MOHAMMED BASHUMIYAN vs MARIYAM NAZAR SIDDIQUI
- Court
- Karnataka High Court
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HC-KAR
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MFA No. 201881 of 2025
CNR: KAHC030059882025
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 13 DAY OF OCTOBER, 2026
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
MISCL. FIRST APPEAL NO. 201881 OF 2025 (FC)
BETWEEN:
SRI MOHAMMED BASHUMIYAN
S/O MOHAMMED SAHEB HUSSAIN SAB,
AGE: 71 YEARS, OCC: RETD P.E. TEACHER,
R/O. H.NO.3-11-8, NAWARANG DARWAZ ROAD,
BEROON QUILLA, RAICHUR,
DIST. RAICHUR – 584103.
…APPELLANT
(BY SRI. MAHANTESH PATIL, ADVOCATE)
AND:
1. MARIYAM NAZAR SIDDIQUI
D/O LATE MOHAMMED MUDASSIR NAZAR,
AGE: 05 YEARS, OCC: STUDENT.
2. MOHAMMED HAROON NAZAR SIDDIQUI
S/O LATE MOHAMMED MUDASSIR NAZAR,
AGE: 04 YEARS, OCC: NIL.
3. MOHAMMAD MUSA NAZAR SIDDIQUI
S/O LATE MOHAMMED MUDASSIR NAZAR,
AGE: 02 YEARS, OCC: NIL.
Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA
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MFA No. 201881 of 2025
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4. KHATIJA NAZAR SIDDIQUI
D/O LATE MOHAMMED MUDASSIR NAZAR,
AGE: 01 YEAR, OCC: NIL,
THE PLAINTIFF NO.1 TO 4 MINOR
UNDER THE GUARDIAN AND
NEXT FRIEND OF THEIR
NATURAL MOTHER
SMT. NASREEN SULTHANA
I.E. PLAINTIFF NO.5.
5. SMT. NASREEN SULTHANA
W/O LATE MOHAMMED MUDASSIR NAZAR,
AGE: 34 YEARS, OCC: HOUSEHOLD,
ALL ARE R/O. H.NO.12-12-83/14A,
HAJI COLONY, ARABMOHALLA,
RAICHUR – 584103
…RESPONDENTS
(BY SRI. KADLOOR SATYANARAYANACHARYA, ADVOCATE
FOR R1 TO R5)
THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY
COURTS ACT, PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED 20.12.2024 IN O.S. NO.05/2024 PASSED BY THE
LEARNED PRL. JUDGE, FAMILY COURT AT RAICHUR.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
and
HON'BLE MR. JUSTICE SUBRAMANYA RANGARAO
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MFA No. 201881 of 2025
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ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ASHOK S. KINAGI)
1. The appellant has filed this appeal challenging the
judgment and decree dated 20.12.2024, passed in
O.S.No.5 of 2024 by the learned Principal Judge,
Family Court, Raichur (for short, hereinafter referred
to as ‘Family Court’).
2. For the sake of convenience, parties are referred to
based on their ranking before the Family Court. The
appellant was the defendant and the respondents
were the plaintiffs.
3. The plaintiffs filed a suit for grant of maintenance of
Rs.5,000/- each to plaintiff Nos.1 to 4 and
Rs.10,000/- to plaintiff No.5, payable by the
defendant. It is the case of the plaintiffs that plaintiff
Nos.1 to 4 are the paternal grandchildren of the
defendant and plaintiff No.5 is the daughter-in-law of
the defendant. The husband of plaintiff No.5 i.e.,
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MFA No. 201881 of 2025
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Mohammed Mudassir Nazar, passed away, leaving
behind the plaintiffs as legal heirs. It is contended
that, as per the Muslim customs and traditions
prevailing in the Sunni sect of the Muhammadan
family, the marriage of plaintiff No.5 and the
deceased Mohammed Mudassir Nazar took place on
15.04.2018 at Raichur. It is contended that the
husband of plaintiff No.5 passed away on
16.01.2024. As plaintiff Nos.1 to 4 are minors and
the defendant, being their grandfather, is legally
bound to maintain plaintiff Nos.2 and 3 till they
attain the age of puberty and plaintiff Nos.1 and 4 till
they are married. Since the defendant neglected to
maintain the plaintiffs, the plaintiffs filed the suit
seeking maintenance and prayed to decree the suit.
4. The defendant appeared and filed written statement
denying the averments made in the plaint and
contended that the suit filed by the plaintiffs is not
maintainable and plaintiff No.5 cannot bring the suit
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for maintenance in the present form. It is contended
that the defendant is a retired Teacher and is getting
a meager pension. It is further contended that the
deceased had purchased a Hero Honda by borrowing
a loan from Raghoji Finance, Raichur, and the
defendant has to repay the loan and therefore, he
cannot pay maintenance to the plaintiffs. Hence, he
prayed to dismiss the suit.
5. The Trial Court, based on the rival pleadings of the
parties, framed the following issues:
1. Whether the plaintiffs prove that it is the
duty of the defendant/father-in-law to
maintain his grandchildren and daughter-in-
law in their Mohammadan community?
2. Whether the plaintiffs further prove that
they were ignored, deserted and neglected by
the defendant by no providing for
maintenance?
3. Whether the defendant proves that even
now he is paying the monthly installment loan
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which was contracted by his son Mohammed
Mudassir Nazar who had availed vehicle loan
for purchassing Hero Honda Passsion pro bike
from the Raghoji Finance and auto leasing
(R)?
4. Whether the defendant proves that the suit
is not maintainable?
5. Whether the plaintiffs are entitle to plaint
relief's?
6. What order or decree?
6. To substantiate their case, plaintiff No.5 was
examined as PW.1 and got marked 11 documents as
Exs.P.1 to P.11. In rebuttal, the defendant examined
himself as DW.1 and marked six documents as
Exs.D.1 to D.6.
7. The Trial Court, after recording the evidence, hearing
both sides and assessing the oral and documentary
evidence on record, answered issue Nos.1, 3 and 5
partly in the affirmative, issue No.2 in the
affirmative, issue No.4 in the negative and issue
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No.6 as per the final order and the suit of the
plaintiffs was decreed in part with costs.
8. The Family Court held that plaintiff Nos.1 to 4 are
entitled to monthly maintenance of Rs.2,500/- each,
payable by the defendant from the date of the suit
till they attain the respective ages of majority, by
judgment dated 20.12.2024.
9. The defendant, aggrieved by the judgment and
decree dated 20.12.2024 passed in O.S. No.5 of
2024 by the learned Principal Judge, Family Court,
Raichur, filed this appeal.
10. Heard the arguments of the learned counsel for the
defendant and the learned counsel for the plaintiffs.
11. Learned counsel for the defendant submits that the
defendant is a retired Teacher getting a meager
pension and is unable to maintain himself. He
submits that the defendant is suffering from old-age
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ailments and the pension is not sufficient for his
maintenance. He also submits that the maintenance
awarded by the Family Court is exorbitant. Hence, he
submits that the impugned judgment passed by the
Family Court is arbitrary and erroneous. Hence, on
these grounds, he prays to allow the appeal.
Per contra
12. , learned counsel appearing for the
plaintiffs submits that plaintiff No.5 is the daughter-
in-law of the defendant and plaintiff Nos.1 to 4 are
the grandchildren of the defendant. The son of the
defendant, that is, the husband of plaintiff No.5 and
father of plaintiff Nos.1 to 4, is no more. If the father
is poor or infirm and the mother is also poor, the
obligation to maintain the children lies on the
grandfather, provided he is in easy circumstances.
He submits that the defendant is in easy
circumstances. He also submits that the defendant is
having immovable property from which he is getting
rental income. The Family Court, placing reliance on
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Section 370 of Muhammadan Law, has rightly
awarded maintenance of Rs.2,500/- each to plaintiff
Nos.1 to 4. He further submits that while awarding
maintenance to the grandchildren, the Trial Court
ought to have passed a decree awarding
maintenance to plaintiff Nos.2 and 3 till they attain
the age of puberty and plaintiff Nos.1 and 4 till they
are married. He submits that, to that extent, the
judgment passed by the Family Court is required to
be modified by this Court by exercising power under
Order XLI Rule 33 read with Order XLI Rule 22 of the
Code of Civil Procedure (for short, ‘CPC’). Hence, on
these grounds, he prays to modify the judgment
passed by the Family Court.
13. Perused the records and considered the submissions
of the learned counsel for the parties.
14. The points that arise for our consideration are:
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1. Whether the defendant proves that the
judgment and decree passed by the Family
Court are arbitrary and erroneous?
2. Whether the plaintiffs prove that, by
exercising power under Order XLI Rule 22
read with Order XLI Rule 33 of the Code of
Civil Procedure, this Court can modify the
judgment and decree passed by the Family
Court?
3. What order?
Reg. Point No.1:
15. It is an undisputed fact that the defendant had a son
by name Mohammed Mudassir Nazar. Plaintiff Nos.1
to 4 are grandchildren and plaintiff No.5 is the wife of
said Mohammed Mudassir Nazar, who passed away,
leaving behind plaintiff Nos.1 to 5. Since the plaintiffs
have no source of income for their livelihood, on
behalf of plaintiff Nos.1 to 4, plaintiff No.5
approached the defendant and requested him to
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maintain them. Though the plaintiffs are the
grandchildren and daughter-in-law of the defendant,
the defendant neglected to maintain them. Hence,
the plaintiffs filed the suit.
16. In order to substantiate the case, plaintiff No.5 was
examined as PW.1. She reiterated the plaint
averments in her examination-in-chief and produced
the documents as Exs.P.1 to P.11. Exs.P.1 to P.4 are
the birth certificates of plaintiff Nos.1 to 4, wherein
the name of the father of plaintiff Nos.1 to 4 is
shown as Mohammed Mudassir Nazar and the
mother's name is shown as Smt. Nasreen Sulthana.
Ex.P.5 is the book of Nikahnama. Ex.P.6 is the
translation copy of the Nikahnama. Ex.P.7 is the
marriage invitation card. Ex.P.8 is the original death
certificate of Mohammed Mudassir Nazar. Ex.P.9 is
the notarized copy of the Aadhaar card of plaintiff
No.5. Exs.10 and P.11 are the laboratory reports
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which clearly disclose that the husband of plaintiff
No.5 was suffering from ailments.
17. During the cross-examination, nothing has been
elicited from the mouth of this witness to disbelieve
her examination-in-chief.
18. The defendant, in rebuttal, examined himself as
DW.1 and reiterated the averments made in the
written statement in the examination-in-chief. He
deposed that the husband of plaintiff No.5 obtained a
loan from Raghoji Finance, Raichur, to purchase the
Hero Honda and that the defendant is repaying the
loan amount. He also deposed that he is a senior
citizen and that he is suffering from old-age ailments
and that he is taking treatment. In order to prove
that he is suffering from ailments, he has produced
Exs.D.4 to D.6 which are medical prescriptions in
respect of his health condition.
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19. During the cross-examination, it is elicited that he is
getting a monthly pension and his wife is also getting
a monthly pension. It is also elicited that the
defendant is having movable property.
20. In order to consider the case on hand, it is necessary
to examine Section 370 of Muhammadan Law, which
reads as follows:
“ 370. Maintenance of children and
grandchildren.- (1) A father is bound to
maintain his sons until they have attained the
age of puberty. He is also bound to maintain
his daughters until they are married. But he is
not bound to maintain his adult sons unless
they are disabled by infirmity or disease. The
fact that the children are in the custody of
their mother during their infancy (Section
352) does not relieve the father from the
obligation of maintaining them. But the
father is not bound to maintain a child who is
capable of being maintained out of his or her
own property.
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(2) If the father is poor, and incapable
of earning by his own labour, the mother, if
she is in easy circumstances, is bound to
maintain her children as the father would be.
(3) If the father is poor and infirm, and
the mother also is poor, the obligation to
maintain the children lies on the grandfather,
provided he is in easy circumstances.”
21. From the bare reading of the above provision,
especially sub-section (3) of Section 370, it is clear
that if the father is poor and infirm and the mother is
also poor, the obligation to maintain the children lies
on the grandfather, provided he is in easy
circumstances. Admittedly, in the instant case, the
son of the defendant is no more, and the obligation is
on the part of the grandfather to maintain plaintiffs
No.1 to 4. As far as plaintiffs No.1 and 4 are
concerned, the defendant is liable to maintain them
till their marriage, and as far as plaintiffs No.2 and 3
are concerned, the defendant is liable to maintain
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them till they attain the age of puberty. The said
aspect was not considered by the Family Court,
which committed an error in recording its finding that
the defendant has to pay maintenance till they attain
the respective ages of majority. The operative
portion of the judgment passed by the Family Court
is in violation of Section 370 of Muhammadan Law.
Though the plaintiffs have not filed an appeal or
cross-objection, even in the absence of an appeal by
the plaintiffs, they can object to the decree as if they
have preferred an appeal, as per Order XLI Rule 22
of the CPC, which reads as under:
“Rule 22: Upon hearing respondent may
object to decree as if he had preferred
separate appeal.-
(1) Any respondent, though he may not have
appealed from any part of the decree, may
not only support the decree [but may also
state that the finding against him in the
Court below in respect of any issue ought to
have been in his favour; and may also take
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any cross-objection] to the decree which he
could have taken by way of appeal, provided
he has filed such objection in the Appellate
Court within one month from the date of
service on him or his Pleader of notice of the
day fixed for hearing the appeal, or within
such further time as the Appellate Court may
see fit to allow.
[Explanation.- A respondent aggrieved by a
finding of the Court in the judgment on which
the decree appealed against is based may,
under this rule, file cross-objection in respect
of the decree insofar as it is based on that
finding, notwithstanding that by reason of the
decision of the Court on any other finding
which is sufficient for the decision of the suit,
the decree is, wholly or in part, in favour of
that respondent.]
(2) Form of objection and provisions
applicable thereto.- Such cross-objection shall
be in the form of a memorandum, and the
provisions of Rule 1, so far as they relate to
the form and contents of the memorandum of
appeal shall apply thereto.
(3) xxxx
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(4) Where, in any case in which any
respondent has under this rule filed a
memorandum of objection, the original
appeal is withdrawn or is dismissed for
default, the objection so filed may
nevertheless be heard and determined after
such notice to the other parties as the court
thinks fit.
(5) The provisions relating to pauper appeals
shall, so far as they can be made applicable,
apply to an objection under this rule.”
22. This Court can exercise its discretion under Order XLI
Rule 33 of the CPC and can pass any order as may
be required by exercising the power under Order XLI
Rule 33 of the CPC. Therefore, the judgment and
decree passed by the Family Court are required to be
modified. In view of the above, we answer point No.1
in the negative and point No.2 in the affirmative.
Reg. Point No.3:
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23. In view of the above discussion, we proceed to pass
the following:
ORDER
dismissed
i. The appeal is .
ii. However, by exercising the power under
Order XLI Rule 33 of the CPC, we modify
the judgment and decree passed by the
Family Court. The judgment and decree
dated 20.12.2024 passed in O.S.No.5 of
2024 by the Principal Judge, Family Court,
Raichur, are hereby modified.
iii. Plaintiffs No.1 to 4 are entitled to monthly
maintenance of Rs.2,500/- each from the
date of the suit. Plaintiffs No.1 and 4 are
entitled to monthly maintenance of
Rs.2,500/- each from the date of the suit
till their marriage. Plaintiffs No.2 and 3 are
entitled to maintenance of Rs.2,500/- each
from the date of the suit till they attain the
age of puberty.
iv. Pursuant to the interim order passed by
this Court vide order dated 27.06.2025,
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the defendant has deposited a sum of
Rs.50,000/- before the executing Court.
Liberty is reserved to the plaintiffs to file
an application for release of the said
amount. If such an application is filed, the
executing Court is directed to release the
said amount in favour of plaintiff No.5.
v. In view of the disposal of the appeal, I.A.
No.1/2026 filed for release of the
maintenance amount does not survive for
consideration and is accordingly dismissed
as not pressed.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(SUBRAMANYA RANGARAO)
JUDGE
NB
List No.: 2 Sl No.: 10
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