The Appellant-Husband appealed against the Family Court's dismissal of his petition to cancel an order enhancing his permanent alimony. The Court dismissed the appeal in limine due to lack of evidence.
The appeal was dismissed in limine with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN &
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934
Mat.Appeal.No. 59 of 2012 ()
OP.489/2011 of FAMILY COURT,KOZHIKODE
APPELLANT(S):
POKKALATHKANDY P.GOPINATHAN S/O.KANDAN, KOTTOOLY VILLAGE, PUTHIYAPALAM P.O.GOVINDAPURAM, KOZHIKODE-673 016
BY ADVS.SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
SRI.K.JAGADEESH
RESPONDENT(S):
KAMMALATT BABY
D/O.APPUTTY, NADUVATTOM AMSOM, DESOM P.O.ARAKINAR, KOZHIKODE-673028
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2012, THE COURT ON 04-06-2012 DELIVERED THE FOLLOWING:
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
Mat. Appeal No.59 of 2012 ----------------------------------------------Dated 4th June, 2012.
J U D G M E N T
Joseph Francis, J.
This appeal is filed by the petitioner in O.P.489/11 on the file of the Family Court, Kozhikode. The respondent herein was the respondent in that Original Petition, which was filed by the petitioner to cancel the order in O.P.143/98 dated 30.11.1998.
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30.11.1998. The appeal filed by the husband was dismissed by this Court. Thereafter, the husband is permanently paying Rs.750/- to the respondent/wife. The appellant/husband filed O.P.489/11 before the Family Court, Kozhikode to cancel that order due to changed circumstances. The respondent filed a detailed counter affidavit.
as PW1 and Exts.A1 to A6 were marked on the side of the petitioner. On the side of the respondent, RW1 was examined and Ext.B1 was marked. The Family Court, on considering the evidence on record, dismissed that petition on finding that there is no sufficient evidence and circumstance to rescind the order passed in O.P.143/98. Against that order, the petitioner filed this appeal.
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of SRO, Meenchanda and she developed that property and she is earning an income not less than Rs.25,000/- per month. It was further submitted that the appellant/husband has retired from a Bank and is getting only a meagre amount as pension and the appellant has to maintain his second wife and child.
or other circumstances of the party paying or receiving permanent alimony would justify an increase or decrease in the monthly maintenance originally fixed. The change in circumstance, alleged by the appellant is that at the time of consideration of O.P.143/98, the wife had suppressed her source of income. In that Original Petition, the petitioner/wife pleaded that she was not possessing any property, which was devolved upon her after the death of her mother. The appellant/husband alleges that the respondent got 24.15 cents of property as per partition deed No.3332/92 of SRO, Meenchanda. Ext.A2 is the copy of that partition deed. As per Ext.A2, the respondent obtained 24.15 cents of property. Ext.B1 is the copy of the document No.1031/05 dated 18.3.2005 of SRO, Meenchanda, by which, the respondent gave
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7 cents of property to her elder daughter. The allegation of the appellant is that the respondent had constructed a flat in her property and rented out the same and she is getting Rs.25,000/- as monthly rent. The respondent contended that she has sold 7 cents of property as per Ext.B1, out of the said 24.15 cents, for the purpose of the marriage of her second daughter and that she had borrowed some amount from her elder son-in-law and therefore, 7 cents of property was sold to her elder daughter. The respondent contended that the elder daughter and the son-in-law constructed a small flat therein and they are receiving income from it. The respondent further contended that she has no flat or income and that she has also no income from the remaining property.
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document to show his monthly pension. Therefore, as observed by the Family Court, adverse inference can be drawn against the appellant regarding this aspect. When the petitioner was examined as PW1, he admitted that the cost of living has increased at present. As observed by the Family Court, Rs.750/- per month granted as monthly maintenance is only a meagre amount, considering the present cost of living. The petitioner has not produced any document to show that he has no sufficient income to give Rs.750/- per month to the respondent/wife, as maintenance. Therefore, we are of the view that the Family Court is justified in dismissing O.P.489/11. Accordingly, this appeal is dismissed in limine, as it is without any merits. There is no order as to costs.
Sd/-
K.T.SANKARAN, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs
(true copy)
3 issues framed by the court
Whether the change in pecuniary circumstances of the parties justifies a modification of permanent alimony when evidence is lacking.
Whether adverse inference can be drawn against the husband for failing to produce documentary evidence regarding his income and the wife's assets.
Whether the Family Court was justified in dismissing the petition to cancel the maintenance order.
Pokkalatkandy P.Gopinathan
Kammalatt Baby
K.T. Sankaran
M.L. Joseph Francis
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
