IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 Mat.Appeal.No. 94 of 2003(F) --------------------------- OP.568/2001 of FAMILY COURT, KOZHIKODE ................... APPELLANT / RESPONDENT : ------------------------------------------ C.P. SAKKEENA, D/O. C.P. MOYIN, AMBALAMKANDI HOUSE, P.O. PERUMUGHAM, FEROKE AMSOM, NALLOOR DESOM, KOZHIKODE TALUK BY ADV. SRI. P.V. KUNHIKRISHNAN RESPONDENT / PETITIONER : ------------------------------------------- K. KUNJALIKUTTY, S/O. IMBICHIKOYA HAJI, KAROTTIL HOUSE, P.O. PERUMUGHAM, FEROKE AMSOM, NALLOOR DESOM, KOZHIKODE TALUK. ADV. SRI.THOMAS ANTONY THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/10/2011, ALONG WITH RPFC NO. 79 OF 2003 & RPFC NO. 68 OF 2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ----------------------------------- Mat.A.No.94 OF 2003 & R.P(FC).Nos.68 & 79 OF 2003 ------------------------------------ Dated this the 17th day of October, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The captioned Matrimonial appeal is by the wife. The husband sued her seeking a decree for restitution of conjugal rights. The wife filed M.C.No.332/01 for maintenance for herself and three children who are then minors. The family court ordered restitution of conjugal rights and granted maintenance to the three children at the rate of Rs.500/- each. The wife was denied any order for maintenance since she did not show any just cause for separate residence. 2.The wife is in appeal against the decree for restitution of conjugal rights. RP(FC).68/03 is filed by her challenging the refusal of maintenance. RP(FC).79/03 is filed by the husband MA.94/03 & con. cases 2 challenging the maintenance order in favour of the minor children. 3.The matrimonial relationship is not disputed. The paternity of the children is also not in dispute. The parties are Muslims. The liability of the father to maintain the children is a legal liability. The rate of maintenance fixed in favour of each of the three minor is only at Rs.500/- per month. We find no ground to interfere with that at the instance of the father. RP(FC).79/03, therefore, does not stand. 4.In so far as RP(FC).94/03 filed by the wife is concerned, we see that she tendered evidence. There was contra-evidence by the husband. The persons who are involved in mediation were examined. Documentary evidence was taken into consideration. The court below assimilated the evidence and found that while the husband was abroad, there was really no ground to assume about any fall out between the couple. The wife was anxiously writing letters enquiring about the MA.94/03 & con. cases 3 affairs of the husband. The husband was also sending home amounts. It was some time in 1997 that the wife went off from the matrimonial home. It appears to be true that the matrimonial home had also the parents and siblings of the husband. But there is no material to show that the wife had suffered any cruelty at the hands of any of those persons or that her life with her children there was not easy. The situation in which the husband went abroad in search of employment and the fact that at the commencement of the litigation before the court below the elder among the children was around 16 years of age itself tend to show that there was a sustained family and the husband’s version that it is the wife who left the matrimonial home for no reason is acceptable. The family court had focused attention on all the relevant aspects, including the materials on record which disclose the comity between the couple and the statements of the mediators that even before them, there was no allegation of any cruelty being meted out depending on any demand for dowry etc. For these reasons, we do not find any MA.94/03 & con. cases 4 ground to interfere with the decree for restitution of conjugal rights as ordered by the family court. 5.As a necessary consequence, the wife has been held to be without any just cause when she has excused herself out of the matrimonial home. Obviously therefore, the family court was justified in refusing maintenance. Hence, her revision RP(FC).68/03 is also to fail. In the result, Mat.A.No.94/03, RP(FC).Nos.68/03 and 79/03 are dismissed. The parties are directed to bear their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. kkb.19/10.