IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 Mat.Appeal.No. 407 of 2010() ---------------------------- OP.1752/2009 of FAMILY COURT, ERNAKULAM .................... APPELLANTS/PETITIONERS ----------------------------------------- 1. A.A.RAJI, D/O.APPUKUTTAN, AGED 37 YEARS, RESIDING AT ARUN NIVAS, MARADU P.O., ERNAKULAM DISTRICT. 2. ASWATHY, 17 YEARS, REPRESENTED BY 1ST PETITIONER AS NATURAL GUARDIAN, RESIDING AT ARUN NIVAS, MARADU P.O., ERNAKULAM DISTRICT. BY ADV. SRI.DILEEP VARGHESE SRI.TESMY DILEEP RESPONDENT/RESPONDENT ----------------------------------------- N.K.VIJAYAN, S/O.KRISHNAN, NAMBIAKURUPPATH HOUSE, KUMBALAM VILLAGE & DESOM, KANAYANNUR TALUK. ADV. SRI.S.K.BALACHANDRAN FOR R1 SRI.P.CHARLEY SIMON FOR R1 SRI.T.P.GEORGE FOR R1 SRI.C.K.SIDHIK FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb Mat.Appeal.No. 407 of 2010 APPENDIX PETITIONERS' ANNEXURES:- ANNX.A1:- COPY OF THE ORIGINAL PETITION IN OP NO.1752/2010 DATED 16.10.09 ANNX.A2:- COPY OF THE WRITTEN STATEMENT IN OP NO.1752/2010 ANNX.A3:- COPY OF THE ORDER IN M.C.NO.246/2003 DTD 30.6.2005 ANNX.A4:- COPY OF THE LETTER DATED 21.4.2009 RESPONDENTS' ANNEXURES:- NIL //TRUE COPY// P.A TO JUDGE dmb THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ---------------------------------- Mat. Appeal No. 407 OF 2010 --------------------------------------------- Dated this the 5th day of July, 2011 J U D G M E N T THOTTATHIL B.RADHAKRISHNAN,J. Heard. Admittedly, the first appellant is the wife and the second appellant is the daughter of the respondent. The first appellant and the respondent married as per Hindu ceremonial rites. The respondent husband is facing orders under Section 125 of Code of Criminal Procedure. The suit is for a decree for maintenance charged on the properties of the respondent, however without specifying the existence of any quantified arrears of maintenance. The court below dismissed the suit on the ground that nothing is shown to evidence that the appellants had initiated steps for enforcement of the order issued in the M.C proceedings. 2. Even if contention of the respondent is that there is no default in payment of amounts due in terms of the order in the Mat. Appeal No. 407 OF 2010 2 M.C case, on the admitted facts, the respondent is liable to maintain and provide for maintenance. If that be so, in terms of the Hindu Adoptions and Maintenance Act, the court below ought not have dismissed the suit on a ground referable to non- execution of the order in the M.C case. Therefore, we set aside the impugned judgment and remit the matter for re-consideration by the court below. We direct the parties to appear before the Family Court, Ernakulam on 17.08.2011. THOTTATHIL B.RADHAKRISHNAN JUDGE. K.SURENDRA MOHAN JUDGE dmb