Kerala High Court
Seema Alias Mary vs Ulahannan Alias Babu on 9 April, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
Mat.A No.745 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
MAT.APPEAL NO. 745 OF 2021
AGAINST THE JUDGMENT IN OP(OTHERS) NO.755 OF 2015 OF
FAMILY COURT, ALAPPUZHA
APPELLANTS/PETITIONERS:
1 SEEMA ALIAS MARY D/O.RAPHEL,
AGED 41 YEARS,
KANACKAPILLY HOUSE, EZUPUNNA VILLAGE, EZHPUNNA P.O,
CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 548
2 MARTIN, S/O SEEMA, AGED 16 (MINOR), KANACKAPPILLY
HOUSE, EZHUPUNNA VILLAGE, EZHUPUNNA P.O., CHERTHALA
TALUK, ALAPPUZHA DISTRICT-688 548, REPRESENTED BY
MOTHER AND NATURAL GUARDIAN, 1ST APPELLANT.
3 IMMANUEL, S/O SEEMA, AGED 12 (MINOR), KANACKAPPILLY
HOUSE, EZHUPUNNA VILLAGE, EZHUPUNNA P.O., CHERTHALA
TALUK, ALAPPUZHA DISTRICT-688 548, REPRESENTED BY
MOTHER AND NATURAL GUARDIAN, 1ST APPELLANT.
BY ADVS.
V.N.SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR
NITHEESH.M
K.S.SOJI SOLAMAN
Mat.A No.745 of 2021
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RESPONDENT/RESPONDENT:
ULAHANNAN ALIAS BABU, S/O CHACKO, AGED 48,
KARUKAPARAMBIL (ALSO KNOWN AS KANJIRATHINKAL), CMC
30, NEAR KUTTIKKATTU JUNCTION, CHERTHALA P.O.,
CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 524
BY ADVS.
MANU HARSHAKUMAR
MARY ANN SAJI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
4.4.2025, THE COURT ON 09.04.2025 DELIVERED THE FOLLOWING:
Mat.A No.745 of 2021
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DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
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Mat.Appeal No.745 of 2021
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Dated, this the 9th April 2025
JUDGMENT
M.B.Snehalatha.J
Appellants herein are the petitioners in O.P.No.755/2015 of
Family Court, Alappuzha. The said petition for return of gold
ornaments, cash and maintenance was decreed in part by the Family
Court. In this appeal, appellants challenge that part of the judgment
and decree to the extent to which it disallowed their claims.
2. The parties are Christians. The marriage of the 1 st
appellant with the respondent was solemnized on 23.10.2006.
Appellants 2 and 3 are the children born in the said wedlock. 1 st
appellant's case is that at the time of fixing the marriage, her
parents entrusted ₹2 lakhs to the respondent. Utilising ₹1,50,000/-
from the said amount, gold ornaments weighing 20 1/2 sovereigns
were purchased for the marriage of the 1 st appellant and the balance
amount of ₹50,000/- was retained by the respondent. After the
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marriage, respondent subjected the 1st appellant to cruelty, which led
to the filing of a criminal case against him as C.C.No.532/2011 and
also a petition as O.P.No.2/2013 seeking maintenance. In order to
escape from the punishment in the criminal case, respondent settled
O.P.No.2/2013. In view of the settlement arrived at, respondent had
returned the gold ornaments of the 1 st appellant taken by him.
Subsequent to the said settlement, appellants were residing with the
respondent in his house from September 2014 onwards. But the
respondent again continued with his matrimonial cruelty. In the first
week of January 2015, the respondent took away 11 sovereigns of
gold ornaments belonging to the 1st appellant kept in the almirah. He
also misappropriated five sovereigns of gold ornaments of the
children. Respondent is liable to return the said 11 sovereigns of
gold ornaments. He is also liable to return ₹50,000/- which was
retained by him from the amount given as patrimony. On 26.2.2015
respondent and his mother manhandled the 1 st appellant and she
was admitted to the hospital. After discharge from the hospital, 1 st
appellant's father took the appellants to the parental house. 1 st
appellant has no job or income and they are living at the mercy of
her parents and brothers. Respondent who has sufficient income, is
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not providing any maintenance. Hence, she claimed maintenance at
the rate of ₹3,500/- per month for her and ₹2,500/- each per month
for appellants 2 and 3. She also claimed past maintenance of
₹34,000/- for the period from 27.2.2015 for a period of four months
at the rate of ₹8,500/- per month.
3. Respondent/husband resisted the petition, denying the
allegations of cruelty and misappropriation of gold and cash levelled
against him. It was contended that he handed over all her gold
ornaments in accordance with the terms of settlement in
O.P.No.2/2013, and thereafter, the gold ornaments of the 1 st
appellant were with herself and she had taken all her gold ornaments
while leaving her matrimonial home. The allegation that the 1 st
appellant has no means or income is incorrect. She is working in a
sea food company at Ezhupunna and earns ₹400/- per day.
Respondent who is a driver is getting only an amount of ₹10,000/-
per month and he has to look after his aged mother and appellants'
claim for maintenance cannot be allowed, according to him.
4. Both sides were heard.
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5. The first aspect for consideration is whether the 1 st
appellant is entitled to get a relief for return of gold ornaments as
claimed by her.
6. The marriage is admitted. It is also an admitted fact that
the 2nd and 3rd appellants are the children born in the said wedlock.
1st appellant's case is that while fixing the marriage, her parents
entrusted ₹2 lakhs with the respondent as patrimony and by using
an amount of ₹1,50,000/- from the said amount, gold ornaments
weighing 20½ sovereigns were purchased for the marriage and the
balance amount of Rs.50,000/- was retained by the
respondent/husband. PW1 has further testified that after the
marriage, her husband/respondent subjected her to cruelty and
harassed her both physically and mentally and she filed a criminal
case against him as C.C.No.532/2011 and she also filed
O.P.No.2/2013 before the Family Court. Further version of PW1 is
that fearing the punishment in C.C.No.532/2011, respondent settled
O.P.No.2/2013 and thereafter, the couple along with their children
again resided together in the house of the respondent. Her specific
version is that after the reunion respondent again took away her gold
ornaments, weighing 11 sovereigns, in January 2015. According to
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her, one gold chain weighing 5 sovereigns and three gold bangles
weighing 2 sovereigns each, kept in the almirah were taken away by
the respondent and he misappropriated it for his own use.
7. Respondent, who was examined as RW1, on the other
hand, has testified that when O.P.No.2/2013 was settled in the
mediation, he returned the gold ornaments of the appellant and
thereafter, gold ornaments were in her custody. Ext.B1 is the
certified copy of the said mediation agreement. According to him,
subsequent to the settlement in O.P.No.2/2013, while they were
living together, 1st appellant unnecessarily quarrelled with his mother
and mentally and physically harassed his mother and accordingly, his
mother had to leave the house and had to lay a complaint to the
police. According to RW1, the entire gold ornaments are with the 1 st
appellant herself and he has not taken any of her gold ornaments.
8. RW2, who is the mother of 1st respondent has also
testified that in view of the settlement arrived at in O.P.No.2/2013,
the appellant returned to the matrimonial home on 14.9.2014 and
they were living together. She has further testified that subsequent
to the settlement, the gold ornaments were given back to the 1 st
appellant and the 1st appellant was in custody of her gold ornaments.
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RW2 has also testified that the 1 st appellant quarrelled with her and
accordingly she had to leave the house on 26.2.2015. Further
version of RW2 is that when she came back to the house to take her
cloths, the 1st appellant did not allow her to enter into the house and
accordingly she filed Ext.B2 complaint before the Cherthala Police;
that the 1st appellant was summoned to the Police Station and the
police had warned her. RW2 has further testified that after returning
from the Police Station, 1st appellant took all her belongings,
including the gold ornaments and left the matrimonial house.
9. The version of the 1 st appellant is that while fixing the
marriage, her parents entrusted ₹2 lakhs to the respondent as
patrimony and by utilising ₹1,50,000/-, 20 1/2 sovereigns of gold
ornaments were purchased for her marriage and the
respondent/husband retained the balance amount of ₹50,000/- with
him is not disputed.
10. It has come out in evidence that subsequent to the
marriage, there was marital discord between the spouses and
appellants had filed O.P.No.2/2013 before the Family Court, seeking
maintenance. It is also an admitted fact that pursuant to a
complaint lodged by the 1st appellant, a criminal case as
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C.C.No.532/2011 was instituted against the respondent.
Admittedly, the O.P.No.2/2013 was settled between the parties and
pursuant to the terms of the said settlement, the
respondent/husband returned the gold ornaments of the 1 st appellant
and they reunited and started to live together with their children at
the house of the respondent.
11. The specific case of PW1 is that in January 2015,
respondent again took her gold chain, weighing 5 sovereigns and 3
bangles weighing 2 sovereigns each, kept in the almirah.
12. Now let us see whether the said version of PW1 is
probable and believable.
13. Respondent would admit that earlier he had taken the
gold ornaments of the 1st appellant/wife, and he returned the gold
ornaments to her pursuant to the settlement arrived at in
O.P.No.2/2013. The evidence on record would show that subsequent
to the settlement of O.P.No.2/2013, the couple reunited and started
to reside together at the house of the respondent. There is no
reason to disbelieve or doubt the genuineness of the version of PW1
that in January, 2015 respondent again took her gold ornaments,
weighing 11 sovereigns from her almirah and misappropriated it for
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his own use.
14. The learned Family Court disbelieved the version of PW1
regarding her claim of gold ornaments on the ground that PW1 is a
lady not of a timid nature and therefore it is unbelievable that such a
woman gave the ornaments to the respondent again when she got it
back by a legal fight through O.P.No.2/2013.
15. We cannot find favour with the said finding of the learned
Family Court. On the other hand, the evidence adduced by the 1 st
appellant would show that after reunion, respondent misappropriated
her 11 sovereigns of gold ornaments without her consent.
Accordingly, 1st appellant is entitled to get back the 11 sovereigns of
gold ornaments from the respondent.
16. Yet another claim made by the 1st appellant is that the
respondent misappropriated 5 sovereigns of gold ornaments of the
children and he is liable to return it.
17. Though she has raised a contention that the respondent
misappropriated 5 sovereigns of gold ornaments of the children, she
has not adduced any reliable evidence to show that children had 5
sovereigns of gold ornaments and it was misappropriated by the
respondent, as alleged. Therefore, the appellants claim for return of
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5 sovereigns of gold ornaments stands disallowed.
18. The next aspect for consideration is whether the 1 st
appellant is entitled to get maintenance from the respondent.
19. 1st appellant claimed maintenance at the rate of ₹3,500/-
per month for herself and ₹2500/- each for her two minor children.
The learned Family Court declined to grant maintenance to the 1 st
appellant. The minor children, namely appellants 2 and 3 were
granted maintenance at the rate of ₹2,000/- per month from the
date of judgment.
20. The learned Family Court disallowed the claim for
maintenance of the 1st appellant on the ground that, she left the
matrimonial home without any reasonable cause and she is living
separately without any sufficient ground and therefore, she is not
entitled to get any maintenance.
21. The 1st appellant's specific version is that she had to leave
the matrimonial home due to the cruelty meted out by her at the
hands of the respondent. She has categorically testified that on
26.02.2015 she was beaten up by the respondent. It is an admitted
fact that there was an earlier criminal case as C.C.No.532/2011
against the respondent, which was instituted pursuant to a complaint
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laid by the 1st appellant and there was an Original Petition as
O.P.No.2/2013, seeking maintenance for the appellants and
subsequently, the said cases were settled.
22. It is in evidence that respondent misappropriated the gold
ornaments of the 1st appellant and thus, there is economic abuse
and he prevented her from exercising her legal right over it, which
amounts to cruelty. We find no reason to disbelieve the version of
PW1 that on 26.2.2015 she was manhandled by the respondent and
she along with her children, had to leave the matrimonial home due
to the cruelty meted out by her at the hands of respondent/husband.
The finding of the Family Court is that the 1 st appellant is not entitled
to get maintenance at the rate of ₹3,500/- per month from the date
of filing of the Original Petition.
23. The remaining point for consideration is whether the
quantum of maintenance awarded to the 2 nd and 3rd appellants by
the Family Court needs any interference by this Court.
24. 1st appellant claimed monthly maintenance at the rate of
₹2,500/- each for the 2nd and 3rd appellants. But the Family Court
has granted maintenance to the 2nd and 3rd appellants at the rate of
₹2,000/- each. The said claim is found to be quite reasonable, taking
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into account the cost of living. Hence, respondent is liable to pay
₹2,500/- as monthly maintenance to appellants 2 and 3.
25. In the result, appeal allowed in part as follows:.
a) Respondent is directed to return 11 sovereigns of
gold ornaments to the 1st appellant or its market value
as on the date of return.
b) Respondent shall pay maintenance at the rate of
₹3,500/- per month to the 1 st appellant from the date of
filing of O.P.No.755/2015.
c) The amount of maintenance ordered by the
Family Court at the rate of ₹2,000/- per month to
appellants 2 and 3 is modified to ₹2,500/- each per
month.
The parties shall suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
sd/-
M.B.SNEHALATHA
JUDGE
ab
