IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 982 of 1998()
1. SAIDU MUHAMMED PILLAI
... Petitioner
Vs
1. BUSHARA BEEFAM
... Respondent
For Petitioner :SRI.GOPAKUMAR R.THALIYAL
For Respondent :SRI.V.PHILIP MATHEW
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :22/02/2008
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
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M.F.A. NO. 982 OF 1998
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Dated this the 22nd day of February, 2008
JUDGMENT
Kurian Joseph, J.
This appeal is at the instance of the respondent against the judgment
of the Family Court, Thiruvananthapuram in O.S. No.324 of 1995. The
suit was instituted by the respondent herein claiming maintenance at the
rate of Rs.1,000/- per month. The appellant was declared ex parte and the
suit was decreed. Hence, the appeal.
2. When the appeal came up for admission before this Court, the
proceedings were stayed on condition that an amount of Rs.5,000/- is
deposited by the appellant before the Family Court. It is submitted that the
amount was deposited on 3.12.1998.
3. The appellant submits that though attempt was made by him for
setting aside the ex parte order, that petition was dismissed. Be that as it
may, on going through the judgment under appeal, we find that the Family
Court has not adverted to the reasons for fixing the maintenance at
M.F.A.NO.982/1998 2
Rs.1,000/- per month. Entitlement for receiving the maintenance and
capacity to pay are two ingredients in the matter of awarding maintenance.
Apparently, capacity alone was taken note of by the Family Court. Unless,
entitlement is also established, the court below is not justified in fixing the
quantum of maintenance. Having regard to the position as above, we are
of the view that the matter requires fresh consideration by the Family
Court.
4. Accordingly, we set aside the the judgment under appeal and
remand the matter to the Family Court for fresh consideration. The suit
shall be disposed of within six months from the date of the judgment. It
will be open to the respondent to withdraw the amount deposited as per
the order of this Court, if not already withdrawn. The said amount will be
adjusted while disposing of the suit.
The appeal is disposed of as above.
(KURIAN JOSEPH, JUDGE)
(HARUN-UL-RASHID, JUDGE)
sp/
M.F.A.NO.982/1998 3
KURAIN JOSEPH &
HAURN-UL-RASHID, J.J
M.F.A.NO.982/1998
JUDGMENT
22ND FEBRUARY, 2008