IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 Mat.Appeal.No. 468 of 2009() ---------------------------- OP.817/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- BABU, S/O. VELAYUDHAN, AGED 39 YEARS, KANNETH HOUSE, MAMGALAM P.O., PULLOONI, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): PETITIONER ------------------------- NALINI, D/O. ARUMUGHAN (LATE), AGED 36 YEARS, CHERIYA OTTOLI HOUSE, EDAKKANADU P.O., TIRUR TALUK, MALAPPURAM DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2010, ALONG WITH RPFC NO. 166 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- Mat. Appeal No.468 of 2009 & R.P.(FC) No.166 of 2009 ------------------------------------------------- Dated this the 4th day of October, 2010 JUDGMENT Basant,J. The husband assails that the impugned order passed by the Family Court allowing in part a claim for past and future maintenance. Past maintenance for a period of 8 months was granted at the rate of Rs.2,000/- per mensem. Future maintenance was granted at the same rate under Sec.125 Cr.P.C. The claim of the wife for return of gold ornaments and cash is turned down under the impugned common order. The wife has not challenged the order. 2. Marriage is admitted. Separate residence is also admitted. The wife asserted that there was separate residence for a period of 8 months. The husband did not admit the date of Mat. Appeal No.468 of 2009 & R.P.(FC) No.166 of 2009 -: 2 :- commencement of separate residence. He did not adduce any evidence to show the precise date of commencement of separate residence. According to him, separate residence did not commence on 25/1/08 as asserted by the wife. The court below, in these circumstances, came to the conclusion that there was separate residence from 25/1/08. We find no reason whatsoever to interfere with the said finding of fact based on the evidence of the wife and her brother on the one side as P.Ws.1 and 2 and the evidence of the husband as R.W.1 on the other. 3. The next dispute that survives is about the reason for separate residence. According to the wife, cruelty of the husband was the cause of the separate residence. A prosecution under Sec.498A had been launched and was admittedly pending. The husband was living with another woman, it was further contended. On that aspect, the evidence is that of the wife alone. Be that as it may, the husband asserted while in the box that he is not willing to pay any maintenance to the wife. There is no offer at the time of evidence that the husband is willing to permit the wife to cohabit with him and pay maintenance due to her. In these circumstances, we find not a semblance of merit in the challenge raised against the grant of separate maintenance. 4. Lastly and thirdly it is contended that the quantum of maintenance awarded is excessive. The claim was for an Mat. Appeal No.468 of 2009 & R.P.(FC) No.166 of 2009 -: 3 :- amount of Rs.3,000/- per mensem. The court below directed payment of only Rs.2,000/- per mensem to the young wife. The court below had come to the conclusion that the appellant/husband was a mason by profession and he has agricultural income also. It is taking into account his probable monthly earning of Rs.9,000/- as a mason and his agricultural income of Rs.2,000/- per mensem that the court below directed payment of an amount of Rs.2,000/- as monthly maintenance - past and future. On the materials available we find no reason whatsoever to invoke our appellate jurisdiction under Sec.19 of the Family Courts Act or the revisional jurisdiction under Sec.401 Cr.P.C. to interfere with the quantum of maintenance - past and future directed to be paid. 5. The above discussions lead us to the conclusion that the impugned order does not warrant any interference. 6. In the result: (a) Mat. Appeal No.468/09 is dismissed. (b) R.P.(FC) No.166/09 is also dismissed. Sd/- R. BASANT (Judge) Sd/- M.L. JOSEPH FRANCIS (Judge) Nan/ //true copy// P.S. to Judge