IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Mat.Appeal.No. 152 of 2005() ---------------------------- OP.324/2004 of FAMILY COURT, MANJERI .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- CHEMBREERI MUHAMMED, S/O.MARAKKAR(LATE), CHEMBEREERI HOUSE, PULPATTA AMSOM, CHERUVATHUR DESOM, ERNAD TALUK, PULPATTA P.O., MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): PETITIONER ------------------------- KARUTHEDATH PALLIYIL SUBAIDA, D/O.KOYA(LATE) PARAKKAD HOUSE, ARAVANKARA AMSOM, POOKOTTUR DESOM, POKOTTUR P.O., MALAPPURAM, DISTRICT. ADV. SRI.K.M.SATHYANATHA MENON FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.A.No.1161 of 2005 & Mat.Appeal No.152 of 2005 ---------------------------------------- Dated this the 2nd day of November 2009 O R D E R & J U D G M E N T Basant,J This application is to condone the delay of 69 days in filing a Mat.Appeal. The appeal in turn is directed against an order directing payment of past and future maintenance. Past maintenance is awarded at the rate of Rs.300/- per mensum to the claimant/wife; whereas future maintenance is awarded at the rate of Rs.400/- per mensum. The respondent has entered appearance. We are satisfied that a lenient view can be taken and the delay can be condoned. This application is allowed. Delay is condoned. 2. Coming to the challenge on merits, the marriage is admitted. Separate residence is admitted. That the appellant has married again after the 4th child was born in the matrimony is also admitted. Three minor children are living with the appellant herein. He is looking after and maintaining them. The eldest child has attained majority and is contended to be working abroad. The wife claimed maintenance past and future on the ground that she is unable to maintain herself and the appellant, C.M.A.No.1161/05 & M.A 152/05 2 having sufficient means, is refusing and neglecting to maintain her. The husband resisted the claim for maintenance on the ground that he is looking after the three minor children born in the wedlock. He raised a contention that the eldest son is employed abroad and is able to look after and maintain the claimant/wife. He advanced a further contention that he is ill and sick, he having suffered an accident. In these circumstances, he prayed that he may be exonerated from the liability to pay past and future maintenance to the claimant/wife. 3. Before the court below, there was only the interested version of the rival contestants. The court below, on an anxious consideration of all the relevant inputs, came to the conclusion that the claimant is entitled to past maintenance at the rate of Rs.300/- per mensum and future maintenance at the rate of Rs.400/- per mensum. 4. The appellant claims to be aggrieved by the impugned judgment. What is his grievance? The learned counsel for the appellant submits that the claimant can look up to her adult son to maintain her. We will assume for a moment that the contention that the eldest son is employed abroad can be accepted . But that cannot, by itself certainly absolve a husband from his liability to maintain his wife. Wife primarily looks up to her husband to pay maintenance to her and the mere possibility that she can look up to C.M.A.No.1161/05 & M.A 152/05 3 others for subsistence is no reason for absolving the husband having sufficient means from his liability to maintain her. It is then contended that the quantum awarded is excessive. Rs.300/- per mensum is the past maintenance and Rs.400/- per mensum is the future maintenance awarded. Going by the needs of the claimant/wife, the amount awarded can, by no stretch of imagination, be said to be excessive or unreasonable. The claimant asserted that the appellant is an autorickshaw driver. According to him, he has no employment. Admittedly, after suffering the accident and thereafter the husband has contracted a second marriage and is looking after the second wife and minor children born in both marriages. 5. We do not, in these circumstances, find any merit in the contention that the appellant does not have the means to maintain his wife/claimant herein. In any view of the matter, we are satisfied that the impugned order does not warrant interference. The challenge fails. 6. This Mat.Appeal is, in these circumstances, dismissed with costs. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge C.M.A.No.1161/05 & M.A 152/05 4 Take all necessary steps within a period of seven days. If steps are taken, call after service is complete. If steps are not taken, call after seven days.