Sivadasan vs Prabha and Smrithika rep. by Guardian

R. Basant, J.—This petition is to condone the delay of 50 days in filing a matrimonial appeal. The appeal in turn is against a direction to pay maintenance at differential rates for different periods for the wife and minor child, aged 10 years. For the early period, maintenance was directed @ Rs. 1,500/- and Rs. 1,000/- per mensem to the wife and child. For subsequent period, maintenance was awarded @ Rs. 2,000/- and Rs. 1,500/- respectively to them. For the final period and future, maintenance was awarded @ Rs. 2,500/- and Rs. 2,000/- per mensem respectively to the wife and child. It was made clear that these amounts are to be reckoned as inclusive of the amount ordered in proceedings u/s 125 Code of Criminal Procedure.

These directions come in the impugned order, which is a common order. By another part of the common order, a petition filed by the petitioner/appellant herein claiming divorce was dismissed by the Family Court.

The prayer is to condone the delay. There is a delay of 50 days in filing the appeal. We are not satisfied that there are sufficient reasons to justify the prayer for condonation of delay. At any rate, we wanted to know whether there is any merit in this appeal. The learned Counsel for the petitioner/appellant was requested to explain the nature of the challenge which the petitioner/appellant wants to mount against the impugned order directing payment of maintenance. We felt persuaded to hear the learned Counsel for the petitioner/appellant on merits in the challenge raised in the appeal to satisfy ourselves that the rejection of the prayer for condonation of delay does not result in any failure or miscarriage of justice.

Marriage and paternity are admitted. There is no contention that the wife and child have any means of their own. The petitioner/appellant/husband admittedly is employed as an Assistant Executive Engineer in the P.W.D. The impugned order shows that his admitted monthly carry home income is Rs. 15,000/- and the total emoluments which he is entitled to is Rs. 33,000/-.

Marriage and paternity are admitted. The wife and the child are not shown to have any means of their own. The husband is well employed. The husband demands divorce and has no contention that he is willing to maintain them on condition that they live with him. In these circumstances, the only question that survives for consideration is whether the quantum fixed by the court below warrants appellate interference invoking the jurisdiction u/s 19 of the Family Courts Act.

We are convinced that the quantum fixed by the court below does not, at any rate, warrant interference. Considering the admitted means of the petitioner/appellant and the indications available about the needs of the wife and child. the quantum of maintenance ordered to be paid is found to be absolutely fair and reasonable from the point of view of the petitioner/appellant. We are satisfied that, in any view of the matter, the impugned order does not warrant interference at the instance of the petitioner/appellant. We are informed that the respondent has not so far preferred any appeal. If she prefers an appeal, that can be considered on merits then.

The learned Counsel for the petitioner/appellant submits that against the refusal of the prayer for a decree for divorce, another appeal is pending before this Court. The pendency of that appeal cannot in any view influence us on the question of admission of this appeal. We are satisfied that the direction for payment of maintenance does not in any way warrant interference at the instance of the petitioner/appellant.

In any view of the matter, we are satisfied that the dismissal of the application for condonation of delay shall not result in any failure or miscarriage of justice.

This petition for condonation of delay is hence dismissed. Consequently the appeal shall stand rejected as barred by limitation.