Appeal against a Family Court decree fixing maintenance of Rs.1000/month. The High Court held that entitlement and capacity were both required ingredients, noting the lower court ignored entitlement, and remanded for fresh consideration.
Judgment under appeal set aside; matter remanded to Family Court for fresh consideration within six months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID
FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929
MFA.No. 982 of 1998()
--------------------OS.324/1995 of FAMILY COURT,THIRUVANANTHAPURAM. ....................
APPELLANT/DEFENDANT:
SAIDU MUHAMMED PILLAI @ ABDUL RAHMAN, THEKKUMKARA PUTHEN VEEDU, OZHUKUPARA VETTINADU MURI, VEMBAYAM VILLAGES, THIRUVANANTHAPURAM.
BY ADV. SRI.GOPAKUMAR R.THALIYAL
RESPONDENT/PLAINTIFF:
BUSHARA BEEGAM, GREEN HOUSE, THEKKEVILA MURIYIL, KANIYAPURAM, VANCHIPPURAM VILLAGE, THIRUVANANTHAPURAM DIST.
BY ADV. SRI.V.PHILIP MATHEW
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER IN C.M.P. NO. 3853 OF 1998 IN M.F.A. NO. 982 OF 1998.
DISMISSED
22.2.2008
Sd/-(HARUN-UL-RASHID, JUDGE)
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
M.F.A. NO. 982 OF 1998
Dated this the 22nd day of February, 2008
JUDGMENT
Kurian Joseph, J.
This appeal is at the instance of the respondent against the judgment of the Family Court, Thiruvananthapuram in O.S. No.324 of 1995. The suit was instituted by the respondent herein claiming maintenance at the rate of Rs.1,000/- per month. The appellant was declared ex parte and the suit was decreed. Hence, the appeal.
M.F.A.NO.982/1998
2
Rs.1,000/- per month. Entitlement for receiving the maintenance and capacity to pay are two ingredients in the matter of awarding maintenance. Apparently, capacity alone was taken note of by the Family Court. Unless, entitlement is also established, the court below is not justified in fixing the quantum of maintenance. Having regard to the position as above, we are of the view that the matter requires fresh consideration by the Family Court.
The appeal is disposed of as above.
(KURIAN JOSEPH, JUDGE)
(HARUN-UL-RASHID, JUDGE)
sp/
M.F.A.NO.982/1998
3
KURAIN JOSEPH & HAURN-UL-RASHID, J.J
M.F.A.NO.982/1998
JUDGMENT
22ND FEBRUARY, 2008
2 issues framed by the court
Whether the Family Court was justified in fixing the quantum of maintenance without considering the entitled of the parties.
Whether the appeal against the ex parte maintenance decree deserves admission.
SAIDU MUHAMMED PILLAI @ ABDUL RAHMAN
BUSHARA BEEGAM
KURIAN JOSEPH
HARUN-UL-RASHID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
