securing admission to the children in Dawn International School, Kakkanad inclusive of Rs.80,000/- which is non refundable entry fee. The discussion in para.10 in the above line is as under:

“10. xxxx xxxx xxxx xxxx Among the documents produced by the petitioners mainly relating to the school fee paid in respect of the kids, a total sum of Rs.4,06,220/- is seen to have been spent by the first petitioner for securing admission to them in Dawn International School, Kakkanad as per Exts.A1 to A4. Among those, Ext.A1 dated 30.09.2019 is the non-refundable entry fee and registration fee amounting to Rs.82,000/- and Ext.A3 is per receipt dated 18.10.2019 for school fee, uniform etc. for an amount of Rs.1,19,600/- in respect of the elder child Zayn Hussain. Similarly Ext.A2 and Ext.A4 are the receipts for a sum of Rs.80,400/- and Rs.1,24,220/- respectively dated 18.10.2019 and 06.12.2019 in respect of the younger child Aman Nahaz Hussain. Several other school receipts are also produced by the petitioners during the course of the lis covering huge amount. In respect of those receipts the respondent raised objections and he sought for time to agitate the same. Exts.A1 to A4being the school fee receipts dated prior to the institution of the case, those have to be given regard while considering the above petition for interim maintenance and educational expenses. Therefore, I am of the view that the total sum of Rs.4,06,220/-covered by Exts.A1 to A4 shall be wholely met by the respondent/father. In respect of the rest of the amount said to have been spent by the first petitioner towards schooling of the kids, necessary direction will be passed during the final stage of the case based on adequate evidence. It is incumbent on the part of both the parties to co-operate for a speedy trial and disposal of the case for adjudicating the whole issues at hand. In this view of the matter considering the entire factual background now available on record, I prefer to allow this petition in part directing the respondent to pay the entire school fee of both the children covered under Exts.A1 to A4 receipts and a sum of Rs.20,000/- each per month towards their interim maintenance until disposal of the MC. The point is thus answered accordingly.”

Though the learned counsel for the petitioner reiterated the contentions raised in the petition as well as the objection filed before the Family Court with a view to avoid payment of maintenance to the children and also to avoid payment of school fee, it is an admitted fact that the petitioner is also a qualified Chartered Accountant having sufficient background to raise substantial income.

It is submitted by the learned counsel for the respondents that Rs.4,06,220/- was ordered to be paid by the petitioner to the respondents herein/petitioners in the M.C, on appreciation of Exts.A1 to A4 documents by the Family Court Judge, showing payment of tuition fee for the academic year 2019-2020. It is further submitted that, thereafter for the academic years 2020-2021 and 2021-2022 also, the 1st respondent herein had paid school fee at the same rate from her own accord and the petitioner has been showing callousness in paying Rs.4,06,220/- covered by Exts.A1 to A4 as well as the amount of interim maintenance ordered by the Family Court, taking note of stature of the petitioner having C.A and substantive earnings, with a view to put the life and education of the children in peril.

In this matter, admittedly, the 1st respondent as well as the petitioner are qualified Chartered Accountants. Hailing from such a high profile background, the children are now studying in a recognised school with optimism, demanding huge sum of fee. A major portion of the fee prima facie was seen borne by the 1st respondent. Therefore, the responsibility of the petitioner to pay a portion of the same for the year 2019 could not be found in the negative. Therefore, the said part of the order stands confirmed. Similarly, the reasons stated by the learned Family Court Judge in so far as the liability to pay interim maintenance is justifiable. It is true that Rs.20,000/- each per month is the amount granted by the Family Court towards interim maintenance. However, I am inclined to modify the interim maintenance of Rs.20,000/- each per month ordered by the Family Court to Rs.15,000/- (Rupees Fifteen thousand only) each per month from the date of petition till disposal of the M.C.No.423 of 2019 by the Family Court, Ernakulam.

The order impugned is modified as above and the Original Petition stands allowed in part, accordingly.