P M ABU Vs. P P SUBAIDA

JUDGEMENT

(1.) Plaintiff in a suit filed by him before the Family Court, Ernakulam, is the appellant The suit was not numbered and the same was rejected under O.7 R.11 C.P.C. The same is challenged in this appeal. The appeal is filed under S.19 of the Family Courts Act.

(2.) When the appeal came up for admission, the maintainability of the suit was doubted and arguments were heard. The reliefs sought in the plaint are, to declare that the order passed by the Family Court, Ernakulam in M.C.343/1992 (Original No.M.C. 13/92 before the Judicial First Class Magistrate Court, Fort Cochin) is null and void; and to issue a permanent prohibitory injunction restraining the defendant from realising any amount on the basis of the said order. A relief is also sought to declare that the plaintiff is not liable to pay maintenance to the defendant and that the defendant is not entitled to any maintenance from the plaintiff.

(3.) The relevant facts as seen from the plaint are as follows: Defendant was admittedly married by the plaintiff in 1964 and they lived together for about 3 1/2 years. Defendant filed an application before the Judicial First Class Magistrate Court, Fort Cochin as M.C.No. 15 of 1992 under S.125 of the Criminal Procedure Code for getting separate maintenance. On the establishment of the Family Court at Ernakulam, the said case was transferred to the Family Court Plaintiff appeared in a person and he agreed that he is ready to pay Rs. 150/- per month as maintenance to his wife - the defendant. On accepting the offer by the defendant, the Family Court passed an order directing the plaintiff to pay Rs. 150/- per month towards separate maintenance allowance. The court also directed that the amounts can be sent by the 5th of each month by money order beginning from April, 1993. The order is dated 1-3-1993. It is admitted that the same has become final. When execution was taken to implement the order, the suit was filed for the reliefs mentioned above. The allegations are that the plaintiff has already divorced the defendant in 1969 according to the Islamic religious rites and ceremonies, and the Family Court has no jurisdiction to award maintenance. It is also alleged that he has no means to pay maintenance to the defendant.