IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 Mat.Appeal.No. 906 of 2009() ---------------------------- OP.680/2008 of FAMILY COURT, MALAPPURAM .................... APPELLANT/RESPONDENT ------------------------------- NIRULVAN SAKEER, AGED 31 YEARS, S/O.ABU, NIRULVAN VEEDU, KASHAYAPPADI, MOOTHEDAM P.O. BY ADV. SRI.J.HARIKUMAR SRI.SUMAN CHAKRAVARTHY RESPONDENT: PETITIONER ------------------------- KOLOTHUMTHODIKA SHAHINA, 21 YEARS, D/O.MUHAMMED, KOLOYTHUMTHODIKA VEEDU, POTTIYIL, PANIPPARA P.O. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- C.M.Application No.3399 OF 2009 & Mat.Appeal No.906 OF 2009 ----------------------------------------------------- DATED THIS THE 25th DAY OF NOVEMBER, 2009 O R D E R /J U D G M E N T Basant, J. This petition is to condone the delay of 212 days in filing an appeal. The appeal in turn is directed against an order granting past maintenance at the rate of Rs.2,000/- per mensem for a period of 11 months, i.e., a total amount of Rs.22,000/-. the delay is of 212 days. Illness of the appellant is the reason advanced. 2. We are not persuaded to agree that sufficient reasons have been shown to justify the prayer for condonation of delay. The petition for condonation of delay does not in these circumstances deserve to be allowed. However, in our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in failure or miscarriage of justice, we requested the learned counsel for the appellant to explain the nature of the challenge which the appellant wants to raise in this appeal. Mat.A.No.906/09 -2- 3. Marital tie is admitted. The wife is a young woman aged about 20 years. The appellant is aged about 30 years. Admittedly, he has an employment. Parties are at logger heads. as to whether he is an expert chines cook or only a supplier. Even accepting the same, it can be seen that he is an able bodied person having an employment. The precise quantum of his income has not been ascertained. The court below had only the evidence on oath against oath in this aspect. Difficulty of an estranged wife to prove the precise quantum of income of her husband residing elsewhere has to be realistically taken note of by the court. The appellant was in a position to produce the best evidence to prove the nature of the employment and quantum of income. He has not chosen to adduce evidence except his own ipse dixit. In any view of the matter, we are satisfied that the quantum fixed - at the rate of Rs.2,000/- per mensem does not warrant interference. Going by the needs of the woman, the same is hardly sufficient for her to survive. Going by the available evidence about the quantum of income of the appellant and his conduct of not placing better evidence, we are not Mat.A.No.906/09 -3- persuaded to interfere with the quantum fixed. In these circumstances, we are satisfied that the rejection of the prayer for condonation of delay does not result in failure or miscarriage of justice. 4. In the result, this petition is dismissed. Consequently, the Mat.Appeal No.906/09 shall stand rejected as barred by limitation. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn