IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 RSA.No. 732 of 2011() --------------------- (AS 84 OF 2003 OF SUB COURT, PAYYANNUR) (OS 500 OF 2000 OF MUNSIFF COURT, TALIPARAMBA) APPELLANT/DEFENDANT --------------------------------------- MADAVALAPPIL KANNAN, AGED 67 YEARS, S/O.RAMAN VELICHAPPADAN, KUNCHATHOOR VILLAGE, KASARAGOD TALUK. BY ADV. SRI.P.U.SHAILAJAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. NARATH SARADA, AGED 51 YEARS, D/O.N.KUNHAPPA, MORAZHA P.O., ANCHAMPEEDIKA, ANTHOOR, PIN-670331. 2. GIREESH, AGED 17 YEARS, REPRESENTED BY MOTHER AND LEGAL GUARDIAN NARATH SARADA, AGED 51 YEARS, D/O.N.KUNHAPPA, MORAZHA, P.O.ANCHAMPEEDIKA, PIN-670331. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.732 of 2011 ............................................ DATED THIS THE 1st DAY OF SEPTEMBER, 2011 JUDGMENT Defendant in O.S.500 of 2000 on the file of Munsiff Court, Taliparamba is the appellant. Respondents are the plaintiffs in the suit. First respondent is the mother and second respondent, the son. They instituted the suit claiming past maintenance at the rate of Rs.1000/- each contending that first respondent is the wife and second respondent the son of the appellant and he deserted them and has not paid any maintenance and therefore they are entitled to get past maintenance for the period from 1.8.1997 to 31.7.2000, a total of Rs.72,000/-. It was contended that appellant was the owner of a Branch of C.J.Patel Tubacco Works Private Limited Company at Kunhathoor and after marriage, for the purpose of starting the said Branch, appellant had obtained Rs.1,00,000/- from the parents of the first respondent and they were living together till 1996 and appellant was leading an immoral life and when it was questioned, he deserted them and appellant is getting Rs.10,000/- per month as RSA 732/2011 2 income from the said branch and also getting Rs.10,000/- from his properties and respondents have no properties or income. Appellant resisted the suit admitting the marriage. He denied the paternity of second respondent. It was contended that the appellant is not having the income alleged and for four years he is suffering from Rheumatism and Asthma and used to do beedy work only occasionally and first respondent is doing cooli work and is getting Rs.100/- per month and hence appellant is not liable to pay any maintenance to the second respondent and as the first respondent is leading an illicit life, she is not entitled to maintenance. 2. Learned Munsiff on the evidence found that in Ext.A1, copy of the counter affidavit filed by the appellant before the Chief Judicial Magistrate, Thalassery in M.C.36 of 2002, which was a complaint filed under Section 125 of Code of Criminal Procedure by the respondents claiming maintenance, he admitted that second respondent is his son and therefore contention of the appellant that he is not the father of the second respondent is not correct. Learned Munsiff relying on the version of the appellant when he was examined in M.C.36 of 2002 marked as Ext.A4, RSA 732/2011 3 found that appellant is having sufficient income. It was also found that even at the time of his examination as PW1, appellant admitted that he is getting Rs.600/- per month. Based on the entire evidence it was found that first respondent is entitled to a maintenance at the rate of Rs.900/- and second respondent Rs.600/- per month. At that rate, appellant was directed to pay maintenance for the period claimed in the suit. Appellant challenged the decree and judgment before Sub Court, Payyannur in A.S.84 of 2003. Learned Sub Judge on re- appreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. Though appellant challenged the finding of the courts below that he is the father of the second respondent and therefore is liable to pay maintenance, as rightly found by the courts below, in the light of Ext.A1 counter filed before the Chief Judicial Magistrate, appellant is not entitled to dispute the paternity of the second respondent. As admittedly he did not pay any maintenance during the period, either to his wife or son, the finding of the RSA 732/2011 4 courts below that he is liable to pay maintenance is perfectly correct. The only question is with regard to the quantum of the maintenance. The argument of the learned counsel appearing for appellant is that in M.C.proceedings based on the very same evidence, Chief Judicial Magistrate directed the appellant to pay maintenance at the rate of Rs.300/- to the wife and Rs.200/- to the son and in the light of the same evidence, courts below were not justified in holding that first respondent is entitled to maintenance at the rate of Rs.900/- and second respondent at the rate of Rs.600/- per month. 4. Appellant has not produced the order passed by the Magistrate under Section 125 of Code of Criminal Procedure. The submission of the learned counsel is that at the time of evidence, first respondent admitted that fact. Whatever it be, the fact that the Magistrate awarded a maintenance at the rate of Rs.300/- to the wife and Rs.200/- to the son does not mean that Munsiff is not competent to appreciate the evidence and award a maintenance at the rate of Rs.900/- to the wife and Rs.600/- to the son. On going through the judgments of the courts below I do not find any reason to interfere with the quantum of RSA 732/2011 5 maintenance also. As no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk