Kerala High Court
A.D.Gireesh vs K.R.Raji on 20 May, 2020
Equivalent citations: AIRONLINE 2020 KER 212
Bench: A.M.Shaffique, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942
Mat.Appeal.No.915 OF 2014
AGAINST THE JUDGMENT DATED 22.7.2014 IN OP 2518/2011 DATED 22-
07-2014 OF FAMILY COURT,ERNAKULAM
APPELLANTS/RESPONDENTS 1 &3:
1 A.D.GIREESH, AGED 41 YEARS
S/O.DHARMAN, ALLAPPARAMBIL HOUSE, CHERAI P.O., PIN
- 683 514, ERNAKULAM DISTRICT.
2 VASANTHI, W/O.DHARMAN, ALLAPPARAMBIL HOUSE, CHERAI
P.O., PIN - 683 514, ERNAKULAM DISTRICT.
BY ADVS.
SRI.VARGHESE C.KURIAKOSE
SRI.P.J.JOSE
RESPONDENT/PETITIONER:
K.R.RAJI
AGED 36 YEARS
S/O.KUTTAMPARAMBIL HOUSE, THABANKADAVU P.O.,
THALIKKULAM, THRISSUR DISTRICT, PIN - 680 569.
R1 BY ADV. SRI.A.JAYASANKAR
R1 BY ADV. SRI.MANU GOVIND
R1 BY ADV. SRI.C.V.MANUVILSAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-01-
2020, ALONG WITH Mat.Appeal.916/2014 AND CONNECTED CASES, THE
COURT ON 20-05-2020 DELIVERED THE FOLLOWING:
Mat.Appeal No.915/14 & conn.cases
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942
CO.No.78 OF 2019 IN Mat.Appeal. 278/2019
AGAINST Mat.Appeal 278/2019 OF HIGH COURT OF KERALA ARISING
FROM JUDGMENT DATED 28.01.2019 IN OP NO.623/2015 OF FAMILY
COURT ERNAKULAM
CROSS OBJECTORS/RESPONDENTS:
1 K.R.RAJI
AGED 41 YEARS
W/O AD GIREESH KUTTAMPARAMBATH HOUSE,
THALIKULAM, THAMPANKADAVU P.O.THRISSUR
DISTRICT.
2 GOPIKA NANDANA (MINOR)
AGED 17 YEARS
D/O GIREESH, REPRESENTED BY HER MOTHER AND
NATURAL GUARDIAN KR RAJI, THE 1ST PETITIONER
BY ADVS.
SRI.A.JAYASANKAR
SRI.MANU GOVIND
SMT.NIMMY JOHNSON
SRI.S.SABARINADH
Mat.Appeal No.915/14 & conn.cases
-:3:-
CROSS RESPONDENT/APPELLANT:
A.D.GIREESH
AGED 48 YEARS
S/O LATE DHARMAN, ALLAPARAMBIL HOUSE,
AYYAMPILLY, CHERAI P.O.ERNAKULAM DISTRICT
BY ADV. SRI.VARGHESE C.KURIAKOSE
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 30-01-2020, ALONG WITH Mat.Appeal.915/2014 AND
CONNECTED CASES, THE COURT ON 20-05-2020 DELIVERED THE
FOLLOWING:
Mat.Appeal No.915/14 & conn.cases
-:4:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942
Mat.Appeal.No.916 OF 2014
AGAINST THE JUDGMENT IN OP 2261/2010 DATED 22-07-2014 OF
FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
A.D.GIREESH, AGED 41 YEARS
S/O. DHARMAN, ALLAPPARAMBIL HOUSE, CHERAI P.O.,
ERNAKULAM - 683 514.
BY ADV. SRI.VARGHESE C.KURIAKOSE
RESPONDENT/RESPONDENT:
K.R.RAJI, AGED 36 YEARS,
S/O. KUTTAMPARAMBIL HOUSE, THABANKADAVU P.O.,
THALIKKULAM, THRISSUR - 680 569.
R1 BY ADV. SRI.A.JAYASANKAR
R1 BY ADV. SRI.MANU GOVIND
R1 BY ADV. SRI.C.V.MANUVILSAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30-01-2020, ALONG WITH Mat.Appeal.915/2014 AND CONNECTED
CASES, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:
Mat.Appeal No.915/14 & conn.cases
-:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942
Mat.Appeal.No.917 OF 2014
AGAINST THE JUDGMENT DATED 22.7.2014 IN OP 792/2010 OF
FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
A.D.GIREESH, AGED 41 YEARS,
S/O. DHARMAN, ALLAPPARAMBIL HOUSE, CHERAI P.O.,
ERNAKULAM - 683 514.
BY ADVS.
SRI.VARGHESE C.KURIAKOSE
SRI.P.J.JOSE
RESPONDENT/RESPONDENT:
K.R.RAJI, AGED 36 YEARS
D/O. RAJAN, KUTTAMPARAMBIL HOUSE,
THABANKADAVU P.O., THALIKKULAM, THRISSUR- 680
569.
BY ADV. SRI.A.JAYASANKAR
BY ADV. SRI.C.V.MANUVILSAN
BY ADV. SRI.MANU GOVIND
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30-01-2020, ALONG WITH Mat.Appeal.915/2014 AND CONNECTED
CASES, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:
Mat.Appeal No.915/14 & conn.cases
-:6:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942
Mat.Appeal.No.254 OF 2019
AGAINST THE JUDGMENT DATED 28.01.2019 IN OP 1891/2016 OF
FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
A.D.GIREESH,
AGED 46 YEARS
S/O. DHARMAN, ALLAPRARAMBIL HOUSE, CHERAI P.O,
PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM
DISTRICT
BY ADV. SRI.VARGHESE C.KURIAKOSE
RESPONDENT/RESPONDENT:
K.R.RAJI, AGED 42 YEARS,
W/O. A.D GIREESH, KUTTAMPARAMBATH HOUSE,
THALIKULAM, THAMPANKADAVU P.O, THRISSUR
DISTRICT
BY ADV. SRI.A.JAYASANKAR
BY ADV. SRI.MANU GOVIND
BY ADV. SRI.S.SABARINADH
BY ADV. SMT.NIMMY JOHNSON
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30-01-2020, ALONG WITH Mat.Appeal.915/2014 AND CONNECTED
CASES, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:
Mat.Appeal No.915/14 & conn.cases
-:7:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942
Mat.Appeal.No.267 OF 2019
AGAINST THE JUDGMENT DATED 28.01.2019 IN OP 639/2016 OF
FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
A.D.GIREESH
AGED 47 YEARS
S/O.DHARMAN, ALLAPARAMBIL HOUSE, CHERAI P.O.,
PALLIPPURAM VILLAGE, KOCHI TALUK, ERNAKULAM
DISTRICT.
BY ADV. SRI.VARGHESE C.KURIAKOSE
RESPONDENT/RESPONDENT:
K.K.RAJI,
AGED 40 YEARS
W/O.A.D.GIREESH, KUTTAMPARAMBATH HOUSE,
THALIKULAM, THAMPANKADAVU P.O., THRISSUR
DISTRICT- 680301.
BY ADV. SRI.A.JAYASANKAR
BY ADV. SRI.MANU GOVIND
BY ADV. SMT.NIMMY JOHNSON
BY ADV. SRI.S.SABARINADH
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30-01-2020, ALONG WITH Mat.Appeal.915/2014 AND CONNECTED
CASES, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:
Mat.Appeal No.915/14 & conn.cases
-:8:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942
Mat.Appeal.No.278 OF 2019
AGAINST THE JUDGMENT IN OP 623/2015 DATED 28-01-2019 OF
FAMILY COURT,ERNAKULAM
APPELLANT/RESPONDENT:
A.D.GIREESH,
AGED 46 YEARS,S/O DHARMAN,ALLAPARAMBIL
HOUSE,CHERAI P.O,PALLIPPURAM VILLAGE,KOCHI
TALUK,ERNAKULAM DISTRICT
BY ADV. SRI.VARGHESE C.KURIAKOSE
RESPONDENTS/PETITIONERS:
1 K.R.RAJI
AGED 42 YEARS,W/O A.D.GIREESH,KUTTAMPARAMBATH
HOUSE,THALIKULAM,THAMPANAKADAVU P O,THRISSUR
DISTRICT 680 301
2 GOPIKA NADANA
AGED 16,D/O GIREESH,REP BY MOTHER
K.R.RAJI,KUTTAMPARAMBATH
HOUSE,THALIKULAM,THAMPANAKADAVU P O,THRISSUR
DISTRICT 680 301
R1 BY ADV. SRI.A.JAYASANKAR
R1 BY ADV. SRI.MANU GOVIND
R1 BY ADV. SMT.NIMMY JOHNSON
R1 BY ADV. SRI.S.SABARINADH
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30-01-2020, ALONG WITH Mat.Appeal.915/2014 & CONNECTED
CASES, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:
Mat.Appeal No.915/14 & conn.cases
-:9:-
JUDGMENT
Mat.Appeal.915/2014, Mat.Appeal.916/2014, Mat.Appeal.917/2014, Mat.Appeal.254/2019, Mat.Appeal.267/2019, Mat.Appeal.278/2019 & CO.78/2019 Dated this the 20th day of May, 2020 Shaffique, J.
The matrimonial issues arising between a couple had given rise to all these appeals. Common appellant is the husband Sri.A.D.Gireesh. In Mat.Appeal No. 915/14, his parents are also made parties to the lis.
2. The first of the cases was OP No.792/10 filed by the husband seeking for divorce on the ground of cruelty. The parties got married on 7/2/2001 as per Hindu religious rites and ceremonies. A girl child was born in the wedlock on 18/12/2002. Petitioner/husband contended that from 20/7/2006, his wife had deserted him along with the child. Though he made some attempts to bring her back, she was not amenable. Since divorce is sought on the ground of cruelty, he alleged that from the very Mat.Appeal No.915/14 & conn.cases -:10:- inception, his wife used to pick up quarrels with him and she was always suspecting his character. She quarreled with his parents and she behaved as if she is having mental illness. Some of the members of her family was suffering from mental illness and she had attempted to commit suicide on several occasions and all this according to him amounts to mental cruelty and he sought for divorce.
3. Respondent denied the allegations. According to her, she did not desert him, whereas it was the petitioner who had deserted his family. She never picked up any quarrel whereas she was harassed by the petitioner and his mother. She denied having any sort of mental disorder. The Family Court dismissed the Original petition against which husband has filed Mat.Appeal No.917/2014.
4. OP No.2261/2010 was filed by the husband claiming return of ornaments and household articles and certain documents. According to him, he has purchased 7 sovereigns of gold ornaments for her which she had taken away while she left the matrimonial home and she had also taken away some of the household articles mentioned in the B Schedule and hence he Mat.Appeal No.915/14 & conn.cases -:11:- claimed return of the gold ornaments or its value and the value of household articles.
5. Respondent denied the allegations and contended that she had 65 sovereigns of gold ornaments at the time of marriage and `30,000 was given as parental share. 40 sovereigns of gold ornaments and the money were appropriated by the respondent and his parents. She also filed OP No.2518/2011 seeking return of 40 sovereigns or its value and `30,000/- being her parental share. Husband and his parents denied having been entrusted with any gold ornaments or money. According to them, the bride was having only 20 sovereigns of gold ornaments and she had some imitation ornaments as well and they have not appropriated any of them.
6. The above three cases were jointly tried and common evidence was adduced. On behalf of the husband, PW1 to PW4 were examined and on behalf of the wife RW1 and RW2. Exts.A1 to A5 and B1 and B2 were the documents relied on by either side. Family Court denied the claim of the husband for return of gold and household articles and allowed the claim of the wife directing the husband to return 40 sovereigns of gold ornaments or its Mat.Appeal No.915/14 & conn.cases -:12:- value as on the date of decree and `30,000/- with interest from the date of Original petition.
7. Husband and his parents have preferred Mat.Appeal No.915/2014 challenging the judgment in OP No.2518/2011 and the husband has filed Mat.Appeal No.916/14 challenging the judgment in OP No.2261/2010.
8. During the pendency of the above appeal, three other cases came to be filed before the Family Court between the couple. OP No.1891/2016 was filed by the husband seeking divorce on a subsequent event of a ground of cruelty. He contended that while he was carrying on business under the name and style Rohini Facility Management System, he had employed a lady staff by name Sreeja who was working as a Clerk. The respondent alleged that petitioner was having illicit relationship with the said lady and the respondent came to his office and abused the petitioner on the aforesaid ground. He filed complaint as CC No.3272/2011 and on 29/8/2016 petitioner and Sreeja were examined by the counsel for respondent. During such cross-examination, questions were asked stating that petitioner was living in adultery with Sreeja. According to him, on account of Mat.Appeal No.915/14 & conn.cases -:13:- the aforesaid incident, he suffered severe mental agony and sought for divorce. Respondent denied the allegations and contended that OP is barred by the principle of resjudicata. The Family Court dismissed the above O.P, against which husband has filed Mat.Appeal 254/2019. The husband also filed OP No.639/2016 seeking custody of the minor child. The Family Court dismissed the said claim against which he filed Mat.Appeal No.267/2019. The wife and minor child filed OP No.623/15 seeking past and future maintenance. Maintenance was claimed at the rate of `25,000/- for the first petitioner and `35,000/- for the 2nd petitioner. Respondent contended that he is ready and willing to take custody of the minor child, that he was having only an income of `15,000/- per month and therefore the claim was totally unsustainable. Further he has a liability of more than `1 crore to Canara Bank.
9. In fact, common evidence was taken in all these three cases and separate evidence was adduced by either of the parties. Wife was examined as PW1 and on the respondent's side, RW1 to RW4 were examined. Exts.A1 to A78 and Exts.B1 to B20 were the documents relied upon. The Family Court rejected the Mat.Appeal No.915/14 & conn.cases -:14:- claim for custody of the minor child and allowed the claim for past maintenance. `1,80,000/- was awarded in favour of wife and `3,60,000/- in favour of the daughter. Further direction was given to pay a sum of `7,500/- per month as future maintenance to the wife and `12,500/- per month to the daughter. Mat.Appeal No.278/2019 has been filed against the judgment in OP No.623/2015.
10. Mat.Appeal No.915/2014 is filed against judgment in OP No.2518/2011 by which the wife was permitted to recover 40 sovereigns of gold ornaments or its value as on the date of decree from respondents 1 to 3 and a further amount of `30,000/- with interest @ 6% per annum. The contention urged by the wife was that she was adorned with 65 sovereigns of gold ornaments at the time of marriage and `30,000/- was paid as parental share. This fact had been disputed by the respondents. Petitioner submits that her gold ornaments were utilized by her husband and his parents and she claimed 40 sovereigns of gold ornaments that was pledged and sold by respondents 1 to 3. Respondents' contention was that the petitioner had only 20 sovereigns of gold ornaments and she had imitation ornaments also. As proof of Mat.Appeal No.915/14 & conn.cases -:15:- acquisition of gold ornaments, petitioner/wife placed reliance on the oral testimony of RW1 and RW2. RW1 is the petitioner herself and RW2 is her aunt who also stated that she was adorned with 65 sovereigns of gold ornaments. The only material that had been produced are the photographs which were marked as Exts.B1 and B2. The photographs of course show that the bride was wearing some gold ornaments, but it may not be possible for us to discern how much gold ornaments she was wearing at the relevant time and whether any of the gold ornaments were imitation. The Family Court placed reliance on the testimony of PW1 (husband) in order to grant a decree in favour of the petitioner. PW1 admitted that he took the gold ornaments for weighing and testing its quality. He also admitted that her gold ornaments were pledged for raising funds for going abroad. PW1 had placed reliance on Ext.A1 series in order to prove that he was sending money from abroad for the purpose of releasing the gold ornaments from pledge. Family Court took note of the fact that PW1 during cross examination admits that 90% of the amount covered by Ext.A1 series were sent by him for the maintenance of the petitioner and the child. Therefore, the Family Court came to Mat.Appeal No.915/14 & conn.cases -:16:- the conclusion that no amount was sent by the respondent for releasing the gold ornaments from pledge. It is based on the aforesaid testimony of PW1 that a decree had been granted by the trial Court. Learned counsel for the appellant would submit that there is no such admission as found by the Family Court. Having examined as PW1, first appellant had denied that his wife was having 520 grams of gold ornaments and that she was having only 20 sovereigns of gold ornaments and rest of the ornaments were imitation. During cross-examination, when he was asked whether he had pledged or sold any gold ornaments, PW1 stated that he had pledged some gold ornaments and that he had taken it with his own money. To a further question, he answered that gold was pledged in the name of his father and in the name of his wife. He also admitted that 90% of the money sent by him as per Ext.A1 series were for the maintenance of his wife and children. Therefore, this is a case in which in the petition itself, the petitioner/wife had a specific case that her gold ornaments were pledged or sold. Though PW1/husband denied the said fact in his pleadings, he later admitted during cross- examination that some of the gold ornaments were pledged even Mat.Appeal No.915/14 & conn.cases -:17:- by his father and in the name of his wife as well. When such facts are admitted, the Family Court was justified in taking note of the evidence of RW1 and RW2 as credible enough to grant a decree in favour of the wife. We do not find any reason to interfere with the said judgment.
11. In Mat.Appeal No.916/14, the issue was whether the petitioner/husband was entitled to get back the gold ornaments given by him to his wife. The Family Court found that there is no evidence of any such entrustment. Even otherwise, if at all he had given any gold ornaments to the bride at the time of marriage, it can only be treated as a gift and the husband is not entitled to get it back. There is no arrangement between the parties that the said ornaments will be returned. Under such circumstances, the Family Court was justified in rejecting the claim in OP No.2261/2010 and we do not find any reason to interfere with the said judgment.
12. Mat.Appeal No.917/2014 arises from dismissal of OP No.792/2010 for divorce. Divorce petition was filed by the husband alleging cruelty by the wife. In order to prove the said fact, he examined PW1 to PW4. Husband has given evidence as Mat.Appeal No.915/14 & conn.cases -:18:- PW1. His mother was examined as PW2. His uncle was examined and PW3 and a friend was examined as PW4. Family Court found that there is no specific allegation of cruelty whereas the wife had alleged that she had to suffer severe cruelty at the hands of the petitioner and his parents which forced her to leave the matrimonial home. Though PW1 had stated that the wife was suffering from mental disorder and some of her family members also suffer from mental illness, other than examining PW3, his uncle to prove the said fact, no medical evidence is forthcoming. Evidence of PW2, mother of the husband also does not prove any cruelty. Of course during evidence, she had a case that the respondent/wife had thrown a telephone on her face, but there is no such case in the pleading. It is trite that when divorce is sought on the ground of cruelty, specific allegations are to be pleaded and proved. In the case on hand, though the petitioner alleges that his wife was having suspicion about his character, he did not give any such statement while being examined as PW1. What is stated by him was that she used to quarrel with the petitioner now and then. Other than that, no specific allegations have been made. He also has a case that she had attempted to Mat.Appeal No.915/14 & conn.cases -:19:- commit suicide for which there is no evidence. PW2 also does not have a case that she had witnessed any cruelty being committed by the wife against the husband. PW3's evidence cannot be considered, in so far as no medical evidence was adduced to prove that the wife was suffering from any such disease. PW4 is a friend of the petitioner. His evidence was only with reference to an incident which happened one year before the evidence commenced, which incident had not been pleaded in the case. Under such circumstances, the Family Court was justified in rejecting the plea of divorce. We do not find any reason to interfere with the said judgment.
13. A second set of cases were also considered by the Family Court. Mat.Appeal No.254/2019 arises from judgment in OP 1891/2016 by which the husband filed a 2 nd petition for divorce on the ground of cruelty, which was dismissed by the Family Court. In this case, it was alleged that his wife had come to his office and alleged illicit relationship with a lady by name Sreeja for which he had to file a complaint before the Judicial First Class Magistrate Court Ernakulam, and she was charge sheeted in CC No.3272/2011. One of the contentions urged by the Mat.Appeal No.915/14 & conn.cases -:20:- respondent was that the O.P. was barred by the principle of resjudicata especially when Mat.Appeal No.917/2014 was pending before this Court challenging the judgment in OP No.792/2010. The Family Court found that the Original petition is maintainable as it is filed on a new cause of action. Therefore, the Family Court endeavoured to consider the same. RW1 during evidence has stated that he was living separately from his wife since 29/7/2006. In the chief affidavit, he stated that, on 25/6/2011, when the wife and her aunt had come to attend the case OP 792/2010 before the Family Court, Ernakulam, she alleged that petitioner was having relationship with Sreeja, his staff. Before the petitioner reached the office, his wife and her aunt reached his office and threatened Sreeja, in the presence of other staff members. They made allegations of illicit relationship between petitioner and Sreeja and also abused them. He therefore filed CC No.3272/2012 before the Judicial First Class Magistrate Court, Ernakulam in which case petitioner and Sreeja were examined on 29/8/2016. During the said examination also, both of them were cross-examined by asking questions relating to their extramarital relationship. The deposition had been marked Mat.Appeal No.915/14 & conn.cases -:21:- as Exts.B12 and B13. The charge sheet is produced as Ext.B14. It is further stated that again on 3/10/2016, when counseling was going in OP(G&W) No.639/2016, in the presence of his mother and friends, very same allegations were raised and his image was tarnished. To support the aforesaid evidence, he had examined three other witnesses RW2, RW3 and RW4. RW2 is a friend of the petitioner/husband. RW2 had deposed that at the request of the petitioner, he had taken his mother to the Family Court. At the time when the respondent/wife saw them, she openly said that petitioner was having illicit relationship with his staff Sreeja. RW3 is a friend of RW2. He was also among the persons who had gone to the Family Court at 12.30 noon in order to meet the petitioner. He supported the version of RW2. RW4 is the mother of RW1/petitioner. She also stated about the incident which happened at 12.30 noon in the Family Court premises supporting RW2 and RW3. The Family Court after considering such evidence found that the interested versions of RW2 to RW4 cannot be accepted. PW1 in her evidence denied having given such a statement. But when petitioner and three witnesses had supported the contention urged by the petitioner, which is further Mat.Appeal No.915/14 & conn.cases -:22:- evident from the nature of cross-examination made at the instance of the respondent/wife and the deposition had been marked in evidence as Exts.B12 and B13, it is idle on the part of the respondent/wife to contend that she had not made any such allegation.
14. It is settled law that making unsubstantiated allegations against the husband alleging illicit relationship with another person amounts to cruelty. We are of the view that the Family Court erred in considering the evidence of PW1, RW1 to 4 and the supporting documents in the proper perspective. The judgment to that extent is perverse. In matrimonial disputes, evidence will consist only from the side of either relatives or friends. No stranger may come to give evidence before Court and they may not be aware of the matrimonial issues as well. This is a case in which the specific contention urged by the petitioner was that his wife had alleged illicit relationship between himself and one staff Sreeja. The said fact was alleged in the office as well as in the premises of the Family Court. The line of cross-examination by the counsel for the respondent/wife in the criminal case also supports the contention urged by the petitioner/husband. Family Mat.Appeal No.915/14 & conn.cases -:23:- Court erred in disbelieving the version to that extent. We are therefore of the view that the petitioner is entitled for divorce on that ground. That apart, we also find that the marriage is irretrievably broken and there is no chance for a reunion.
15. Mat.Appeal No.267/2016 has been filed against OP No.639/2016 in which the petitioner sought for custody of the minor child. Family Court found that she was about to attain majority and therefore no direction need be issued to give custody to the father. At the time when the case was filed, the minor was aged 13 years. She had already attained majority and therefore this appeal has become infructuous.
16. Mat.Appeal No.278/2019 arises from the judgment in OP No.623/2015 by which the Family Court directed past and future maintenance to be paid to the wife and minor daughter. The first petitioner was employed and was receiving a salary of `7,500/- per month. While giving evidence as PW1, she stated that her present salary is `8,500/-. Respondent is conducting an establishment known as Rohini Facility Management System from 2010. Family Court proceeded on the basis that he was engaging about 200 staff. But according to the husband, his business was Mat.Appeal No.915/14 & conn.cases -:24:- in a loss and he was having 20 employees. PW1 contended that the respondent husband was earning more than `2 lakh per month. Proceeding on the basis that husband had not produced anything to prove annual or monthly income and considering the nature of business, Family Court assumed that he would earn at least `50,000/- per month and accordingly, the Family Court fixed the maintenance of the 1st petitioner at `7,500/- per month. Past maintenance was fixed at `5,000/- per month for 3 years prior to the filing of petition and accordingly past maintenance was fixed at `1,80,000/- to the 1st petitioner. As far as the 2nd petitioner is concerned, on the very same basis, she was allowed future maintenance at `12,500/- per month and past maintenance at `10,000/- per month. There is no challenge to the maintenance awarded in favour of the daughter. The only contention urged is that the 1st petitioner is not entitled for any maintenance as she is employed. Apparently there is no evidence for the income derived by the respondent/husband. The Family Court proceeded on the basis that he might be deriving an income of `50,000/- whereas according to him, his business is running in loss. Be that as it may, when wife admits that she is having an income of Mat.Appeal No.915/14 & conn.cases -:25:- `8,500/- per month, according to us, the award of maintenance at `7,500/- as future maintenance is exorbitant. Past maintenance was also fixed at `5,000/-. Having regard to the nature of contentions urged, it is only appropriate to fix the past and future maintenance at `2,500/- per month. To that extent, the judgment of the Family Court is modified.
17. Cross Objection No.78/2019 has been filed in Mat.Appeal No.278/2019. The amount fixed for the second petitioner is reasonable taking into account the factual circumstances involved in the matter. In view of the above findings, the claim for maintenance @ `25,000/- to the first petitioner and `35,000/- to the 2nd petitioner does not survive for consideration and Cross Objection No.78/2019 is dismissed.
In the result, these appeals are disposed of as under:-
(i) Mat.Appeal Nos.915, 916, 917/2014 are dismissed.
(ii) Mat.Appeal No.254/19 is allowed. We set aside the judgment dated 28/1/2019 in OP No.1891/2016 and the OP is allowed as under:-
The marriage between the petitioner and the respondent shall stand dissolved by a decree of divorce. Mat.Appeal No.915/14 & conn.cases -:26:-
(iii) Mat.Appeal No.267/2019 is dismissed as infructuous.
(iv) Mat.Appeal No. 278/2019 is partly allowed. The order of past and future maintenance to the 1st petitioner is fixed at `2,500/- (Rupees Two thousand five hundred only) per month.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
MARY JOSEPH
Rp JUDGE