IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 MFA.No. 982 of 1998() --------------------- OS.324/1995 of FAMILY COURT,THIRUVANANTHAPURAM. .................... APPELLANT/DEFENDANT: ----------- SAIDU MUHAMMED PILLAI @ ABDUL RAHMAN, THEKKUMKARA PUTHEN VEEDU, OZHUKUPARA VETTINADU MURI, VEMBAYAM VILLAGES, THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENT/PLAINTIFF: ------------- BUSHARA BEEGAM, GREEN HOUSE, THEKKEVILA MURIYIL, KANIYAPURAM, VANCHIPPURAM VILLAGE, THIRUVANANTHAPURAM DIST. BY ADV. SRI.V.PHILIP MATHEW THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 3853 OF 1998 IN M.F.A. NO. 982 OF 1998. DISMISSED 22.2.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A. NO. 982 OF 1998 ---------------------------------------------------------------- Dated this the 22nd day of February, 2008 JUDGMENT Kurian Joseph, J. This appeal is at the instance of the respondent against the judgment of the Family Court, Thiruvananthapuram in O.S. No.324 of 1995. The suit was instituted by the respondent herein claiming maintenance at the rate of Rs.1,000/- per month. The appellant was declared ex parte and the suit was decreed. Hence, the appeal. 2. When the appeal came up for admission before this Court, the proceedings were stayed on condition that an amount of Rs.5,000/- is deposited by the appellant before the Family Court. It is submitted that the amount was deposited on 3.12.1998. 3. The appellant submits that though attempt was made by him for setting aside the ex parte order, that petition was dismissed. Be that as it may, on going through the judgment under appeal, we find that the Family Court has not adverted to the reasons for fixing the maintenance at M.F.A.NO.982/1998 2 Rs.1,000/- per month. Entitlement for receiving the maintenance and capacity to pay are two ingredients in the matter of awarding maintenance. Apparently, capacity alone was taken note of by the Family Court. Unless, entitlement is also established, the court below is not justified in fixing the quantum of maintenance. Having regard to the position as above, we are of the view that the matter requires fresh consideration by the Family Court. 4. Accordingly, we set aside the the judgment under appeal and remand the matter to the Family Court for fresh consideration. The suit shall be disposed of within six months from the date of the judgment. It will be open to the respondent to withdraw the amount deposited as per the order of this Court, if not already withdrawn. The said amount will be adjusted while disposing of the suit. The appeal is disposed of as above. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A.NO.982/1998 3 KURAIN JOSEPH & HAURN-UL-RASHID, J.J M.F.A.NO.982/1998 JUDGMENT 22ND FEBRUARY, 2008