SHAMIM ALAUDDIN SHAIKH Vs. ALLAUDDIN GULAB SHAIKH

JUDGEMENT

(1.) THE applicant is the appellant in Family Court Appeal No.5 of 2006. The <DJG> APPLICANT HAD FILED A PETITION IN THE FAMILY COURT AT BANDRA BEING M.J.</DJG> Petition No.C-149 of 2005 for maintenance under the Muslim Law. Her application came to be rejected by the Family Court by its order dated 16/12/2005. The Family Court, inter alia, came to the conclusion that the marriage was not consummated. The said order is under challenge in the instant appeal.

(2.) THE appeal has been admitted. On 7/3/2006, the application made by the applicant-wife for interim maintenance was heard by this court. On behalf of the applicant, it was urged that the applicant's maintenance application was, inter alia, rejected on the ground that the marriage was not consummated. It was submitted that the marriage was consummated but the applicant's pregnancy had to be terminated because she was suffering from jaundice. According to the applicant, she wanted to produce medical papers to prove that her pregnancy was terminated by operation. It was argued before this court that the applicant was prevented from producing the medical evidence regarding the operation in the course of recording of evidence before the Family Court. This court observed that though there are bare allegations to be found in the memo of appeal, no documents in that regard have been produced at the time of filing of the appeal. This court noted that in the course of argument, the applicant has sought to produce certain documents and, therefore, the question of considering those documents in the manner they are produced does not arise. This court further observed that if the applicant wants to rely upon any further evidence in appeal, she will have to make necessary application in that regard. It was further observed that in case the applicant files an application for production of further evidence at the appellate stage nothing would prevent the applicant from filing a fresh application for grant of interim maintenance. The court further observed that till then the question of considering the various allegations of cruelty and directing the respondent to pay maintenance and, that too, when the respondent is ready and willing to take back the applicant to the matrimonial house, does not arise. This court further clarified that in case such an application is filed by the applicant, the same would be determined in accordance with the provisions of law. The interim maintenance was not granted by this court and the application was rejected.

(3.) ONE of the reasons which has prevailed upon the Family Court to reject the application for maintenance of the applicant-wife is that the marriage is not consummated and under the Muslim law if the marriage is not consummated, the wife is not entitled to maintenance. The entire matter revolves around the claim of applicant-wife for maintenance.