IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Mat.Appeal.No. 876 of 2010() ---------------------------- OP.175/2007 of FAMILY COURT, MALAPPURAM .................... APPELLANT/RESPONDENT: --------------------------------------- JAMALUDHEEN, S/O. ABDU, CHOLASSERI HOUSE, PADUVANNIKKAL, KARUVARAKUNDU P.O., MALAPPURAM, DIST. REP. BY POWER OF ATTORNEY HOLDER CHOLASSERY ABDU, CHOLASSERY (H) PADUVANIKKAL, KARUVARANKUNDU, MALAPPURAM. BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA RESPONDENTS/PETITIONERS: ------------------------------------------- 1. RAJEENA, D/O. ABOOBACKER, PACHEERI HOUSE, PUNNAKKAD, KARUVARAKUNDU P.O., MALAPPURAM - 676 523. 2. JAVAD, MINOR, REP. BY THE FIRST RESPONDENT - MOTHER - GUARDIAN. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.Appln.No. 2650 of 2010 & Mat.A.No. 876 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of October, 2010 JUDGMENT Basant, J. The above petition is filed to condone the delay of 909 days in re-presenting the above appeal. We have heard learned counsel for the petitioner on merits for admission. We are proceeding to dispose of the appeal straight away. In these circumstances, we are satisfied that a lenient view can be taken and the delay can be condoned. Petition allowed. Delay condoned. Number the appeal. Mat.A.No. 876 of 2010 2. This appeal is preferred by the appellant, who is the husband/father of the respondents herein, a young woman aged 25 years and her daughter, aged 3 years. Respondents claimed maintenance at the rate of Rs.4,000/- and Rs.3,750/- respectively. Mat.A.No. 876 of 2010 2 Past and future maintenance were claimed. O.P. was filed for past maintenance for a period of 29 months. M.C. was filed under Section 125 Cr.P.C. claiming future maintenance. Both matters were disposed of by a common judgment. 3. Marriage and paternity are admitted. That there was strain in the relationship and the spouses were residing separately is admitted. That the husband is employed abroad and is not available in India is also conceded. The wife advanced matrimonial cruelty as a ground to justify her separate residence. She examined herself as PW1. The husband did not examine himself, instead his father was examined as RW1. The court below accepted the oral evidence of PW1 about matrimonial cruelty and held that the wife is entitled for separate maintenance. 4. Coming to the quantum of maintenance, the court below found that the appellant is employed abroad. The wife had asserted that his monthly income exceeds Rs. 50,000/- The husband asserted that he gets only a much smaller amount of 600 Riyals. Except the Mat.A.No. 876 of 2010 3 assertion of the wife on oath and the assertion of the respondent in the counter statement, there is no material at all. It is in these circumstances that the court below proceeded to pass orders directing payment of Rs.2,000/- and Rs.1,000/- p.m. respectively as maintenance to the respondents. 5. The appellant claims to be aggrieved by the impugned order. Called upon to explain the nature of challenge which the appellant wants to mount against the impugned order, the learned counsel for the appellant submits first of all that the direction for payment of separate maintenance is not justified. Secondly it is contended that the quantum of maintenance awarded is excessive. 6. Admittedly the spouses are residing separately. Evidence tendered by the wife justifies her separate residence. No worthwhile contra evidence has been tendered by the appellant. The husband did not examine himself. It is evident that there is strain in the relationship between the spouses. The child was forcibly taken away and the wife filed a complaint, whereupon the infant child was given to the custody Mat.A.No. 876 of 2010 4 of the mother. These facts are all admitted. More over, the husband is not available in India for him to insist on joint residence of the wife along with him. In these circumstances we are satisfied that the conclusion of the court below that the wife is justified in residing separately does not call for interference by invoking our appellate jurisdiction under Section 19 of the Family Court Act. The challenge on that first ground must, in these circumstances, fail. 7. Coming to the quantum of maintenance, the husband is admittedly employed abroad for a long period of time. The Court below took note of the fact that the husband has not produced any document to controvert the assertions of the wife about his income. The helpless wife can tender only hearsay evidence about the quantum of income, which her husband earns abroad. It is certainly for the appellant to adduce better evidence to contradict the assertion of the wife. He had not produced any documentary evidence to prove his monthly income. He did not examine himself also. In any view of the matter, we are satisfied that the discretion exercised by the court below in fixing the quantum of maintenance at Rs.2,000/- ad Rs.1,000/- Mat.A.No. 876 of 2010 5 respectively for the wife and the child does not call for any interference at the instance of the appellant. We are informed that the respondents have not preferred any appeal. If any appeal is preferred, the same shall be considered on merits and appropriate orders passed. We need only mention that the challenge at the instance of the appellant is without any merit. 8. This appeal is accordingly dismissed as in liminie. (R.BASANT) Judge (M.L. JOSEPH FRANCIS) Judge tm