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 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Mat.Appeal.No. 90 of 2009-B --------------------------- OP.198/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER: APPELLANT/RESPONDENT ----------------------------------- ABDU RASAKH T., S/O.MUHAMMED MUSLIAR (LATE), THORAM HOUSE, (KALATHIL, CHERUVETTI, ELANKOOR P.O., THRIKKALANGODE PANCHAYATH, MALAPPURAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ABDUL SALAM, (RW1 BEFORE THE COURT BELOW). BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA RESPONDENTS: PETITIONERS -------------------------- 1. SALMATH K., D/O.ABOOBACKER K (LATE), KOKKARANI HOUSE, PAZHYAVANIYAMBALAM, VANIYAMBALAM P.O., WANDOOR VILLAGE, MALAPPURAM DISTRICT. 2. T.ABDU SAMAD - MINOR, S/O.THORAN ABDU RASAKH, -DO- -DO- 3. T.SHABEEB - MINOR, S/O.THORAN ABDU RASAKH, -DO- -DO- 4. T.RINSHA - MINOR, D/O.THORAN ABDU RASAKH, -DO- -DO- (MINOR RESPONDENTS 2 TO 4 ARE REPRESENTED THROUGH GUARDIAN MOTHER/1 ST RESPONDENT.) THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== C.M. APPLICATION NO. 234 OF 2009 & MAT APPEAL NO. 90 OF 2009 ============================ DATED THIS THE 9TH DAY OF NOVEMBER 2009 ORDER/JUDGMENT Basant,J. This petition is to condone the delay of 29 days in filing an appeal. The appeal in turn is directed against an order granting past maintenance to the wife and three children born in the wedlock at the rate of Rs.2000/- per mensem ( to the wife) and Rs.800/-, Rs.750/- and Rs.600/-per mensem (to the three children). The wife has been granted maintenance only till the date of divorce, i.e. for 28 months. Children have been granted maintenance for the entire claim period of 31 months. We are not satisfied that sufficient reasons exist to justify the prayer for condonation of delay. The respondents though served have not chosen to enter appearance. We are not satisfied that the prayer for condonation of delay deserves to be considered favourably. .C.M. APPLN.NO.234/09 & MAT.A.NO. 90/09 -2- But in our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in miscarriage of justice, we requested the learned counsel for the appellant/petitioner to explain the nature of the challenge which the appellant wants to raise in this appeal against the impugned order granting past maintenance. 2. The marriage is admitted. Subsequent divorce is also admitted. Paternity of all the children is also admitted. What then is the dispute? Liability to pay maintenance cannot possibly be disputed. The husband admittedly is employed abroad. Liability for payment of maintenance for a period during which period the husband was employed abroad is not disputed. Wherever the wife and children are residing, the husband is definitely bound to maintain them. There are inconsequential disputes raised as to whether the wife was residing in the husband's house or in her house and whether there are valid reasons for such separate residence. Inasmuch as the husband is employed abroad, he should maintain the wife wherever she is. In these circumstances the dispute about the precise venue of .C.M. APPLN.NO.234/09 & MAT.A.NO. 90/09 -3- residence of the wife, loses all its significance. 3. The learned counsel for the appellant contends that the appellant was maintaining the wife and children during the relevant period. Absolutely no materials have been placed before court in support of this contention. There is nothing to evidence such payment of maintenance during the relevant period by the husband to the wife or children. That plea cannot also hence be accepted. 4.What remains is only the dispute about the quantum of maintenance. Rs.2,000/- to the wife, Rs.800/- and Rs.750/- and Rs.600/- per mensem to the children are awarded. The husband was employed abroad. In any view of the matter, we are satisfied that the quantum of maintenance fixed by the court obliging the husband employed abroad to pay amounts referred above does not warrant interference invoking the appellate jurisdiction under Section 19 of the Family Courts Act. 5. In these circumstances, we find that there is no merits or bona fides in the challenge raised on merits, the rejection of the prayer for condonation of delay will not result in miscarriage of .C.M. APPLN.NO.234/09 & MAT.A.NO. 90/09 -4- justice. 6. This petition for condonation of delay is dismissed. Consequently, the Mat.Appeal shall stand rejected as barred by limitation. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks.