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2012 DIGILAW 821 (KER)

Chinnan v. Prema

2012-09-03

BABU MATHEW P.JOSEPH, PIUS C.KURIAKOSE

body2012
JUDGMENT PIUS C. KURIAKOSE, J. Mat. Appeal 581 of 2010 is directed against the order of the Family Court, Kozhikode in O.P.211 of 2009 by which Family Court dismissed the original petition filed by the petitioner, husband for divorce of his marriage with the first respondent mainly on the ground of insanity and also on the grounds of cruelty and desertion. 2. R.P.F.C. No.306 of 2010 is filed by the appellant in Mat. Appeal 581 of 2010 challenging the order of the Family Court in M.C.No.226 of 2009 filed by respondents, viz. wife and 6 year old minor child of the appellant and the first respondent. The Family Court under that order directed the appellant to pay a sum of Rs.1,250/- and Rs.750/- per mensum respectively as maintenance for first respondent, wife and 2nd respondent, minor child with effect from the date of the original petition. In fact, the learned Family Court tried the two original petitions filed by the appellant together with O.P.No.635 of 2009 filed by the first respondent seeking a direction to the husband to return 37 sovereigns of gold or its current market value. The learned Family Court passed a common order in the three cases and under that common order O.P.635 of 2009 was dismissed taking the view that the evidence in the case does not show that the first respondent, wife has entrusted so much gold ornaments with the appellant at the time of the marriage. 3. In Mat. Appeal 581 of 2010 various grounds are raised challenging the finding of the learned Family Court that the appellant was not able to establish by evidence that the first respondent had lunacy or any other mental problem as contemplated by S.13(1)(iii) of the Hindu Marriage Act. It is urged in R.P.F.C. 306 of 2010 that the Family Court was not at all justified in directing the appellant to pay maintenance to the respondents. It is also urged that at any rate the amounts presently ordered to be paid as maintenance is excessive. 4. We have heard the learned counsel for the appellant who addressed extensive submissions before us on the basis of the grounds raised in the memoranda of appeal and revision. It is also urged that at any rate the amounts presently ordered to be paid as maintenance is excessive. 4. We have heard the learned counsel for the appellant who addressed extensive submissions before us on the basis of the grounds raised in the memoranda of appeal and revision. According to him both the appeal and the revision are meritorious as the finding by the learned Family Court regarding the existence of the grounds invoked for divorce is contrary to the evidence on record and also that there was no need for directing the appellant, husband to pay maintenance to respondents. We have considered the submissions of the learned counsel for the appellant very anxiously. We have read through the impugned common order to the extent it relates to O.P.No.211 of 2009 and M.C.No.226 of 2009. The lower court records are available before us and we have made a reappraisal of the entire evidence. 5. We shall first deal with Mat. Appeal 581 of 2010. The evidence adduced by the parties before the Family Court was the oral evidence of the appellant himself as PW1 and three witnesses, PWs.2, 3 and 4. PWs.2 and 4 are doctors. Exts.A1 and A2 produced on behalf of the appellant was the prescription issued by PW2, the doctor which indicates that he had prescribed medicines for some psychiatric problems to the first respondent. Ext.A2 is a copy of the complaint filed before the local Circle Inspector of Police by R1 and in our view Ext.A2 does not support the appellants case that the first respondent had mental problems. The evidence on the side of the respondent was the oral evidence of RW1, first respondent herself and Ext.B1, the estimate preferred by a jewellery in respect of the ornaments which the first respondent claim were purchased by her parents in connection with her marriage. Ext.X1 was the report submitted by the Medical Board constituted in the Kozhikode Medical College. Ext.X1 report is to the effect that the first respondent has no mental illness. She has only border line intelligence. The report is very clear to the fact that she did not show any features of mental illness and much less any psychic or mental disorder. Ext.X1 report is to the effect that the first respondent has no mental illness. She has only border line intelligence. The report is very clear to the fact that she did not show any features of mental illness and much less any psychic or mental disorder. Ext.X1 will further show that the members of the Medical Board referred her to a clinical psychologist at Government Mental Health Centre Kozhikode who observed the first respondent for ten days. It is on the basis of the observations of the Government Mental Health Centre that Ext.X1 report is also submitted before the Court. The one question which seriously arises in Mat. Appeal 581 of 2010 is whether the finding of the Family Court that the first respondent does not have any mental illness and much less any mental disorder of such a kind and to such an extent that the petitioner in the O.P. cannot reasonably be expected to live with the respondent in the O.P., warrants interference. We find that to a certain extent PW2 supported the appellant’s case that his wife was treated for mental disorder. But PW4 who is one of the members of the Medical Board which prepared Exts.X1 to X4 has given convincing evidence in terms of Ext.X1 that the first respondent has no mental illness at all. According to us the Family Court cannot be faulted for having preferred Ext.X1 to the oral evidence of PW2. The other two grounds, desertion and cruelty were not even seriously pursued in evidence. In short, we do not find any infirmity with the finding of the learned Family Court that the divorce grounds invoked by the appellant in O.P.No.211 of 2009 could not be established by the appellant in evidence. 6. Coming to R.P.F.C. 306 of 2010 we find that the claim of the respondents before the Family Court was that they do not have any source of income to maintain themselves and that they are depending on their family members for their maintenance and further that the first respondent requires Rs.6,000/- per mensum for her food, clothing expenses etc. and the 2nd respondent, child requires Rs.4,000/- per mensem for such expenses. It was averred that the appellant is working abroad as a driver and earning Rs.35,000/- per mensem and also has income from his properties in his native place. and the 2nd respondent, child requires Rs.4,000/- per mensem for such expenses. It was averred that the appellant is working abroad as a driver and earning Rs.35,000/- per mensem and also has income from his properties in his native place. Even though the appellant filed counter statement denying the allegations, in evidence it became clear that the appellant was working abroad not as a driver but as painter. The appellant has given evidence regarding his income that he is getting only 700 Rials equivalent to 9,000/- Indian Rupees. According to us the finding of the learned Family Court that the appellant is liable to maintain the respondents who are admittedly his wife and child who are without any job or source of income or for self maintenance is unimpeachable. We are also of the view that the rate presently fixed by the learned Family Court to be paid to the appellant for his wife and child were Rs.1,250/-and Rs.750/- per mensum is not, excessive. In the result, we confirm the findings of the learned Family Court in the impugned common order and dismiss both the Mat. Appeal and R.P.F.C., however without any order as to costs. Appeals dismissed.