IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 Mat.Appeal.No. 454 of 2010(D) ---------------------------- OP.257/2009 of FAMILY COURT,KOZHIKODE .................... APPELLANT/RESPONDENT ----------------------------------- ABDUL NASAR, AGED 40 YEARS, S/O.PATHUMMA, CHAKALAKAL HOUSE, KALLAI P.O., KOZHIKODE DT. BY ADV. SRI.M.MUHAMMED SHAFI RESPONDENTS : PETITIONER ------------------------- 1. BENASEER, AGED 29 YEARS, D/O.KUNHEEDEEN KOYA, KOOTUNGAL PARAMBU, KALLAI P.O., KOZHIKODE DT. 2. MUHAMMED NABAN, AGED 18 YEARS, S/O.ABDUL NASAR, REP.BY MOTHER (1ST RESPONDENT) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** C.M.Appl.No.1330 of 2010 & Mat.Appeal No.454 of 2010 ********************* Dated this the 25th day of June, 2010 ORDER/JUDGMENT BASANT, J. This petition is to condone the delay of 153 days in filing a Matrimonial Appeal. The appeal in turn is directed against a direction to the appellant/father to pay past maintenance @ Rs.600/- per mensem to his minor child aged 8 years. 2. Paternity is admitted. The only dispute that was raised is that the child was not residing separately from the father for a part of the period for which claim for past maintenance was raised. Before the court below, there was evidence of the claimant/mother and the appellant/father as PW1 and RW1. The court below looked into the evidence and chose to place reliance on the evidence of the mother that the child was not maintained by the father for the period 01.03.2006 to 28.02.2009. Accordingly the court below proceeded to direct payment of an amount of Rs.600/- per mensem to the child. The mother had claimed maintenance, but past maintenance was not granted to the mother. C.M.Appl.No.1330 of 2010 & Mat.Appeal No.454 of 2010 2 3. Prayer is to condone the delay of 153 days. A mistake on the part of the Advocate's clerk is the reason urged. We have gone through the affidavit. We are not prepared to accept the above convenient reason urged in the affidavit. 4. In our anxiety to ensure that the dismissal of the petition for condonation of delay does not result in miscarriage of justice, we requested the learned counsel for the appellant/petitioner to explain the nature of the challenge. The only contention urged is that for part of the period of the claim, the child was with the appellant and he was maintaining the child. Not a semblance of satisfactory materials was placed before the court below in support of that assertion. The court below had the rival assertions of the interested contestants on that aspect. The court below chose to place reliance on the oral evidence of PW1. We are not satisfied in any view of the matter that the acceptance of the evidence of PW1 in preference to that of RW1 has resulted in any error, incorrectness or impropriety. We are satisfied that dismissal of the claim for condonation of delay shall not result in any failure/miscarriage. C.M.Appl.No.1330 of 2010 & Mat.Appeal No.454 of 2010 3 5. This application 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) rtr/