IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 931 of 2010()
1. DIVAKARAN,AGED 55 YEARS,S/O.NARAYANAN,
... Petitioner
Vs
1. SHYLAJA,AGED 47 YEARS,D/O.SARASAMMA,
... Respondent
2. ABHIJITH,(MINOR),REP;BY HIS MOTHER-
3. ASWAJITH,(MINOR),REP.BY HIS MOTHER-
For Petitioner :SRI.C.AJITH KUMAR (KALLESSERIL)
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :23/11/2010
O R D E R
R.BASANT &
K.SURENDRA MOHAN, JJ.
——————————————-
CMA No.3001/2010 &
MAT Appeal No.931 of 2010
——————————————-
Dated this the 23rd November, 2010
ORDER/JUDGMENT
Basant, J.
CMA No.3001/2010 is to condone the delay of 443
days in filing the Matrimonial appeal No.931/2010. Mat
Appeal No.931/2010 is directed against an order under
which maintenance was granted to the claimants, i.e. the
wife and two minor children of the appellant.
Marriage is admitted. Paternity, though disputed,
that controversy was set at rest with Ext.C1 DNA test
report. The presumption under Section 112 of the
Evidence Act also settled the controversy.
2. Separate residence from 13.6.2000 is admitted.
According to the appellant, such separate residence was
consequent to the detection of alleged adultery between
his wife, the first claimant and another. The alleged
adulterer was not even named in the counter statement
filed. The bizarre theory is that while the appellant and
Mat.Appeal No.931/2010 2
his wife were sleeping in the bed room, the alleged
adulterer came into the bed room and had adulterous
sexual relationship with his wife. Maintenance has been
granted at the rate of Rs.750/- per mensum to the wife and
Rs.500 and Rs.300/- for the two minor children from
13.6.2000 for a period of four years after the filing of the
petition. For the subsequent periods, maintenance has
been awarded at the rate of Rs.1,000/- for the wife and
Rs.750/- each for the two minor children.
3. The appellant claims to be aggrieved by the
impugned order. There is a delay of 443 days in filing the
Matrimonial appeal. It is stated that the delay occurred on
account of threatening and intimidation which emanated
from the wife and her brothers. We have carefully
considered the averments in the affidavit in support of the
petition for condonation of delay. We are convinced that
there is no justifiable reason to condone the long and
inordinate delay of 443 days in filing this Matrimonial
appeal.
4. In our anxiety to ensure that the rejection of the
prayer for condonation of delay does not result in
Mat.Appeal No.931/2010 3
failure/miscarriage of justice, we requested the learned
counsel for the appellant to explain the nature of the
challenge which the appellant wants to mount against the
impugned order. We have heard the learned counsel in
detail.
5. The liability to pay maintenance for the wife after
13.6.2000 is disputed on the ground that she was guilty of
adultery. As stated earlier, the name of the adulterer is
not mentioned in the counter statement filed by the
appellant. That circumstance is indeed crucial and vital.
It knocks the bottom out of the theory that the wife was
guilty of adulterous sexual relationship with another. The
court below did take note of the thoroughly improbable
version advanced about the alleged adultery. Except the
self serving ipse dixit of the appellant as RW1, there was
no other evidence, ocular or circumstantial to even
remotely indicate the acceptability of such an improbable
version about the alleged adultery. We are, in these
circumstances satisfied that the theory of alleged adultery
was rightly rejected by the court below.
7. Coming to the question of quantum of
Mat.Appeal No.931/2010 4
maintenance awarded, the amounts awarded – Rs.750/-,
Rs.500/- and Rs.300/- for the wife and children from
13.6.2000 to a period of four years after the filing of the
petition and an amount of Rs.1,000/- for the wife and
Rs.750/- each for the minor children who were aged 7
years and 3 years on the date of the petition are so
meager. We are certainly of the opinion that the appellate
jurisdiction under Section 19 cannot and need not be
invoked to interfere with the quantum fixed. Even
assuming the appellant to be just an able bodied person
(he is stated to be a construction worker), the quantum of
maintenance awarded cannot be held to be excessive.
Going by the indications available about the needs of the
claimants and the means of the appellant, we are satisfied
that the challenge against the quantum must also fail.
8. We are thus convinced that the appeal is without
any merit and that there is no sufficient reason advanced
to justify the prayer for condonation of the long delay of
443 days. We are convinced that the admission of the
appeal and an invitation to the respondent to appear
before this court to defend the impugned decree is
Mat.Appeal No.931/2010 5
absolutely unnecessary. No court with sensibility,
compassion and concern for the plight of the respondents
can direct admission and issue notice in these
proceedings. We are hence persuaded to dismiss this
petition and the appeal illimine.
In the result, the petition for condonation of delay is
dismissed. Consequently, the appeal shall stand rejected
as barred by limitation.
R.BASANT
JUDGE
K.SURENDRA MOHAN
JUDGE
css/