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
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
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,
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.
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.
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
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
