Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 768 (KER)

M. N. Sabu v. M. K. Seena

2013-08-30

ANTONY DOMINIC, P.D.RAJAN

body2013
Judgment : Antony Dominic, J. 1. These appeals arise from the common order passed by the Family Court, Ernakulam in OP.Nos.495/03, 496/03 and 97/05. Parties to these cases are husband and wife. Therefore, these appeals were heard together and are disposed of by this common judgment. 2. Mat.A.Nos.166/11, 171/11 and 172/11 are filed by the husband and Mat.A.No.153/12 is filed by the wife. Parties are Hindus and their marriage was solemnised on 27.6.1997. In their wedlock, a male child Arjun was born on 18.12.1998. On account of strain in the marital relationship, the wife returned to her parental home and the couple are residing separately since 27.7.2002. 3. OP.495/03 was filed by the husband for appointing him as the guardian of the child and OP.496/03 was also filed by him claiming divorce from the wife. OP.97/05 was filed by the wife for declaring her exclusive title over the scheduled property and also for consequential injunction against the husband restraining him from taking usufructs from the property. Alternatively, she also prayed that 35 cents of land standing in her name be separated by a decree of partition. In OP.97/05, husband raised a counter claim for declaration of his exclusive title over the entire extent of one Acre of land. 4. Cases were tried jointly and before the Family Court, the wife and husband were examined as PW1 and RW1 respectively. On behalf of the wife, Exts.A1 to A3 were marked and on behalf of the husband, Exts.B1 to B9 were also marked. By a common judgment, OP.495/03 filed by the husband for guardianship of the minor was dismissed by the Family Court, but it allowed access to him to the child on every third Saturday between 10.30 am and 12.30 pm. OP.496/03 filed by the husband for divorce was dismissed. In OP.97/05, the wife's claim for declaration of exclusive title and ownership over the scheduled property was rejected and she was allowed a decree of partition in respect of the 35 cents that stood in her name. Consequently, injunction in respect of that property was also allowed. Husband's claim to the extent of 65 cents which stood in his name was also allowed. It is challenging these orders that the husband has filed Mat.A.Nos.166/11, 171/11 and 172/11. Mat.A.153/12 has been filed by the wife aggrieved by the decree to the extent relief is denied to her in OP.97/05. 5. Husband's claim to the extent of 65 cents which stood in his name was also allowed. It is challenging these orders that the husband has filed Mat.A.Nos.166/11, 171/11 and 172/11. Mat.A.153/12 has been filed by the wife aggrieved by the decree to the extent relief is denied to her in OP.97/05. 5. Having thus set out the basic facts, we shall now proceed to deal with the appeals. We shall first deal with Mat.A.171/11 filed by the husband aggrieved by the dismissal of OP.496/03 filed by him for divorce. The petition was filed invoking sections 13(1)(ia) and 13(iii) of the Hindu Marriage Act. The judgment of the Family Court shows that the facts narrated in OP.496/03 have been discussed in paragraphs 7 and 8 and in paragraphs 25 to 28, it has discussed the evidence also. 6. A reading of the judgment itself shows that although it was contended by the husband that the wife was suffering from mental ailments of incurable nature and that it is not possible to continue cohabitation with her, apart from the oral evidence that she was once taken to a Psychologist for consultation, there was no medical or other acceptable evidence enabling the Family Court to arrive at a conclusion that the wife was suffering from any mental ailment, be it of incurable nature or otherwise. Therefore, it was on account of the absence of any such dependable evidence that the Family Court declined to accept the case of the appellant husband that the wife was suffering from a mental disorder of incurable nature, disabling him from living with her. 7. Now what remains is the case of cruelty. The judgment shows that the separation between the parties which took place on 27.7.2002 was preceded by an incident in the matrimonial home. According to the wife, husband splashed hot milk on her body while the child was in her hands. This resulted in burn injuries not only to her but also to the child. It was alleged that the incident happened at 7 am on that day. On the other hand, the husband contended that this was a self-inflicted one and thereafter, she ran out of the house, reached a neighbour's house, from where, she informed the matter to her relatives and was taken to her paternal home. It was alleged that the incident happened at 7 am on that day. On the other hand, the husband contended that this was a self-inflicted one and thereafter, she ran out of the house, reached a neighbour's house, from where, she informed the matter to her relatives and was taken to her paternal home. In so far as this allegation made by both parties are concerned, all that was available before the Family Court was assertion and counter assertion and there was nothing before it enabling it to conclude that this was an act of cruelty by either of the parties. Apart from this, the judgment does not show that any specific incident was canvassed as an act of cruelty. It was in such circumstances that the Family Court declined to accept this case also. These proceedings are consistent with the evidence available before the Family Court and nothing has been placed before us to show that this finding is illegal. 8. However, learned counsel for the appellant contended that the Family Court did not consider his case that the respondent had attempted to commit suicide that she was taken to a Psychologist and that she used to raise allegations of illicit relationship against him. As we have already stated, the judgment does not show that these factual contentions were urged before the Family Court and in the appeal memorandum also, there is no plea that these contentions were urged and were not considered by the Family Court. Therefore, we cannot find fault with the Family Court for not having considered these contentions which were not urged before it. 9. The case of the counsel for the appellant that false allegations raised by the respondent, particularly the allegations which were the subject matter of C.C.1321/02 between the parties for offences under section 498 A of the IPC, amounted to cruelty also was not urged before the Family Court. Therefore, we are inclined to agree with the Family court that the case of cruelty was not proved. For these reasons, the judgment of the Family court dismissing OP.496/03 does not merit interference and therefore, Mat.A.No.171/11 is dismissed. 10. Mat.A.166/11 arises from the judgment of the Family Court in OP.495/03. That OP, as we have already stated, was filed by the husband under section 7 of the Guardians and Wards Act for appointing him as the guardian of the minor child. 10. Mat.A.166/11 arises from the judgment of the Family Court in OP.495/03. That OP, as we have already stated, was filed by the husband under section 7 of the Guardians and Wards Act for appointing him as the guardian of the minor child. The Family Court dismissed the application and allowed the husband access to the child between 10.30 am to 12.30 pm on every third Saturday, at the court premises. Although both sides urged their respective contentions before us, on facts, what we notice is that the child is now aged 15 years and is studying in the 9th standard. All these years, the child was in the care and custody of the mother and therefore, if we make any modification to the existing arrangement at this stage, that will certainly have an adverse impact on the child which will affect him not only emotionally but also academically. Therefore, we are satisfied that any modification to the existing arrangement, as sought for by the appellant, will not be in the welfare of the child. Therefore, we dismiss Mat.A.166/11 filed by the husband challenging the judgment in OP.495/03 rendered by the Family Court. 11. Now what remains is Mat.A.Nos.172/11 and 153/12 filed by the husband and wife respectively, challenging the judgment in OP.97/05 filed by the wife. From the pleadings, it appears that the property in question was purchased on 15.5.2001 by Ext.A1 document. 65 cents of land is in the name of the husband and 35 cents of land is in the name of the wife. In the petition, the wife prayed for a decree declaring that she is the absolute owner of the petition whole property and that the husband is only a name-lender without any right over the property in question. On that basis, she sought a mandatory injunction requiring the husband to convey 65 cents comprised in Survey No.276/3A and 3B of Maradi Village of Muvattupuzha Taluk, covered by Ext.A1, absolutely to her. Alternatively, she also prayed that in the event she is found not entitled to the declaratory relief, to pass a decree of partition of the schedule property by metes and bounds, entitling her for a share of 35 cents of the schedule property. She also sought mesne profits of Rs. 1,60,000/-and future mesne profits at the rate of Rs.175/-per day, from the date of the petition. 12. She also sought mesne profits of Rs. 1,60,000/-and future mesne profits at the rate of Rs.175/-per day, from the date of the petition. 12. In the objection filed by the husband, he contended that the property was acquired fully utilising his resources and that the wife is only a name-lender in whose name 35 cents was acquired on account of the relationship between them. In the objection, he raised a counter claim and sought a decree declaring that he is the absolute owner and in possession of 35 cents, which stood in the name of the wife and that she is only a name-lender without any right over the property. 13. The Family Court in paragraphs 11 to 17 of its judgment discussed the pleadings of both parties and the findings are in paragraphs 29 to 32 of the common judgment. After discussing the evidence, the Family Court rejected the claims of both parties and allowed the partition sought for by the wife and prohibitory injunction was also passed against the husband. 14. During the course of arguments, the learned counsel for the husband did not press for the counter claim and therefore, we are not called upon to examine the merits of the contentions raised in Mat.A.No.172/11 filed by him. 15. Coming to the merits of Mat.A.No.153/12, the learned counsel for the appellant wife contended that at the time of marriage, Rs.1 lakh was given to the respondent. It is stated that the wife gave birth to the child on 18.2.1998 and returned to her matrimonial home on 28.3.1999. According to the learned counsel, on 26.3.1999, by Ext.A3 agreement for sale, 68 cents of land was agreed to be sold by herself, her mother and her brothers. It is also stated that when the wife returned to the matrimonial home, another sum of Rs.1 lakh was also given to the respondent. 16. Referring to Annexure-A1 produced along with I.A.943/12 filed in Mat.A.No.153/2012, learned counsel contended that this document issued by the Kerala State Financial Corporation Limited evidenced that on 30.3.1999, the husband had made two fixed deposits of Rs.23,000/- and Rs.22,000/-and that these fixed deposit accounts were closed by him on 3.4.2000. 16. Referring to Annexure-A1 produced along with I.A.943/12 filed in Mat.A.No.153/2012, learned counsel contended that this document issued by the Kerala State Financial Corporation Limited evidenced that on 30.3.1999, the husband had made two fixed deposits of Rs.23,000/- and Rs.22,000/-and that these fixed deposit accounts were closed by him on 3.4.2000. He also submitted that on 30.3.1999, the husband has made a deposit of Rs.45,000/- at the Maradi Post Office and that on the same day, as is evident from Ext.B5, he deposited a sum of Rs.9222/- in the Federal Bank. This, according to the learned counsel, proved that the wife had parted with Rs.2 lakhs in two instalments paid on the eve of the marriage and on 28.3.1999 when she returned to the matrimonial home, after the delivery. 17. Therefore, according to him, the sale consideration of Rs.1,20,000/-paid for acquiring the property was a portion of the amount given by the wife in trust to the husband. This, according to the learned counsel, entitled her for the declaration sought for by her in respect of the remaining 65 cents of land as well. 18. However, we are unable to accept this case now argued by the learned counsel. First of all, in paragraph 3 of O.P.No.97/05 what is pleaded by the wife is as follows: "The life of the petitioner from the early days of marriage itself was not happy. The respondent used to quarrel with the petitioner for silly matters. A male child, Arjun @ Achu was born out of the wedlock on 18.12.1998. After delivery, the petitioner returned to the matrimonial home on 28.3.1999 and on the same day, the brothers of the petitioner had given an amount of Rs.2 lakhs to the respondent as promised. The brothers of the petitioner raised the said amount by selling their family property and the same was given to the petitioner as her share. The petitioner entrusted the said amount of Rs.2,00,000/-with the respondent in trust and to the knowledge of the petitioner, the respondent had deposited the said amount in his name in a Bank." (emphasis supplied) Reading of the above would show that the case pleaded by the wife was that Rs.2 lakhs was paid by her brothers on 28.3.1999. The petitioner entrusted the said amount of Rs.2,00,000/-with the respondent in trust and to the knowledge of the petitioner, the respondent had deposited the said amount in his name in a Bank." (emphasis supplied) Reading of the above would show that the case pleaded by the wife was that Rs.2 lakhs was paid by her brothers on 28.3.1999. We also notice that as against the above, in the last sentence in paragraph 3, what she has stated is that she herself had entrusted the amount with the respondent in trust. Apart from the contradictions in her own pleadings, the case pleaded by her is that the payment was made only on 28.3.1999. As against this, what is now argued before us is that Rs.1 lakh was paid on the eve of the marriage and another Rs.1 lakh was paid on 28.3.1999. That apart, even if her argument that she got. 19. From the records received from the lower court, though we notice that the wife had filed I.A.No.3972/09 for amending her averments in paragraph 3 consistent with what is now argued before us, no orders are seen to have been passed by the Family Court on that I.A. Therefore, to sum up, suffice it to say that what is argued before us has no foundation in the pleadings of the wife. For that reason itself, we are unable to accept the contention urged. 20. The learned counsel then contended that mesne profits now allowed is only Rs.21,252/- and that the same is illegal. According to the learned counsel, quantification of the mesne profits is without any basis and that it was unrelated to the prevailing market value of rubber. However, from the records, we find that an Advocate Commissioner with the assistance of an expert from the Rubber Board inspected the scheduled property on 8.3.2010 and assessed the yield from the rubber trees at 770 Kgs. The report also shows that based on the above quantity, the annual income has been assessed at Rs.80,905/-, which is based on the market value prevailing in the year 2010. From this, after deducting the expenditure, the net income has been quantified by the Family Court at Rs.60,720/-. From the net annual income so quantified, the Family Court allowed35% to the wife, which is proportionate to the extent of property owned by her. From this, after deducting the expenditure, the net income has been quantified by the Family Court at Rs.60,720/-. From the net annual income so quantified, the Family Court allowed35% to the wife, which is proportionate to the extent of property owned by her. The above-quantification is perfectly legal and no ground is made out justifying interference in this appeal. 21. Therefore, we do not find any ground to interfere with the judgment of the Family Court in OP.97/05. Accordingly, Mat. A.Nos.172/11 and 153/12 are also dismissed. The appeals are dismissed. No order as to costs.