IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Mat.Appeal.No. 674 of 2008(E) ------------------------------------------ (O.S. NO. 123/2005 OF THE FAMILY COURT, KOTTARAKKARA) ........... PETITIONER: ------------------- PRABHAKARAN PILLAI, S/O.DAMODARAN PILLAI, SREE SYLAM, ERUKUNNAM ELA, MANIKANTESWARAM P.O., VATTIYOORKKAVU, THIRUVANANTHAPURAM. BY ADV. MR.G.SUDHEER. RESPONDENTS: ------------------------ 1. KANAKAMMA, D/O.SANKARA PILLAI, KALLELIL VEEDU, KUMMIL WARD, KUMMIL P.O, KADACKAL. 2. BIJESH, S/O.PRABHAKARAN PILLAI, (NO MORE). R1 BY ADVS. MR.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), MR. A.R. DILEEP, SMT. SURYA SASI. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No.674 OF 2008 ----------------------------------------------------- DATED THIS THE 17th DAY OF DECEMBER, 2009 J U D G M E N T Basant, J. This appeal is preferred by the appellant/husband against a decree for payment of maintenance, past and future for the claimants – his wife and minor child. The ailing minor child died during the pendency of the proceedings before the court below and maintenance was hence awarded for the child at the rate of Rs.2,000/- per mensem till the date of death of the child. So far as the wife is concerned, past and future maintenance were awarded at the rate of Rs.700/- per mensem. 2. The learned counsel for the appellant submits that the entire amounts due by way of past maintenance till 18.5.2008 has already been deposited before the court below. The learned counsel for the respondent accepts the same. What survives hence is only the dispute regarding the payment of future maintenance from that date as directed under the impugned decree for the wife at the rate of Rs.700/- per mensem. 3. Marriage is admitted. Separate residence is also admitted. There is no contention that the wife is at present guilty Mat.A.No.674/08 -2- of contumacious desertion. Dispute is only regarding the right of the wife to claim maintenance on the ground that Exhibit B1 document has been executed by the husband on 9.2.1989 in favour of the wife. Since he had made a provision under Exhibit B1, he is not liable to pay any further amount as maintenance, it is contended. There is also a contention that the amount of Rs.700/- awarded is excessive. 4. The execution of Exhibit B1 gift/settlement deed by the husband in favour of the wife is not disputed. We have gone through the recitals in Exhibit B1. It clearly shows that it is a gift/settlement deed executed and the consideration is love and affection of the husband in favour of the wife. There is also a recital that it is for the future sustenance of the wife. The court below did consider this document pointedly though it is seen referred to as Exhibit B4 and not Exhibit B1. The reference evidently is to Exhibit B1. The court below took note of the fact that out of the total extent of 64¾ cents covered by Exhibit B1 document, the wife had to sell away 50 cents from that property. The balance available with the wife is only 14¾ cents with a building. The court below found that in spite of whatever meager income she may get from this property, the wife is entitled for Mat.A.No.674/08 -3- maintenance at the rate of Rs.700/- per mensem. 5. Admittedly, the husband was employed in military service. He had taken voluntary retirement and he is now having an employment. The precise income from that employment is not disclosed and revealed. The fact that a gift deed was executed while the husband and wife were living harmoniously in 1989 and in such document it is recited that the gift/settlement deed is executed out of love and affection and also for the maintenance of the wife cannot by any stretch of imagination be held to be sufficient to absolve the husband of his liability to pay maintenance for his wife in the altered circumstance of estrangement of relationship and separate residence of the wife. It is also evident that the child was ill and the wife was obliged to dispose of a portion of the property before claim for maintenance was staked. The court below, we note, had realistically taken note of the fact that the wife has only 14¾ cents of land and a building available to her and that whatever she may be getting from that property is not sufficient to non-suit her claim for maintenance. 6. The amount awarded, we note, is only Rs.700/- per mensem. On the evidence available about the needs of the Mat.A.No.674/08 -4- claimant/wife and the means of the appellant/husband, we are satisfied that the quantum of maintenance awarded is perfectly reasonable and just. Even taking note of whatever property is left behind with the wife on the basis of Exhibit B1 and the subsequent assignment, the said quantum, appears to us to be absolutely fair, reasonable and just. 7. We are in these circumstances satisfied that the impugned order does not warrant interference at all. The challenge fails. 8. In the result: (a) this appeal is dismissed. (b) the impugned order is upheld. (c) In the circumstances of the case, we direct the appellant to pay cost of Rs.3,000/- (Rupees Three Thousand only) to the wife. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn