Partly allowed

R.Vijayan v. Sajani

Kerala HC14 Aug 2013Mat.Appeal/340/2013

Case brief

AI extract

What is this about?

In a matrimonial appeal against a Family Court judgment, the High Court confirmed the finding of the appellant's liability to marry and maintain the respondent. Despite denials of paternity, the Court held paternity conclusively established in prior judgments. The appeal was partly allowed to modify the mode of satisfaction, permitting withdrawal of a specific deposit plus interest instead of a mo

What did the court decide?

Respondent entitled to realize Rs.5 lakhs kept in Fixed Deposit with accrued interest in full satisfaction of her claim against the appellant.

R.Vijayan Vs Sajani — Matrimonial and Divorce | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935

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Mat.Appeal.No. 340 of 2013 ()

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AGAINST THE ORDER/JUDGMENT IN OP 598/2007 of FAMILY COURT, NEDUMANGAD DATED 05-01-2013

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APPELLANT(S)/RESPONDENT:

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R.VIJAYAN AGED 57 YEARS

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S/O.RAMASWAMY NADAR, KOTTUVILATHU VEEDU, VALLIKKADAVU NEERAMANKADAVU P.O, MITHIRMALA, VAMANAPURAM VILLAGE KALLARA, THIRUVANANTHAPURAM 695 608

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BY ADV. SRI.S.VISHNU

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RESPONDENT(S)/PETITIONER:

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SAJANI, AGED 20 YEARS D/O.VIJAYAN, MELEVILA VEEDU, POOVATHOOR NIRAMANKADAVU P.O, MITHIRMALA, VAMANAPURAM VILLAGE KALLARA, THIORUVANANTHAPURAM 695 608

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R1 BY ADV. SRI.LATHEESH SEBASTIAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & P.D.RAJAN, JJ.

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Mat.A.No.340 of 2013

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------------------------------------------Dated this the 14^th day of August, 2013

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JUDGMENT

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Antony Dominic, J.

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1.Respondent in O.P.No.598/07 on the file of the Family Court, Nedumangad is the appellant. The said OP was filed by the respondent herein claiming herself to the daughter of the appellant and seeking a declaration that the appellant being the father is bound and liable to give her in marriage and to meet the expenses for the same. She also prayed that the appellant be directed through a mandatory injunction to provide Rs.5 lakhs to her for her marriage expenses. By the judgment in appeal, the Family Court declared that the appellant is liable to give the respondent in marriage and also that he is liable to bear the marriage expenses. On that basis, the Family Court directed the appellant to provide Rs.5 lakhs to the respondent as her marriage expenses with interest at the rate of 12% per annum. It is aggrieved by this judgment, the appeal has been filed.

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Mat.A.340/13

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2.The main contention raised by the learned counsel for the appellant is that he has neither married the mother of the respondent nor is he the father of the respondent. It is also stated that he married one Girija on 9.5.1983 and that the mother of the respondent has married one Vijayakumar on 9.4.1980. He also contended that he did not have means to pay the amount claimed. Yet another contention raised was that the mother of the respondent was a rich lady with sufficient resources to maintain and give her daughter in marriage.

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3.In so far as the paternity dispute is concerned, from the order itself, we notice that paternity of the respondent was the issue before the Family Court in M.C.26/05 filed by the mother of the respondent. In that case, the Family Court declared that the appellant is the father of the respondent and that the finding of the Family Court was confirmed by this Court by dismissing the revision R.P(FC).24/07 filed by the appellant. Further, SLP(C).No.10360/10 filed by the appellant was also

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Mat.A.340/13

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dismissed by the Apex Court. In such circumstances, even if it is assumed that there was no marriage between the appellant and the mother of the respondent, so long as the issue of paternity stands concluded by the aforesaid judgments, it is not open to the appellant to again rake up the issue of paternity in a subsequent proceedings. Therefore the Family Court was right in rejecting the dispute raised by the appellant.

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4.As far as the claim of the appellant that the mother of the respondent is an affluent lady is concerned, once the issue of paternity is decided against the appellant, being the father, he is both legally and morally bound to maintain and give his daughter in marriage and it is also his duty to bear the expenses thereof. For that purpose, he cannot bank upon the resources of the mother of the respondent and seek to absolve of the liability. We fully endorse the view taken by the Family Court that there is no substance in the said contention raised by the appellant.

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Mat.A.340/13

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5.Now, what remains is that the plea that the appellant did not

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have the means to pay Rs.5 lakhs. In so far as this issue is concerned, it is disclosed that during the pendency of the matter, the Family Court had ordered attachment of immovable property jointly owned by the appellant and his mother. In order to get that attachment lifted, the appellant deposited the plaint claim of Rs.5 lakhs before the Family Court, which is still available in deposit. Once the amount is fully available to satisfy the decree against the appellant, the plea of no means now raised, in our view, is only academic. Therefore, we are not prepared to accept this contention at all. However, from the judgment of the Family Court, what we notice is that the appellant has been ordered to pay 12% interest on the amount of Rs.5 lakhs decreed by the Family Court. Proceeding further, the Family Court has also directed that if the appellant does not pay the decree debt of Rs.5 lakhs with 12% interest, the respondent can realize Rs.5 lakhs deposited by him, together with the interest that is accrued thereon. In our view, since the total amount claimed by the

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Mat.A.340/13

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respondent was only Rs.5 lakhs and as she is already married, it is only proper that the entire claim of the respondent should be satisfied by permitting her to withdraw Rs.5 lakhs deposited by the appellant along with the interest accrued thereon.

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6.In the result, we confirm the finding of the Family Court with a modification that the respondent will be entitled to realize Rs.5 lakhs kept in Fixed Deposit together with the interest accrued thereon, in full satisfaction of her claim against the appellant.

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Appeal ordered accordingly.

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ANTONY DOMINIC, Judge.

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P.D.RAJAN, Judge.

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kkb.

R.Vijayan v. Sajani

Case brief

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R.Vijayan v. Sajani

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