V.K.Prabhakaran vs Pranav (Minor) Aged 5 1/2 Years on 8 July, 2010

Kerala High Court
V.K.Prabhakaran vs Pranav (Minor) Aged 5 1/2 Years on 8 July, 2010
       

  

  

 
 
  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

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