Partly allowed

Sneha Pushpan v. M Danesh

Kerala HC6 Nov 2023Mat.Appeal/181/2023

Case brief

AI extract

What is this about?

High Court heard matrimonial appeals regarding return of gold ornaments and child's wardship. Court dismissed husband's appeal on gold and upheld mother's guardianship. Wife permitted to process visa application abroad pending new employment.

What did the court decide?

Wife declared guardian; husband's appeals on gold and custody dismissed; modification in decree regarding child's understudy abroad.

Sneha Pushpan Vs M Danesh — Matrimonial and Divorce | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶3

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 6TH DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945
MAT.APPEAL NO. 684 OF 2022

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AGAINST THE ORDER/JUDGMENT IN OP 1607/2018 OF FAMILY COURT,ERNAKULAM
APPELLANTS/RESPONDENTS:

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1LT. COL. M. DANESH
AGED 42 YEARS, S/O.P.K.MOHANDAS,
B/B 448, ASHOKA NAGAR, KHARADI BYPASS,
CHANDAN NAGAR, NEAR BANK OF MAHARASHTRA,
PUNE - 411 014.

¶8

2P.K.MOHANDAS
AGED 69 YEARS, S/O.KRISHNANKUTTY,
B/B 448, ASHOKA NAGAR, KHARADI BYPASS,
CHANDAN NAGAR, NEAR BANK OF MAHARASHTRA,
PUNE - 411 014

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3PRASANNA MOHAN DAS
AGED 61 YEARS, W/O.P.K.MOHANDAS,
B/B 448, ASHOKA NAGAR, KHARADI BYPASS,
CHANDRAN NAGAR, NEAR BANK OF MAHARASHTRA,
PUNE - 411 014.

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4JIJESH MOHAN DAS
AGED 36 YEARS, S/O.P.K.MOHANDAS,
B/B 448, ASHOKA NAGAR, KHARADI BYPASS,
CHANDRAN NAGAR, NEAR BANK OF MAHARASHTRA,
PUNE - 411 014.
BY ADVS.
NIREESH MATHEW
NIJU MATHEW
BABU JOSE
GAJENDRA SINGH RAJPUROHIT
VIVEK VENUGOPAL
SEBIN SEBASTIAN
DEVAN N.R

¶11

MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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2

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RESPONDENT/PETITIONER:

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SNEHA PUSHPAN

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AGED 39 YEARS, D/O.P.P.PUSHPANGADHAN,
RESIDING AT GD PALM GROVE APARTMENTS,
KOLLAMKUDIMUGAL ROAD, THRIKKAKARA,
KOCHI - 682 021.

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BY ADVS.
VISHNU BHUVANENDRAN
ANUSREE.B
RESHMA UNNIKRISHNAN(K/533/2016)
MIRAL K.JOY(K/2005/2022)

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 06.11.2023, ALONG WITH Mat.Appeal.181/2023,
661/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 6TH DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945
MAT.APPEAL NO. 181 OF 2023

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AGAINST THE ORDER/JUDGMENT IN OP 1736/2022 OF FAMILY
COURT,ERNAKULAM

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APPELLANT/PETITIONER:

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SNEHA PUSHPAN
AGED 39 YEARS,INDEEVARAM HOUSE, B7,
OLEANDER GARDENS, THENGODE PO,
KAKKANAD., PIN – 682030

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BY ADVS.
VISHNU BHUVANENDRAN
B.ANUSREE
RESHMA UNNIKRISHNAN
MIRAL K.JOY

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RESPONDENT/RESPONDENT:

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M DANESH
B/B 448, ASHOKA NAGAR, KHARADI BYPASS,
CHANDAN NAGAR, NEAR BANK OF MAHARASTRA,
PUNE., PIN – 411014

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 06.11.2023, ALONG WITH Mat.Appeal.684/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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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 AMIT RAWAL

¶39

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 6TH DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945
MAT.APPEAL NO. 661 OF 2022

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AGAINST THE ORDER/JUDGMENT OP 2524/2018 OF FAMILY

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COURT,ERNAKULAM

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APPELLANT/PETITIONER:

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LT.COL.M.DANESH
AGED 42 YEARS, S/O. P.K.MOHANDAS, B/B 448,
ASHOKA NAGAR, KHARADI BYPASS, CHANDAN NAGAR,
NEAR BANK OF MAHARASTRA, PUNE-411 014.

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BY ADVS.
NIREESH MATHEW
VIVEK VENUGOPAL

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RESPONDENT/RESPONDENT:

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SNEHA PUSHPAN
W/O. LT.COL.M.DANESH, AGED 40 YEARS,
RESIDING AT PALM GROVE APARTMENTS,
KOLLANKUDIMUGAL ROAD, THRIKKAKARA, KOCHI-682021

¶49

BY ADVS.
VISHNU BHUVANENDRAN
B.ANUSREE(K/000951/2016)
RESHMA UNNIKRISHNAN(K/533/2016)
MIRAL K.JOY(K/2005/2022)

¶50

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
06.11.2023, ALONG WITH Mat.Appeal.684/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶51

MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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JUDGMENT

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[Mat.Appeal Nos.684/2022, 181/2023, 661/2022]

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Amit Rawal, J.

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This order shall dispose of three matters; Mat.Appeal No.661/2022 preferred by the husband against the judgment and decree dated 31.03.2022 whereby O.P.No.2524/2018 preferred by him for custody of the child has been dismissed; Mat. Appeal No.684/2022 preferred by the husband against the judgment rendered in O.P.No.1607/2018 filed by the wife allowing return of 50 sovereigns along with Rs.2 lakhs and Mat. Appeal No.181/2022 preferred by the wife against the order dated 02.03.2023 in O.P.No.1736/2022 whereby her plea for taking the child to Australia for further studies has been rejected.

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The marriage between the Lt. Col. M.Danesh with Sneha Pushpan was performed on 13.12.2008 at Pune according to Hindu religious rites and customs. Wife is a B.Tech graduate

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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6

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working as software engineer whereas the husband is Lt. Col. Wife alleged that at the time of marriage, 56 sovereigns of gold

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and cash was given by pledging the documents. Out of the wedlock, one child is born now is aged 12 years who is in the custody of wife-mother and studying in Sanskara School, Kakkanad. Wife instituted a petition for claiming divorce O.P.No.2065/2017 which, after contest, has been allowed vide judgment and decree dated 31.03.2022. Concededly, the aforementioned judgment has not been assailed by the husband

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except the two appeals. The dispute now revolves regarding the adjudication of two other O.Ps as mentioned above, regard to return of gold ornaments, custody of the child as well as granting permission to wife to take child abroad.

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Learned counsel appearing on behalf of the husband submitted that the wife has miserably failed to place on record any material to establish the entrustment of the gold ornaments.

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In fact, husband had also set up the counter claim for return of

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certain gold ornaments which has also been rejected. It is settled

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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7

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law that the onus to prove entrustment lies upon the person who asserts it. Therefore, there could not have been any decree ordering the husband to return sovereign and Rs.2 lakhs.

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As regards the custody of the child, he submitted that

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wife could not have been appointed as a guardian as Court noticed that the minor child was very comfortable with the father and son would also require the care and control of the father at his puberty stage and therefore guardianship ought not to have been granted to the respondent-wife. Wife wants to take away the child by obtaining an employment abroad which has rightly been rejected.

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On the other hand, learned counsel appearing on behalf of the wife submitted that an attempt was made by the wife to summon father-in-law and mother-in-law to prove that entrustment was made, but they did not appear and Court drew the adverse inference as per the provisions of the Indian Evidence Act. Counter claim was a counter blast, no cogent and direct evidence was placed on record to establish the same.

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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8

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Little inconsistency with regard to the entrustment of gold sovereigns either at the time of marriage or reception cannot be

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a ground for rejecting the claim for, it’s a culture and practice/tradition in Kerala by taking into consideration the status of the family to pay gold to the daughter at the time of marriage. Sometimes there have been cases were properties are being pledged by obtaining a loan for the purchase of the gold ornaments. Wife at the relevant point of time was able to obtain a job at Australia but application submitted in this regard was rejected. Though this Court vide interim order dated 5.4.2023 granted the permission to take the child to Australia but the matter was taken to Supreme Court in SLP No.10548/2023 and there was an interim stay vide order dated 16.05.2023. However, when the SLP came up for hearing on 08.08.2023 become infructuous for the reason that at time when the wife could not attain the job in Australia, but urged that she has all plans to work abroad and in case permission is granted as and when she secures a job the VISA can be processed earlier and

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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9

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there would not be any difficulty in departing the country along with child.

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As far as the entrustment of the sovereigns is concerned, the non-appearance of the parents is the testimony that they were afraid of the truth may not spilled.

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We have heard the learned counsel for the parties and appraised paper books.

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It is most unfortunate that a graduate engineer and Lt. Col. are at loggerheads and ultimately at the instance of the wife marriage has been dissolved. It is also most unfortunate that in such feud the children and even the parents are being suffered for no fault of theirs vis-a-vis the custody or guardianship. An Army personnel who is always in transfer after two or three years of service and sometimes in non-family stations cannot possibly have the custody of the child. Keeping in view all those constraints and parameters, trial court was justified in appointing the wife as the guardian. We do not intend to differ with the aforementioned finding.

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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10

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The question now arises is whether the wife would be permitted to take the child abroad as and when she seeks employment and the child can be admitted in a school there so long as she remains abroad. That permission has already been kept intact by the order of the Supreme Court dated 08.08.2023 in SLP.No.10548/2023. The same reads as under:

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“When this matter is called on for hearing, learned senior counsel for the respondent submits that their client’s job offer in Australia has lapsed and she is looking for employment elsewhere, outside this country.

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The present proceedings was instituted as the respondent wanted shifting the child to Australia. Since that situation no more subsists, the present petition has lost its utility. Thus, the same is dismissed.

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In the event the respondent wants the child to take elsewhere, direction shall be obtained from the appropriate forum.

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Pending application(S), if any, shall stand disposed of.

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Thus the order of the court below, in view of the order

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Supreme Court refusing the wife to take the child abroad, would no longer sustain it is accordingly set aside. Wife is at liberty to

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process the application for obtaining VISA in case she is already

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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11

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in a pursuit of seeking job abroad.

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As regards the entrustment of gold sovereigns, no doubt the father-in-law and mother-in-law who were arrayed as respondents 2 and 3 could not be compelled to appear as witnesses by the opposite side. But the fact remains despite having filed objection to the claim, did not appear in the witness box. Wife took the risk of summoning them as in such attempt, things could have gone against the wife. Be that as it may. There is a culture and tradition in Kerala of handing over the gold ornaments by obtaining loan from private parties and as well as financial institutions, keeping in view the status of the family. We cannot remain oblivious of the fact that entrustment of 50 sovereigns cannot be a lesser amount against claim of 56 sovereigns and also return of Rs.2 lakhs which was a total act of counter blast and do not want to interfere in the finding of fact arrived at on preponderance of evidence. No contrary evidence has been pointed out to differ with the same to form a different opinion.

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MAT.APPEAL Nos.684/2022, 181/2023

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& 661 OF 2022

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In view of the aforementioned observations and

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modifications, wife is declared to be the guardian and all the

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appeals stand disposed of by upholding the judgment and decree dated 31.03.2023 in O.P.Nos.1607/2018 and 2524/2018

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and with a modification in the decree dated 02.03.2023 in

O.P.No.1736/2022.

Sd/-

AMIT RAWAL JUDGE

Sd/-

C.S. SUDHA

JUDGE

nak

Sneha Pushpan v. M Danesh

Case brief

What is this about?

What did the court decide?

Sneha Pushpan v. M Danesh

Case brief

What is this about?

What did the court decide?

What the court decided

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