Kerala High Court
Mohanakumar vs Sobha @ Swarnalatha on 30 April, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY,THE 13TH DAY OF JANUARY 2014/23RD POUSHA, 1935
Mat.Appeal.No. 424 of 2012 ()
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AGAINST THE JUDGMENT IN OP 1281/2004 of FAMILY COURT,TRIVANDRUM
DATED 30-04-2012
APPELLANT(S)/PETITIONER:
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MOHANAKUMAR, AGED 48 YEARS
HOUSE NO 186/285, M.M.K. ELLOM,
MEENAKSHIPURAM N.M.C NAGARAJA CROSS ROAD,
NAGERCOIL, KANYAKUMARI DIST
BY ADVS.SRI.G.VENUGOPAL
SRI.L.RAJESH NARAYAN
RESPONDENT(S):
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1. SOBHA @ SWARNALATHA, AGED 38 YEARS,
D/O.PRABHAVATHI NATARAJA BHAVAN T.C. NO.41/8241
PUTHENKOTTA, THIRUVANANTHAPURAM DIST.
2. AJI(MINOR), AGED 15 YEARS
REPRESENTED BY SWARNALATHA (MOTHER)
R1 BY ADV. SRI.BASANT BALAJI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC & P.D.RAJAN, JJ.
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Mat.A.No.424 of 2012
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Dated this the 13th day of January, 2014
JUDGMENT
Antony Dominic, J.
1.This appeal is filed against the judgment rendered by the Family Court, Trivandrum in OP.1281/04.
2.The OP was filed by the respondents herein, who are the wife and child of the appellant husband. Going by the pleadings, the marriage between the first respondent and the appellant was solemnized on 23.2.1995 and in the wedlock, the second respondent was born. According to the first respondent, at the time of marriage, the appellant had demanded 100 sovereigns of gold ornaments and Rs.1,00,000/- as dowry. However, she was given only 75 sovereigns of gold ornaments, Rs.75,000/- towards patrimony, furniture worth Rs.50,000/- and household utensils for Rs.30,000/-. It is stated that after marriage, the appellant utilized the entire gold ornaments and the money for constructing a building in his property at Nagarcoil. She alleged that on 29.9.2003, the MA.424/12 2 appellant sent her to her house at Trivandrum to fetch an amount of Rs.1,00,000/- from her father. However, she returned to the matrimonial home on 5.10.2003 with her mother and informed the appellant of her inability to pay the amount. Thereupon, she, the child and her mother were brutally attacked and were ousted from the house. They took refuge in the neighbour's residence and got admitted in a hospital on 6.10.2003. She made a complaint to the police. It is subsequently that she filed the OP seeking return of 75 sovereigns of gold ornaments, household articles worth Rs.80,000/- and also past and future maintenance for her and for the child at the rate of Rs.3,000/- and Rs.2,500/- respectively.
3.The appellant filed a written statement contesting the claims of the respondents. Before the Family Court, PWs.1 to 3, the first respondent, her father and mother, were examined and the appellant was examined as CPW1. Exts.A1 to A7 and B1 to B5 were also marked. The Family Court, by the impugned judgment and decree dated 30.4.2012, directed the appellant to return 50 sovereigns of gold ornaments MA.424/12 3 or its market value at the rate of Rs.21,500/- per sovereign and Rs.75,000/- towards patrimony and to pay past and future maintenance at the rate of Rs.2,000/- to the first respondent and Rs.1,500/- to the second respondent child. It is aggrieved by this judgment and decree passed by the Family Court that the appellant husband has filed this appeal.
4.We heard the learned counsel for the appellant and the learned counsel appearing for the respondents.
5.In so far as the maintenance ordered is concerned, as we have already stated, past and future maintenance claimed was at the rate of Rs.3,000/- and Rs.2,500/- respectively and the Family Court, by the impugned order, decreed maintenance at the rate of Rs.2,000/- and Rs.1,500/- respectively to the first and second respondents. The status of the first respondent as the wife of the appellant and the paternity of the second respondent child are not matters of dispute. The fact that the appellant is a bus conductor in the Tamil Nadu State Transport Corporation is also not disputed. The evidence before the Family Court also MA.424/12 4 shows that even according to the appellant, who was examined as CPW1, he was earning a carry-home salary of Rs.10,000/- and he also admitted his willingness to pay maintenance to the respondents at the rate as ordered by the court.
6.As far as the income of the first respondent is concerned, attempt of the appellant was to contend that she owns a photocopying shop. However, in her cross examination, she has denied the ownership of the shop and according to her, the shop is owned by her father. Her father, who was examined as PW2, has also confirmed that the shop is owned by him. The appellant also contended that the respondent owns a two storeyed building and that the first floor was let out on rent. However, in her evidence, the first respondent has denied the ownership of the building and PW2, her father, deposed that the building is owned by him. The appellant did not produce any evidence to prove his case that the photocopying shop or the building mentioned above are owned by the first respondent. In other words, there was no MA.424/12 5 evidence to show that the first respondent had any independent source of income to maintain herself.
7.As regards the income of the second respondent child, at the time of evidence, the child was a 10th standard student who would not have any income of its own. It was considering these circumstances that the Family Court awarded payment of past and future maintenance at the rate of Rs.2,000/- and Rs.1,500/- respectively. Having considered the case in its entirety, we are unable to find any illegality in the conclusion of the Family Court regarding maintenance.
8.The second issue that arises for consideration is the correctness of the decree passed by the Family Court directing return of 50 sovereigns of gold ornaments or its market value of Rs.21,500/- per sovereign. It is true that there is no document except Ext.A4 series of photographs and the oral evidence of Pws.1 to 3 to substantiate the claim that the first respondent had 75 sovereigns of gold at the time of her marriage. However, it is to be noted that in the pleadings, she had specifically contended that at the MA.424/12 6 time of her marriage, although the appellant had demanded 100 sovereigns of gold ornaments, her parents could give her only 75 sovereigns of gold. Though such a specific averment is made in paragraph 2 of the petition, there is no denial of this assertion in paragraph 5 of the written statement, in which, paragraph 2 of the OP was answered by the appellant. In other words, the appellant did not deny the fact that the respondent had 75 sovereigns of gold ornaments at the time of her marriage.
9.On the other hand, the appellant attempted to contend that the respondent left the matrimonial home on her own and that at the time of leaving the matrimonial home, she had taken whatever ornaments she owned. In this context, the consistent evidence of PWs.1 and 2 together with Ext.A3 series of letters written by the first respondent to her father show that she was subjected to various types of matrimonial cruelties at her matrimonial home. The contents of Ext.A3 and the oral evidence, as rightly pointed out by the Family Court, substantiate her case that it was on account of the matrimonial cruelties that she had to MA.424/12 7 leave the house of the appellant. It is evident from the pleadings that the first respondent, her child and her mother were ousted from the matrimonial home at the night of 5.10.2003 when they were assaulted by the appellant. If such a thing had happened, it would be imprudent to think that the first respondent thereupon took with her the gold ornaments at the time of leaving the house. The appellant did not also adduce any independent evidence to substantiate his plea that the first respondent had taken away the gold ornaments. Evidently therefore, the fact that she had gold ornaments at the time of her marriage and that she did not take the gold ornaments in question at the time of leaving the matrimonial home stand proved in this case.
10.Another question to be considered is the quantity of gold ornaments that the first respondent had. We have already found that there is no documentary evidence regarding the quantum of gold possessed by her. However, Ext.A4 wedding photographs, the genuineness of which were not disputed by the appellant, showed that the first respondent was MA.424/12 8 wearing a substantial quantity of gold ornaments and referring to this material, the Family Court reached a conservative estimate that the first respondent wore at least 50 sovereigns of gold ornaments at the time of her marriage. This estimate, though a rough one, was the only manner of quantification of gold that was possible in the circumstances of this case and we do not think that the appellant has succeeded in pointing out any vitiating circumstances in such quantification. We, therefore, uphold that conclusion of the Family Court.
11.Now what remains is the decree enabling the first respondent to recover Rs.75,000/- paid as patrimony. In so far as this appeal is concerned, in paragraph 2 of the petition, the wife has stated that at the time of her marriage, she was given Rs.75,000/- as patrimony. In paragraph 5 of the written statement filed by the appellant, there is no specific denial of this claim. That apart, evidence tendered by PWs.1 and 2 and a photograph produced along with Ext.A4 series show that at the time of her betrothal, the amount was paid to the appellant. Apart from the MA.424/12 9 attempt made by the appellant during the course of his evidence to deny the receipt of patrimony, he did not adduce any evidence in that regard. It is in this circumstance that the Family Court accepted this claim also and we are unable to find any fault in that conclusion also.
In the result, we do not find any vitiating circumstances justifying interference with the order of the Family Court. The appeal fails. It is accordingly dismissed.
Sd/-
ANTONY DOMINIC, Judge.
Sd/-
P.D.RAJAN, Judge.
kkb.