IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 Mat.Appeal.No. 931 of 2010() ---------------------------- OP.541/2002 of FAMILY COURT,TRIVANDRUM .................... APPELLANT: RESPONDENT: ------------------------------------------- DIVAKARAN,AGED 55 YEARS,S/O.NARAYANAN, J.N.NIVAS,VILAYILMOOLA.P.O,KODUMON,ATTINGAL, CHIRAYINKEEZHU TALUK,THIRUVANANTHAPURAM, (POSTAL ADDRESS,C/O.J.VASANTHY,ASWATHY BHAVAN, KUNAMMAVU,AVANAVANCHERY.P.O,ATTINGAL, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.C.AJITH KUMAR (KALLESSERIL), SRI.ANIL KUMAR (KALLESSERIL). RESPONDENT(S): PETITIONERS: ------------------------------------------------- 1. SHYLAJA,AGED 47 YEARS,D/O.SARASAMMA, PUTHENVEEDU,KAILATHUKONAM,KURAKKADA.P.O, VILLAGE,THIRUVANANTHAPURAM,PIN-695104. 2. ABHIJITH,AGED 16 YEARS (MINOR),REPRESENTED BY HIS MOTHER- THE 1ST RESPONDENT,S/O.DIVAKARAN. PUTHENVEEDU,KAILATHUKONAM,KURAKKADA.P.O, VILLAGE,THIRUVANANTHAPURAM,PIN-695104. 3. ASWAJITH,(MINOR),REPRESENTED BY HIS MOTHER- THE IST RESPONDENT,AGED 12 YEARS,S/O.DIVAKARAN, PUTHENVEEDU,KAILATHUKONAM,KURAKKADA.P.O,VILLAGE, THIRUVANANTHAPURAM,PIN-695 104. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- CMA No.3001/2010 & MAT Appeal No.931 of 2010 ------------------------------------------- Dated this the 23rd November, 2010 ORDER/JUDGMENT Basant, J. CMA No.3001/2010 is to condone the delay of 443 days in filing the Matrimonial appeal No.931/2010. Mat Appeal No.931/2010 is directed against an order under which maintenance was granted to the claimants, i.e. the wife and two minor children of the appellant. Marriage is admitted. Paternity, though disputed, that controversy was set at rest with Ext.C1 DNA test report. The presumption under Section 112 of the Evidence Act also settled the controversy. 2. Separate residence from 13.6.2000 is admitted. According to the appellant, such separate residence was consequent to the detection of alleged adultery between his wife, the first claimant and another. The alleged adulterer was not even named in the counter statement filed. The bizarre theory is that while the appellant and Mat.Appeal No.931/2010 2 his wife were sleeping in the bed room, the alleged adulterer came into the bed room and had adulterous sexual relationship with his wife. Maintenance has been granted at the rate of Rs.750/- per mensum to the wife and Rs.500 and Rs.300/- for the two minor children from 13.6.2000 for a period of four years after the filing of the petition. For the subsequent periods, maintenance has been awarded at the rate of Rs.1,000/- for the wife and Rs.750/- each for the two minor children. 3. The appellant claims to be aggrieved by the impugned order. There is a delay of 443 days in filing the Matrimonial appeal. It is stated that the delay occurred on account of threatening and intimidation which emanated from the wife and her brothers. We have carefully considered the averments in the affidavit in support of the petition for condonation of delay. We are convinced that there is no justifiable reason to condone the long and inordinate delay of 443 days in filing this Matrimonial appeal. 4. In our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in Mat.Appeal No.931/2010 3 failure/miscarriage of justice, we requested the learned counsel for the appellant to explain the nature of the challenge which the appellant wants to mount against the impugned order. We have heard the learned counsel in detail. 5. The liability to pay maintenance for the wife after 13.6.2000 is disputed on the ground that she was guilty of adultery. As stated earlier, the name of the adulterer is not mentioned in the counter statement filed by the appellant. That circumstance is indeed crucial and vital. It knocks the bottom out of the theory that the wife was guilty of adulterous sexual relationship with another. The court below did take note of the thoroughly improbable version advanced about the alleged adultery. Except the self serving ipse dixit of the appellant as RW1, there was no other evidence, ocular or circumstantial to even remotely indicate the acceptability of such an improbable version about the alleged adultery. We are, in these circumstances satisfied that the theory of alleged adultery was rightly rejected by the court below. 7. Coming to the question of quantum of Mat.Appeal No.931/2010 4 maintenance awarded, the amounts awarded - Rs.750/-, Rs.500/- and Rs.300/- for the wife and children from 13.6.2000 to a period of four years after the filing of the petition and an amount of Rs.1,000/- for the wife and Rs.750/- each for the minor children who were aged 7 years and 3 years on the date of the petition are so meager. We are certainly of the opinion that the appellate jurisdiction under Section 19 cannot and need not be invoked to interfere with the quantum fixed. Even assuming the appellant to be just an able bodied person (he is stated to be a construction worker), the quantum of maintenance awarded cannot be held to be excessive. Going by the indications available about the needs of the claimants and the means of the appellant, we are satisfied that the challenge against the quantum must also fail. 8. We are thus convinced that the appeal is without any merit and that there is no sufficient reason advanced to justify the prayer for condonation of the long delay of 443 days. We are convinced that the admission of the appeal and an invitation to the respondent to appear before this court to defend the impugned decree is Mat.Appeal No.931/2010 5 absolutely unnecessary. No court with sensibility, compassion and concern for the plight of the respondents can direct admission and issue notice in these proceedings. We are hence persuaded to dismiss this petition and the appeal illimine. In the result, the petition for condonation of delay is dismissed. Consequently, the appeal shall stand rejected as barred by limitation. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/