IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 Mat.Appeal.No. 4 of 2007 -------------------------- OP.299/2004 of FAMILY COURT,KOZHIKODE .................... APPELLANT/RESPONDENT ----------------------------------- V.K.PRABHAKARAN, AGED 33 YEARS, S/O.SREENIVASAN, "SARANYA",PUTHIYATHERU, CHIRAKKAL AMSOM AND DESOM, KANNUR THALUK/DISTRICT. BY ADV. SRI.MANJERI SUNDERRAJ SRI.B.PREMNATH (E) RESPONDENT/ PETITIONER ------------------------- PRANAV (MINOR) AGED 5 1/2 YEARS, REP.BY MOTHER /GUARDIAN, C.MRUDULA, D/O.KARUNAKARAN, "RADHALAYAM", (KOTTAYATTU), PUTHUPANAM AMSOM AND DESOM, VATAKARA THALUK, KOZHIKODE DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== C.M. APPLICATION NO. 29 OF 2007 & MAT APPEAL NO. 4 OF 2007 ============================ DATED THIS THE 8th DAY OF JULY 2010 ORDER/JUDGMENT Basant,J. The petition is to condone the delay of 132 days in filing a mat appeal. The appeal in turn is directed against an order passed by the court below directing payment of past maintenance at the rate of Rs.1250/- per mensem for a period of 36 months for the claimant, a minor child of the appellant. 2. There is a delay of 132 days. We are not satisfied that sufficient reasons exist to justify the prayer for condonation of delay. 3. However, in our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in injustice and miscarriage of justice, we requested the learned counsel for the appellant/petitioner to explain the nature of the challenge Mat.Appeal 4/2007 2 which the appellant wants to mount against the impugned order. 4. The counsel have been heard. 5. The marriage is admitted. Paternity of the child is admitted. That the spouses have got their marriage dissolved by mutual consent is also admitted. There is no contention that the minor child is able to maintain himself. In these circumstances, there can virtually be no dispute about the liability to pay maintenance to the child. 6. Before the court below, it appears that a contention was raised that at the time of divorce by mutual consent, an amount of Rs. One lakh had been paid to the wife. The receipt of that payment is not disputed. The only contention is that the said amount is not paid and received in discharge of the liability to pay maintenance to the child. The liability for maintenance of the child remains notwithstanding the said payment of Rs.One lakh, it was contended before the court below. 7. Absolutely no material was placed before the court below to enable the court to sail to a safe conclusion that the said amount of Rs.One lakh was paid in discharge of the liability to pay maintenance for the child. In the total absence of any Mat.Appeal 4/2007 3 material to indicate that such payment of Rs.One lakh was made in satisfaction of the claim of the child for maintenance, it is idle for the appellant to contend that his liability to maintain the child shall stand extinguished by the payment made by him to his wife when he harmoniously settled the dispute regarding divorce with her. 8. It appears that before the court below it was further contended that the mother of the child is refusing opportunity to the appellant to have interactions with the child. That can definitely be not a ground to avoid liability for payment of maintenance. If the appellant has such a grievance, he must initiate appropriate proceedings to enforce his visitorial rights or rights for custody of the child. That cannot certainly be a defence against the claim for maintenance. 9. The next ground of challenge is that the quantum of maintenance awarded is excessive. The child is aged 5 ½ years. The indications available in evidence about the needs of the child and the means of the appellant convincingly suggest that the quantum of maintenance fixed – Rs.1,250/- per mensem is absolutely fair, reasonable, cogent and just and the same does Mat.Appeal 4/2007 4 not, at any rate, warrant any interference by invoking the appellate jurisdiction vested in us under Section 19 of the Family Courts Act. We are of the opinion that it will be clear abuse of process and traversity of justice to condone the delay and admit this appeal for consideration of the contentions referred above. 10. The petition for condonation of delay is, in these circumstances, dismissed. Consequently the appeal shall stand rejected as barred by limitation. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. Mat.Appeal 4/2007 5