IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Mat.Appeal.No. 124 of 2007() ---------------------------- AGAINST THE JUDGMENT AND DECREE DATED 23/4/2005 IN OS.92/2005 of FAMILY COURT, KOTTARAKKARA .................... APPELLANT/DEFENDANT: ----------------- KUTTAPPAN, S/O RAJAN, AGED 52 YEARS, RESIDING AT KARINGOTTU VHARUVILA PUTHEN VEEDU, KIZHAKKEKARA MURI, KOTTARAKAR VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.ALEXANDER GEORGE RESPONDENTS: PLAINTIFFS: --------------------- 1. MINI, AGED 24 YEARS, D/O NANDINI, KARINGOTU CHARUVILA PUTHEN VEEDU, KIZHEKKEKARA MURI, KOTTARAKARA VILLAGE, NOW RESIDING AT GOVINDA VILASOM, IRUMPANAGADU P.O., EZHUKONE, KOLLAM DISTRICT. 2. SINI, AGED 21, D/O NANDINI, KARINGOTU CHARUVILA PUTHEN VEEDU, KIZHEKKEKAR MURI, KOTTARAKARA VILLAGE, NOW RESIDING AT GOVINDA VILASOM, IRUMPANAGADU P.O., EZHUKONE, KOLLAM DISTRICT. 3. ANU, AGED 18, D/O NANDINI, KARINGOTU CHARUVILA PUTHEN VEEDU, KIZHEKKEKARA MURI, KOTTARAKAR VILLAGE, NOW RESIDING AT GOVINDA VILASOM, IRUMPANAGADU P.O., EZHUKONE, KOLLAM DISTRICT. ADV. SRI.C.HARIKUMAR FOR R1TO3 SRI.ARAVINDA KUMAR BABU T.K. FOR R1TO3 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- MAT.APPEAL NO.124 OF 2007 -------------------------------- Dated this the 22nd day of October, 2008 JUDGMENT Raman,J. The suit O.S.No.92/2005 was filed by the plaintiffs, who are daughters of the defendant-Kuttappan, claiming maintenance. The suit was originally filed before the District Court, Kollam as O.S.No.302/2000 and it was subsequently transferred to the Family Court, Kottarakkara and re-numbered as O.S.No.95/2005. Defendant was set ex parte. Plaintiffs gave proof affidavit and a decree was passed grating maintenance at the rate of Rs.500/- per month to each of the plaintiffs from the date of the suit with interest at the rate of 6% per annum on the defaulted amount from the respective due dates. Defendant was also directed to pay Rs.72,000/- towards past maintenance less the amount paid towards interim maintenance with interest at 6% per annum thereon from the date of suit till realisation. -2- MAT.APPEAL NO.124/2007 2. The defendant sought to set aside the ex parte decree, which was however dismissed by the court below, against which he preferred Matrimonial Appeal No.88/2006, which was dismissed by this Court by judgment dated 4/1/2007. It is thereafter that the present appeal is filed. The only question is whether based on the available materials on record, the awarding of maintenance at the rate referred to above is justified. 3. In this behalf we have heard the parties. 4. Admittedly, plaintiffs are the children of the defendant. The defendant was in gulf countries at the relevant time. Children are studying in schools or college as the case may be. Since neither the defendant nor his mother were looking after the children, they were being brought up by his sister. There is an allegation that the defendant was residing with another lady. Learned counsel appearing for the appellant however submitted that the defendant has settled the disputes with the lst wife, the mother of the plaintiffs, and they are now living together; but the children are not -3- MAT.APPEAL NO.124/2007 joining them. But the averments would show that there is serious allegation against the parents even affecting their morality. But in the absence of better evidence, it may not be proper to enter any finding based on such allegations. But the fact remains that defendant being the father is bound to look after the children until they are able to maintain themselves. The lst plaintiff is a student of plus 1, 2nd plaintiff is a student of plus 2 and third plaintiff is an engineering student. The amount awarded is only Rs.500/- each and we do not think that the amount so awarded is in any way excessive. Even though the future maintenance is awarded at the rate of Rs.500/- each, an amount of Rs.72,000/- is awarded by way of past maintenance less the amount paid towards the interim maintenance. How the amount is worked out is however not discernible from the order. Considering the fact that Rs.500/- each is awarded towards future maintenance, we do not think that the past maintenance could be awarded at the same rate. Further the past maintenance could not be awarded for more than three years. -4- MAT.APPEAL NO.124/2007 In the result, we modify the past maintenance and reduce it to Rs.21,600/- in the place of Rs.72,000/-. Whatever amount paid so far will be given credit to in the E.P. The appeal is disposed of as above. However, if the children get employed, it is open to the appellant to bring it to the notice of the Family Court for suitable amendments or changes to be effected based on change of circumstances. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv. -5- MAT.APPEAL NO.124/2007