IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Mat.Appeal.No. 338 of 2009(F) ---------------------------- OP.1101/2006 of FAMILY COURT, PALAKKAD .................... PETITIONER : (RESPONDENT IN O.P) ---------------------------------- SANTHOSHKUMAR, S/O.RAMAKRISHNAN, AGED 37 YEARS, KRISHNA LEELA, MATTUMANTHA, C.N.PURAM, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: (PETITIONER IN OP) --------------------------------- 1. JAYALEKSHMI, D/O.RAJAN, KALARIKKAL VEEDU KOCHAMKULAM, THENKURUSSI AMSOM DESOM, ALATHUR THALUK, PALAKKAD DISTRICT. 2. SREERAJ (MINOR), S/O.JAYALEKSHMI, (REPRESENTED BY HIS MOTHER, JAYALEKSHMI). ADV. SRI.SHABU SREEDHARAN FOR R1,2 SRI.C.K.PRASAD FOR R1,2 SRI.N.A.JOHN JACOB FOR R1,2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.338 of 2009 ------------------------------------- Dated this the 7th day of August, 2009 JUDGMENT BASANT, J. C.M.Appl.No.1104 of 2009 Cost paid. Delay condoned. We have heard both counsel. We are proceeding to dispose of the Appeal straightaway. Mat.Appeal No.338 of 2009 Heard. The appellant in this Appeal assails the impugned order directing the appellant to pay maintenance @ Rs.2,000/- per mensem to the 1st respondent/claimant/his wife from the date of their separate residence, ie. 19.09.2004 and to pay maintenance @ Rs.1,000/- per mensem to the 2nd claimant/his child from 12.12.2004, the date of his birth. There is also a direction to the appellant to pay an amount of Rs.40,000/- and to return 25 sovereigns of gold ornaments belonging to the 1st respondent/claimant, which he was allegedly retaining with him. If the gold ornaments were not returned, it is further directed that the value thereof as on the date of payment will have to be paid. Marriage is admitted. Paternity is not disputed. Separate Mat.Appeal No.338 of 2009 2 residence is conceded. What then is the dispute ? The only dispute raised is about the quantum of maintenance payable. No other contentions are raised. 2. About the quantum of maintenance it has come out in evidence that the appellant was running an establishment namely, Mascot Surgical Equipments. He admitted that he was running the same, but took the plea that the said business had been discontinued. No better evidence was produced in support of such theory of discontinuance of his business. He took up a plea that he was employed as a salesman in that establishment. The details of such alleged employment have not been revealed at all. He did not have a specific contention that he was working in any other company nor did he produce any documents to show the income that he was allegedly earning by way of salary from such employment. 3. Be that as it may, the Family Court, taking note of the evidence of the claimant/wife that the appellant was getting an income of Rs.20,000/- a month and the appellant's admission about his running that establishment, at least at such earlier point of time and in the total absence of any other evidence to prove his precise income, came to the conclusion that the Mat.Appeal No.338 of 2009 3 appellant can safely be mulcted with the liability to pay maintenance @ Rs.2,000/- and Rs.1,000/- per mensem respectively to the wife and child. In any view of the matter, we are satisfied that the quantum of monthly maintenance fixed is absolutely reasonable, fair and just and does not warrant any interference. If it suffers from any inadequacy, we feel that the error has been in favour of the appellant only. 4. There is a dispute about the liability to pay Rs.40,000/- and the value of 25 sovereigns of gold ornaments. But we are satisfied that Exts.A1 to A4 remove the last trace of doubt if any on this aspect. In fact, the appellant, while facing the cross examination as RW1, had categorically admitted Exts.A1 to A4. 5. The learned counsel for the appellant then contends that there is unnecessary disputes raised as to whether the amount orderedunder the impugned order is to be paid in addition to the amount ordered as maintenance in M.C.No.208 of 2006 by the Family Court, Palakkad, the challenge against which is being disposed of by us as per order in R.P.F.C.No.125 of 2008. There is nothing in the order passed in the petition under Section 125 Cr.P.C or in the impugned order to suggest that the Mat.Appeal No.338 of 2009 4 amount of Rs.3,000/- per mensem fixed in all under the impugned order is in addition to the amounts ordered under Section 125 Cr.P.C. We make it clear that the liability for payment of monthly maintenance imposed under the impugned order is not in addition to the liability imposed as per order in M.C.No.208 of 2006. Amounts paid under the impugned order can be given credit for the amounts due for the respective period under the order under Section 125 Cr.P.C and vice versa. 6. The learned counsel for the respondent has a grievance that the amounts fixed is not adequate. No appeal or cross appeal has been preferred. The counsel submits that the child is now grown up and the expenses have increased. Needless to say, appropriate application for enhancement can be filed by the respondents/claimants at the appropriate time. 7. This Appeal is, in these circumstances, dismissed, but with the above specific observations. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-