IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 Mat.Appeal.No. 999 of 2009() ---------------------------- OP.951/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- CHEERANGAN MOIDEEN, AGED 43 YEARS, S/O.KAMMU, CHEERNAGAN VEEDU, OORAKAM POOLAPEES, ERNAD TALUK, VENGARA, MALAPPURAM DIST. REPRESENTED BY POWER OF ATTORNEY HOLDER MUSTAFA CHEERANGAN, S/O.KAMMU, CHEERANGAN VEEDU, OORAKAM MELMURI PO, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENT(S): PETITIONER ------------------------- KHADEEJA M.T., AGED 35 YEARS, W/O.CHEERANGAN MOIDEEN MANGARATHODI VEEDU, CHEMMANKADAVU, KODUR PERINTHALMANNA TALUK, MALAPPURAM POLICE STATION. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.Application No.3740 of 2009 & Mat.Appeal No.999 of 2009 ---------------------------------------- Dated this the 23rd day of December 2009 O R D E R & J U D G M E N T Basant,J This application is to condone the delay of 165 days in filing a Mat.Appeal. The appeal in turn is directed against an order obliging the petitioner/appellant to pay past maintenance to his wife at the rate of Rs.3,000/- per mensum. 2. We have perused the affidavit. We have heard the learned counsel for the petitioner. We are not at all satisfied that there is sufficient ground to condone the long delay of 165 days in filing the appeal. The petition for condonation of delay does not deserve to be allowed, in these circumstances. 3. However, in our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in failure or miscarriage of justice, we requested the learned counsel for the petitioner to explain the nature of the challenge which the appellant/petitioner wants to mount against the impugned order. The arguments on merits have also been advanced. Marriage is admitted. The appellant is a person aged about 42 years. Separate residence is admitted. Admittedly, the appellant is C.M.A.No.3740/09 & M.A.No.999/09 2 employed abroad. Admittedly, two children have been born in this wedlock. Concededly, fully conscious of the obligations and responsibilities of the first matrimony with children in the wedlock, he has voluntarily embraced the responsibility, obligation and burden of a second marriage during the currency of the marriage with the respondent. Though he is employed abroad, no documents were produced before the court below to show his precise income. The wife had asserted that his income exceeded Rs.20,000/-. There is no offer to maintain the wife on any condition. Nay, the unsubstantiated contention is raised that the wife was adulterous. With the option available for a unilateral pronouncement of divorce, the appellant had admittedly not divorced his allegedly adulterous wife. It is, in these circumstances, that the court below came to the conclusion that the appellant is liable to pay maintenance to his deserted wife. 4. On the question of liability, virtually we have heard no contentions raised by the learned counsel for the appellant. The learned counsel submits that the quantum of maintenance awarded is excessive. We have indications about the financial affluence of the appellant from the admitted circumstance that he is employed abroad. He gives us an idea of his own C.M.A.No.3740/09 & M.A.No.999/09 3 assessment about his financial affluence by the admitted circumstance that he has embraced the responsibility of a second marriage, fully conscious of his responsibilities under the existing marriage. In these circumstances, by no stretch of imagination can it be held that the direction to pay maintenance at the rate of Rs.3,000/- per mensum is excessive or unreasonable as to persuade us to invoke our appellate jurisdiction under Section 19 of the Family Court Act. 5. We have adverted to facts only to satisfy ourselves that the rejection of the prayer for condonation of delay shall not, in any way, result in failure or miscarriage of justice. 6. This petition for condonation of delay is hence dismissed. Consequently, the Mat.Appeal shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr C.M.A.No.3740/09 & M.A.No.999/09 4 2. In the result, a) This petition is allowed subject to conditions. b) The delay shall stand condoned and the petition shall C.M.A.No.3740/09 & M.A.No.999/09 5 stand allowed on condition that the appellant (i) deposits 10% of the entire amount due under the decree till the date of deposit before the Family Court within a period of sixty days from this date. (ii) offers security for the entire balance amount due under the decree on the date of deposit to the satisfaction of the Family Court within a period of sixty days. If the amount is deposited, the court below can straight away release the same to the respondent/claimant without waiting for further orders from this court. (iii) If the said conditions are satisfied, the Family Court shall issue a certificate to the appellant who shall produce the same before this court. 3. Call again after sixty days or earlier, if the certificate is produced. The respondent has already served and entered appearance through counsel. Furnish copies of the memorandum of appeal to the learned counsel for the respondent. C.M.A.No.3740/09 & M.A.No.999/09 6 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. By way of abundant caution, we direct that notice in this appeal be issued to the respondent afresh. Such conditions will have to be imposed which shall ensure that the right of the appeal is not invoked belatedly for the mere purpose of prolonging and protracting the proceedings. We make it clear that this order will not in any way fetter the power of the court below to proceed in execution against the husband during these sixty days.