Anil Kumar G v. Sindhu G R

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940** **Mat.Appeal.No. 319 of 2013** **AGAINST THE ORDER/JUDGMENT IN OP 218/2009 of FAMILY COURT,TRIVANDRUM DATED 12-10-2012** ## **APPELLANT/S:** **ANIL KUMAR G AGED 39 YEARS S/O.GOPINATHAN NAIR,VADAKKEVILAKATHU VEEDU,SWAMIYARMADAM,CHENKOTTUKONAM,CHEMPAZHANTHY P.O,THIRUVANANTHAPURAM 695 587** **BY ADVS. SRI.T.M.RAMAN KARTHA SRI.K.P.RAJEEVAN** ## **RESPONDENT/S:** **SINDHU G R AGED 34 YEARS D/O.N.GOPINATHAN PILLAI,.BHAGAVATHI VILASAM,AIYOOPPARA VILLAGE,POTHENCPODE,THIRUVANANTHAPURAM 695 584** **BY ADV. SRI.J.HARIKUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2018, THE COURT ON 08.10.2018 DELIVERED THE FOLLOWING:** **Mat.Appeal.No. 319 of 2013** **2** ## **JUDGMENT** ## Narayana Pisharadi, J The appellant is the husband and the respondent is the wife. The appeal is filed challenging the judgment and decree passed by the Family Court, Thiruvananthapuram in O.P. No.218/2009. 2. The wife filed O.P. No. 218/2009 against the husband seeking various reliefs against him. She sought a decree of divorce on the ground of cruelty. She also sought a decree for realisation of Rs.2,000/- per month as maintenance. She further sought a decree for recovery of 26 sovereigns of gold ornaments allegedly given by her to the husband. She also sought a decree for realisation of Rs.1,00,000/- allegedly spent by her parents for construction of a house in the property owned by the appellant. 3. The appellant had filed counter statement in O.P No. 218/2009 denying the allegations raised against him by the respondent. 4. During the course of the proceedings, the wife filed an application as I.A. No.475/2009 under Section 24 of the Hindu Marriage Act, 1955 for directing the husband to pay interim maintenance to her at the rate of Rs.2,000/- per month. As per **Mat.Appeal.No. 319 of 2013** **3** the order dated 14.08.2009, the Family Court directed the appellant to pay interim maintenance to the respondent at the rate of Rs.1,500/- per month. The appellant did not challenge this order. He also did not comply with the direction given by the Family Court to pay interim maintenance to the respondent. Therefore, the Family Court struck off the defence of the appellant (We could not find out from the lower court records the order passed by the Family Court striking off the defence of the appellant. However, there is no dispute between the parties with regard to the fact that the defence of the appellant was struck off on the ground of nonpayment of interim maintenance to the respondent). 5. During the trial of the case, PW1 to PW3 were examined and Exts.A1 to A5 documents were marked on the side of the respondent/petitioner. The witnesses examined by her were crossexamined by the appellant. Exts.B1 to B8 documents produced by the appellant were marked through PW1. 6. After appreciating the evidence adduced by the respondent/petitioner and after perusing the notes of arguments submitted by either side, the Family Court passed a decree in the case as follows: “In the result O.P stands allowed and a decree is passed dissolving the marriage **Mat.Appeal.No. 319 of 2013** **4** solemnized on 02.12.2001 between the petitioner and the respondent with effect from today. The respondent is directed to return 26 sovereigns of gold ornaments to the petitioner within two months failing which the petitioner is allowed to recover the present market value of the same at the rate of Rs.23,200/- per sovereign from the respondent and charged on the petition schedule property. The respondent is also directed to return Rs.1 lakh to the petitioner within two months failing which the petitioner is allowed to realise the same with interest at the rate of 6% per month from the date of suit till realization from the respondent and charged on the petition schedule property. The respondent is also directed to pay maintenance to the petitioner at the rate of Rs.1,500/- per month from the date of this O.P and the petitioner is allowed to realise the maintenance amount from the respondent and charged on the petition schedule property.” 7. We have heard the learned counsel for the appellant as well as the respondent and perused the records of the case. 8. The marriage of the appellant and the respondent was solemnized on 2.12.2001. The respondent had sought the decree **Mat.Appeal.No. 319 of 2013** **5** of divorce on the ground of cruelty. The main allegation against the appellant is that he is a person addicted to alcohol and that he used to assault the respondent after consuming liquor. 9. Learned counsel for the appellant contended that the respondent could not have filed a single suit or original petition seeking the various reliefs provided under the Explanation to Section 7 of the Family Courts Act, 1984. We find no force in this contention. In an unreported decision in **Ameerudheen v. Ramseena (judgment dated 25.11.2014 in OP(FC)No. 417/14)** , a Division Bench of this Court has held as follows: “ Going by the provisions from (a) to (g) of the Family Court Act, it could be seen that jurisdiction is specifically provided for each matters under sub-section (1)(a) to (g) of Section 7. According to Section 7(1)(f) of the Family Court Act, a specific jurisdiction is provided for filing a suit for proceeding for maintenance. We are also of the opinion that there is no legal bar for claiming different reliefs from (a) to (g) in an Original Petition filed under Section 7 of the Family Court Act provided that such original petitions must contain pleadings for all reliefs. Therefore, the petitioner could have incorporated all reliefs with sufficient pleadings in the main petition itself.” We concur with the aforesaid view. We see no legal impediment in clubbing the various reliefs provided under Clauses (a) to (g) of the **Mat.Appeal.No. 319 of 2013** **6** Explanation to Section 7(1) of the Family Courts Act, 1984 in a single suit or original petition. 10. As per the order dated 14.8.2009, the Family Court had directed the appellant to pay Rs.1,500/- per month as interim maintenance to the respondent under Section 24 of the Hindu Marriage Act, 1955. The appellant did not challenge the aforesaid order. He also did not pay the amount of interim maintenance ordered by the court to the respondent. The appellant is a tailor by profession. Of course, he had undergone a surgery for removal of varicose vein. But, there was no medical evidence produced by him before the lower court to show that he was not able to do his job after the surgery. Therefore, it has to be found that his noncompliance with the direction of the court to pay interim maintenance was deliberate and wilful. Contumacious conduct on the part of the appellant is evident. In such circumstances, the lower court was justified in striking off the defence of the appellant in the original petition (See **Shafi v. Raihanath: 2018(3) KHC 851** and **Muraleedharan v. Jincy: 2018(4)KHC 639** ). 11. The respondent has remarried on 24.10.2013. Admittedly, the appellant and the respondent have been living separately from 7.8.2008 onwards. We have already found that **Mat.Appeal.No. 319 of 2013** **7** the lower court was justified in striking off the defence of the appellant on account of the wilful default made by him in payment of the interim maintenance ordered to be paid to the respondent. In these circumstances, we explored the possibility of an amicable settlement of the issues between the parties. Learned counsel for the appellant, after getting instructions from the appellant, submitted that if he is given a breathing time to pay the arrears of maintenance due to the respondent till the date of her remarriage and if he is allowed to defend the claim for return of gold ornaments and realisation of money made by her, then he does not intend to pursue the appeal against the decree of the lower court granting divorce and payment of maintenance. Learned counsel for the respondent has agreed to this proposal. 12. In view of the aforesaid circumstances, we are inclined to dispose of the appeal on the concessions made by the counsel for the parties at the time of hearing of the appeal. 13. Consequently, we confirm the judgment and decree passed by the lower court dissolving the marriage between the appellant and the respondent. We also confirm the judgment and decree passed by the lower court directing the appellant to pay maintenance to the respondent at the rate of Rs.1,500/-per month **Mat.Appeal.No. 319 of 2013** **8** from the date of filing the original petition. He shall pay maintenance to the respondent at the aforesaid rate till the date 24.10.2013. The appellant shall pay the arrears of maintenance within a period of two months from today. On his failure to pay the amount within that period, the respondent is entitled to realise the arrears of maintenance from the appellant by executing the decree. We set aside the judgment and decree passed by the lower court directing the respondent to return 26 sovereigns of gold ornaments and Rs.1,00,000/- to the respondent and remand the case to the Family Court for adjudicating afresh only the claims made by the respondent in that regard. The parties shall appear before the Family Court on 07.11.2018. The Family Court shall grant opportunity to the appellant to adduce evidence with regard to the claims made by the respondent for return of gold ornaments and Rs.1,00,000/-. No costs in the appeal. ## Sd/- **C.K. ABDUL REHIM, Judge** ## Sd/- **R.NARAYANA PISHARADI, Judge** lsn