Dismissed

Dr.Stanly.S v. Mareena Mini

Kerala HC14 Jun 2018Mat.Appeal/384/2008

Case brief

AI extract

What is this about?

This matrimonial appeal challenges the Family Court's decree ordering the return of gold ornaments and maintenance payments. The Supreme Court dismissed the appeal, upholding the decree based on the appellant's admission of pledging gold and failure to produce redemption records, while affirming the maintenance order.

What did the court decide?

Appeal dismissed; original decree for gold ornaments and maintenance order of `2,000/- and `1,000/- per month upheld.

Dr.Stanly.S Vs Mareena Mini — 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 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940

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Mat.Appeal.No. 384 of 2008

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AGAINST THE JUDGMENT DATED 18-12-2007 IN OP 1600/2003 of FAMILY COURT,TRIVANDRUM

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APPELLANT/RESPONDENT:-

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DR. STANLY.S, AGED 44, S/O SATHYANESAN,

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GOVERNMENT PRIMARY HEALTH CENTRE, ANCHUTHENGU, THIRUVANANTHAPURAM DISTRICT.

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BY ADV.SRI.R.T.PRADEEP

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RESPONDENTS/PETITIONERS 1 TO 3:-

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1. MAREENA MINI, AGED 43, S/O LANCELET BAI, RESIDING AT LOUIS COMPOUND, NEAR SOUMYA THEATRE, PUTHENKADA, THIRUMALA,THIRUVNANTHAPURAM.

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2. MEGHA MERIN, AGED 13,D/O MAREENA MINI, RESIDING AT DO.....DO......

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3. SNEHA SERIN, AGED 10,D/O MEREENA MINI,

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RESIDING AT DO......DO....

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R1 BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL & A.M. BABU,JJ. = = = = = = = = = = = = = = = = = Mat. Appeal No.384 of 2008 - - - - - - -- - - - - - - - - - - - - - Dated this the 14^th day of June, 2018

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J U D G M E N T

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K. Harilal, J.

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The appellant is the respondent in Original

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Petition No.1600 of 2003 of the Family Court, Thiruvananthapuram. He is the husband of the 1^st petitioner in the aforesaid Original Petition. The said Original Petition was filed, seeking a decree for realising 36 sovereigns of gold ornaments or its value and 1,00,000/- from the appellant herein. So also, the 1st respondent sought for an order, directing the appellant to pay maintenance allowance at the rate of 4,000/- and `2,500/- respectively to the respondents 2 and 3. The Family Court passed the impugned judgment, granting a decree to realise 36.200 grams of gold ornaments or its value from the

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Mat. Appeal No. 384 of 2008

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appellant and passed an order directing the

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appellant to pay maintenance allowance at the rate of 2,000/- and 1,000/- per month to the 2^nd and 3^rd respondents respectively with effect from the date of petition. This appeal is filed, challenging the findings, whereby the Family Court allowed the Original Petition by granting a decree as referred above.

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Heard the learned counsel for the

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appellant.

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The sum and substance of the arguments advanced by the learned counsel for the appellant is

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that the Family Court failed to appreciate the evidence on record, both oral and documentary in its correct perspective. In view of the said argument, the point to be considered is, whether the Family

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Court is justified in granting a decree for

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Mat. Appeal No. 384 of 2008

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realising 36.200 grams of gold ornaments or its value from the appellant and directing him to pay maintenance allowance at the rate of `2,000/- to the

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2^nd respondent and `1,000/- to the 3^rd respondent per month.

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It is the case of the respondents that the marriage between the appellant and the 1^st respondent was solemnized on 12.05.1993 and the respondents 2 and 3 are the children born in the said wedlock. At

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the time of marriage, the 1^st respondent was given 36 sovereigns of gold ornaments and the appellant was given 1,00,000/- as pocket money in connection with the marriage by the father of the 1st respondent. In addition to that, the parents of the 1st respondent has given household articles worth 50,000/- to the 1^st respondent and when she left from the matrimonial home, those household articles were remaining in the

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Mat. Appeal No. 384 of 2008

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matrimonial home and the appellant has not returned

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the same. Therefore, the appellant is liable to return the household articles or its value. According to the 1^st respondent, subsequently the appellant misappropriated entire gold ornaments and sold away to meet his own needs.

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The appellant filed objection, disputing the claim for money, gold ornaments and household articles. According to him, no amount was given to him in connection with the marriage as pocket money. The aforesaid Original Petition was filed at the instance of the parents of the 1^st respondent and actually the 1^st respondent is not at all interested to file such a petition. The payment of money is a fabricated story. He is ready to look after the affairs of the respondents, provided they come and

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reside with him. He is not liable to pay

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Mat. Appeal No. 384 of 2008

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maintenance allowance to the respondents, as they

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are residing separately, without any reason or cause.

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Going by the impugned judgment, it is seen

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that in order to prove the claim for money and gold ornaments, the father of the 1^st respondent was examined as CPW1. He has sworn proof-affidavit in terms with the averments in the petition. After examining the oral testimony of the father of the 1^st respondent as CPW1, the Family Court observed that the oral testimony of CPW1 alone is not sufficient to prove the case of the 1^st respondent with regard to gold ornaments.

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But, thereafter, the Family Court found

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that the admission from the part of the appellant himself with respect to the gold ornaments is sufficient to grant a decree for 36.200 grams of

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Mat. Appeal No. 384 of 2008

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gold ornaments. During the course of examination, in the chief-affidavit itself the appellant admitted that he had pledged some of the gold ornaments in a bank by name 'Chithra Bank', Kattakkada and spent the money for purchasing property in the name of the 2^nd respondent. He further admitted that Ext.B4 is the receipt evidencing the pledging of the said gold ornaments. Ext.B4 shows that he had pledged gold ornaments weighing 36.200 grams. Further, he deposed that he released the said gold ornaments from the Bank and returned to the 1^st respondent. But, to prove the redemption of the pledged gold ornaments and return of the same to the 1^st respondent, there is no evidence other than the oral assertion of the appellant. It is not disputed that the aforesaid 36.200 grams of gold ornaments also form a part of 36 sovereigns of gold ornaments

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Mat. Appeal No. 384 of 2008

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claimed by the 1^st respondent. Thus, as rightly

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found by the Family Court, the appellant himself admitted the appropriation of 36.200 grams of gold ornaments. Therefore, the burden was heavy on the appellant to prove that after releasing the pledged gold ornaments from the bank he had returned the same to the 1^st respondent. It is pertinent to note that Ext B5 notice shows that when the appellant failed to redeem the pledged ornaments, the bank issued a notice stating that on the failure to redeem the mortgaged gold ornaments, the bank would realize the amount by selling the gold ornaments in

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auction. Thus it is discernible from Ext.B5 notice that the appellant failed to redeem the pledged ornaments from the bank. So also he admitted that the redemption of the pledged ornaments can be ascertained from the bank records only. Therefore

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Mat. Appeal No. 384 of 2008

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it was incumbent upon the appellant to produce necessary bank records to show that he had redeemed the gold ornaments from the bank. Had he redeemed the gold ornaments, certainly he would have produced the same before the court. Therefore an adverse inference also can be drawn against the appellant. In the absence of evidence to prove the redemption and return of 36.200 grams of gold ornaments, the Family Court is justified in granting a decree for returning 36.200 grams of gold or its value, we do not find any reason to interfere with the said finding.

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Coming to the maintenance order, the parentage of the respondents 2 and 3 is not disputed by the appellant. So also, it is admitted that he is working as a Civil Surgeon in the Government service and he is getting a total salary of

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Mat. Appeal No. 384 of 2008

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`13,286/- per month. After recovery his net salary

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is shown as `9,001/-. At the time of filing the MC, the 2^nd respondent was aged seven years and the 3^rd respondent was aged five years and they were studying in school. A father is liable to pay maintenance allowance to meet expenses for food, shelter, education, medical care etc., of his children. He cannot escape from his liability for the reason that the children are not residing with him.

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Having regard to the income and probable

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expenses to be incurred for the day-to-day life of respondents 2 and 3, the family court is justified in passing an order directing the appellant to pay maintenance allowance at the rate of 2000/- and 1000/- respectively to respondents 2 and 3. We do

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not find any reason to interfere with the quantum of

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Mat. Appeal No. 384 of 2008

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maintenance allowance determined by the family court.

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Hence this appeal is dismissed. All pending

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Interlocutory Applications will stand closed.

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Sd/-

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K. HARILAL, JUDGE

Sd/-

A.M. BABU, JUDGE

DST/Mrcs

//True copy//

P.A. To Judge

Dr.Stanly.S v. Mareena Mini

Case brief

What is this about?

What did the court decide?

Dr.Stanly.S v. Mareena Mini

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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