IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 4 of 2007()
1. V.K.PRABHAKARAN, AGED 33 YEARS,
... Petitioner
Vs
1. PRANAV (MINOR) AGED 5 1/2 YEARS,
... Respondent
For Petitioner :SRI.MANJERI SUNDERRAJ
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :08/07/2010
O R D E R
R.BASANT & M.C. HARI RANI,JJ
==============================
C.M. APPLICATION NO. 29 OF 2007 &
MAT APPEAL NO. 4 OF 2007
============================
DATED THIS THE 8th DAY OF JULY 2010
ORDER/JUDGMENT
Basant,J.
The petition is to condone the delay of 132 days in filing a
mat appeal. The appeal in turn is directed against an order
passed by the court below directing payment of past
maintenance at the rate of Rs.1250/- per mensem for a period of
36 months for the claimant, a minor child of the appellant.
2. There is a delay of 132 days. We are not satisfied
that sufficient reasons exist to justify the prayer for condonation
of delay.
3. However, in our anxiety to ensure that the rejection of
the prayer for condonation of delay does not result in injustice
and miscarriage of justice, we requested the learned counsel for
the appellant/petitioner to explain the nature of the challenge
Mat.Appeal 4/2007 2
which the appellant wants to mount against the impugned order.
4. The counsel have been heard.
5. The marriage is admitted. Paternity of the child is
admitted. That the spouses have got their marriage dissolved by
mutual consent is also admitted. There is no contention that the
minor child is able to maintain himself. In these circumstances,
there can virtually be no dispute about the liability to pay
maintenance to the child.
6. Before the court below, it appears that a contention
was raised that at the time of divorce by mutual consent, an
amount of Rs. One lakh had been paid to the wife. The receipt
of that payment is not disputed. The only contention is that the
said amount is not paid and received in discharge of the liability
to pay maintenance to the child. The liability for maintenance of
the child remains notwithstanding the said payment of Rs.One
lakh, it was contended before the court below.
7. Absolutely no material was placed before the court
below to enable the court to sail to a safe conclusion that the
said amount of Rs.One lakh was paid in discharge of the liability
to pay maintenance for the child. In the total absence of any
Mat.Appeal 4/2007 3
material to indicate that such payment of Rs.One lakh was made
in satisfaction of the claim of the child for maintenance, it is idle
for the appellant to contend that his liability to maintain the child
shall stand extinguished by the payment made by him to his wife
when he harmoniously settled the dispute regarding divorce
with her.
8. It appears that before the court below it was further
contended that the mother of the child is refusing opportunity to
the appellant to have interactions with the child. That can
definitely be not a ground to avoid liability for payment of
maintenance. If the appellant has such a grievance, he must
initiate appropriate proceedings to enforce his visitorial rights or
rights for custody of the child. That cannot certainly be a
defence against the claim for maintenance.
9. The next ground of challenge is that the quantum of
maintenance awarded is excessive. The child is aged 5 = years.
The indications available in evidence about the needs of the child
and the means of the appellant convincingly suggest that the
quantum of maintenance fixed – Rs.1,250/- per mensem is
absolutely fair, reasonable, cogent and just and the same does
Mat.Appeal 4/2007 4
not, at any rate, warrant any interference by invoking the
appellate jurisdiction vested in us under Section 19 of the
Family Courts Act. We are of the opinion that it will be clear
abuse of process and traversity of justice to condone the delay
and admit this appeal for consideration of the contentions
referred above.
10. The petition for condonation of delay is, in these
circumstances, dismissed. Consequently the appeal shall stand
rejected as barred by limitation.
R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.
Mat.Appeal 4/2007 5
