Abin Philip and Joyichan M.P. v. Yancy Mary Isaac

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 5TH DAY OF JUNE 2013/15TH JYAISHTA 1935** **Mat.Appeal.No. 349 of 2013 ------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OP 1539/2012 of FAMILY COURT, THIRUVALLA** ## **APPELLANT(S):** **------------------------** **1. ABIN PHILIP, AGED 35 YEARS, S/O.JOYICHAN M.P, MATTATHIL HOUSE, THODANAL P.O PALA, KOTTAYAM DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER CIBIN PHILIP.** **2. JOYICHAN M.P MATTATHIL HOUSE, THODANAL P.O, PALA KOTTAYAM DISTRICT.** **BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS** ## **RESPONDENT(S):** ## **----------------------------** **YANCY MARY ISSAC, AGED 31 YEARS, D/O.V.J.ISSAC, VATHAPPALLIL HOUSE, HOSUE NO.22 CHITHRA NAGAR, PATTOM P.O, 695 101 THIRUVANANTHAPURAM.** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 05-062013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== Mat. Appeal NO. 349 OF 2013 =======================** ## **Dated this the 5[th] day of June, 2013** ## **J U D G M E N T** ## Antony Dominic, J. This appeal arises from the judgment in OP NO.1539/12 on the file of the Family Court, Thiruvalla, and the respondents therein are the appellants herein. Respondent herein filed the OP under Section 7 of the Family Court Act for realisation of patrimony from the appellants. By the impugned judgment rendered on 4/5/13, the Family Court decreed the OP allowing the respondent to realise `5,00,000/- as patrimony with interest at the rate of 8% per annum from the date of petition till its realisation and costs from the appellants and their assets. 2. Brief facts of the case are that the first appellant and the respondent belong to Roman Catholic (Syrian) Christian community and their marriage was solemnized on 01/01/2007 at the Infant Jesus Church, Thoduvayal, Pala in accordance with the religious rites and ceremonies. For various reasons, the relationship between the parties did not last long and on account of the absence of any scope for reunion, at the intervention of the **Mat.Appeal No.349/13** ## **: 2 :** mediators, it was decided to apply for the dissolution of the marriage by mutual consent. Accordingly, OP NO.1147/09 was filed under Section 10A of the Divorce Act before the Family Court, Kottayam at Ettumanoor. It is stated that when the case was posted for evidence, the first appellant remained absent and therefore the divorce petition was dismissed for his non appearance. As a result of the above, the respondent filed OP 657/10 for divorce on the ground of cruelty and by judgment dated 29/2/12, the Family Court allowed the petition. Subsequently, the respondent filed OP No.1539/12 for realisation of her patrimony of `5,00,000/- with interest and costs. 3. The first appellant who is stated to be working abroad contested the matter through his Power of Attorney Holder and the second appellant, his father, also filed objection. The first contention raised was that the petition was not maintainable as it was hit by the provisions of Order II Rule 2 of the Code of Civil Procedure. According to the appellants, the respondent had earlier filed OP No.657/2010 before the Family Court, Kottayam at Ettumanoor for divorce. In that case, it was specifically pleaded that, on 4/11/2006, the father of the respondent entrusted **Mat.Appeal No.349/13** **: 3 :** `5,00,000/- with the second appellant with the consent and knowledge of the first appellant as the paternal share of the respondent. However, she had omitted to claim any relief for its realisation. Therefore, according to the appellants, in view of the provisions of Order II Rule 2, the petition was not maintainable. 4. Though the marriage was admitted, the appellants denied payment of any patrimony or sthreedhanam. According to them, the second appellant hails from a respectable and affluent family with all his children well settled in life and would not accept any money as sthreedhanam. They denied that there was any function on 4/11/2006 or that any amount was entrusted to the second appellant. It is also stated that before the joint petition under Section 10A of the Divorce Act was filed, on the suggestion of the mediators, all the personal belongings of each other were handed over and an affidavit and acknowledgment was executed to which both parties had affixed their signature. Therefore, it was contended that the omission to claim patrimony in the previous proceedings was a deliberate one and was not for the reason pleaded by the respondent. **Mat.Appeal No.349/13** **: 4 :** 5. On the pleadings, necessary issues were framed and on behalf of the respondent, PWS 1 and 2 were examined and on behalf of the appellants, CPWs 1 to 4 were examined. Exts.A1 to A5 and B1 to B10 were produced. All the issues were found in favour of the respondent and it was accordingly that the OP was decreed. 6. Learned Senior counsel for the appellants reiterated the contention that in view of the provisions of Order II Rule 2 of the C.P.C, the OP was not maintainable. According to him, the pleadings in OP 657/10 filed before the Family Court amply demonstrates that the respondent was aware of the payment of the patrimony and that the cause of action for OP No.657/10 and OP No.1539/12, from the judgment of which the present appeal arises, are the same. Therefore according to him, respondent having omitted to claim relief for the refund of patrimony, cannot claim the said relief in a subsequent OP. 7. In support of this contention, learned counsel relied on the judgments in _**Gajanan R. Salvi v. Satish Shankar Gupta**_ (AIR 2004 Bombay 455), _**Ramesh Chander v. Rakesh Kumar**_ (AIR 2008 J & K 37), _**Shiv Kumar Sharma v. Santhosh Kumari**_ **Mat.Appeal No.349/13** **: 5 :** (AIR 2008 SC 171), _**Alka Gupta v. Narender Kumar Gupta**_ {(2010) 10 SCC 141}, _**Gurinderpal v. Jagmittar Singh**_ {(2004) 11 SCC 219}, _**Kunjan Nair Sivaraman Nair v. Narayanan Nair**_ {(2004 3 SCC 277} and _**Gurbux Singh v. Bhooralal**_ (AIR 1964 SC 1810). 8. We have considered this contention. 9. Order II Rule 2 of the Code of Civil Procedure reads thus: _**2. Suit to include the whole claim** (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court._ _**(2) Relinquishment of part of claim** - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished._ _**(3) Omission to sue for one of several reliefs** -_ _A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted._ 10. This provision has been interpreted in the aforesaid judgments which show that for a plea of bar under Order II Rule 2 to succeed, the defendant who raised the plea must make out (1) **Mat.Appeal No.349/13** ## **: 6 :** that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action, the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. These principles are well settled and the judgments relied on by the learned counsel for the appellants also do not lay down anything different. Therefore, unless identity of cause of action is established by the defendant, there would be no scope for the application of this Rule. Therefore, as held by the Apex Court in _**Alka Gupta v. Narender Kumar Gupta**_ {(2010) 10 SCC 141}, while considering whether the second suit by a party is barred by Order II Rule 2 of the CPC, what is required to be seen is whether the relief claimed in both the suits arose from the same cause of action, without going into the merits of the claim or the validity of the second claim. 11. Keeping these principles in mind, we shall now proceed to examine whether OP No.1539/12 filed by the respondent was for the same cause of action which led her to file OP No.657/10 for **Mat.Appeal No.349/13** ## **: 7 :** divorce. In OP No.657/10, the prayer sought was for divorce and the ground urged was cruelty. On the other hand, OP No.1539/12 was filed for realisation of patrimony from the appellants. 12. In so far as OP No.657/10 is concerned, the cause of action which entitled the respondent for the relief of divorce was the cruelty she suffered in her matrimonial life and on the other hand, the cause of action which entitled the respondent for the relief of realisation of patrimony is its entrustment to the appellants and their failure to return the same. This itself therefore would demonstrate that OP Nos.657/10 and 1539/12 were not based on the same cause of action to attract the prohibition contained in Order II Rule 2 of the C.P.C. Therefore, in the absence of any identity in the cause of action, the plea of the appellants cannot be accepted. 13. Learned senior counsel for the appellants pointed out various factual aspects which according to him showed that the case of the respondent justifying her omission to claim the relief for realisation of patrimony in the previous proceedings was unbelievable. He also argued that the evidence in this behalf is full of contradictions. It is true that various disputed facts are **Mat.Appeal No.349/13** ## **: 8 :** referred to by the Family Court in this context. However, in our view the question whether OP No.1539/12 is hit by the provisions of Order II Rule 2 C.P.C or not is a pure question of law and therefore the factual controversy raised by both parties including those now urged before us are not relevant to decide that issue. Suffice it to say that we endorse the finding of the Family Court that OP No.1539/12 is not hit by the provisions of Order II Rule 2 of the C.P.C. 14. The next issue that arises for consideration is the correctness of the finding of the Family Court on the question relating to payment of `5,00,000/- as patrimony and its entrustment to the appellants. As we have already stated, it is the case of the appellants that there was no such payment. They also relied on the proceedings before the Family Court in OP Nos.1147/09 and 657/10 and the evidence of CPWs 1 to 4 in this behalf which included CPW2, the Sheristadar of the Family Court, CPW3, the Advocate who appeared in OP No.1147/09 and CPW4, a mediator. 15. In so far as this aspect of the matter is concerned, at the outset itself, we should state that such a contention has been **Mat.Appeal No.349/13** ## **: 9 :** raised by the appellants against their own admissions. During his cross examination, the first appellant admitted that it is the usual practice in his community to give patrimony to female children at the time of marriage. Further, in paragraph 4 of Ext.B8, the certified copy of OP NO.657/10, the respondent had specifically pleaded that prior to the marriage, on 4/11/2006, an amount of `5,00,000/- was paid to the second appellant and that such payment was made on the mutual understanding that the amount will be deposited in the name of the respondent after marriage. In spite of this specific averment, in Ext.A3, the objection filed by the first appellant to Ext.B8, there was no denial of this averment. Thus the payment of patrimony was not denied by the first appellant at the earliest possible opportunity and therefore the Family Court was entitled to proceed on the basis that what is not denied is admitted. 16. Further, the appellants did not have a case that the parents of the respondent were not having financial capacity to pay the amount as claimed. The Family Court has taken note of the fact that the respondent, who is a veterinary surgeon hails from a family having substantial landed properties. Her father is **Mat.Appeal No.349/13** **: 10 :** a retired Additional Director of the Economics and Statistics Department and her mother was working as a College Professor. It has also taken note of the deposition of PW2, the father of the respondent that he had only three daughters and that he has assets worth more than 5 crores. Thus the Family Court has also taken note of the fact that the respondent hails from affluent circumstances. 17. We also note that A1 before the Family Court is the attested copy of the statement from the Accountant General, Kerala showing that `5,27,355/- was sanctioned from the General Provident Fund account of PW2, the respondent's father. Ext.A4 is the letter issued by the Sub Treasury Officer, Vikas Bhavan, Thiruvananthapuram showing that, on 3/11/2006, PW2 had encashed the aforesaid amount from the Sub Treasury, Vikas Bhavan as his GPF claim. These documents proved that, on 3/11/2006, the day prior to 4/11/2006, when the payment was made, PW2 had more than `5,00,000/- with him. In our view, Exts.A1 and A4, the affluent circumstances of the family and the admissions made by the appellants alone were sufficient to **Mat.Appeal No.349/13** **: 11 :** conclude the issue of payment of patrimony and its entrustment to the 2[nd] appellant. 18. Further, the Court has rightly found that in Ext.B2, the petition for divorce by mutual consent, though it was stated that the disputes between the parties arising out of the marriage were settled, there was no mention about the return of patrimony. As far as Ext.B2 relied on by the appellants is concerned, in this typed document, the sentence that “all the claims and disputes between the parties arising out of the marriage were settled” was subsequently inserted by handwriting and there was no initial or signature of either of the parties to lend authenticity to such insertion. It was therefore that the Court declined to place any reliance on Ext.B2. 19. In so far as the evidence of CPW3, the counsel who appeared in OP 1147/09 is concerned, the Court has rightly declined to place much reliance on his evidence for the reason that the petition filed by the respondent against him before the Bar Council was pending. Further, if he had deposed otherwise, he would have been weakening his own defence before the Bar Council of Kerala. The Court has also eschewed the evidence of **Mat.Appeal No.349/13** **: 12 :** the Sheristadar of the Family Court for the reason that it was not the usual practice of any court that the parties would come to the Sheristadar and sign the pleadings before him. We also find it strange that such a case was advanced by a Court Official. It was considering these circumstances that the Family Court held that the respondent had proved that before her marriage on 4/11/2006, her father had paid `5,00,000/- to the appellants as patrimony and that the same was not returned even after the decree of divorce was passed. In our considered opinion, the finding of the Family Court is fully consistent with the evidence that was available before it and the Family Court, the Family Court has not committed any illegality in decreeing the OP. In the result, we do not find any reason to interfere with the decree and judgment of the Family Court and therefore we dismiss the appeal. Sd/- **ANTONY DOMINIC, JUDGE** Sd/- ## **P.D.RAJAN, JUDGE** Rp //True Copy// PA to Judge