Partly allowed

Anithakumari v. Kavitha G.S

Kerala HC9 Feb 2017Mat.Appeal/14/2017

Case brief

AI extract

What is this about?

The Family Court awarded gold ornaments and maintenance against respondents including the appellant without hearing her on merits. This Court held that due to potential ambiguity and lack of hearing, the decree against the appellant was set aside and the matter remanded for fresh consideration limited to her claim.

What did the court decide?

Decree against the appellant set aside; matter remanded to Family Court for fresh adjudication limited to the appellant's claim; OP to be disposed within three months.

Anithakumari Vs Kavitha G.S — Maintenance and Alimony | Kerala HC (2017)

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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 A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938

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Mat.Appeal.No. 14 of 2017 ()

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AGAINST THE JUDGMENT IN OP 1208/2013 of FAMILY COURT, ATTINGAL DATED 10-02-2015

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APPELLANT(S)/2ND RESPONDENT IN OP:

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ANITHAKUMARI D/O. RAMACHANDRAN, KAMARVILAKOM, VALIYAKADA, SARKARA VILLAGE, CHIRAYINKEEZHU, PIN-695304

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BY ADVS.SRI.A.RAJASIMHAN SRI.K.NIRMALAN

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RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 AND 3 IN OP: -------------------------------------------------------

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1. KAVITHA G.S D/O. SURESH KUMAR, KALIYIL VEEDU, CHANDIRAM, KADAKAM, SARKARA VILLAGE, CHIRAYINKEEZH PIN-695304

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2. ARUN DIVAKARAN S/O. DIVAKARAN, KAMARVILAKOM, COMPANY EMPLOYEE, VALIYAKADA, SARKARA VILLAGE, CHIRAYINKEEZHU PIN-695304. 3. DIVAKARAN, S/O VISWANATHAN, KAMARVILAKOM, VALIYAKADA, SARKARA VILLAGE, CHIRAYINKEEZHU 695304.

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R1 & R2 BY ADV. SRI.BRIJESH MOHAN R1 & R2 BY ADV. SMT.RESMI G. NAIR R3 BY ADV. SRI.T.R.KRISHNADAS

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 0902-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MAT.APPEAL NO.14/17

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APPENDIX

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APPELLANT'S EXHIBITS

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ANNEXURE A1: TRUE COPY OF THE SALE PROCLAMATION DT 20.12.2016.

//True Copy//

PS to Judge

A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.

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=========================== Mat.Appeal No. 14 of 2017

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==================

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Dated this, the 9^th day of February, 2017

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J U D G M E N T

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Shaffique, J.

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This appeal is filed against the judgment in OP No.1208/13 by which the Family Court has passed an award in favour of the 1^st respondent herein directing the respondents in the OP to return 62½ sovereigns of gold or its market value. Direction also had been issued against the 1^st respondent therein to pay 60,000/towards past maintenance and 5,000/- as maintenance in favour of the 1^st respondent herein.

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The appeal is filed by the 2^nd respondent in OP No.1208/13. According to her, though a written statement has been filed, without considering any of the contentions urged, an ex parte order had been passed by the Family Court. Learned counsel points out that though in the original petition claim for entrustment of the gold ornaments had been stated in the proof

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Mat.Appeal No.14/17

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-:2:-

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affidavit, allegation of enturstment of gold ornaments was made only against the 1^st respondent in the OP, i.e., the 2^nd respondent herein. In the absence of any evidence in the proof affidavit implicating all the respondents in the OP, there was no reason to grant a decree. It is stated that the appellant was not entrusted with any of the gold ornaments as alleged and the said contention of the 1^st respondent herein had been specifically denied. However, without any proof regarding such entrustment as against the appellant, the judgment had been passed.

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Learned counsel appearing for the 1^st respondent however would submit that when the case was posted for evidence, there was no appearance on behalf of the appellant and other parties, as a result of which a decision was taken ex parte . It was also contended that the Family Court had passed the order based on the proof affidavit and the entrustment of gold ornaments was specifically stated.

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Having heard the learned counsel appearing on either side and having perused the records, we are of the view that in so far as an ex parte decree had been passed with reference to the substantial quantity of gold ornaments valuing `16,11,120/-,

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Mat.Appeal No.14/17

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-:3:-

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though there is some laches on the part of the appellant, an opportunity ought to have been given. True that the Court below had acted based on the proof affidavit filed on behalf of the 1^st respondent. But in the proof affidavit, entrustment is stated only as against “ respondent ”. It is not stated in plural. Therefore, there is some ambiguity as far as the claim in the original petition is concerned compared to that in the proof affidavit.

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Taking into consideration the fact that an ex parte order had been passed and there is some ambiguity in respect of the claim, it is appropriate that the matter is considered afresh by the Family Court. However, it is made clear that since respondents 2 and 3 herein have not challenged the decree, an opportunity is granted only to the appellant herein to contest the matter and her claim alone shall be considered on merits.

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Accordingly, the appeal is disposed of as under:-

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(i) The decree passed against the appellant alone is hereby set aside and the Family Court shall consider the matter afresh and pass appropriate orders.

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(ii) OP No.1208/2013 shall be disposed of within a period of three months from the date of receipt of a copy of this

Mat.Appeal No.14/17

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judgment.

(iii) The appellant and the 1^st respondent shall appear before the Court below on 27/2/2017.

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Sd/- A.M. SHAFFIQUE, JUDGE

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Sd/- K.RAMAKRISHNAN, JUDGE

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Rp9/2/2017

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//True Copy//

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P.S to Judge

Anithakumari v. Kavitha G.S

Case brief

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Anithakumari v. Kavitha G.S

Case brief

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