IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 1055 of 1995()
1. AMMINI
... Petitioner
Vs
1. NARAYANAN
... Respondent
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.A.P.CHANDRASEKHARAN
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :10/09/2007
O R D E R
J.B.KOSHY & K.HEMA, JJ.
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M.F.A.No.1055 OF 1995
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Dated 10th September, 2007
JUDGMENT
Koshy,J.
First respondent married the appellant and they were
residing together in the house comprised in Survey No.164/1 of Urakam
Village. According to the appellant, her husband was a drunkard and
constantly he was harassing her and when the children became major
only she was able to make any resistance. It is her contention that the
first respondent made an agreement with the second respondent (after
his death legal representatives were impleaded) for sale of the above
property and a suit for specific performance was filed as O.S.No.687 of
1980 and in execution of the decree, the sale deed was also executed.
The agreement was executed on 12.12.1980. The suit was also filed in
the year 1980. Later, when the execution proceedings were started in
the year 1991, after 10 years of the alleged agreement and after 10 years
of the decree, the appellant approached the court by filing O.S.No.148 of
1994 for maintenance and also for an injunction from evicting them.
That was dismissed by the Family Court on the ground that the same was
filed collusively between the appellant and husband so that they can
continue with the property. Their marriage is still subsisting. The first
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defendant, her husband, did not contest the case. The second
defendant gave oral evidence. After considering the evidence, the
Family Court found that the suit was filed in a collusive manner. In
fact, original suit for specific performance was not contested and
finally execution petition was filed and sale deed was also executed.
This is only a last attempt to stay in the house. Therefore, the prayer
in the suit for restraining the second defendant from evicting the
appellant/plaintiff was correctly rejected and we are not interfering
with the same. Sale of the property in question is in no way affected
by the collusive suit. It is her contention that she resisted the
husband’s cruelty only when the children became major. So, it is for
the children to give appropriate residence to the appellant.
2. There was prayer for granting maintenance. Since the
suit was not contested by the first defendant, we are of the opinion
that maintenance ought to have been granted and it is for the
appellant to execute the same against her husband. Only Rs.500/=
was requested as maintenance. The suit was filed in 1994. In the
above circumstances, we order that the husband is bound to give
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maintenance at the rate of Rs.250/= per month for 10 years from the
date of filing the suit and thereafter Rs.500/= per month.
The appeal is allowed partly.
J.B.KOSHY
JUDGE
K.HEMA
JUDGE
tks