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 14TH OCTOBER 2009 / 22ND ASWINA 1931 Mat.Appeal.No. 781 of 2009 ---------------------------- OP.1355/2004 of FAMILY COURT,ERNAKULAM .................... APPELLANT ------------- INDU @ MAYA, D/O. LATE. P.K.PILLAI, KOCHERIL HOUSE, S. EROOR, KANAYANNUR TALUK. BY ADV. SRI.T.RAVIKUMAR SMT.G.AMBILI RESPONDENT: --------------- SHAJU @ SHAJI, S/O. LATE BALAKRISHNAN NAIR, MUNDACKAL HOUSE,NOW RESIDING AT CHOYIKKARA MUGIL VADAYAMPADI.P.O. PUTHENCRUZ. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== Mat Appeal No. 781 of 2009 ============================ DATED THIS THE 14TH DAY OF OCTOBER 2009 JUDGMENT Basant,J. This appeal is preferred by the divorced wife aggrieved by the impugned order passed by the court below directing the respondent to pay to her only an amount of Rs.1000/-- per mensem as maintenance. According to her, the entire amount of Rs.1,500/- per mensem as claimed must have been awarded by the Family Court. 2. Marriage and divorce are admitted. That the respondent has another wife and child to be looked after and maintained is also not disputed. The appellant had claimed only an amount of Rs.1500/- per mensem. The respondent had resisted the claims on various grounds including the ground that the quantum claimed is excessive. Before the court below, the rival contestants tendered evidence as PW1 and RW1. Exts.B1 to B3 were marked . Mat appeal No.781/2009 -2- 3. Thus the dispute is only about the quantum. As against maintenance claimed at the rate of Rs.1500/- per mensem, only an amount of Rs.1000/- has been awarded by the court. Does the appellate jurisdiction deserve to be invoked to enhance the monthly maintenance awarded from Rs.1,000/- to any other higher amount? This is the short question to be considered. 4. We have no difficulty in accepting that a woman like the petitioner may need Rs.1500/- per mensem for her monthly maintenance. The question is only whether the respondent has the ability to pay such amount. According to the respondent, he is a coolie earning an amount of Rs.150 - 175/- per day on days when he gets employment. According to the appellant herein, he was having an employment as welder and was earning an income of Rs.10,000/- per month. No evidence is there to show that he has such employment and income. There is significantly no evidence to show that the respondent as a welder in Cochin Refineries Ltd. earning Rs.10,000/- per mensem as contended by the appellant herein. That remains as an empty unsubstantiated assertion. We are, in these circumstances, satisfied that in the nature of the evidence that is placed before the court below, the Mat appeal No.781/2009 -3- court below cannot be faulted for not having granted maintenance at the rate claimed (Rs.1500/- per month) and in having awarded maintenance only at Rs.1,000/- per month under the impugned order. In any view of the matter, on the materials available the order passed does appear to us to be fair, reasonable and just. The same does not warrant interference at the instance of the appellant. The appellate jurisdiction under Section 19 of the Family Courts Act cannot justifiably be invoked in the circumstances to interfere with the quantum of maintenance awarded by the court below . 5. This appeal, in these circumstances, is dismissed. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. Mat appeal No.781/2009 -4- R.BASANT & M.C. HARI RANI,JJ ============================== C.M. Application No. 2869 of 2009 & Mat Appeal No. 781 of 2009 ============================ DATED THIS THE 14TH DAY OF OCTOBER 2009 ORDER Basant,J. This C.M.application is filed to condone the delay of 11 days in filing the appeal. We have heard the learned counsel for the petitioner on merits, we proceed to dispose of the Mat appeal straight away. We are satisfied that the short delay in filing the appeal can be condoned even without ordering notice to the respondent. This petition is allowed and the delay is condoned. Mat appeal No.781/2009 -5- R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.