IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Mat.Appeal.No. 679 of 2010(E) ---------------------------- OP.741/2009 of FAMILY COURT, MALAPPURAM .................... APPELLANT : RESPONDENT ------------------------ ALAVIKUTTY,AGED 45 YEARS,S/O.MOHAMMED, THODUKKADAN HOUSE,CHENGOTTOOR,CHATTIPARAMBU PO, MALAPPURAM. BY ADV. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL SRI.E.M.UNNIKRISHNAN (MANJERI) SRI.M.K.SUNIL SRI.T.P.SAEED SRI.NIAS MOOPAN RESPONDENTS: PETITIONERS --------------- 1. RUKHIYA,AGED 32 YEARS,D/O.YOUSUF, KOYIPARAMBAN HOUSE, ERUMATHADAM,KOLATHOOR PO, MALAPPURAM DISTRICT. 2. MEHABOOBA SHERIN,AGED 7 YEARS, D/O.ALAVIKUTTY(MINOR). 3. MOHAMMED FAIL,AGED 3 1/2 YEARS, S/O.ALAVIKUTTY(MINOR). THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. ********************** C.M.Appl.No.2027 of 2010 in Mat.Appeal No.679 of 2010 ********************* Dated this the 2nd day of September, 2010 ORDER BASANT, J. This petition is to condone the delay of 160 days in filing a Matrimonial Appeal. The appeal in turn is directed against an order directing payment of past maintenance for a period of 36 months to the claimants along with interest @ 9% per annum. 2. Admittedly the claimants are the wife and two minor children of the appellant herein. He was already having a wife and children. Fully conscious of the financial implications, he appears to have married again and in the matrimony, two children were born also. He allegedly did not pay maintenance to his wife and children. This obliged the wife and children to come to court with a claim for past maintenance. The application was resisted primarily on the plea that the appellant/father/husband did not have sufficient means to pay the amount. The court below considered all the relevant circumstances including the circumstance that the husband was a Madrassa teacher and though he asserted that he was not having any other employment. But the court felt that it was C.M.Appl.No.2027 of 2010 and Mat.Appeal No.679 of 2010 2 incumbent that such a person with such financial obligations must work during the time that is available and support his family. Accordingly it was directed that an amount of Rs.1,200/-, Rs.600/- and Rs.500/- respectively per mensem be paid to his wife and two minor children. 3. This petition is to condone the delay of 160 days. We have gone through the affidavit in support of the application for condonation of delay. The reasons urged for condonation of delay are far from satisfactory. According to the petitioner/appellant, he was under the impression that as in a challenge in criminal revision he has 90 days time to file the appeal. Even assuming that, the delay of 160 days remains unexplained, we are not at all satisfied that there is sufficient reason to condone the delay. We are not satisfied that notice need be issued in the application for condonation of delay. Satisfactory reasons having not been shown, this petition for condonation of delay deserves to be dismissed, we are satisfied. 4. In our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in miscarriage of justice, the petitioner/appellant was requested to explain the nature of the challenge which he wants to mount against the C.M.Appl.No.2027 of 2010 and Mat.Appeal No.679 of 2010 3 impugned order. The quantum of maintenance awarded is the main plank of challenge. The amounts awarded, as stated earlier, is Rs.1,200/-, Rs.600/- and Rs.500/- per mensem respectively for the wife and two minor children. We have looked into the nature of the employment of the appellant. We have taken note of the requirements of the claimants for keeping body and soul together. In any view of the matter, we are not satisfied that the quantum awarded is excessive. 5. The counsel wants to raise a contention that the interest awarded is not justified. No amount having paid, the direction for payment of interest is certainly justified. We are certainly of the opinion that this appeal need not be admitted for consideration of the rate of interest (9%) which is ordered to be paid on the maintenance amount. The maintenance amount admittedly has not been paid so far. We are satisfied that rejection of the prayer for condonation of delay shall not result in any miscarriage of justice. 6. This petition for condonation of delay is, in these circumstances, dismissed. C.M.Appl.No.2027 of 2010 and Mat.Appeal No.679 of 2010 4 Mat.Appeal No.679 of 2010 JUDGMENT The application for condonation of delay in filing this Matrimonial Appeal having been dismissed, this matrimonial appeal shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS , JUDGE) rtr/