IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 34 of 2004()
1. V. VISHNU (MINOR), S/O. PREMAKUMARI,
... Petitioner
Vs
1. C.V. VIJAYAKUMARAN NAIR, S/O.VASUDEVAN
... Respondent
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :DR.K.P.KYLASANATHA PILLAY
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :11/06/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal No.34 OF 2004
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DATED THIS THE 11th DAY OF JUNE, 2009
J U D G M E N T
Basant, J.
The appellant, a minor child, through his mother had
claimed past maintenance from his father, the respondent herein.
That claim was rejected by the court below. He assails that order
in this case.
2. Paternity is admitted. The liability to pay maintenance
is not disputed. But, the short contention that was raised was that
the minor through his mother had given up and surrendered the
claim for maintenance for the period prior to 9.3.2000.
3. A brief reference to the crucial facts appears to be
necessary. The claim was staked for maintenance of the minor
child by filing M.C.No.259/99 under Section 125 of Cr.P.C. on
23.12.1999. That dispute was settled on 9.3.2000 by filing
Exhibit B1 joint statement. In such statement, it was agreed that
maintenance shall be paid at the rate of Rs.400/- per mensem
with effect from 9.3.2000. Accordingly, M.C.No.259/99 was
allowed directing payment of an amount of Rs.400/- per mensem
Mat.A.No.34/04 -2-
from 9.3.2000.
4. After the claim under Section 125 Cr.P.C. was disposed
of as per consent order dated 9.3.2000 in M.C.No.259/99, we find
the minor, through his mother coming before the Family Court to
claim past maintenance for a period of three years from
23.12.1999. It was contended that Exhibit B1 must be reckoned
as sufficient material to conclude that claim for past maintenance
prior to 9.3.2000 has not been pressed by the minor/on behalf of
the minor. It was hence contended that in any view of the matter
no past maintenance prior to 9.3.2000 is liable to be paid.
5. The learned counsel for the appellant submits that by
no stretch of imagination, can it be held that the appellant had
given up or surrendered his claims for maintenance for the period
prior to 23.12.1999. The fact that the appellant could have
claimed maintenance for the period starting from 23.12.1999 in
M.C.No.259/99 cannot by any stretch of imagination be held to be
sufficient to conclude that he has given up his claim for
maintenance for the period prior to 23.12.1999. Of course, we
agree with the learned counsel for the respondent that at least in
so far as the period 23.12.1999 to 9.3.2000 it can be held that
Mat.A.No.34/04 -3-
there is an implied surrender as amounts which could have been
claimed in M.C.No.259/99 was not claimed when the joint
statement was filed. In these circumstances, we are satisfied
that for the period 23.12.1999 to 9.3.2000 no maintenance is
liable to be paid. This is for the reason that in M.C.No.259/99
when the compromise statement was filed, maintenance which
could have been claimed had not been claimed.
6. We do further note that the claim was filed on
27.3.2000 and past maintenance could have been claimed only
for a period of three years prior to that date. If that be so, the
claim can relate only for the period 28.3.1997 to 27.3.2000. In
the petition, maintenance is claimed for a period of three years
prior to 23.12.1999, i.e.; 23.12.1996 to 23.12.1999. But, we
note that under the law of limitation, on the admitted
circumstances, maintenance cannot be claimed for a period
beyond three years prior to 27.3.2000. Therefore, past
maintenance is liable to be paid only for the period commencing
from 28.3.1997. We have already noted that the appellant is not
entitled to claim any amount as maintenance for the period after
23.12.1999 as that claim is impliedly surrendered as per Exhibit
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B1 joint statement.
7. It follows that the appellant is entitled to claim
maintenance for the period 28.3.1997 to 22.12.1999.
8. Even though counsel for respondent contends that for
that period also past maintenance is not liable to be paid, on the
basis of theory of implied surrender and in the light of Exhibit B1,
we are unable to accept that contention. Exhibit B1 cannot be
reckoned as surrender or implied surrender of maintenance for
the period prior to 23.12.1999, as such claim never arose for
consideration in M.C.No.259/99. We are further satisfied that
maintenance for the period 28.3.1997 to 22.12.1999 can be
awarded at the rate of Rs.400/- per mensem. Maintenance at
that rate has already been ordered in M.C.No.259/99. Though
the claim is for Rs.1,000/-, we are persuaded to agree that an
amount of Rs.400/- per mensem – the amount admitted and
claimed under Exhibit B1 for the period beyond 9.3.2000 alone
need be awarded for the admissible period.
9. We are in these circumstances, satisfied that this
appeal can be allowed in part to the extent indicated above.
10. In the result, this appeal is allowed in part. In
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supersession of the impugned order, the respondent is directed to
pay maintenance at the rate of Rs.400/- per mensem to the
claimant/appellant/his son for the period 28.3.1997 to
22.12.1999. We direct the parties to suffer their respective costs.
11. The learned counsel for the respondent prays that the
respondent may be granted reasonable and breathing time to
raise the amount and the decree may not be permitted to be
executed till such date.
12. We are satisfied that time can be granted to the
respondent till 31.7.2009 to make payment. Till then, the decree
shall not be executed. If the payment is not made by that date,
the appellant shall be entitled to recover the amount with interest
at the rate of 6% per annum from the date on which the amount
falls due till the date of payment.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn
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R.BASANT & M.C.HARI RANI, JJ.
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C.M.APPLN.NO.458 OF 2004
IN
MAT.APPEAL NO.34 OF 2004
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DATED THIS THE 21ST DAY OF MAY, 2009
O R D E R
Basant, J.
This petition is to condone the delay of 19 days in filing an
appeal against the impugned order by the appellant-minor child
aged 8 years, through his mother and guardian for arrears of
maintenance.
2. The application is opposed. We have heard both sides.
We are satisfied that the delay deserves to be condoned. Petition
allowed. Delay condoned. Call the appeal for admission hearing
on 27.5.2009.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn