Kerala High Court
Sajitha vs Vinodan on 15 October, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY, THE 22ND DAY OF MARCH 2018 / 1ST CHAITHRA, 1940
RPFC.No. 501 of 2007
AGAINST THE ORDER/JUDGMENT IN MC 176/2005 of FAMILY COURT,KOZHIKODE DATED
15-10-2007
REVISION PETITIONER(S)/APPELLANTS/PETITIONERS:
1 SAJITHA, AGED 27 YEARS,
W/O. VINODAN, ADUKKATH THAZHAM, P.O. PUTHIYANGADI,,
KOZHIKODE DISTRICT.
2 VAISAKH, AGED 3 YEARS,
S/O. VINODAN, ADUKKATH THAZHAM, P.O. PUTHIYANGADI,,
KOZHIKODE DISTRICT, REPRESENTED BY THE FIRST REVISION PETITIONER AS
GUARDIAN.
BY ADV.SRI.M.S.VINEETH
RESPONDENT(S)/RESPONDENT::
VINODAN, AGED 34 YEARS,
S/O. KANNAN, AAMBILERIKUNI, P.O. MUDADI, KOYILANDY,
KOZHIKODE DISTRICT.
R, BY ADV. SRI.P.R.SREEJITH
THIS REVISION PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22-03-2018
ALONG WITH MA NOS 633 & 670 OF 2007,THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K.HARILAL & A.M.BABU, JJ.
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RPFC No. 501/2007, M.A.Nos 633 & 670/2007
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Dated this the 22nd day of March, 2018
COMMON JUDGMENT
K.Harilal, J.
Since these appeals are filed challenging a common order and the parties are same, all these appeals are heard together and disposed of accordingly. The impugned order is a common order passed in OP 661/2005, OP No.746/2005 and MC No.176/2005 on the files of the family court, Kozhikode. M.A No.633/2007 has been filed challenging the order passed in O.P No.746/2005 and M.A 670/2007 has been filed challenging the order passed in OP No.661/2005 and RPFC No.501/2007 has been filed challenging the order passed in MC No.176/2005. OP No.661/2005 was filed by the appellant herein seeking a decree for recovery of 35 sovereigns of gold ornaments and Rs 20,000/- from the respondent. The brief facts of the case can be summarised as below:
According to the appellant, her marriage with the respondent was solemnised on 23.1.2003 and a male child was born in the said wedlock. At the time of marriage, the appellant was given 35 sovereigns of gold ornaments and Rs 20,000/- . After the marriage they lived as husband and 2 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 wife at the house of the respondent. The respondent's parents and siblings mentally tortured the appellant stating that gold ornaments which were given to the appellant at the time of marriage was insufficient and further commented that the respondent would have obtained more gold ornaments and another girl. While so, the appellant became pregnant and delivered a male child on 20.2.2004. After the delivery, the respondent never came to the house of the appellant to take her back and he never paid any amount towards maintenance allowance to the appellant and the child. He never enquired about them.
The respondent has a love affair with his uncle's daughter. In the meantime, the respondent sold her 35 sovereigns of gold ornaments and spent the said amount for his personal use. So also, he misappropriated and misused Rs 20,000/- which was given to the appellant at the time of marriage. The appellant demanded her 35 sovereigns of gold ornaments and Rs 20,000/- which was given to her and subsequently misused by the respondent According to her, she is entitled to get Rs 20,000/- and 35 sovereigns of 3 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 gold ornaments. With the aforesaid averments the appellant prayed for a decree to realise Rs 20,000/- and 35 sovereigns of gold ornaments from the respondent.
2. The respondent filed a counter-statement denying the averments that at the time of marriage the appellant was given 35 sovereigns of gold ornaments and Rs 20,000/- and subsequently he sold away the gold ornaments and spent the amount for his own personal needs and he misused Rs 20,000/- which was given to the appellant in connection with the marriage. According to him, the appellant was given only 15 sovereigns of gold ornaments and the same was in the possession of the appellant herself. Subsequently, the same was taken by her when she went for delivery. He denied the allegations of cruelty alleged against him. According to him, he never illtreated her as alleged in the original petition. His mother, brother and sister also never illtreated the appellant as alleged in the petition and those allegations were made to defame the respondent and his family members. According to him, no amount was given to the appellant in connection with the marriage. They were living together harmoniously till she left the house for delivery. After 4 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 delivery, she never came to the house of the respondent, though he had issued lawyer's notice demanding restitution of conjugal rights. The appellant had issued a reply notice raising false contentions. The ornaments shown in the schedule is also not correct. With the aforesaid contentions the respondent prayed for dismissal of the petition.
3. On the aforesaid contentions both parties adduced evidence and after considering the evidence on record the family court dismissed the original petition on a finding that the appellant miserably failed to prove the claim that at the time of marriage she was given Rs 20,000/- and 35 sovereigns of gold ornaments and the respondent appropriated the money and gold ornaments and spent for his personal needs.
4. Heard the learned counsel for the appellant and the learned counsel for the respondent.
5. Going by the impugned common order it is seen that to prove the claim that the appellant was given Rs 20,000/- and 35 sovereigns of gold ornaments, the appellant herself was examined as PW1 and another witness was examined as PW2. Before considering the evidence on record and its appreciation by 5 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 the family court, the averments in the original petition requires consideration. As regards the claim that in connection with the marriage the appellant was given Rs 20,000/-, there is no specific pleadings as to who has given the amount or to whom the amount was given or the date on which the amount was given. The absence of specific pleadings as to the granting of Rs 20,000/- in connection with the marriage, is fatal. Though, the appellant herself was testified that she was given 35 sovereigns of gold ornaments and Rs 20,000/- in connection with the marriage she could not withstand the cross-examination and the family court has not placed reliance on her evidence. In the absence of any material evidence contrary to the finding of the family court, we are also not inclined to take a different view, on the examination of PW1.
6. PW2 is an employee in a jewellery at Kozhikode and he is also a native of PW1. He claimed that he is employed in the jewellery from which the father of the appellant purchased gold ornaments. Ext A2 was produced to prove the sale of gold ornaments, but Ext A2 does not contain seal or signature or date of purchase. Admittedly PW2 is not the owner of the shop and he 6 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 is only an employee in the shop. He could not say whether the sale of gold ornaments was included in the account of the shop. We are also of the opinion that the employee of a jewellery is not a competent witness to prove the sale of gold ornaments when the owner of the shop is alive. After evaluating the evidence of PW2, the family court has arrived at a conclusion that no reliance could be placed on the evidence of PW2 also. When the evidence of PW2 did not inspire confidence of the family court, this court is not inclined to take a different view particularly when he was not a competent witness to swear about the sale of gold ornaments. So also we find that there is no specific pleadings or evidence as to the entrustment of gold ornaments with the respondent after the marriage even if she was wearing 35 sovereigns of gold ornaments at the time of marriage. Merely on the reason that the bride was wearing gold ornaments at the time of marriage it cannot be said that it was an entrustment with the bridegroom. It was incumbent upon the appellant to plead and prove that after the marriage the gold ornaments were entrusted with the husband. In the instant case there is no pleadings or evidence to that effect and the only evidence available on record is the oral 7 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 testimony of PWs 1 and 2. It is needless to say, she could not prove the claim for money or gold ornaments. On a re- appreciation, we also find that the family court is justified in rejecting the claim for Rs 20,000/- and 35 sovereigns of gold ornaments. This appeal is devoid of merits and M.A No.670/2007 will stand dismissed.
M.A.No.633/2007
7. OP No.746/2005 was filed by the respondent herein under Sec.9 of the Hindu Marriage Act seeking restitution of conjugal rights. The marriage and parentage of the child are not disputed. Admittedly, they lived together as husband and wife and the appellant went to her house for delivery on 14.11.2003. The original petition was filed in the year 2005. It is his case that after delivery of the child, she did not return to the matrimonial home. The child was born on 20.2.2004. Though the respondent reached at the house of the appellant on 20.5.2004 to take the appellant and the child to his house, the appellant was not willing to come back with him to the matrimonial home. Thereafter several times he himself called directly and through family members. But, she declined his requests and she never came to 8 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 the house of the respondent. Though he had sent a lawyer's notice demanding restitution of conjugal rights and the appellant accepted the same, she sent a reply notice declining his request. In order to prove his claim for restitution of conjugal rights he was examined as RW1. It has come out in evidence that they were living separately for the last more than two years preceding the date of filing of the original petition. Therefore, it was obligatory on the part of the appellant to prove reasonable excuse for not returning to the house of the respondent. The respondent has testified in terms of the averments in the petition and the family court placed reliance on his evidence. The appellant was also examined as PW1. It is her case that the respondent and his family members treated her with cruelty. According to her, if she goes along with him he will kill her. At the same time, it has come out in evidence that the respondent had sent maintenance allowance to the appellant and the child and she refused the same twice. When she was examined in evidence she stated that she wants her husband and not his amount. Thus, the evidence of appellant herself was found contradictory and the family court could not place reliance on the evidence of the appellant. It has 9 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 come out in evidence that after receiving the lawyer's notice requesting for restitution of conjugal rights she had filed OP 661/2005 and MC No.176/2005 claiming return of money and gold ornaments and maintenance allowance. After evaluating the evidence of PW1 the family court has found that the evidence of PW1 is not sufficient to prove that there was reasonable excuse for withdrawal of the appellant from the society of the respondent. In the absence of any material evidence to prove otherwise we are not inclined to take a different view. It is also pertinent to note that though she had given oral evidence to the effect that the appellant was treated with cruelty in the matrimonial home she failed to prove any specific incident of cruelty and no complaint was filed before any authority alleging any kind of cruelty from the part of the respondent or his family members. In the above analysis, we find that there is no reason to interfere with the impugned common order, whereby the family court allowed the prayer for restitution of conjugal rights.
Mat.Appeal No.633/2007 is dismissed.
RPFC 501/2007
8. According to the appellant, she has no job or any 10 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 sources of income. So being the wife and son of the respondent they are entitled to get maintenance allowance from the respondent. Now she is depending on her aged father for their livelihood. Nothing has been paid by the respondent after she came to the parental house for delivery. She claimed Rs 2,000/- per month for the appellant and Rs 1,500/- for the child. So also it was averred that the respondent is a driver by profession and he has landed properties also and receiving Rs 8,000/- per month from the landed property as income.
9. The respondent filed counter-statement denying the averments that he is getting Rs 8,000/- from the landed properties. But he admitted that he is a driver by profession and employed as a driver in a school bus. According to him, he is unable to pay maintenance allowance at the rate of Rs 2,000/- to the appellant and Rs 1,500/- to the child. Further he contended that the appellant has been residing separately without sufficient reasons and she is living with her parents in their house on her own volition. Therefore he is not liable to pay maintenance allowance to the appellant. He admitted that the second appellant is entitled to get the maintenance allowance from him. 11 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 After considering the oral testimony of PW1 and RW1 the family court rejected the claim of maintenance allowance of the appellant on a finding that she was residing without any justifiable reasons and thereby she is not entitled to get maintenance allowance from the respondent. But the family court ordered maintenance allowance to the second appellant, the child at the rate of Rs 500/- per month.
10. Admittedly, the appellant was residing separately for the last two years. Though she was examined as PW1, she could not bring out any justifiable reason to reside separately and claim maintenance allowance from the respondent. As we have held above, it has come out in evidence that after the delivery of the second appellant, she was residing in the parental home without sufficient reasons. During cross-examination, the appellant herself admitted that she refused to live along with the respondent after delivery of the child. According to Sec.125 (5) of the Code of Criminal Procedure a wife who refuses to live with the husband and living separately without sufficient reasons is not entitled to get maintenance allowance from the husband. Moreover, the respondent has obtained an order granting 12 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 restitution of conjugal rights also. Therefore the family court is justified in finding that the appellant is not entitled to get maintenance allowance from the respondent.
11. Then the question to be considered is whether the family court is justified in granting maintenance allowance to the second appellant at the rate of Rs 1,500/- per month. It was admitted that the respondent is a driver by profession and he is employed as a driver in a school bus. Thus, his earning capacity is not disputed. The child is entitled to get maintenance allowance to meet the expenses for food, cloth, treatment, education etc. At the time of passing the impugned order the child was aged 3 years. The family court ought to have determined the quantum of maintenance allowance after balancing the income of the respondent as a driver and the probable expenses of the second appellant as a child aged 3 years. In the above view, we find that the quantum of maintenance allowance determined by the family court is not reasonable or justifiable. Considering all the factors which would constitute a claim for maintenance allowance, we are inclined to enhance the quantum of maintenance allowance to the second 13 RPFC No. 501/2007, M.A.Nos 633 & 670/2007 appellant. The respondent is directed to pay maintenance allowance at the rate of Rs 1,000/- to the second appellant in MC 176/2005 from the date of petition.
In the result, RPFC No.501/2007 is allowed in part. Mat Appeal Nos 633/2007 and 670/2007 are dismissed.
sd/-
K.HARILAL Judge sd/-
A.M.BABU Judge sks/26.3.2018