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 10TH JULY 2009 / 19TH ASHADHA 1931 Mat.Appeal.No. 517 of 2009() ---------------------------- OP.48/2008 of FAMILY COURT, KASARAGOD .................... PETITIONER(S): APPELLANT: ------------------------- N.B.ARUNKUMAR, S/O.M.S.BHASKARAN, PREM NIVAS, ALAMIPPALLY, KANHANGAD VILLAGE, HOSDURG TALUK. BY ADV. SMT.T.SUDHAMANI RESPONDENT(S): --------------- 1. N.VASANTHI, W/O.ARUNKUMAR, PREM NIVAS, ALAMIPPALLY, KANHANGAD VILLAGE, HOSDURG TALUK. 2. VINEETH, S/O.ARUNKUMAR AND VASANTHI, PREM NIVAS, ALAMIPPALLY, KANHANGAD VILLAGE, HOSDURG TALUK. (MINOR, REP.BY MOTHER-1ST RESPONDENT N.VASANTHI). 3. ANUSHA, AGED 12 YEARS, PREM NIVAS, ALAMIPPALLY, KANHANGAD VILLAGE, HOSDURG TALUK. (MINOR, REP.BY MOTHER-1ST RESPONDENT N.VASANTHI) THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.517 of 2009 ---------------------------------------- Dated this the 10th day of July 2009 J U D G M E N T BASANT,J This appeal is preferred by the respondent challenging the direction for payment of maintenance to his wife and two minor children at the rate of Rs.3,000/- per mensum in all. 2. Marriage is admitted. Paternity of the two minor children is not disputed. That the parties are residing under the same roof is also admitted. But it is the case of the claimants - wife and minor children that the appellant herein is not maintaining them. He is admittedly an autorickshaw driver. He resides in one portion of the house with no contact with the others in the house including his own mother PW2 in this case. He neglects and refuses to pay maintenance to the wife and minor children. He raised the contention that his wife, already the mother of two children, was elder to him by 2 years and the said fact was fraudulently suppressed from him at the time of marriage. Mat.Appeal No.517/09 2 3. The husband admits the fundamental facts; but has a case that he is paying maintenance to them. In this estranged background, how does he make the payment of maintenance? The appellant/husband has no definite and specific case. According to him, he meets the expenses for the household. The wife as PW1 and the appellant's mother as PW2 tendered evidence in support of the claim of the claimants. The husband/the appellant herein tendered evidence as RW1. The Family Court considered and evaluated the evidence of Pws 1 and 2 on the one hand and RW1 on the other. The Family Court found that the evidence of Pws 1 and 2 is entitled to be preferred for acceptance. The Family Court did not accept the oral evidence of RW1. 4. The appellant claims to be aggrieved by the impugned order. What is the grievance? The learned counsel contends that the Family Court should have found that the appellant is maintaining his wife and children as asserted by him in his evidence as RW1. The short dispute is about the preference shown by the court below to accept and act upon the oral evidence of Pws 1 and 2 to that of the appellant as RW1. That is the only dispute. Of course, there is a further submission that Mat.Appeal No.517/09 3 the quantum of maintenance fixed at Rs.3,000/- in all is excessive. No other contentions are raised. 5. We have very anxiously considered whether this appeal deserves to be admitted. We cannot be oblivious to the consequences of an undeserved admission of an appeal. That would oblige the claimants to come to Kochi, engage a counsel and contest the proceedings. Unless we are satisfied that there is a worthwhile point to be considered, we must resist the temptation to admit the appeal unnecessarily. In the facts and circumstances of this case, on the broad probabilities that had emerged in the light of evidence of PW1, the wife/mother of the claimants and in the light of the evidence tendered by the mother of the appellant as PW2, we find absolutely nothing wrong in the Family Court choosing to accept and act upon the oral evidence of Pws 1 and 2 in preference to that of RW1. The learned counsel for the appellant submits that except the oral assertions of the respondent herein, there is no other material which can persuade this court to throw overboard the evidence of Pws 1 and 2 and prefer the evidence of RW1. 6. It is seen that the appellant is an autorickshaw driver. The quantum of maintenance awarded - at the rate of Rs.3,000/- Mat.Appeal No.517/09 4 per mensum in all to three souls - wife aged 42 years and minor children aged 15 and 11 years can, by no stretch of imagination, be held to be excessive or perverse as to warrant interference in this appeal. We note that there is a contention that the mother of the appellant is ill disposed to him because of the suit for partition filed by him. That suit for partition, admittedly, is for partition and separate possession of the property in which the house occupied by the parties exists. We are not satisfied that the evidence of PW2 can be doubted or discarded for that reason. 7. This Mat.Appeal is, in these circumstances, dismissed. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.Appeal No.517/09 5 Mat.Appeal No.517/09 6 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 18/06/2009