Allowed

Bindu K.P. v. Surendran C.K.

Kerala HC1 Feb 2018Mat.Appeal/582/2007

Case brief

AI extract

What is this about?

In this matrimonial appeal, the High Court of Kerala allowed the husband's liability to pay maintenance to the divorced wife retrospectively and directed the return of gold ornaments deemed as dowry, rejecting the set-off claimed by the lower court.

What did the court decide?

Maintenance of Rs. 1500/- per month from 21.1.2001 to 30.7.2004; Return of 2.25 sovereigns gold or equivalent value.

Bindu K.P. Vs Surendran C.K. — Maintenance and Alimony | Kerala HC (2018)

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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 K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU

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THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939

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Mat.Appeal.No. 582 of 2007

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OP 131/2004 of FAMILY COURT, ERNAKULAM DATED 23-04-2007

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APPELLANT/PETITIONER

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BINDU K.P. AGED 29, KELOTH HOUSE, PALLURUTHY P.O., KONAM, KOCHI-6

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BY ADV.SRI.SUBAL J.PAUL SMT.SHEEBA THOMAS

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RESPONDENT/RESPONDENT:

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SURENDRAN C.K.

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AGED 36, S/O. KRISHNAN, CHAVARUTHI PARAMBU, NETTOOR, MARADU,KOCHI 682 304.

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BY ADV.SRI.P.V.GEORGE(PUTHIYIDAM)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01-022018, 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.582 of 2007

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- - - - Dated : 1^st February, 2018

JUDGMENT

A.M.Babu, J

1.Appellant is the ex-wife of the respondent. The former approached the family court with two claims. One, past and future maintenance. Two, return of 11 sovereigns of gold ornaments or Rs 50,600/- as the value thereof and a few household articles. The family court refused one of the claims of the appellant and allowed the other claim partly.

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2.The case of the appellant is briefly stated below : She and the respondent were married on 19.5.1996. They moved a joint petition for divorce by mutual consent. The same was allowed on 30.7.2004. The appellant had 16 sovereigns of gold ornaments at the time of her marriage. She brought to her matrimonial home the household articles shown in the B schedule to the petition. A chain weighing one sovereign was given to the respondent by the brother of the

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appellant at the time of the marriage. On compulsion, the appellant handed over her 10 sovereigns of gold ornaments to the respondent two months after the marriage. He pledged those ornaments and used the money for his personal needs. He is liable to return the said 10 sovereigns of gold ornaments and also the gold chain weighing one sovereign given to him by her brother. The respondent took the appellant to her house and left her there on 16.3.2000. He did not maintain her since then. She is entitled to Rs 1500/- a month for her maintenance. She is entitled to it for three years before the date of the petition, besides her future entitlement.

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3.The respondent admitted the marriage and divorce. The former raised the following contentions : The appellant was primarily responsible for the break down of the marital relationship. He did not take any ornament of hers. She left his house of her own. At that time she had taken all her ornaments except a chain and two bangles. He is ready to return those ornaments. The 'tali' chain weighing 2.5 sovereigns

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presented by the respondent is with the appellant. She is liable to return it. Among the articles shown in the B schedule, only one almirah was brought by the appellant. That one is not of the make Godrej. The appellant is not entitled to any amount as maintenance from the respondent. She is capable of maintaining herself. She is doing tailoring and embroidery works. She earns Rs 5000/- a month.

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4.Both sides adduced evidence before the family court. PWs 1 to 3 and RW1 were examined. Exts X1 to X6 were marked.

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5.The family court passed a decree to the extent of directing the respondent to return to the appellant the almirah of hers kept in his house and also Rs 40,250/- being the value of 8.75 sovereigns of gold ornaments with 15% interest. The other claims of the appellant were rejected.

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6.The respondent did not file appeal against the decree he suffered. The appellant is in appeal since her claim for maintenance was refused and also since

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the family court denied decree to the extent of 2.25 sovereigns of gold ornaments.

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7.Heard Smt.Sheeba Thomas and Sri.P.V.George, the learned counsel for the appellant and the respondent respectively.

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8.A few facts are admitted. The appellant was the wife of the respondent. Solemnization of their marriage was on 19.5.1996. They are hindus. On their joint motion a decree directing dissolution of marriage by mutual consent was granted by the family court. The date of divorce is 30.7.2004. The parties have been living separately since 16.3.2000.

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9.The family court found that the appellant had 16 sovereigns of gold ornaments at the time of her marriage. It was also found that her 10 sovereigns of ornaments were taken from her and appropriated by the respondent. Another finding was that a chain of one sovereign was presented to the respondent by the brother of the appellant. These findings of the family court cannot be disturbed in the absence of

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an appeal or cross-objection by the respondent.

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10.Of the claim for return of gold ornaments, the subject matter of the appeal is only 2.25 sovereigns. That is the weight of the 'tali' chain as found by the family court. The family court found that the respondent was entitled to set off the weight of the 'tali' chain against the claim of the appellant for 11 sovereigns of gold ornaments. The family court was of the view that the 'tali' chain of the appellant was a returnable property by her to the respondent soon after the divorce.

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11.We are afraid, the finding of the family court was per se wrong. We have to refer to the Dowry Prohibition Act. Sec.2 of the said Act defines dowry. It means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage, or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in

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connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the muslim personal law (shariat) applies. Thus, going by the definition, anything given in cash or kind to one side of the marriage by the other side of the marriage in connection with the marriage is dowry, barring the dower or mahr. What is objectionable and punitive is the dowry taken from the side of the woman. Sec.6 of the Dowry Prohibition Act provides that where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman within the time specified in the section itself. That means any dowry given from the side of the wife to the husband is the property of the wife and it should be returned. Sec.6 does not at all insist on return of anything received by the wife from the husband. Therefore the family court was wrong in directing a set-off.

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12.There is another reason to state that the family court did go wrong. Sec.6(1) of the Dowry

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Prohibition Act specifically states that pending transfer of the dowry to the woman, the person holding it shall hold it in trust for the benefit of the woman. Thus, a statutory trust is created under Sec.6(1) of the Dowry Prohibition Act. In view of the creation of the statutory trust, Sec.10 of the Limitation Act applies. Therefore the claim of the wife or ex-wife for her dowry is not barred by any length of time. Even if it is accepted for the sake of argument that the wife should return the 'tali' or any other property presented to her by her husband, no such statutory trust is created. Therefore Sec.10 of the Limitation Act has no application. The marriage was in 1996. The suit came in 2004. Therefore the claim, if at all maintainable, was hopelessly barred by the law of limitation.

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13.There is yet another reason to find that the family court was wrong. What the family court allowed was a set-off. That court allowed to set-off the weight of the 'tali' against the weight of the gold ornaments appropriated by the respondent. Order VIII

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rule 6 of CPC makes it clear that in order to have a claim of set-off, both claims shall be money claims. Only a money claim can be set-off and it can be setoff only against a money claim. The family court lost sight of the fundamental rule of procedure in order VIII rule 6 of CPC.

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14.The family court allowed a set-off without a claim for set-off under order VIII rule 6 of CPC or a counter-claim under order VIII rule 6A. There was no claim for set-off for the respondent. He did not have a counter-claim too. His contention in the written-statement that he is entitled to get back his property is neither a claim for set-off nor a counter-claim. We say so because of the provisions in order VIII rule 7 of CPC. It provides that where the defendant relies upon several distinct grounds of defence or set-off or counter-claim founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. There has been no claim for set-off or a counter-claim to satisfy the requirements in order VIII rule 7 of CPC. No court fees for a set-off or counter-claim

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was paid. The plaintiff in a suit has a right to oppose the claim of set-off or counter-claim by filing a written-statement. No such opportunity was given.

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15.Thus, viewing it from any angle, the finding of the family court that the appellant was not entitled to get back her gold ornaments weighing 2.25 sovereigns was wrong. We allow the appeal directing the respondent to return the gold ornaments of the appellant weighing 2.25 sovereigns or pay the value thereof as on the date of payment.

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16.The appellant was not given a decree for past and future maintenance. Her claim was Rs 1500/- per month. If she is entitled to maintenance, she is entitled to it only till 30.7.2004 which was the date of divorce. She can claim past maintenance only for a period of three years immediately preceding the presentation of the petition in view of the law of limitation. Her suit came on 21.1.2004. She can claim past maintenance only from 21.1.2001, and not from 16.3.2000.

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17.The parties are hindus. Therefore they are governed by the Hindu Adoption and Maintenance Act (for short the Act). Sec.18 of the Act is the relevant provision. Sec.18 declares that subject to the provisions of the said section, a hindu wife shall be entitled to be maintained by her husband during her lifetime. The said general declaration is subject to sub-section (2). Sub-section (2) enlists the conditions under which a wife is entitled to live separately from her husband without forfeiting her claim to maintenance. One of the grounds is the desertion by the husband. Another ground is cruelty at his end. The remaining grounds are not relevant in the present case since not alleged. So far as cruelty is concerned, there is no evidence.

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18.Now, desertion. Admittedly the parties, before their divorce, lived separately since 16.3.2000. PW1 is the appellant. She filed an affidavit in lieu of her examination-in-chief. In her affidavit she swore that she was taken to her house by the respondent and he left her there. It was also sworn in the

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affidavit that thereafter he never came to take her to his house. The said statement of PW1 in her affidavit was not touched in cross-examination, even feebly. Not even a suggestion was put to deny the said evidence of PW1. Therefore the evidence of PW1 that she was left at her house by the respondent is only to be taken as proved. Desertion within the meaning of Sec.18(2)(a) of the Act is proved. The appellant is therefore entitled to maintenance from the respondent from 21.2.2001 to 30.7.2004.

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19.The claim of the appellant was only Rs 1500/- per month. The respondent is working as a clerk in Oriental Insurance Company Limited. The deputy manager, regional office, Oriental Insurance Company produced Ext X6 and deposed in court. Ext X6 shows the salary of the respondent to be Rs 8241/-. Ext X6 is proved by PW3 who spoke that Rs 8241/- was the salary of the respondent. It is thus proved that the respondent had a monthly income of Rs 8241/-.

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20.The claim of the appellant was only Rs 1500/- per month. The claim was very reasonable. The respondent

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was drawing more than Rs 8000/- per month. He could afford to pay Rs 1500/- per month as maintenance.

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21.The respondent has a case that the appellant is having her own income from tailoring and embroidery works. But no tangible evidence could be produced to prove the said contention. Even if the appellant is having some income, that does not disentitle her from claiming maintenance from her husband. Unlike Sec.125 of Cr.P.C, there is no insistence in Sec.18 of the Act that to claim maintenance the wife should be a person unable to maintain herself. Therefore the means of the wife is not a disqualification for her from getting maintenance from her husband. Her means is relevant only for fixing the quantum as Sec.23 of the Act provides. The quantum claimed and fixed by us is very reasonable. Therefore that should be paid even if the appellant has some income.

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22.Only one reason is stated by the family court to deny maintenance to the appellant. The reason stated is that a divorced wife is not entitled to claim

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maintenance under Sec.18 of the Act. She is not entitled to have a claim for maintenance under Sec.18 for any period after her divorce. But she is entitled to make her claim for maintenance under Sec.18 till the date of divorce. That is why we allowed the claim of the appellant only till 30.7.2004, the date of divorce. When she sued for maintenance under Sec.18 of the Act, she was not a divorced wife.

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23.The learned counsel for the respondent submitted that in the proceedings under Sec.125 of Cr.P.C, the claim of the appellant was allowed only to the extent of Rs 1300/- per month. We are not bound by that finding. That finding was based on the evidence in that case. Our finding is based on the evidence in this case. Therefore the submission of the learned counsel does not impress us.

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24.We now conclude. We allow the appeal. The judgment and decree under appeal are set aside to the extent they went against the appellant. The respondent is directed to pay maintenance to the appellant from

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21.1.2001 to 30.7.2004. The quantum shall be Rs 1500/- per month. The respondent shall return the gold ornament(s) of the appellant weighing 2.25 sovereigns. In the event of failure to return the same, the respondent shall be liable to pay the appellant the value of 2.25 sovereigns of gold as on the date of payment. If the appellant had executed the order passed under Sec.125 of Cr.P.C for any period for which maintenance is allowed under Sec.18 of the Act as per this judgment, she shall be entitled to execute the decree for maintenance for the balance only. The appellant is entitled to her costs in the appeal.

K.HARILAL Judge

Sd/-

A.M.BABU Judge

Mrcs/2.2

/True copy/

P.S.To Judge

Bindu K.P. v. Surendran C.K.

Case brief

What is this about?

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Bindu K.P. v. Surendran C.K.

Case brief

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