Dismissed

Mohanan v. Anilambika

Kerala HC9 Apr 2018Mat.Appeal/668/2007

Case brief

AI extract

What is this about?

High Court of Kerala allowed maternal appeal dismissing appeal challenging family court order directing payment of minor son's maintenance and return of gold ornaments, holding father liable for maintenance regardless of custody and finding evidence against appellant insufficient due to lack of specific denial in written statement.

What did the court decide?

Matrimonial appeal dismissed; Family Court order directing maintenance payment for minor son and return of 22 sovereigns of gold ornaments or value of Rs. 46,560 plus Rs. 10,000 reinstated.

Mohanan Vs Anilambika — 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

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THE HONOURABLE MR. JUSTICE A.M.BABU

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MONDAY, THE 9TH DAY OF APRIL 2018 / 19TH CHAITHRA, 1940

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Mat.Appeal.No. 668 of 2007

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AGAINST THE JUDGMENT AND DECREE DATED 12.12.2006 IN OS NO.108/2000 of FAMILY COURT,TRIVANDRUM

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APPELLANT/DEFENDANT:-

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MOHANAN, S/O. APPAVU, AGED 49, KANNAM KULAMMELE PUTHEN VEEDU, ARALUMMOODU P.O., ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK.

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BY ADV.SRI.T.K.VENUGOPALAN

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RESPONDENTS/PLAINTIFFS:-

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ANILAMBIKA, AGED 47, D/O. ROSSILY, RESIDING AT NULLIPPARAVILA VEEDU, ANAVOOR VILLAGE,,

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NEYYATTINKARA TALUK.

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ANOOP MOHAN, (MINOR, AGED 10 YEARS, REPRESENTED BY 1ST RESPONDENT ANILAMBIKA THE, MOTHER OF

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-DO-)

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R1 & R2 BY ADV. SRI.D.SAJEEV

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09-04-2018, 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 No.668 of 2007

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- - - - - - -- - - - - - - - - - - - - - Dated this the 9^th day of April, 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 husband of the 1^st

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respondent as well as the father of the 2^nd respondent. The above appeal has been filed, challenging the judgment and decree passed in Original Suit No.108 of 2000 of the Family Court, Thiruvananthapuram against the appellant. The parties are referred to as in the Original Petition.

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The aforesaid Original Suit was for a decree granting maintenance allowance at the rate of 1,000/- per month to the 2nd plaintiff and also for a decree allowing the 1st plaintiff to recover plaint 'A', 'B', 'C' and 'D' schedule properties or in the alternative 85,330/- from the defendant being the

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Mat. Appeal No.668 of 2007

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-: 2 :-

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value of the said properties.

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The case of the plaintiff in brief is as

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follows:

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The 1^st plaintiff is the legally wedded wife of the defendant and the 2^nd plaintiff is the son born in the wedlock. At the time of the marriage, as per the demand of the defendant, the parents of the 1^st plaintiff had given 25 sovereigns of gold ornaments to the 1^st plaintiff and `10,000/- to the defendant in connection with the marriage. That apart, at the time of engagement, the 1^st plaintiff was given a ring of one sovereign and she got ½ sovereign as gift. All the gold ornaments shown in the plaint 'A' schedule are with the defendant. Plaint 'C' schedule is the presentation articles obtained by the 1^st plaintiff at the time of marriage and the same were taken to the family house of the defendant and those articles were under the custody of the defendant and the defendant is liable to return the same. A motorcycle was

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Mat. Appeal No.668 of 2007

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-: 3 :-

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purchased in the name of the defendant by utilising an amount of 10,000/- taken by the 1st plaintiff from her GPF Account and the salary during May, 1996. Therefore, the defendant is liable to return the money and articles mentioned in 'A' to 'C' schedule. The 2nd plaintiff is aged three years and he was born on 27.04.1997. A considerable amount is required for his food, clothing, education etc. He is in need of 1,000/- per month. But, the defendant, who is the father of the 2^nd plaintiff has refused to pay maintenance allowance to him. The defendant is a Government servant and he is working as a Village Extension Officer. He is drawing an amount of 5,000/-, as monthly salary and he has got other income also. The 1st plaintiff is not able to maintain her child with her income. Hence, the plaintiffs prayed for a decree, directing the defendant to pay maintenance allowance at the rate of 1,000/to the 2^nd plaintiff and also to pay `15,000/-, as arrears of maintenance.

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Mat. Appeal No.668 of 2007

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The defendant filed a written-statement,

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admitting the marital status and parentage of the 2^nd plaintiff. But, he contended that all monetary transactions with the plaintiffs were settled at the time when they have filed petition under Section 13(b) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') and divorce was granted on mutual consent. He denied the allegation that he demanded money and gold ornaments from the parents of the plaintiffs at the time of marriage and gold ornaments were with him. According him, it is not correct to say that the presentation articles are under the custody of the defendant. Before filing of the petition for divorce, the entire articles were handed over to the 1^st plaintiff and all monetary transactions were settled. He denied the allegation that motorcycle was purchased by using

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the funds of the 1^st plaintiff. According to him, the said motorcycle was purchased by using his own

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funds and the 1^st plaintiff has no right over the same. The 1^st plaintiff has been working as a 1^st

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Grade Assistant in Government Secretariat and she is drawing more salary than the defendant. He is ready to maintain the child even without receiving a single pie from the 1^st plaintiff, if the child is handed over to him, as he is the natural guardian. He is unable to pay maintenance allowance to the 2^nd plaintiff as claimed by the petitioner, as he is getting a meagre amount only, as monthly salary. With the aforesaid averments he prayed for dismissal of the suit.

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On the aforesaid rival pleadings, both

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parties adduced evidence, which consists of PWs.1 to

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3, DW.1 and Exts.A1 to A2 and B1 to B3.

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Mat. Appeal No.668 of 2007

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-: 6 :-

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After considering the aforesaid evidence on record, the Family Court passed the impugned judgment, directing the defendant to pay maintenance allowance to the 2^nd appellant at the rate of 500/per month with effect from the date of the suit till the date of judgment and thereafter, at the rate of 750/- per month and the 1^st plaintiff is allowed to recover the same for and on behalf of the 2^nd

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plaintiff from the defendant and his assets. So also, the 1^st plaintiff is allowed to recover 22 sovereign of gold ornaments or its value of 46,560/- and 10,000/- being the amount given as pocket money from the defendant and his assets.

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Heard the learned counsel for the appellant

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and the learned counsel for the respondents.

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The first point that arises for

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consideration in this appeal is, whether the Family

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Mat. Appeal No.668 of 2007

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Court is justified in passing an order, directing

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the defendant to pay maintenance allowance to the 2^nd plaintiff at the rate of 500/- per month from the date of suit till the date of judgment and thereafter at the rate of 750/- per month?

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Coming to the first point, the parentage of

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the child is not disputed. According to the defendant, he is ready to maintain the child, even without receiving a single pie from the 1^st plaintiff, if the child is handed over to him, as he is the natural guardian. We are of the opinion that the liability to pay maintenance allowance to the children is not a conditional one, as claimed by the

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defendant and the father is liable to pay maintenance allowance to the children, even if the children are in the custody of the mother. If the father is aggrieved by the custody of the children

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Mat. Appeal No.668 of 2007

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with the mother, it is for him to seek remedies in accordance with law. But, he cannot claim the custody of the children with him, as a condition to pay maintenance allowance to the children. So long

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as the parentage of the child is admitted, it is incumbent upon him to pay maintenance allowance, particularly, when the defendant is a government servant. It is not disputed that the defendant is working as a Village Extension Officer and it has come out in evidence that he is getting `8,182/- per month. The salary which is being received by the defendant per month is seen proved by Ext.A2 salary certificate. In Ext.A2, the recoveries are not shown. Though, he has stated in his affidavit in lieu of chief-examination that he has to look after

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his father and mother and also he is having a child in the second marriage, in the cross-examination he

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Mat. Appeal No.668 of 2007

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-: 9 :-

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has admitted that his father and mother are no more and in the present wedlock there is no child. So, as rightly observed by the Family Court, the case of the defendant that he has no sufficient income to provide maintenance is not true and correct. Though, the 1^st plaintiff is employed and she is having income, the defendant, who is the father of the 2^nd plaintiff is also bound to provide maintenance allowance to the 2^nd plaintiff. He has to pay maintenance allowance to meet food, clothing, educational expense, treatment expenses etc. of the child. Having regard to the monthly income of the defendant shown in Ext.A2, the Family Court is justified in granting maintenance allowance to the 2^nd plaintiff at the rate of `500/- per month from

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the date of suit till the date of judgment and thereafter at the rate of `750/- per month. We do

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Mat. Appeal No.668 of 2007

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not find any reason to interfere with the said finding.

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The next point to be considered is, whether the Family Court is justified in passing a decree, allowing the 1^st respondent/1^st plaintiff to recover 22 sovereigns of gold ornaments or its value 46,560/- and 10,000/- being the amount given as pocket money from the appellant/defendant?

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Put it differently, the point is whether the 1^st plaintiff has succeeded in proving the claim for recovery of the aforesaid gold ornaments and money from the defendant. It is the specific case of the 1^st plaintiff that she was wearing 25 sovereigns of gold ornaments, at the time of marriage and the defendant was given `10,000/- in connection with the marriage as pocket money. But, she had claimed 23½ sovereigns of gold ornaments

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-: 11 :-

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only as 'A' schedule in the plaint.

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It is pertinent to note that in the

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written statement filed by the defendant, there was no specific denial against the averment that the 1^st plaintiff had worn 25 sovereigns of gold ornaments or he was given `10,000/-in connection with the marriage. The absence of specific denial in the pleadings is fatal to the defendant. It is true that he denied the allegation that he demanded money and gold ornaments from the parents of the 1^st plaintiff. Further, he denied the allegation that all the ornaments are with him. The specific contention raised by the defendant is that all the articles belonging to the 1^st plaintiff were handed over to the 1^st plaintiff before the signing of divorce petition under Section 13(b) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the

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Act') . Thus, he has pleaded the discharge of liability.

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In order to prove the case of the 1^st plaintiff that she had worn 25 sovereigns of gold ornaments and the defendant was given `10,000/, at the time of marriage as pocket money, PWs.1 to 3

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were examined and Ext.X1 marriage register was produced in evidence.

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The 1^st plaintiff has sworn proof-affidavit in tune with the averments in the plaint. She deposed that she had worn 25 sovereigns of gold ornaments, at the time of marriage and the defendant obtained the same from her and sold away, within one month from the date of marriage. So also, the defendant was given `10,000/- as pocket money in connection with the marriage. Though she was crossexamined at length, the aforesaid facts spoken to

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Mat. Appeal No.668 of 2007

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by her could not be shattered and she withstood the test of cross-examination. Therefore, we do not find any reason to disbelieve or discredit the oral evidence given by PW.1. The evidence of PW.1 is corroborated by the oral evidence of PWs.2 and 3 and Ext.X1. PW.2 is the General Secretary and PW.3 is the Treasurer of Ayyanavar Mahajana Sangham and they were examined to prove Ext.X1 marriage register.

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Going by the relevant entries in Ext.X1

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copy of Ayyanavar Mahajana Sangham marriage register, it could be seen that 22 sovereigns of gold ornaments were given to the 1^st plaintiff and `10,000/- was given to the defendant in connection with the marriage between the 1^st plaintiff and the defendant. PW.2 deposed that he is the custodian of Ext.X1 marriage register and the entries in Ext.X1 register, which would show the quantity of money and

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the gold ornaments were made in accordance with the information given by the parents of the 1^st plaintiff and the defendant. So also, the marriage was solemnized under his auspices. Further, he deposed

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that the parents of the 1^st plaintiff and the defendant agreed with the entries before making it in Ext.X1. PW.3 is the treasurer of the Ayyanavar Mahajana Sangham and he was one among the two secretaries of the Sangham at the time of marriage. He identified his handwriting and signature in Ext.X1. He further deposed that the entries in column Nos.7, 8 and 10 were made by him and those entries show that quantity of money and gold ornaments were given to the defendant and the 1^st plaintiff respectively, at the time of marriage. As

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per the said entries, 22 sovereigns of gold ornaments were given to PW.1 and `10,000/- was given

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Mat. Appeal No.668 of 2007

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to the defendant at the time of marriage. Further,

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he deposed that those entries were made with the consent of both parties. It is pertinent to note that the genuineness of Ext.X1 was not challenged in cross-examination of PWs.2 and 3. But, according to them, those entries were not reliable. Though PWs.2 and 3 were cross-examined at length, nothing has been brought out to discredit their evidence and we find that there is no reason to disbelieve the entries in Ext.X1 and the oral evidence given by PWs.2 and 3. Thus, the evidence of PW.1 is corroborated by the evidence of PWs.2 and 3 coupled with Ext.X1. Thus, the 1^st plaintiff has succeeded in discharging the initial burden of proof.

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Coming to the evidence of the defendant,

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the question is, whether he has succeeded in rebutting the evidence given by the 1^st plaintiff?

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Mat. Appeal No.668 of 2007

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We have already noted that in the pleadings, the defendant has not specifically denied the case of the 1^st plaintiff that she had worn 25 sovereigns of gold ornaments and the defendant was given `10,000/as pocket money, at the time of marriage. When the defendant was cross-examined, as regards the quantity of gold ornaments and money given to him, he deposed that he was not aware of the production of Ext.X1 register before the court. When a specific question was put to the defendant suggesting that the entries in Ext.X1 register would show the actual and exact quantity of gold ornaments and money given to the 1^st plaintiff and the defendant respectively, he did not deny it and he deposed that it might be so.

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As regards the gold ornaments, he has no consistent case at all. In the cross-examination of

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PW.1, he put up a new case that she had worn 16 sovereigns of gold ornaments only. No reliance can

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be placed on the oral evidence of the defendant and he miserably failed to adduce the rebuttal evidence in support of his pleadings.

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The learned counsel vehemently contended that there is no evidence to prove the entrustment of money and gold ornaments. But, we are of the opinion that there is an implied admission of the entrustment of money and gold ornaments, as claimed by the 1^st plaintiff in the contention that all the articles belonging to the 1^st plaintiff were handed over to the 1^st plaintiff, before signing 13(b) petition. But, going by 13(b) petition, it is specifically stated that 'dispute with regard to the property is not the subject matter' in the said petition. Therefore, it shows that at the time of

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filing the 13(b) petition, the claim for return of of pocket money and gold ornaments was subsisting as such.

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On an analysis of the entire evidence on record, we find that the Family Court has rightly appreciated the evidence on record in its correct perspective and found that the 1^st plaintiff has succeeded in proving that the defendant was liable to return 22 sovereigns of gold ornaments or its value and `10,000/-. We do not find any reason to interfere with the findings of the Family Court.

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Hence, this appeal fails and dismissed accordingly. All pending interlocutory applications will stand closed.

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Sd/-

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K. HARILAL, JUDGE

Sd/-

A.M. BABU, JUDGE

DST

//True copy//

P.A. To Judge

Mohanan v. Anilambika

Case brief

What is this about?

What did the court decide?

Mohanan v. Anilambika

Case brief

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What did the court decide?

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