IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 Mat.Appeal.No. 580 of 2007(E) ----------------------------- OP.11/2006 of FAMILY COURT, MALAPPURAM .................... APPELLANT/RESPONDENT: -------------------------------------- MUKKILAYIN PRAKASH, S/O. RAMAN, AGED 29 YEARS, MUKKILAYIL VEEDU, CHERKKAPARAMB P.O., ANGADIPURAM VIA, PERINTHALMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON SMT.S.SMITHA (PARAKKAL) RESPONDENT(S): PETITIONERS -------------------------- 1. PUNNAKKATTU KUZHI PULARI, D/O. IBACHAN, AGED 22 YEARS, PUNNAKKATTUKUZHI VEEDU, PUZHAKKATTIRI P.O., ANGADIPURAM VIA, PUZHAKKATTIRI AMSOM DESOM, MALAPPURAM DISTRICT. 2. NAVANEETH, AGED 3 YEARS (MINOR), S/O. MUKKILAYIN PRAKASHAN, (MINOR REPRESPONDENT IS REPRESENTED BY GUARDIAN MOTHER IST RESPONDENT) ADV. SRI.M.P.PRAKASH FOR R1 & 2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2008 ALONG WITH RP(FC).NO.428/2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- MAT.APPEAL NO.580 OF 2007 & R.P.(FC) NO.248 OF 2007 -------------------------------- Dated this the 22nd day of October, 2008 JUDGMENT Raman,J. Mat. Appeal No.580/07 arises out of the order passed by the Family Court, Malappuram in O.P.No.11/2006, which was filed by the wife and son (respondents herein) for past maintenance for the period of 18 ½ months at the rate of Rs.2,000/- to the wife and Rs.1,500/- to the son. Maintenance application under Section 125 Cr.P.C. was also filed subsequent to the divorce petition filed by the husband as O.P.No.105/2005. Both the petition were tried together and by a common ex parte order allowed the claim directing the appellant to pay an amount of Rs.64,750/- towards past maintenance. That ex parte order was sought to be set aside by filing I.A.No.1514/2006, which was allowed on condition to deposit the entire arrears towards past maintenance within the -2- Mat.Appeal.No.580/2007 & R.C.(FC).No.428/2007 stipulated time. That rder was challenged in W.P.(C). No.4250/2007, which was eventually disposed of directing the appellant to pay a sum of Rs.20,000/- on which condition this Court directed the Family Court to restore both the cases to file. It was thereafter that the cases were considered together and by the impugned order the Family Court directed the appellant herein to pay past maintenance of Rs.1,000/- per month to the minor son for 18 ½ months totalling to Rs.18,500/-. No amount was awarded to the wife. 2. We have heard both sides. 3. Admittedly, the parties married on 4/2/2002 and in that wedlock a child was born in June, 2003. Matrimonial cruelty and harassment are denied by the husband. It is further contended that no amount is paid towards maintenance to the wife and child. Ext.A1 is the order passed by this Court in I.A.No.807/2006 in Mat. Appeal No.103/2006. Ext.B2 is the decree for divorce -3- Mat.Appeal.No.580/2007 & R.C.(FC).No.428/2007 granted in the application filed by the husband. It was found in the divorce decree that it is the wife who deserted the husband without any reasonable excuse. It was on those grounds that the wife was dis-entitled for claiming maintenance. But as far as the child is concerned, the child is to be maintained un-disputably and it is the duty of the father to maintain the child until the child is able to maintain himself. Except an amount of Rs.1,750/-, that too paid on different times, no further amount is paid. The father is found to be capable of earning and therefore an amount of Rs.1,000/- was directed to be paid to the child towards past maintenance for 18 ½ months with interest at the rate of 9% per annum from the date of filing the O.P. till realisation. 4. In the factual situation and in the absence of any contra evidence, it cannot be said that an award of Rs.1,000/- per month limiting to a period of 18 ½ months towards past maintenance to the child is in any way illegal or wrong. -4- Mat.Appeal.No.580/2007 & R.C.(FC).No.428/2007 5. In the circumstances, we find no merit in this appeal and the same is liable to be dismissed. As regards the future maintenance, the amount at the rate of Rs.1,000/- was awarded to the child, though the child is entitled for a larger amount especially since the amount fixed towards past maintenance is also at the same rate, in the absence of any cross appeal, we do not think it is justifiable to grant any further amount; but we have already upheld the award at the rate of Rs.1,000/- towards maintenance to the child in the forgoing paragraph. Therefore, the awarding of maintenance at the rate of Rs.1,000/- per month to the child for future maintenance is also fully justified. It was found that the husband is alleged to be a building contractor. But there was no evidence to substantiate the same. Though the husband claimed to be a coolie, it cannot be disputed that even a skilled worker engaged in a building work will nowadays get more than Rs.250/- per day as wages. The court below has fixed only an amount of Rs.200/- per day as wages -5- Mat.Appeal.No.580/2007 & R.C.(FC).No.428/2007 and the monthly earning was calculated at Rs.5,000/-, after deducting 1/3rd towards his expenditure and an amount of Rs.2,000/- was reserved for maintenance. The wife was awarded an amount of Rs.2,000/- per month. In the absence of any contra evidence, we do not think that the finding as entered into by the court below is in any way perverse warranting interference. In the result, both the appeal as well as R.P.(FC) are dismissed. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv.