IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 Mat.Appeal.No. 69 of 2004() --------------------------- OP.447/2002 of FAMILY COURT,KOZHIKODE .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- K.A.KANNAN NAMBIAR, AGED 46 YEARS, S/O. C.KUNHIKRISHNAN NAIR, OFFICER, CORPORATION BANK, MANGALORE (D.K.), KARNATAKA STATE BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): PETITIONERS -------------------------- 1. JAYA NAMBIAR, AGED 42 YEARS, D/O. KANNANUNI MENON, RESIDING AT DELIGHT, KANNUMKARA, ERAMALA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT 2. JAGADISH (MINOR) 16 YEARS, S/O. KANNAN NAMBIAR, RESIDING AT DO. HOUSE, DO.DO. (MINOR 2ND RESPONDENT IS REPRESENTED BY THE MOTHER, 1ST RESPONDENT) ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21/11/2008, ALONG WITH CO NO.15 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2139/2004 IN M.A No.69/2004 DISMISSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 21/11/2008 \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ M.A. No.69/2004-E and Cross Objection 15/2005 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of November, 2008. J U D G M E N T Raman, J. The respondent/husband in maintenance O.P.No.447/2002 on the file of the Family Court, Kozhikode, filed by the wife and minor son, is the appellant. That application was filed under Section 18(1) and 20(1) of the Hindu Adoption and Maintenance Act. The claim of the wife was for a period of three years from 03/09/1999 to 02/09/2002 at the rate of Rs.6,000/- per month for herself and claim of the son was for Rs.4,000/- per month for the same period, making in all Rs.3,60,000/-. The claim of the wife for separate residence and maintenance was based on the cruelty said to have been meted out to her which was however denied by the appellant. The claim for the son was made by the wife as he was living with her. Another suit O.S.No.133/1992 was filed by the appellant herein before the Sub Court, Vadakara, for restraining the father-in- law from transferring the property belonging to the wife alleging that she was of unsound mind. Another O.P No.8/1997 for divorce before the Sub Court, Kasaragod was also filed by the appellant. However, subsequently,these petitions were dismissed. We are concerned only with regard to the quantum of maintenance awarded by the court below. According to the appellant, the wife M.A. No.69/2004-E and Cross Objection 15/2005 -:2:- and son have no ground to claim separate residence and arrears of maintenance. The appellant contends that there is an average take home salary of Rs.5,000/- per month and gross salary reckoned by the court below is erroneous and contrary to evidence. The family court had fixed an amount of Rs.2,500/- per month as maintenance to the wife and Rs.3,000/- per month to the son making in all Rs.5,500/- for the period from 03/02/1999 to 02/09/2002. But it also directed the payment of maintenance at the same rate in future. According to the appellant, future maintenance and past maintenance on the same rate may not be correct. It is further contended that mother is also equally liable to maintain minor son, which aspect of the matter has been omitted to be considered while awarding maintenance. 2. The appellant has produced certain additional documents as per I.A.No.1393/2004. After hearing the parties, we allow the said application. Annexure-A1 produced along with the affidavit is the true copy of the salary history for the period from January 1999 to December 1999. This would show that the average carry home pay would vary from Rs.10,000/- to Rs.12,000/- depending upon the deductions to be made for each month. M.A. No.69/2004-E and Cross Objection 15/2005 -:3:- 3. We have heard the learned counsel Sri.B.Krishnan appearing on behalf of the appellant and also the learned counsel appearing on behalf of the respondents. 4. The respondents have filed a cross-objection and according to them, the Family Court ought not have reduced the claim especially, when the income averred by the respondents in the petition has not been seriously disputed in the counter affidavit. Further, taking into account the salary as well as the income from the property, it is contended that the claim ought to have been allowed in toto. 5. The evidence in O.P.No.447/2002 consists of the oral testimony of PW.1, the first petitioner/wife and marked Exts.A1 and A2. The respondent/husband gave evidence as RW.1 and marked Exts.B1 to B4(a). Ext.B1 is the photocopy of the doctors prescription, Ext.B1(a) is the photocopy of the prescription issued by Dr.O.N.Vasudevan, Ext.B1(b) is the photocopy of the card issued from Santhi Clinic, Kozhikode and Exts.B1(c) to B1(e) are also photocopies of the prescription. The above documents however in no way advance the ground urged for reducing the quantum. They relate to the mental health of the wife since, there was an allegation that she was not of sound mind. Exts.B2 to B4(a) are also of no help to find out as to what is the income of the M.A. No.69/2004-E and Cross Objection 15/2005 -:4:- appellant. Thus, no documentary evidence as such is adduced to show what exactly is the income received by the appellant. The respondents herein as petitioners have also not adduced any documentary evidence to show as to what is the income of the appellant herein. In such circumstances, the court below rested its conclusion on the oral testimonies of the parties. It must be remembered that though there is no specific denial of the income as averred in the plaint, RW.1 the appellant denied the allegation while examining in the box and has further said that his income is only Rs.19,000/- and out of the same he had to pay Rs.5,000/- as statutory deduction and his gross salary is Rs.14,000/-. Even though he has produced some additional documents before this Court to show that his carry-home pay will be some where between Rs.10,000/- to 12,000/-, it has to be noticed that whatever deduction made is not towards liability, rather a substantial amount is deducted towards P.F., which is a saving to his account. If we take that into account, it cannot be said that there is any wide disparity in the income as assessed by the court below. 6. Even though the respondents have filed a cross objection they have not claimed any higher amount towards future maintenance but generally stated that the income as assessed by the court below is low and therefore, the maintenance awarded should be the same as claimed in the petition. Strictly M.A. No.69/2004-E and Cross Objection 15/2005 -:5:- speaking, when the past maintenance is awarded future maintenance should be something more than the past maintenance, taking into consideration the possibility of increase in the income. On the other hand, if what is assessed for future maintenance is correct, then for the same reasoning, the rate of past maintenance should also be reduced. But the salary is always on upward revision except otherwise proved. The possibility of an increase in the salary in future thus cannot be ruled out. Therefore, it is only probable that there should be some increase in the matter of future maintenance. As far as the son is concerned, he has already attained majority in 2004. Taking into consideration the totality of the facts and evidence in this case, we do not propose to interfere with the past maintenance awarded for both the wife and the minor son. Since the son has already attained majority in the year 2004, it may not be appropriate nor is it felt necessary to modify the maintenance awarded to him till his attainment of majority. However, in the case of the wife, the maintenance awarded by the court below, Rs.2,500/- is increased to Rs.3,000/- from February, 2002. However, we direct that the respondent will not be entitled for any interest on the said amount which is accrued due as on today. During the course of argument, it was submitted by the learned counsel for the appellant that the appellant is due to retire. True, based on the change of circumstances, M.A. No.69/2004-E and Cross Objection 15/2005 -:6:- it is open to the parties to seek any modification in respect of the future claim. The amount of Rs.1,00,000/- paid during the pendency of the proceedings will be given due credit while calculating the balance amount due in execution. The appeal and cross objection are accordingly disposed of. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.) ms