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 11TH JUNE 2009 / 21ST JYAISHTA 1931 Mat.Appeal.No. 34 of 2004() --------------------------- OP.158/2000 of FAMILY COURT, KOTTAYAM .................... APPELLANT/PETITIONER: -------------------------- V. VISHNU (MINOR), S/O. PREMAKUMARI, MARANGATTU HOUSE, MUTTAMBALAM, KOTTAYAM REPRESENTED BY GUARDIAN AND NEXT FRIEND R. PREMAKUMARI, D/O. P. RADHAMMA, MARANGATTU HOUSE, MUTTAMBALAM, KOTTAYAM. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT: RESPONDENT: -------------------------------- C.V. VIJAYAKUMARAN NAIR, S/O.VASUDEVAN NAIR, CHERUNARAKATHIL HOUSE, CHENAPPADY VILLAGE, KOTTAYAM. ADV. DR.K.P.KYLASANATHA PILLAY SMT.SREEDEVI KYLASANATH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No.34 OF 2004 ----------------------------------------------------- DATED THIS THE 11th DAY OF JUNE, 2009 J U D G M E N T Basant, J. The appellant, a minor child, through his mother had claimed past maintenance from his father, the respondent herein. That claim was rejected by the court below. He assails that order in this case. 2. Paternity is admitted. The liability to pay maintenance is not disputed. But, the short contention that was raised was that the minor through his mother had given up and surrendered the claim for maintenance for the period prior to 9.3.2000. 3. A brief reference to the crucial facts appears to be necessary. The claim was staked for maintenance of the minor child by filing M.C.No.259/99 under Section 125 of Cr.P.C. on 23.12.1999. That dispute was settled on 9.3.2000 by filing Exhibit B1 joint statement. In such statement, it was agreed that maintenance shall be paid at the rate of Rs.400/- per mensem with effect from 9.3.2000. Accordingly, M.C.No.259/99 was allowed directing payment of an amount of Rs.400/- per mensem Mat.A.No.34/04 -2- from 9.3.2000. 4. After the claim under Section 125 Cr.P.C. was disposed of as per consent order dated 9.3.2000 in M.C.No.259/99, we find the minor, through his mother coming before the Family Court to claim past maintenance for a period of three years from 23.12.1999. It was contended that Exhibit B1 must be reckoned as sufficient material to conclude that claim for past maintenance prior to 9.3.2000 has not been pressed by the minor/on behalf of the minor. It was hence contended that in any view of the matter no past maintenance prior to 9.3.2000 is liable to be paid. 5. The learned counsel for the appellant submits that by no stretch of imagination, can it be held that the appellant had given up or surrendered his claims for maintenance for the period prior to 23.12.1999. The fact that the appellant could have claimed maintenance for the period starting from 23.12.1999 in M.C.No.259/99 cannot by any stretch of imagination be held to be sufficient to conclude that he has given up his claim for maintenance for the period prior to 23.12.1999. Of course, we agree with the learned counsel for the respondent that at least in so far as the period 23.12.1999 to 9.3.2000 it can be held that Mat.A.No.34/04 -3- there is an implied surrender as amounts which could have been claimed in M.C.No.259/99 was not claimed when the joint statement was filed. In these circumstances, we are satisfied that for the period 23.12.1999 to 9.3.2000 no maintenance is liable to be paid. This is for the reason that in M.C.No.259/99 when the compromise statement was filed, maintenance which could have been claimed had not been claimed. 6. We do further note that the claim was filed on 27.3.2000 and past maintenance could have been claimed only for a period of three years prior to that date. If that be so, the claim can relate only for the period 28.3.1997 to 27.3.2000. In the petition, maintenance is claimed for a period of three years prior to 23.12.1999, i.e.; 23.12.1996 to 23.12.1999. But, we note that under the law of limitation, on the admitted circumstances, maintenance cannot be claimed for a period beyond three years prior to 27.3.2000. Therefore, past maintenance is liable to be paid only for the period commencing from 28.3.1997. We have already noted that the appellant is not entitled to claim any amount as maintenance for the period after 23.12.1999 as that claim is impliedly surrendered as per Exhibit Mat.A.No.34/04 -4- B1 joint statement. 7. It follows that the appellant is entitled to claim maintenance for the period 28.3.1997 to 22.12.1999. 8. Even though counsel for respondent contends that for that period also past maintenance is not liable to be paid, on the basis of theory of implied surrender and in the light of Exhibit B1, we are unable to accept that contention. Exhibit B1 cannot be reckoned as surrender or implied surrender of maintenance for the period prior to 23.12.1999, as such claim never arose for consideration in M.C.No.259/99. We are further satisfied that maintenance for the period 28.3.1997 to 22.12.1999 can be awarded at the rate of Rs.400/- per mensem. Maintenance at that rate has already been ordered in M.C.No.259/99. Though the claim is for Rs.1,000/-, we are persuaded to agree that an amount of Rs.400/- per mensem – the amount admitted and claimed under Exhibit B1 for the period beyond 9.3.2000 alone need be awarded for the admissible period. 9. We are in these circumstances, satisfied that this appeal can be allowed in part to the extent indicated above. 10. In the result, this appeal is allowed in part. In Mat.A.No.34/04 -5- supersession of the impugned order, the respondent is directed to pay maintenance at the rate of Rs.400/- per mensem to the claimant/appellant/his son for the period 28.3.1997 to 22.12.1999. We direct the parties to suffer their respective costs. 11. The learned counsel for the respondent prays that the respondent may be granted reasonable and breathing time to raise the amount and the decree may not be permitted to be executed till such date. 12. We are satisfied that time can be granted to the respondent till 31.7.2009 to make payment. Till then, the decree shall not be executed. If the payment is not made by that date, the appellant shall be entitled to recover the amount with interest at the rate of 6% per annum from the date on which the amount falls due till the date of payment. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn Mat.A.No.34/04 -6- R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- C.M.APPLN.NO.458 OF 2004 IN MAT.APPEAL NO.34 OF 2004 ----------------------------------------------------- DATED THIS THE 21ST DAY OF MAY, 2009 O R D E R Basant, J. This petition is to condone the delay of 19 days in filing an appeal against the impugned order by the appellant-minor child aged 8 years, through his mother and guardian for arrears of maintenance. 2. The application is opposed. We have heard both sides. We are satisfied that the delay deserves to be condoned. Petition allowed. Delay condoned. Call the appeal for admission hearing on 27.5.2009. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn