The Muslim Personal Law, though, permits the husband to contract a second marriage during the subsistence of the first marriage in exceptional circumstances, specifically mandates that the husband is bound to treat both wives equally and equitably. A Muslim wife who resides separately from her husband on his contracting a second marriage is not disentitled from claiming her statutory right of maintenance under CrPC/BNSS [See Badruddin v Aisha Begum (1957) All. LJ. 300]. The fact that the husband has a second wife and is liable to maintain her cannot be a factor in denying maintenance to the first wife or reducing the quantum of maintenance she is entitled to.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC NO. 334 OF 2022
HASEENA Vs SUHAIB
PRESENT
DR. JUSTICE KAUSER EDAPPAGATH
Dated: 15TH DAY OF JANUARY 2025
This revision petition has been filed challenging the order
passed in M.C.No.98/2015 on the files of the Family Court, Tirur
dated 25.8.2022.
2. The 1st petitioner is the wife of the respondent.
Petitioners 2 and 3 are the children of the 1st petitioner, born in
wedlock with the respondent. The petitioners filed a
maintenance case against the respondent under Section 125 of
Cr.P.C claiming maintenance at the rate of ₹10,000/- to the 1st
petitioner, ₹8,000/- to the 2nd petitioner and ₹6,000/- to the 3rd
petitioner. The Family Court, after trial, granted monthly
maintenance at the rate of ₹4,000/- to the 1st petitioner and
₹1,500/- each to the petitioners 2 and 3. Dissatisfied with the
quantum of maintenance granted, the petitioners have
approached this Court.
3. I have heard Sri Jamsheed Hafiz, the learned counsel
for the petitioners. Even though notice has been served on the
respondent, there is no appearance.
4. The marital relationship and paternity are not in
dispute. Admittedly, the 1st petitioner does not have any job or
source of income. According to the petitioners, the respondent is
working abroad in a supermarket and earns more than
₹1,00,000/- per month. It is also alleged that the respondent
earns ₹25,000/- per month from the landed property. The
respondent has admitted that he was employed in Gulf.
However, he has taken a contention that he has returned from
Gulf and now working as an employee in a bakery in Madras.
According to him, he is only getting ₹8,000/- per month. He has
also contended that he is suffering from various ailments and has
to maintain his second wife.
5. As stated already, the definite case of the petitioners
is that the respondent is employed at Gulf and earns ₹1,00,000/-
per month. The respondent has admitted that he was employed
at Gulf, but, according to him, he has returned from Gulf and
now working as an employee in a bakery in Madras. However,
absolutely no piece of evidence has been produced by the
respondent to prove where he works now and what his income is,
which is a fact within his exclusive knowledge. Even though the
respondent has taken up a contention that he is suffering from
various ailments, no document has been produced to prove the
same. An able-bodied husband must be presumed to be capable
of earning sufficient money to maintain his wife and children and
cannot contend that he is not in a position to earn sufficiently to
maintain his family. The onus is on the husband to establish with
necessary material that there are sufficient grounds to show that
he is unable to maintain the family and discharge his legal
obligations for reasons beyond his control. If the husband does
not disclose the exact amount of his income, an adverse
inference may be drawn by the Court [Rajnesh v Neha &
Another (2021)2 SCC 324].
6. The respondent is aged 40 years. He has no case
that he has any incapacity to earn. Nothing has been produced
to show his physical inability, if any. Since the respondent has
failed to produce any material to prove his present employment
and income, the adverse inference has to be drawn against him.
The petitioner has given positive evidence that the respondent is
earning ₹1,25,000/- per month.
7. The respondent has taken yet another contention
that the 1st petitioner left his company, refused to live with him
without any sufficient reason and hence not entitled to
maintenance. It is also contended that with the meagre income
he gets from his present job, he has to maintain his second wife
as well. The Muslim Personal Law, though, permits the husband
to contract a second marriage during the subsistence of the first
marriage in exceptional circumstances, specifically mandates that
the husband is bound to treat both wives equally and equitably. A
Muslim wife who resides separately from her husband on his
contracting a second marriage is not disentitled from claiming
her statutory right of maintenance under CrPC/BNSS [See
Badruddin v Aisha Begum (1957) All. LJ. 300]. The fact that
the husband has a second wife and is liable to maintain her
cannot be a factor in denying maintenance to the first wife or
reducing the quantum of maintenance she is entitled to.
Considering the entire facts and circumstances of the case,
the means of the respondent and the requirement of the
petitioners, I am of the view that monthly maintenance granted
by the Family Court is too low. Hence, the monthly maintenance
granted by the Family Court is enhanced to ₹8,000/- to the 1st
petitioner and ₹3,000/- each to the petitioners 2 and 3. The
revision petition is allowed as above.
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