Kerala High Court
Shani vs Appukuttan on 30 January, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939
Mat.Appeal.No. 545 of 2007
OP 895/2006 of FAMILY COURT, PALAKKAD DATED 30-01-2007
APPELLANTS/PETITIONERS:
1 SHANI, D/O. SAHADEVAN,
CHIRAKKAL VEEDU, KAITHARAVU, VANDITHAVALAM VILLAGE,,
CHITTUR TALUK, PALAKKAD.
2 ANEESH (MINOR),
REPRESENTED BY GUARDIAN (1ST APPELLANT).
BY ADVS.SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENT/RESPONDENT:
APPUKUTTAN, S/O. MANI,
RARATH VEEDU, RESIDING AT MANIMANDERAM,
PADINJAREGRAMAM, PERVEMBU AMSOM, PALAKKAD TALUK.
BY ADV. SRI.VINOD KUMAR.C
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15-03-
2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.HARILAL & A.M.BABU, JJ.
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Mat.Appeal.545 of 2007
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Dated 15th March 2018
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JUDGMENT
Harilal, J
1.The appellants are the petitioners in O.P.895 of 2006 on the files of the family court, Palakkad. They are the wife and son of the respondent herein. The appellants filed the above original petition under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, 1956, claiming maintenance allowance for them from the respondent. They claimed maintenance allowance at the rate of Rs 2,000/- each. The respondent filed objection to the said petition. After considering the objection, the family court passed the impugned judgment granting maintenance allowance at the rate of Rs 750/- each per month to each appellant from 22.7.2003 to 21.8.2004. This appeal is filed challenging the inadequacy of the quantum of maintenance allowance and the denial of future maintenance allowance from the date of petition.
MA.545/20072
2.According to the appellants, the marriage between the 1st appellant and the respondent was solemnized on 27.5.1998 and the 2nd appellant was the son born in the said wedlock. They were living together as husband and wife till 27.5.2001. In the meantime the marital relationship between the 1st appellant and the respondent got strained and they set apart and started to live separately from 27.5.2001 onwards. According to the appellants after 27.5.2001, the respondent has not made any enquiry about the appellants and he did not pay any amount to meet their daily expenses. The 1st appellant has no job or any sources of income to meet the expenses of herself and the 2nd appellant. The 2nd appellant was aged three years at the time of filing the suit. Thus according to the 1st appellant, she is unable to maintain herself and the 2nd appellant. On the other hand, the respondent is employed in a spinning mill by name 'Precot Mill' at Kanjikode and he is getting a salary of Rs 6,000/- per month. That apart, his father had five acres of paddy land and another ten MA.545/2007 3 cents of property and a house therein. After the death of his father, the respondent has one-fifth right in the said property. Even though the property stands in the joint ownership, the property is actually in the possession of the respondent and he is taking yields from the said property. He is getting an average income of Rs 2,00,000/- per year from the aforesaid landed property. Therefore, the appellants are entitled to get maintenance allowance at the rate of Rs 2,000/- each per month.
3.The respondent filed a written statement denying the allegation that he neglected to maintain them from 27.5.2001 onwards. According to him, the allegation that he is having a salary of Rs 6,000/- per month from Precot mills, Kanjicode is not true. In fact, he had a temporary employment in the said firm. He denied the averments that he is getting an average yearly income of Rs 2,00,000/- from the family property. According to him, he did not have a single cent of property of his own in his name. Now he is employed as an auto driver by profession and MA.545/2007 4 he is running the auto for daily wages and getting Rs 50/- only per day. Out of this amount he has to look after his ailing mother and also has to give money to the plaintiff as and when he visits her.
4.With the aforesaid pleadings both parties went to trial and the 1st appellant was examined as PW1. No evidence, oral or documentary, was adduced by the respondent. After considering the evidence of PW1, the family court allowed the OP granting an order directing the respondent to pay past maintenance at the rate of Rs 750/- per month to each appellants from 22.7.2003 till 21.8.2004.
5.Heard the learned counsel for the appellants. The learned counsel for the respondent submits that he has no instruction from the respondent.
6.The sum and substance of the arguments advanced by the learned counsel for the appellants is that actually the original suit was filed claiming future maintenance allowance from the date of filing the MA.545/2007 5 original suit. No claim was put forward for past maintenance. But, the family court went wrong by granting past maintenance allowance from 22.7.2003 till 21.8.2004 only. Secondly, it is contended that the quantum of maintenance allowance determined by the family court is inadequate and disproportionate with the actual living expenses of the appellants. The family court failed to assess the income of the respondent and the probable living expenses of the appellants in its correct perspective.
7.In view of the arguments, the point to be considered is whether the family court is justified in granting Rs 750/- per month to each appellants from 22.7.2003 to 21.8.2004 only. The entitlement of maintenance allowance stands unchallenged and the scope and extent of consideration in this appeal is confined to the adequacy of the quantum of compensation and denial of future maintenance only. In view of the arguments raised by the learned counsel for the appellants, we have perused the averments and the relief sought for in the original MA.545/2007 6 petition. We find that in fact, the appellants have claimed maintenance allowance at the rate of Rs 4,000/ each per month from 21.7.2003 onwards. There was no claim for past maintenance allowance. Thus, we unambiguously find that the family court went wrong by granting past maintenance allowance for a period from 22.7.2003 to 21.8.2004, instead of granting future maintenance allowance.
8.Coming to the adequacy of the quantum of compensation, it is the specific case of the 1 st appellant that she has no job or any other source of income for their livelihood and they are depending upon the parents of the 1st appellant. Though, the respondent has contended that the 1st appellant is now employed in a DTP centre and he she is drawing a salary of Rs 2,000/- per month, no evidence had been adduced to substantiate the said contention. In the absence of any evidence to prove any job or any source of income of the 1st appellant, it can be safely concluded that the 1st appellant has no job or any source of income for their livelihood. MA.545/2007 7 Further, it is the case of the appellants that the respondent is getting a salary of Rs 6,000/- per month from Precot Mills, Kanjicode, but the respondent contended that it was a temporary job and now he is not an employee in the above firm. No evidence has been adduced to prove that the said job was a temporary job or he is not an employee in the above firm at the time of filing the original petition. Further, the appellants contended that the father of the respondent had five acres of paddy land and another ten cents of landed property and a building therein and that the respondent has one- fifth right over the said property, after the death of his father. The respondent has not specifically denied the same; but he contended that he is not an owner of even an inch of property. In short, the inheritance of one-fifth right over the father's landed property is not specifically denied. Further, it is contended that the respondent is an auto driver and he is getting only Rs 50/- per day. Thus it cannot be held that the respondent has no job or source of income to maintain his wife and son. An MA.545/2007 8 able bodied healthy husband is expected to maintain his wife and children, in view of Section 18 of the Hindu Adoption Maintenance Act and he is liable to pay maintenance allowance for their livelihood.
9.While determining the quantum of maintenance allowance, it is incumbent upon the court to give due regard to the parametres laid down under Section 23(2) and 23(3) of the said Act. In the instant case, it has come out in evidence that the appellants have no sources of income; whereas, the respondent is a healthy man having sufficient earning capacity, source of income and he is employed as an auto driver. If that be so, he is liable to pay maintenance allowance in accordance with the requirements of the appellants for their day-to-day life. He is liable to pay maintenance allowance to meet their expenses for food, cloths, shelter, medical treatment, education of the child etc.
10.In the above view, we find that Rs 750/- each per MA.545/2007 9 month is too low and the same is liable to be enhanced. Having regard to the earning capacity of the respondent and average day-to-day living expenses of the appellants and the educational expenses of the 2nd appellant, we direct the respondent to pay maintenance allowance at the rate of Rs 1,500/- to the 1st appellant and Rs 1,000/- to the 2nd appellant per month. It is made clear that the 1st appellant is entitled to get maintenance allowance till the date of dissolution of the marriage and the 2nd appellant is entitled to get maintenance allowance till he attains majority. Appeal stands allowed as above.
Sd/-
K.HARILAL Judge Sd/-
A.M.BABU Judge Mrcs/16.3 /True copy/ Sd/- P.S.To Judge