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 5TH AUGUST 2009 / 14TH SRAVANA 1931 Mat.Appeal.No. 75 of 2009 --------------------------- OP.454/2007 of FAMILY COURT,KOZHIKODE .................... PETITIONER: RESPONDENT ------------------------- VINAYAN, S/O.KILIYAR- ENNAKALTHIL HOUSE, ARIYALLOOR P.O. VALLIKUNNU, MALAPPURAM DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT: PETITIONER ------------------------- V.BINDHU, D/O.AYYAPPAN, CHETTIYAMBALATH VEEDU, FEROKE COLLEGE P.O., KOZHIKODE. ADV. SRI.P.S.SREEDHARAN PILLAI FOR R1 SMT.C.G.PREETHA FOR R1 SRI.ANEISH RAVINDRA FOR R1 THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No.75 OF 2009 ----------------------------------------------------- DATED THIS THE 5th DAY OF AUGUST, 2009 J U D G M E N T Basant, J. This appeal has come up for admission now. By the impugned order, the appellant has been directed to pay maintenance at the rate of Rs.750/- per mensem for a period of 12 months, i.e., a total amount of Rs.9,000/- to the respondent, his wife. The wife had claimed past and future maintenance. The claim for future maintenance under Section 125 of Cr.P.C. and past maintenance for the period of one year were considered by the court below and were disposed of by the impugned order. Against the direction for payment of maintenance under Section 125 Cr.P.C., revision was filed and the same has already been dismissed at the admission stage vide order dated 27.1.2009 in R.P.(F.C)No.36/09. 2. Marital tie is admitted. Separate residence is also admitted. The wife asserted that she is willing to go and live with the appellant herein, but he was not willing to take her Mat.Appeal No.75/09 -2- back. The only defence advanced for such refusal to take her back was his allegation that she is picking up quarrels even for silly reasons. No other allegations were made. There was a contention that the wife is employed. The denial by the wife and the assertion contra of the appellant on oath were available. No other evidence was available. The appellant/husband is admittedly employed and has a job in the Fisheries Department. He did not produce any document to prove his income. It was in these circumstances that the court below, considering the oral evidence of PW1 and RW1 in the light of the contentions raised came to the conclusion that the appellant/husband is liable to pay past maintenance at the rate of Rs.750/- per mensem and future maintenance at the rate of Rs.1,000/- per mensem. 3. The appellant claims to be aggrieved by the impugned direction to pay past maintenance at the rate of Rs.750/- per mensem. What is his grievance? At the stage of arguments, the learned counsel for the appellant only submits that the quantum of maintenance awarded is excessive. We refer to paragraph 11, in which the learned Judge of the Family Court had considered Mat.Appeal No.75/09 -3- the matter in detail. “11. On going through the evidence of both parties it can be seen that PW1 is living separately from RW1 from June onwards. Even now she is willing to go and live with RW1. But he is not willing to take back her. His only allegation is that she is picking up quarrel even for silly matters. No other allegations against her. There is no evidence that PW1 has job and income. RW1 stated that she is doing tailoring and embroidery work. There is no material to prove the same. So I find that PW1 has no job or source of income to maintain herself. She is depending others for her livelihood. RW1 has job in Fisheries Department. He did not produce any document to prove his income. Any way he is an able-bodied youth. He should maintain his wife even doing coolie work. So I find that the petitioner is entitled for past and future Mat.Appeal No.75/09 -4- maintenance. This points are answered accordingly.” 4. We find absolutely no reason to interfere with the finding of fact recorded by the Family Court that the claimant/wife is entitled for separate maintenance. 5. Coming to the quantum of maintenance, there is no better evidence adduced to prove the income, if any, of the wife or the quantum of admitted income of the husband. The court below has directed payment of only Rs.750/- per mensem. Even reckoning the appellant merely as an able bodied person, we are unable to agree that the quantum of maintenance fixed by the court below is in any way excessive so as to warrant interference in this appeal. 6. We do not in these circumstances find any merit in the appeal. The same deserves to be and is hereby dismissed. 7. The learned counsel for the appellant submits that the appellant may be given a breathing time to make payment. Steps for execution have already been initiated, submits the learned counsel. The total amount due is only Rs.9,000/- by way Mat.Appeal No.75/09 -5- of past maintenance. If the appellant deposits a substantial portion and prays time for payment of the balance amount, we have no reason to assume that the learned Judge of the Family Court will not consider such request sympathetically and with compassion. The court below shall do the same. With the above observation, this appeal is dismissed. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn