IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Mat.Appeal.No. 468 of 2007() ---------------------------- OS.165/2000 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT/DEFENDANT ---------------------------------- MOHAN THAMPI, S/O. DAMODARAN PILLAI, RESIDING AT SANTHOSH BHAVAN, KOOVALASSERI P.O., PONGUMMOODU, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.ANIL K.NARENDRAN RESPONDENT(S): 1ST PLAINTIFF ----------------------------- S.PADMAJA DEVI, D/O. SANTHAKUMARI AMMA, RESIDING AT PADMA VILASAM, KARUMKULAM, PULLUVILA P.O., THIRUVANANTHAPURAM. ADV. SRI.K.B.PRADEEP FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2201/2008 IN MAT.APPEAL No.468/2007 CLOSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 17/10/2008 \\TRUE COPY// P.A TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - Mat. A. No.468 of 2007 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of October, 2008. JUDGMENT Raman, J. The appeal is directed against the judgment in O.S.No.165/2000 on the file of the Family Court, Thiruvananthapuram. The suit was one for maintenance and recovery of money filed by the wife. The marriage between the parties was solemnised on 24.4.1983 in the house of the respondent/first plaintiff as per custom. Two children were also borne who are arrayed as plaintiffs 2 and 3. The allegation was that the appellant/defendant ousted the plaintiffs 1 and 2 from his house and they took shelter in the first plaintiff's family house, that the husband failed to maintain them and deserted them in the year 1988. Though the matter was compromised at the instance of the relatives and as per the compromise the first plaintiff sold 50 cents of property out of 60 cents which was given to her by her parents, the defendant purchased 10 cents of property by using the said sale consideration and constructed a house by name Aswathy Bhavan. They started living in the said house. Again the attitude of the defendant changed and started behaving cruelly towards the first plaintiff. MA 468/2007 -2- He compelled her to execute a sale deed regarding the remaining 10 cents of property. Since the first plaintiff was not prepared to do so, it resulted in brutal manhandling. Thereafter, the plaintiffs were ousted from the house and they started living with the first plaintiff's parents in a rented house. The plaintiffs claimed that the defendant was working as a Junior Commissioned Officer, drawing an amount of Rs.10,000/- per month by way of salary. He is capable of maintaining the plaintiffs. Maintenance at the rate of Rs.1,500/- per month was claimed by the first plaintiff and plaintiffs 2 and 3 claimed Rs.1,000/- each per month as maintenance. It was also claimed that an amount of Rs.20,000/- is liable to be paid by the defendant which was given to him by the parents of the first plaintiff and a further amount of Rs.50,000/- being the value of 25 sovereigns of gold ornaments given at the time of marriage is also claimed by the first plaintiff. 2. The defendant denied the allegation and contended that the first plaintiff had deserted the defendant and is living separately without any reasonable cause. He also denied having received any amount and gold ornaments at the time of marriage. It was the first plaintiff who left the residence without permission of the defendant. It is also denied that the defendant was drawing an amount of Rs.10,000/- by way of salary as alleged in the plaint. The defendant denied his liability to pay any amount MA 468/2007 -3- to the first plaintiff. It is further contended that he is prepared to maintain his wife if she is prepared live with him as a loyal and dutiful wife. 3. The court below found that being the husband, the appellant is bound to maintain the first plaintiff as also the children, plaintiffs 2 and 3. Even though it was contended by the appellant that the wife is having some income and that she does not require any maintenance, there was no acceptable evidence adduced in support thereof. Admittedly, the appellant was working as a Junior Commissioned Officer at the relevant time and he took voluntary retirement. Even though he denied that he was receiving an amount of Rs.10,000/- per month way of salary, no evidence was produced by the appellant to show as to what was his actual income by way of salary or pension, as the case may be. That is a matter which is within his specific knowledge, but he did not adduce any evidence. In the absence of any evidence to show that the wife is actually earning any income to maintain herself and when it is proved that the husband was employed and drawing salary, necessarily the appellant is bound to pay maintenance to the wife and children. Regarding the quantum, the court below granted only an amount of Rs.350/- each per month towards past maintenance till decree and ordered Rs.500/- each per month towards future maintenance. Thus, what has been granted is the minimum that could be granted in a MA 468/2007 -4- maintenance case. No materials whatsoever is placed on record to show that the fixation of the amount at Rs.350/- per month towards past maintenance and at Rs.500/- per month towards future maintenance as per the impugned judgment, is in any way perverse. On the other hand, when admittedly the appellant was employed, it was his burden to show his means. The contention of the respondent was that the appellant was drawing an amount of Rs.10,000/- per month as salary. That he was employed as a Junior Commissioned Officer, was beyond dispute. In such circumstances, awarding such a meager amount towards maintenance, is not a matter calling for any interference by this court. Therefore, the appeal is dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/