Kerala High Court
Regi vs Sajitha on 28 June, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
MAT.APPEAL NO. 373 OF 2018
JUDGMENT IN OP NO.1570 OF 2011 OF FAMILY
COURT,THIRUVANANTHAPURAM
APPELLANTS/COUNTER PETITIONERS:
1 REGI
AGED 36 YEARS, S/O MATHEAS,
RESIDING AT REENA COTTAGE,UNDENCODE,
CHERIYAKOOLLA POST, KUNNATHUKAL VILLAGE,
NEYYANTTINKARA, THIURVANANTHAPURAM DISTRICT.
2 MATHEAS
AGED 63 YEARS, S/O SINGARARAJANNADAR,
RESIDING AT REENA COTTAGE, UNDENCODE,
CHERIYAKOOLLA POST KUNNATHUKAL VILLAGE,
NEYYANTTINKARA, THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.J.MARY HELP JOHN DAVID
G.P.SHINOD
AJIT G ANJARLEKAR(K/000083/2014)
GOVIND PADMANAABHAN(K/925/2010)
ATUL MATHEWS(K/1675/2018)
GAYATHRI S.B.(K/2005/2020)
RESPONDENTS/PETITIONERS:
1 SAJITHA
AGED 32 YEARS, D/O KAMALA BHAI,
RESIDING AT VALIYAVILA VEEDU, KOTTAKKAL P.O.,
ANAVOOR VILLAGE, NEYYATTINKARA
TALUK,THIRUVANANTHAPURAM DISTRICT.
2 RIYA
AGED 7 YEARS, D/O SAJITHA, RESIDING AT -DO-
MINOR REPRESENTED BY THE IST RESPONDENT/1ST
PETITIONER MOTHER
Mat Appeal No.373 of 2018
2
BY ADVS.
SRI.R.T.PRADEEP FOR PARTY RESP 1 & RESP 2
SRI.S.V.PREMAKUMARAN NAIR
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat Appeal No.373 of 2018
3
JUDGMENT
Raja Vijayaraghavan, J.
This appeal is preferred challenging the judgment and decree in O.P. No.1570/2011 on the file of the Family Court, Thiruvananthapuram. The aforesaid petition was filed by the wife and minor child of the 1st appellant seeking recovery of matrimonial property, maintenance, and other incidental reliefs.
2. In the petition filed before the Family Court, the following contentions were raised by the respondents.
a) The marriage between the parties was solemnized on 8.05.2008. A girl child was born to them. At the time of marriage, 41 sovereigns of gold ornaments were handed over to the 1st appellant by her parents as demanded by the appellants. A sum of Rs.1 lakh was also handed over to the 2nd appellant by the parents of the wife in the presence of her husband. The parents of the wife had assigned an item of property having an extent of 20 cents to her in addition to valuable household articles. When they started living together, the family members behaved in a cruel manner towards the wife by stating that the Mat Appeal No.373 of 2018 4 dowry brought by the wife was on the lower side. She was harassed physically and mentally by her husband and in-laws. She stated that she meekly suffered harassment for the sake of matrimonial life. It is further stated that the husband had taken away about 7.5 sovereigns of gold and had sold the same for his personal purpose. When the wife refused to sell the property she was brutally assaulted and she was sent back to her parental home. She states that a petition was filed before the jurisdictional Magistrate and pursuant to a compromise arrived at between the parties, they started living together. She stated that on 16.05.2011 the wife and child were thrown out from the matrimonial home. Though she along with the child went to the matrimonial home, she was manhandled by her husband and his family members and she had to undergo treatment in the hospital at Parassala. She states that she was not permitted to take away her personal belongings. Later, pursuant to orders passed by the learned Magistrate, she was able to collect the goods except the gold ornaments. She stated that from 16.05.2011, she and her child have been living separately from her husband. She contended that the appellants herein were bound to return the sum of Rs 1 Lakh and the value of the gold ornaments retained by them which she assessed at Rs 3,43,750/. According to the wife, her husband was a businessman doing business in timber, and was earning a sum of Mat Appeal No.373 of 2018 5 Rs.30,000/- per mensem. It is on these assertions that this petition is filed seeking recovery of gold, cash, and for maintenance at the rate of Rs.4000/- each per mensem.
3. A counter affidavit was filed wherein the assertions made by the wife were denied. It is stated that while they were living together she took all her personal belongings and left the home and later approached the learned Magistrate and filed MC No.272/2011. The matter was settled by entering into a compromise. In terms of the compromise, the entire gold was taken away by the wife. He contended that the wife was having mental ailments and she has attempted to commit suicide more than once. Though the husband had requested the wife to undergo treatment she did not accede to his request. After the marriage, multiple complaints were lodged before various courts against the husband. The appellants denied that they demanded dowry as alleged by his wife. He stated that he is unemployed whereas the wife has property of her own from which she is deriving income. He also stated that since the wife had deserted him, she is not entitled to maintenance.
4. The 1st appellant had filed a petition seeking divorce as O.P. 313/2012. The Family Court jointly tried both the cases and took evidence in O.P. 313/2012. The 1st appellant entered the box and gave evidence as PW1. Exhibits A1 to A7 were marked on his side. On the side of the wife, Mat Appeal No.373 of 2018 6 she entered the box and gave evidence as CPW1. His father was examined to prove the entrustment of cash with the father of the husband in his presence. Another witness was examined as CPW3.
5. The Family Court after evaluating the evidence came to the conclusion that the assertion made by the wife that the gold was still retained with the husband could not be relied upon in view of agreement entered into between the parties after the matter was referred to the adalath by the learned Magistrate. However, insofar as entrustment of Rs.1 lakh by the father of the wife to the father of the husband is concerned, the Family Court, based on evidence came to the conclusion that the wife was able to successfully prove the entrustment of the money. Insofar as maintenance to the wife and child are concerned, the Family Court took note of the fact that the husband was a graduate. The cross examination was to the effect that he was drawing a salary of Rs 5000/. While in the box, he stated that he was paying a sum of Rs.4500/- to the wife as per order in MC No.272/2011. Being an able bodied man with no disability, the Family Court was of the view that the husband was bound to pay a sum of Rs.4000/- each per mensem to the wife and child. The petition seeking divorce filed by the husband was dismissed holding that the act of the wife living separately from the husband would not amount to desertion.
Mat Appeal No.373 of 20187
6. We have heard Sri.Mary Help John David, the learned counsel appearing for the 1st appellant, Sri G.P. Shinod, the learned counsel appearing for the 2nd appellant and Sri.RT Pradeep, the learned counsel appearing for the respondents 1 and 2.
7. The learned counsel for the 1st appellant submitted that the Family Court has seriously erred in allowing maintenance at the rate of Rs.4000/ each. According to the learned counsel, the wife was living separately on her own accord. He would also urge that the 1st appellant is unemployed and he is not in a position to pay the amounts as ordered.
8. Sri G.P. Shinod, the learned counsel submitted that the Family Court has thoroughly misconstrued the evidence while allowing the claim of the wife for a sum of Rs 1 Lakh. He submitted that the evidence of CPW2 or CPW3 would not disclose that a sum of Rs 1 Lakh was in fact handed over. According to the learned counsel, the mere fact that the 2nd appellant had not entered the box is no reason to allow the claim of the wife in part.
9. Sri.R.T Pradeep, the learned counsel submitted that the order passed by the Family court ordering the return of the sum of Rs 1 Lakh and the grant of maintenance is unexceptionable and no interference is warranted.
Mat Appeal No.373 of 20188
10. We have carefully considered the submissions advanced and have perused the records.
11. Insofar as the award of a sum of Rs 1 Lakh is concerned, the case of the wife is that the amount was handed over by her father to her father-in-law. CPW1 fairly stated that she was not present when the amount was handed over by her father. Her father, who was examined as CPW2 stated in clear terms that a sum of Rs 1 Lakh was demanded by the appellants and he asserted that he entrusted the money with the 2nd appellant in the presence of his relatives prior to the marriage. The appellants have not cross examined CPW2 as regards his assertive statement. CPW3 had also supported the version of CPW2. It was however brought out in cross examination that CPW3 is a near relative of the wife. Furthermore, the 2nd appellant, with whom money was entrusted did not enter the box to state his version or to deny the said fact. We find no reason to disbelieve CPW1 and CPW2. We are of the view that the Family court has correctly appreciated the evidence and has held that the wife was entitled to the sum of Rs 1 Lakh entrusted with the 2nd appellant by CPW2, the father of the wife. Insofar as the maintenance amount is concerned, the 1st appellant was merely 30 years when the petition was filed. The child was just 1.5 years. The specific case of the wife is that her husband is running a timber business and he was earning Mat Appeal No.373 of 2018 9 in excess of Rs 30,000/ per mensem. He was also a graduate and even in cross examination, the appellants had no case that the 1st appellant was in any way incapacitated from working and earning money despite being a graduate. Taking note of the social status of the parties, living index, inflation, age of the child and other factors, we are of the view that the amount ordered by the Family Court cannot be stated to be on the higher side.
Having considered the facts and circumstances, we are of the view that no interference is warranted This appeal will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE Sd/-
P.M.MANOJ JUDGE IAP