Partly allowed

Abey T.Alex & Another v. Annie Thomas Varghese

Kerala HC12 Apr 2018Mat.Appeal/219/2008

Case brief

AI extract

What is this about?

This appeal concerns the recovery of money paid by the wife's father as patrimony and for wedding expenses. The High Court upheld the lower court's finding that Rs 2,00,000/- was paid as dowry but corrected the allowance for wedding expenses based on bank statements, modifying the decree against the respondents.

What did the court decide?

This appeal is allowed partly. Decree is modified imposing liability of Rs 2,00,000/- on both respondents, Rs 1,07,000/- on the first respondent, and Rs 6,000/- on the second respondent, with interest

Abey T.Alex & Another Vs Annie Thomas Varghese — Maintenance and Alimony | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE K.HARILAL &

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THE HONOURABLE MR. JUSTICE A.M.BABU

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THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940 Mat.Appeal.No. 219 of 2008

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AGAINST THE ORDER/JUDGMENT IN OP 693/2006 of FAMILY COURT, KOTTAYAM DATED 03-12-2007

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APPELLANT(S)/APPELLANTS/RESPONDENTS:

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1 ABEY T.ALEX, AGED 38 YEARS, S/O. T.A.ALEXANDER, HOUSE NO.34/607A,, THAIPARAMBIL HOUSE, PADIVATTOM, EDAPPILLY P.O.,, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK,, ERNAKULAM DISTRICT, COCHIN-24.

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2 T.A. ALEXANDER, AGED 65 YEARS, S/O. LATE T.K. ABRAHAM, HOUSE NO.34/607A,, THAIPARAMBIL HOUSE, PADIVATTOM, EDAPPILLY P.O.,, EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK,, ERNAKULAM DISTRICT, COCHIN-24.

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BY ADVS.SRI.MANJU ANTONEY SRI.K.JAYAKUMAR(CHERTHALA) SRI.KURIAKOSE MATHEW

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RESPONDENT(S)/PETITIONER::

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ANNIE THOMAS VARGHESE, AGED ABOUT 34 YEARS, D/O. THOMAS VARGHESE,, PUTHENPARAMBIL HOUSE, (SHELTER), MUTTAMBALAM P.O.,, MUTTAMBALAM KARA AND VILLAGE, KOTTAYAM TALUK,, KOTTAYAM DISTRICT.

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R, BY ADV. SRI.ALEX GEORGE R, BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL R, BY ADV. SRI.KOSHY GEORGE

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-04-2018 ALONG WITH MA NO.776/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.HARILAL & A.M.BABU, JJ.

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--------------------------Mat.Appeal Nos 219/2008 and 776/2009 -----------------------------------Dated : 12^th April, 2018

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JUDGMENT

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A.M.Babu, J.

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1.The family court consolidated three petitions for trial and disposed of them by a common judgment. One of the petitions was filed by the wife for return of money. The family court decreed the claim partly. Both parties are in appeal. We refer to the parties as they are shown in the original petition. Petitioner was the wife of the first respondent, now ex-wife. The second respondent is the father of the first respondent.

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The case of the petitioner is briefly stated below: She was married to the first respondent. Before marriage her father entrusted Rs 2,00,000/in cash with the second respondent as petitioner's patrimony. The entire expenses for the marriage was met by the father of the petitioner. All her dresses, books and other personal belongings worth

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MA.219/08 & 776/09

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Rs 1,00,000/- are kept in the house of the respondents. While the couple were living in Bangalore, all their expenses were met by the father of the petitioner. The total amount so spent by the petitioner's father was Rs 3,00,000/-. The petitioner is entitled to a decree for Rs 5,00,000/-.

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The respondents raised the following contentions: There was no payment of Rs 2,00,000/- by the father of the petitioner to any of the respondents. The amount entrusted with the 2^nd respondent was only Rs 1,00,000/-. That payment was made for meeting the expenses of the marriage. It was not the patrimony of the petitioner. Every expense in Bangalore was met by the first respondent and not the father of the petitioner. The respondents never appropriated any money of the petitioner.

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Both sides adduced evidence before the trial court. PWs 1 and 2 and RW1 were examined. Exts A1 to A10 and B1 to B10 were marked. The family

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MA.219/08 & 776/09

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court accepted the case of the petitioner that there was a payment of Rs 2,00,000/- in connection with the marriage as contended by the petitioner. The claim of Rs 3,00,000/- was decreed only to the extent of Rs 1,37,000/-. The respondents suffered a decree for Rs 3,37,000/-. The petitioner appeals since her whole claim was not decreed. The respondents appeal against the decree they suffered.

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5.Heard Sri.Manju Antoney and Sri.Alex George, the learned counsel for the petitioner and the respondents respectively.

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6.The claim of the petitioner was under two heads. One, payment of Rs 2,00,000/- as patrimony before the marriage. Two, payment of a total amount of Rs 3,00,000/- for meeting the expenses in Bangalore. The second claim was decreed partly only. The first claim was decreed in toto.

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7.The respondents admitted having received Rs 1,00,000/- just before the marriage. They contend

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MA.219/08 & 776/09

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that they received it not as the petitioner's patrimony, but towards the expenses of the marriage. The respondents should meet the expenses of the marriage of the 1^st respondent by themselves. They cannot meet the expenses of the marriage with the money taken from the petitioner. Under Sec. 2 of the Dowry Prohibition Act, anything paid in cash or kind in connection with marriage at, before or after the marriage is dowry. Under Sec.6 of the said Act, any dowry taken from the side of the woman shall be the property of the woman and shall be transferred to her within the time specified in the section itself. Till then, the section commands, the person who holds the property of the woman shall hold it in trust for the woman. Therefore any money collected from the side of the wife shall be returned to her by her husband and in-laws. The respondents should return Rs 1,00,000/- even if the petitioner fails to prove that the payment was Rs 2,00,000/-.

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8.The case of the petitioner is that the amount

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MA.219/08 & 776/09

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entrusted with the 2^nd respondent was Rs 2,00,000/-. Evidence was also produced to prove the said entrustment. PW1 is the petitioner herself. She filed an affidavit in lieu of her examination-in-chief. In it she swore that there was an entrustment of Rs 2,00,000/- with the 2^nd respondent before the marriage took place. The father of the petitioner gave evidence as PW2 in tune with the evidence of his daughter. PW2 spoke to his source to raise money. He was working abroad for a long time; from 1974 to 2001.

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9.Having read the evidence of Pws1 and 2, we find little scope to interfere with the finding of the family court that there was a payment of Rs 2,00,000/- before solemnization of the marriage. Ext A7 is the statement of accounts pertaining to the account of PW2 maintained by him with his banker. Ext A7 proves the withdrawal of Rs 1,42,000/-. The amount was withdrawn on 28.10.1996. The withdrawal of that much amount shows that the case of the petitioner is more probable. Both PWs 1 and 2 withstood cross-

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MA.219/08 & 776/09

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examination ably. Nothing tangible could be brought out in cross-examination to disbelieve their evidence.

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Strictly, no rebuttal evidence was adduced on the side of the respondents. The 1^st respondent alone gave evidence. The allegation of the petitioner was that the amount of Rs 2,00,000/was entrusted with the 2^nd respondent. He did not choose to go to the witness box to rebut the evidence that he did receive Rs 2,00,000/-. The evidence of the 1^st respondent alone is not sufficient to meet the evidence adduced on the side of the petitioner. The 2^nd respondent should have gone to the witness box, sworn to his case, denied receipt of Rs 2,00,000/- and shown the courage to face cross-examination. An adverse inference shall be drawn against the person with whom was the entrustment made. The amount was entrusted with the 2^nd respondent in connection with the marriage of the 1^st respondent and therefore both are liable to the petitioner. We do not find any reason whatsoever to interfere with

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MA.219/08 & 776/09

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the finding of the family court on entrustment of Rs 2,00,000/-.

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The learned counsel for the respondents submitted that he filed an application as I.A.824/2008 under order XLI rule 27 of CPC. The affidavit in support of the said application was filed by the 2^nd respondent. We perused the affidavit. It does not state a single reason for reception of additional evidence at the appellate stage. Order XLI rule 27 is a provision which is very strict. It is not a provision which can be sparingly used. The provision insists on certain conditions for the appellate court to receive additional evidence. It is of course stated in the affidavit that sufficient opportunity was not given to the respondents to adduce evidence. The deponent of the affidavit does not disclose how the family court prevented the respondents from adducing evidence. Additional evidence can be received under order XLI rule 27 only if any of the three conditions mentioned therein is satisfied. There is no allegation that the family

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MA.219/08 & 776/09

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court refused to admit evidence which ought to have been admitted. It is not stated in the affidavit that notwithstanding the exercise of due diligence, the evidence now sought to be produced was not within the knowledge of the respondents or could not, after the exercise of due diligence, be produced at the time when the decree appealed against was passed. This is not a case where the appellate court directed any party to adduce further evidence. None of the conditions in order XLI rule 27 is satisfied. The 2^nd respondent states at paragraph 3 of the affidavit that himself and other witnesses are to be examined and documents like statements of accounts from the bank are to be produced. These statements in the affidavit do amount to, although indirectly, an admission on the side of the respondents that they did not adduce sufficient evidence to rebut the evidence of the petitioner. We find no reason to allow I.A.824/2008. We dismiss it.

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Of the amount of Rs 3,00,000/- claimed by the petitioner, the family court allowed to realize

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MA.219/08 & 776/09

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only Rs 1,37,000/-. Exts A8 and A9 are the statements of accounts relating to bank account of PW2. In Ext A8 account the petitioner is relying on six instances of payment of money by cheques drawn on that account. Those payments were made on 15.2.1999, 17.8.1999, 27.9.1999, 9.3.2000, 4.4.2000 and 19.3.2001. The amounts paid by cheques were Rs 5000/-, Rs 30,000/-, Rs 31,000/-, Rs 7000/-, Rs 10,000/- and Rs 6000/- respectively. Those figures total to Rs 89,000/-. The payment by cheque on 27.9.1999 for Rs 31,000/- was not to the 1^st respondent, but to the petitioner. The husband is not responsible to return the payment made to the wife by her father. There is no evidence on the side of the petitioner that the said payment was in fact in favour of the 1^st respondent through the petitioner. Therefore Rs 31,000/- should be deducted from Rs 89,000/-. The liability proved by Ext A8 is not Rs 82,000/-, but Rs 58,000/- only.

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Ext A9 account shows payment of Rs 55,000/- to the 1^st respondent by cheques. The family court was right in accepting the amount shown in Ext A9 to

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MA.219/08 & 776/09

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fasten the liability with the 1^st respondent.

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We do not find any merit in the appeal filed by the petitioner. We said so because the petitioner did not adduce any tangible evidence to prove her claim upto Rs 3,00,000/-. Therefore her appeal is liable to be dismissed.

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The petitioner is entitled to realise Rs 2,00,000/- from the respondents as already seen. The family court granted a decree for Rs 1,37,000/- against both the respondents. The correct figure is not Rs 1,37,000/-, but Rs 1,13,000/- (58,000 + 55,000). The 2^nd respondent is not liable to answer the said claim of the petitioner, except the claim for Rs 6000/-. The said payment of Rs 6000/- was made by cheque to the 2^nd respondent. The 1^st respondent is not answerable to the amount of Rs 6000/-. The decree granted by the family court shall be modified accordingly.

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We conclude. We dismiss Mat.Appeal 776/2009. We

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MA.219/08 & 776/09

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allow Mat.Appeal 219/2008 partly. The decree granted by the family court in favour of the petitioner stands modified as under : Both the respondents shall be liable to the petitioner for Rs 2,00,000/- (two lakhs only). In addition to that, the 1^st respondent shall be liable to the petitioner for Rs 1,07,000/- (one lakh seven thousand only) and the 2^nd respondent shall be liable for Rs 6000/- (six thousand only). There shall be a decree in the above terms in favour of the petitioner. The amounts shall carry interest at the rate of 6% per annum from the date of suit till realization. The costs of Rs 2000/- awarded to the petitioner by the family court is retained. The parties shall suffer their respective costs in both appeals.

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Sd/-

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K.HARILAL Judge Sd/A.M.BABU Judge

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Mrcs/13.4.

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/True copy/

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P.S.To Judge

Abey T.Alex & Another v. Annie Thomas Varghese

Case brief

What is this about?

What did the court decide?

Abey T.Alex & Another v. Annie Thomas Varghese

Case brief

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What did the court decide?

What the court decided

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