IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Mat.Appeal.No. 239 of 2005() ---------------------------- OP.274/2004 of FAMILY COURT, MANJERI .................... APPELLANT: PETITIONER ------------------------ ABDUL JALEEL, S/O.VALANGATTIL MUHAMMED ALI, KARUVAMBAYI CENTER, P.O.NHAMANGAD, THRISSUR DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/PETITIONERS: -------------------------------- 1. HASEENA, D/O.IBRAHIM, KANJIRAPARAMBIL HOUSE, PURANGU, PONNANI, MALAPPURAM DISTRICT. 2. ABDUL RAHIM, MINOR, REPRESENTED BY THE FIRST RESPONDENT-MOTHER-GUARDIAN. 3. ANSHIDA-MINOR, REPRESENTED BY THE FIRST RESPONDENT-MOTHER-GUARDIAN. 4. ADIL-MINOR, REPRESENTED BY THE FIRST RESPONDENT-MOTHER-GUARDIAN. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- C.M.Application No.1823 OF 2005 & Mat.Appeal No. 239 OF 2005 ----------------------------------------------------- DATED THIS THE 3rd DAY OF NOVEMBER, 2009 O R D E R /J U D G M E N T Basant, J. This petition is to condone the delay of 17 days in filing a Matrimonial Appeal. The appeal in turn challenges a decree for payment of past maintenance. The respondent is served. There is no appearance. We are satisfied that a lenient view can be taken and the delay can be condoned. Petition allowed. Delay condoned. Mat.Appeal No.239/05 2. This appeal is directed against an order granting an amount of Rs.38,674/- as past maintenance for the claimant, admittedly, the wife and children of the appellant. 3. Marriage is admitted. Subsequent divorce is also admitted. Paternity is not disputed. Separate residence of the spouses and children away from the appellant from Mat.Appeal No.239 /05 -2- 4/2003 is admitted. The divorce took place in January, 2004. 4. The court below in these circumstances came to the conclusion that the first claimant/wife is entitled to maintenance at the rate of Rs.500/- per mensem for a period of 10 months(i.e., April 2003 to January,2004) from the date of separation to the date of divorce (total Rs.5,000/-). The court below further found that the three minor children are entitled to maintenance for the period April, 2003 to February, 2004 (10 months) at the rate of Rs.500/- per mensem each (i.e., total of 3xRs.500 x 10 months). For the period 25.2.2004 to 28.6.2004, the court below found that there was already an order directing payment of maintenance under Section 125 Cr.P.C. at the rate of Rs.1,500/- per mensem for claimants 2 and 3 and Rs.1,250/- per mensem for the youngest child, i.e., the 4th claimant. For the period of four months from 25.2.2004 to Mat.Appeal No.239 /05 -3- 28.6.2004, the court directed payment of maintenance at the rate of Rs.4,250/- (Rs.1,500 + 1,500+ 1,250)per mensem in all to the three children. However, the court while directing payment stated that an amount of Rs.38,674/- is due as past maintenance till 28.6.2004, the date of the claim. 5. The learned counsel for the appellant advances various contentions. First of all she contends that the total amount payable, going by the directions in the order, will only be Rs.37,000/-, i.e., Rs.5,000(Rs.500 x 10) for the wife, Rs.15,000/- (3 x Rs.500x 10) for the three children till 24.2.2004 and Rs.17,000/- (4 x 4,250) till 28.6.2009. There is no justification for awarding the amount of Rs.1,674/- extra, contends the learned counsel for the appellant. 6. We find merit in that contention. We are unable to decipher how the court reached the figure of Rs.33,674/- Mat.Appeal No.239 /05 -4- as the maintenance payable to the three children for the period April 2003 to June, 2004. We are satisfied in these circumstances that at the rates awarded by the court below, only a total amount of Rs.37,000/- is due as past maintenance. The challenge on this ground succeeds. 7. It is then contended that the wife was not unable to maintain herself and that she has some income from properties. The court below had adverted to this aspect. It had come out that she had some source of income. However, it must be noted that the appellant was employed abroad at the relevant time and even considering the income of the appellant and his wife, the award of an amount of Rs.500/- per mensem does not at any rate deserve interference at our hands invoking the appellate jurisdiction under Section 19 of the Family Courts Act. 8. So far as the children are concerned, there is some evidence to show that during the initial period, the Mat.Appeal No.239 /05 -5- school fee, expenses for transportation to school were met by the appellant. Even assuming that, we are not at all persuaded to agree that the award of an amount of Rs.500/- per mensem each to the three children for the first period (4/2003 to 2/2004) and the award of an amount of Rs.4,250/- per mensem to the three children for the latter period is in any way excessive as to warrant interference at the appellate stage. 9. The learned counsel for the appellant submits that for the period 25.2.2004 to 28.6.2004, there is direction both under Section 125 Cr.P.C. as also under the impugned order to pay maintenance. The order of the court below makes it crystal clear that they are not in addition to each other, but a total amount of Rs.4,250/- per mensem (Rs.1,500 +1,500+1,250) alone can be claimed by the three children for the said period. Overlapping direction, therefore does not result in miscarriage of justice. Mat.Appeal No.239 /05 -6- 10. We are in these circumstances satisfied that this appeal can be allowed in part. The impugned order can be upheld in all other respects. But, it will have to be clarified that only an amount of Rs.37,000/- is due by way of past maintenance. This appeal is in these circumstances allowed in part to the above extent. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn