N Rajees vs Kavitha Vasavan
2023 Latest Caselaw 11673 Ker

Mat. Appeal No. 170 & 223 of 2016   :1:




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                &
            THE HONOURABLE MR. JUSTICE JOHNSON JOHN

 THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945

                     MAT.APPEAL NO. 170 OF 2016

  AGAINST THE ORDER DATED 24.11.2015 IN OS 380/2006 OF FAMILY
                       COURT,KOLLAM
APPELLANT/DEFENDANT:

             N.RAJEES
             AGED 47 YEARS
             S/O.NANU, PULIMOOTTIL HOUSE, TALIPARAMBA PO,
             TALIPARAMBA AMSOM, DESOM, TALIPARAMBA TALUK,
             KANNUR DISTRICT 670 141.
             BY ADVS.
             SRI.V.T.MADHAVANUNNI
             SRI.GRASHIOUS KURIAKOSE SR.
             SRI.V.A.SATHEESH

RESPONDENT/PLAINTIFF:

             KAVITHA RAJEES
             W/O.RAJEES, AGED 42 YEARS, VASAVA MANDIRAM,
             NENMENI, MANROE ISLAND P.O, KOLLAM
             DISTRICT- 691 502.
             BY ADVS.
             SRI.K.N.CHANDRABABU
             SHRI.S.GANESH
             T.KRISHNANUNNI(K-197)


       THIS MATRIMONIAL APPEAL HAVING BEEN FINALLLY HEARD ON
10.11.2023, ALONG WITH Mat.Appeal.223/2016, THE COURT ON
16.11.2023 DELIVERED THE FOLLOWING:
 Mat. Appeal No. 170 & 223 of 2016   :2:




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                &
            THE HONOURABLE MR. JUSTICE JOHNSON JOHN

 THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945

                     MAT.APPEAL NO. 223 OF 2016

 AGAINST THE ORDER DATED 24.11.2015 IN OP(HMA) NO. 342/2003 OF
                      FAMILY COURT, KOLLAM
APPELLANT/PETITIONER:

             N RAJEES
             AGED 47 YEARS
             S/O.NANU, AGED 47 YEARS, NELLIPARAMBA,
             PULIMOOTTIL HOUSE, TALIPARAMBA P.O., KUTTIYARI
             AMSOM, DESOM, TALIPARAMBA TALUK, KANNUR
             DISTRICT- 670 141.
             BY ADVS.
             SRI.V.T.MADHAVANUNNIAGED 47 YEARS,
             SRI.GRASHIOUS KURIAKOSE SR.
             SRI.V.A.SATHEESH

RESPONDENT/RESPONDENT:

             KAVITHA VASAVAN
             D/O.K.K.VASAVAN, VASAVA MANDIRAM, NENMENI,
             MANROE ISLAND P.O., KOLLAM DISTRICT- 691 502.

             BY ADVS.
             SRI.P.SIVARAJ FOR CAVEATOR
             SRI.K.N.CHANDRABABU
             SHRI.S.GANESH
             R1 BY SRI. T.KRISHNANUNNI (SR.) (K-197)


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
10.11.2023, ALONG WITH Mat.Appeal NO. 170/2016, THE COURT ON
16.11.2023 DELIVERED THE FOLLOWING:
 Mat. Appeal No. 170 & 223 of 2016   :3:



        P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
      ---------------------------------------------------------
               Mat.Appeal Nos.170 & 223 of 2016
      ---------------------------------------------------------
           Dated this the 16th day of November, 2023.

                            JUDGMENT

Johnson John, J.

The appellant filed O.P. (HMA) No. 342 of 2003 before

the Family Court, Kollam under Sections 12(1)(a) and 13 of

the Hindu Marriage Act, 1955 ('Act, 1955' for short) to

dissolve the marriage on the ground that the respondent wife

is impotent and their marriage never consumated. The

respondent wife denied the same and it is contended that the

allegations are false and that she has not suffered from any

disease and she also filed a counter claim for restitution of

conjugal right stating that she is ready for re-union and also

to discharge her duties towards the petitioner.

2. The respondent wife has also fled O.S. No. 380 of

2006 before the Family Court, Kollam seeking compensation

and maintenance under Section 18 of the Hindu Adoption and

Maintenance Act r/w Section 7 of the Family Court Act, 1984

inter alia alleging marital torts on the ground that in O.P

(HMA) No. 342 of 2003 filed by the appellant husband, he

made false, baseless and defamatory allegations that the

respondent wife is impotent and suffering from some unknown

disease. The respondent wife claimed Rs.10,00,000/- as

compensation and monthly maintenance at the rate of

Rs.10,000/- per month in the said suit.

3. As per the common judgment dated 24.11.2015 in

O.P. (HMA) No. 342 of 2015 and O.S. No. 380 of 2006, the

court below dismissed O.P.(HMA) No. 342 of 2003 and allowed

the counter claim and also decreed O.S. No. 380 of 2006

allowing the respondent wife to realise Rs.10,00,000/-

(Rupees Ten Lakhs only) as compensation and Rs.10,000/-

(Rupees Ten Thousand) per month as maintenance and also

past maintenance at the rate of Rs.10,000/- (Rupees Ten

Thousand) from 01.11.2003 to 30.10.2006 from the appellant

husband and his assets with cost.

4. Heard the learned counsel for the appellant husband

and the learned counsel for the respondent wife.

5. At the time of hearing, the learned counsel for the

appellant submitted that he is confining his arguments

regarding the illegality on the quantum of compensation and

maintenance awarded by the court below and not pressing the

other contentions in the respective appeals. The learned

counsel for the appellant argued that the court below has not

considered the income and living conditions of the parties

before fixing Rs.10,000/- as monthly maintenance, and

further the court below has also not given any reasons for

awarding Rs.10,00,000/- as compensation to the respondent

wife.

6. But, the learned counsel for the respondent wife

pointed out that the court below has considered the evidence

of the respondent wife regarding the assets and income of the

appellant and their living conditions for fixing Rs.10,000/- as

maintenance. It is further argued that the court below fixed

Rs.10,000,00/- as compensation for general damages after

recording a finding that the appellant husband has made

false, baseless and defamatory allegations against the

respondent wife that she is impotent and suffering from some

unknown disease as grounds for dissolution of marriage in

O.P. (HMA) No. 342/2003, and in such a situation, the victim

is entitled to general damages for the injuries sustained by

her.

7. It is pertinent to note that in paragraph 8 of the

plaint in O.S. No. 380 of 2006, the plaintiff wife has narrated

the assets of the defendant husband and in the said

paragraph, it is stated that the defendant is conducting

'Malappuram Steel Industries' and he is earning a monthly

income of Rs.8,00,000/- and in addition, he owns certain

properties enumerated in sub-clauses (a) to (k) in the said

paragraph.

8. The respondent wife, when examined as RW1, has

also deposed more or less in the same way regarding the

monthly income and assets of her husband and therefore,

considering the income, assets and living standards of the

parties as in evidence, we find that the court below rightly

fixed Rs.10,000/- (Rupees ten thousand only) as monthly

maintenance and there is no reason to interfere with the

same.

9. The learned counsel for the appellant pointed out

that the court below only recorded a finding that the

averments made by the appellant husband in O.P. (HMA) No.

342 of 2003 regarding the impotency and unknown disease of

the wife, are false, baseless and defamatory, and that the

respondent wife has no case that her husband made such

allegations in public or to others. But, the learned counsel for

the respondent wife pointed out that the appellant husband

has made slanderous and malicious statements in the petition

seeking dissolution of marriage and that such slanderous and

malicious statements were made before the public officers and

in public and therefore, there is no reason to interfere with the

findings of the court below regarding the quantum of

compensation.

10. It is true that there is no formulated rule or

guideline to measure damages in the case of marital tort and

that in case of any other tort, the quantum of damages ought

to be fixed at a sum, which will compensate the victim, so far

as money can do it, for the injury she had suffered. It cannot

be disputed that the victim is entitled for general damages,

which the law will presume to be natural and probable

consequences of the wrongful act.

11. It is true that the court below has not discussed the

nature of the injury suffered by the respondent wife. But, at

the same time, it is to be noted that when it is established

that the tortfeasor is guilty of the wrongful act complained of,

it will be presumed that the victim has sustained some

damage and the amounts he will be entitled is purely in the

discretion of the court. In the absence of any evidence to

show that apart from making the above false, baseless and

defamatory allegations in the petition seeking dissolution of

marriage, and since the respondent wife has no case that her

husband made such allegations in front of others, such as her

relatives or friends causing her defamation, emotional distress

or mental pain, we find that the compensation fixed by the

court below is on the higher side and that the same requires

to be reduced. Accordingly, the compensation awarded by the

court below is reduced to Rs.5,00,000/-.

12. The learned counsel for the appellant has invited

our attention to paragraph 15 of the written objection filed by

the respondent in O.P (HMA). No. 342 of 2003, wherein it is

stated as follows:

"There is absolutely no ground for allowing this petition. The petitioner is liable to pay alimony at the rate of not less than Rs.5000/- per month and also Rs.3000/- for litigation expenses for which the respondent had already filed a petition which is pending consideration of this Hon'ble Court. Apart from this, the respondent also reserves a right to file a suit for getting compensation from the petitioner."

13. The learned counsel for the appellant argued that in

spite of the above averments in the written objection, the

court below awarded monthly maintenance at the rate of

Rs.10,000/- per month, ignoring the fact that the respondent

herself has claimed only Rs.5000/- per month as alimony in

the written objection. It is pertinent to note that the court

below awarded monthly maintenance at the rate of

Rs.10,000/- per month as per the decree in O.S. No. 380 of

2006 filed by the respondent wife.

14. So, the question that arises for consideration is as

to whether the respondent wife can seek an enhanced amount

as maintenance in a subsequent suit filed after three years.

15. In Rajnesh v. Neha and another [(2021) 2

SCC 324, the Hon'ble Supreme Court, after considering the

provisions of law which provides for claiming maintenance

under different statutes, held as under:

"55. The issue of overlapping jurisdictions under the HMA and D.V. Act or Cr.P.C came up for consideration before a Division Bench of the Delhi High Court in RD v. BD [2019 SCC Online Del 9526: (2019) 7 AD 466] wherein the Court held that maintenance granted to an aggrieved person under the D.V. Act, would be in addition to an order of maintenance under Section 125 Cr.P.C, or under the HMA. The legislative mandate envisages grant of maintenance to the wife under various statutes. It was not the intention of the legislature that once an order is passed in either of the maintenance proceedings, the order would debar re-adjudication of the issue of maintenance in any other proceeding. In paras 16 and 17 of the judgment, it was observed that: (SCC Onlie Del)

16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of DV Act would clearly establish that the provisions of DV Act dealing with maintenance are supplementary to the provisions of other laws and therefore maintenance can be granted to the aggrieved person (s) under the DV Act which would also be in addition to any order of maintenance arising out of Section 125 of Cr.P.C.

17. On the converse, if any order is passed by the Family Court Under Section 24 of HMA, the same would not debar the Court in the proceedings arising out of DV Act or proceedings under Section 125 Cr.P.C instituted by the wife/aggrieved person claiming maintenance. However, it cannot be laid down as a proposition of law that once an order of maintenance has been passed by any court then the same cannot be re-adjudicated upon by any other court. The legislative mandate envisages grant of maintenance to the wife under various statutes such as HMA, Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as 'HAMA'), Section 125 Cr.P.C as well as Section 20 of DV Act. As such various statutes have been enacted to provide for the maintenance to the wife and it is nowhere the intention of the legislature that once any order is passed in either of the proceedings, the said order would debar re adjudication of the issue of maintenance in any other Court.

(emphasis supplied)"

16. We find force in the argument of the learned

counsel for the respondent wife that merely because the wife

claimed only Rs.5000/- as alimony, in the written objection in

O.P. (HMA) No. 342 of 2003, the same would not debar her

from claiming an enhanced amount as maintenance in a

subsequent civil suit on the basis of the financial condition and

living standards of the parties.

17. It is well settled that there is no straitjacket

formula for fixing the quantum of maintenance to be awarded.

The court is required to consider the status of the parties;

reasonable needs of the wife and dependant children; whether

the applicant has any independent source of income; whether

the wife was required to sacrifice her employment

opportunities for nurturing the family; the financial capacity of

the husband; and his actual income. The court is required to

draw a careful and just balance between all relevant factors.

It cannot be disputed that the test for determination of

maintenance in matrimonial disputes depends on the financial

status of the respondent, and the standard of living that the

applicant was accustomed to in her matrimonial home. It is

also well settled that the maintenance amount awarded must

be reasonable and realistic and that the same should neither

be extravagant, nor should it be so, meagre that it drives the

wife to penury.

18. In the case at hand, the court below awarded the

monthly maintenance at the rate of Rs.10,000/- per month

after considering the financial capacity of the husband and the

standard of living of the parties and therefore, considering the

facts and circumstances, we find that monthly maintenance at

the rate of Rs.10,000/- per month granted by the court below

is reasonable and realistic.

19. The next question to be considered is whether the

past maintenance allowed at the rate of Rs.10,000/- per

month for the period from 01.11.2003 to 30.10.2006 by the

trial court is reasonable and justifiable in the circumstances of

the case.

20. The learned counsel for the appellant argued that

the court below ought to have considered the fact that the

respondent wife claimed only Rs.5000/- per month as alimony

in her counter claim to O.P (HMA) No. 342 of 2003 filed on

03.11.2003 and therefore, the court below is not justified in

granting past maintenance at the rate of Rs.10,000/- per

month for the period from 01.11.2003 to 30.10.2006.

21. We find force in the argument of the learned

counsel for the appellant that since the respondent wife has

claimed only Rs.5000/- per month as maintenance as on

03.11.2003, the trial court ought to have considered the said

fact while fixing the past maintenance as on 03.11.2023

claimed for the period from 01.11.2003 to 30.10.2006 and

that the past maintenance allowed at the rate of Rs.10,000/-

per month for the said period by the trial court is on the

higher side and the same requires interference of this Court.

22. In view of the averments in paragraph 15 of the

counter claim filed by the respondent wife in O.P.(HMA) No.

342 of 2003 and considering the facts and circumstances of

the case, we find it appropriate to modify and fix the past

maintenance for the period from 01.11.2003 to 30.10.2006 at

the rate of Rs.5000/- (Rupees Five Thousand only) per month.

23. Accordingly, the compensation awarded by the

court below for marital tort is reduced to Rs.5,00,000/-

(Rupees Five Lakhs only) and the past maintenance awarded

by the court below for the period from 01.11.2003 to

30.10.2006 is reduced to Rs.5000/- (Rupees Five Thousand

only) per month.

In the result, the impugned judgment is modified to that

extent alone and the appeals are allowed in part, without cost.

sd/-

P.B.SURESH KUMAR, JUDGE

sd/-

JOHNSON JOHN, JUDGE Rv