Chandran v. Suseela (Mat.Appeal Nos. 1080 of 2014 and 191 of 2018), High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY ,THE 12TH DAY OF OCTOBER 2018 / 20TH ASWINA, 1940** **Mat.Appeal.No. 1080 of 2014** **AGAINST THE ORDER/JUDGMENT IN OP 821/2008 of FAMILY COURT,THRISSUR** ## **APPELLANT/S IN MAT.A: RESPONDENT IN O.P.:** **CHANDRAN AGED 64 YEARS S/O.KUTTAPPAN, PUTHIYEDATHU HOUSE, NELLIKKUNNU KARA, THRISSUR** **BY ADV. SMT.T.B.REMANI** ## **RESPONDENT/S/PETITIONER IN O.P:** **SUSEELA AGED 52 YEARS D/O.SANKUNNY, THAZHAMPILLY HOUSE, AMALA NAGAR, PERAMANGALAM, THRISSUR DIST-680001** **DILIP J. AKKARA-RESPONDENT** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2018, ALONG WITH Mat.Appeal.191/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY ,THE 12TH DAY OF OCTOBER 2018 / 20TH ASWINA, 1940** ## **Mat.Appeal.No. 191 of 2018** **AGAINST THE ORDER/JUDGMENT IN OP 1123/2009 of FAMILY COURT,THRISSUR DATED 26-07-2013** ## **APPELLANT/S:** ## **CHANDRAN** **AGED 67 YEARS, S/O. KUTTAPPAN, PUTHIYEDATH HOUSE, NELLIKUNNUKARA DESOM, NADATHARA VILLAGE, TRISSUR TALUK.** **BY ADV. SMT.T.B.REMANI** ## **RESPONDENT/S:** |**1**|**SUSEELA**| |---|---| ||**AGED 56 YEARS, W/O. PUTHIYEDATH CHANDRAN,**| ||**NELLIKUNNUKARA DESOM, NADATHARA VILLAGE, TRISSUR**| ||**TALUK-680 751.**| |**2**|**SARATH CHANDRAN**| ||**AGED 34 YEARS, S/O. PUTHIYEDATH CHANDRAN,**| ||**NELLIKUNNUKARA DESOM, NADATHARA VILLAGE, TRISSUR**| ||**TALUK-680 751.**| |**3**|**KIRAN**| ||**AGED 30 YEARS, S/O. PUTHIYEDATH CHANDRAN,**| ||**NELLIKUNNUKARA DESOM, NADATHARA VILLAGE, TRISSUR**| ||**TALUK-680 751.**| ## **BY ADV. SRI.DILIP J. AKKARA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2018, ALONG WITH Mat.Appeal.1080/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **3** ## **JUDGMENT** ## Narayana Pisharadi, J These appeals are filed by the husband. The respondent in Mat.Appeal No.1080/2014 is the wife. The respondents in Mat.Appeal No. 191/2018 are the wife and the two sons of the appellant. 2. Mat.Appeal No.1080/2014 is filed by the husband challenging the judgment and decree passed by the Family Court in O.P.No.821/2008 directing him to return 10 sovereigns of gold ornaments or Rs.90,000/-, being their value, to the wife. Mat.Appeal No. 191/2008 is filed by him challenging the judgment and decree passed by the Family Court in O.P.No.1123/2009 restraining him from evicting the wife and the two sons from the house in the petition schedule property and causing any obstruction to their peaceful life therein. 3. The wife filed O.P.No.821/2008 against the husband seeking a decree for realisation of past maintenance of Rs.1,08,000/- and also return of 15 sovereigns of gold ornaments allegedly entrusted by her with the husband. The husband filed counter statement in O.P.No.821/2008 denying the allegation that **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **4** the wife had entrusted with him 15 sovereigns of gold ornaments. 4. The wife and the two sons filed O.P No.1123/2009 against the husband seeking a decree of prohibitory injunction restraining him from forcibly evicting them from the house in the petition schedule property. They alleged that they were residing in the house in the petition schedule property and that the husband made attempt to forcibly evict them from the house. They also alleged that the house in the petition schedule property was constructed by using the money raised by selling the gold ornaments of the wife and also money obtained by her in a kuri. 5. The husband did not file any counter statement in O.P.No.1123/2009. 6. The Family Court conducted joint trial of the two cases, O.P Nos. 821/2008 and 1123/2009. The wife was examined as PW1 and Exts.A1 to A12 documents were marked on her side. The husband was examined as RW1 and Exts.B1 to B4 documents were marked on his side. 7. After appreciating the evidence adduced by the parties, the Family Court found that the wife is not entitled to get any amount as past maintenance from the husband. The Family Court granted a decree in O.P No.821/2008 directing the husband to **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **5** return 10 sovereigns of gold ornaments or Rs.90,000/-, being their value, to the wife. The Family Court granted a decree of prohibitory injunction in O.P No.1123/2009 restraining the husband from evicting the wife and the two sons from the house in the petition schedule property and causing any obstruction to their peaceful life therein. 8. We have heard the learned counsel for the appellant and also the respondents. 9. The specific plea made by the wife in the original petition (O.P No. 821/2008) is that she had obtained 20 sovereigns of gold ornaments at the time of the marriage and that she entrusted 15 sovereigns of gold ornaments with the husband on 20.2.1982 and that the husband misappropriated them. The husband has denied this allegation in the counter statement filed by him. His plea is that the wife had only five sovereigns of gold ornaments at the time of the marriage and they are in her possession. 10. The wife was examined as PW1. She has stated in examination-in-chief (proof affidavit) that she had obtained 20 sovereigns of gold ornaments at the time of the marriage and that she entrusted 15 sovereigns of gold ornaments with the husband **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **6** on 20.2.1982. When examined as RW1, the husband denied the aforesaid allegation. 11. There is no evidence, other than the interested testimony of PW1, that at the time of marriage the wife had obtained 20 sovereigns of gold ornaments. It is pertinent to note that the details of the gold ornaments are not mentioned in the original petition (O.P No. 821/2008). PW1 has mentioned such details only during the cross-examination. PW1 has stated on cross-examination that there is bill for purchasing the gold ornaments. No such bill was produced by her. She has stated in the re-examination that the bill is not in her possession, but it is in the possession of her brothers. If that be so, it is not explained what prevented her from obtaining the bill from her brothers and producing it before the court. It is also to be noted that the parents of the wife, if they were alive, at the time of the trial of the case, or atleast any relatives of the wife, were not examined to prove the quantity of gold ornaments which she had at the time of the marriage. 12. There is also no reliable evidence to find that the wife had entrusted 15 sovereigns of gold ornaments with the husband. The specific plea in the original petition (O.P No.821/2008) is that **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **7** she entrusted them with the husband on 20.2.1982. The marriage was on 25.01.1982. The lower court has relied upon Ext.A12 photograph to find the quantity of gold ornaments which the wife had with her at the time of the marriage. The lower court has found that Ext.A12 is the marriage photograph. No evidence is given by PW1 to that effect. Nobody has got a case that Ext.A12 is a photograph taken at the time of the marriage. A bare perusal of Ext.A12 photograph would show that it is not one taken at the time of the marriage or during the period immediately after the marriage. 13. It is also pertinent here to note that the wife has no plea that after the alleged entrustment of the gold ornaments with the husband on 20.2.1982, he had returned them at any time. If that be so, Ext.A12 photograph would rather disprove the plea advanced by the wife that the gold ornaments were entrusted by her with the husband on the aforesaid date. As noticed earlier, it cannot be found that Ext.A12 is a photograph which was taken at the time of the marriage or atleast within a short period after the marriage. PW1 has not given any evidence to that effect. Then, the very fact that the wife is seen in that photograph with gold ornaments worn on her body would disprove her plea that she had **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **8** entrusted the gold ornaments with her husband on 20.2.1982. 14. There is yet another reason to find that the plea of the wife regarding entrustment of the gold ornaments with the husband on 20.2.1982 is baseless. In O.P No.1123/2009 filed by the wife on 10.06.2009, nearly one year after the filing of O.P No. 821/2008, her plea is that the house in the petition schedule property was constructed also by using the money obtained by selling her gold ornaments. This plea would negate her case in O.P. No.821/2008 that she had entrusted the gold ornaments with the husband on 20.2.1982 and that he misappropriated them. In the affidavit filed by the wife in lieu of examination-in-chief, there is no averment that the house in the petition schedule property was constructed also by using the money obtained by selling her gold ornaments. It appears that such averment is deliberately omitted in the proof affidavit filed by her for the reason that if made, it would disprove her plea in O.P No.821/2008 that the husband had misappropriated the gold ornaments. 15. In the aforesaid circumstances, we find that the wife was not able to prove entrustment of 15 sovereigns of gold ornaments with the husband on 20.02.1982 as alleged by her. It follows that the decree passed by the lower court directing the **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **9** husband to return of 10 sovereigns of gold ornaments to the wife cannot be sustained and it is liable to be set aside. 16. The wife filed O.P No.1123/2009 raising an allegation that she is residing in the house in the petition schedule property and that the husband had made attempt to forcibly evict her from the house. When examined as PW1, the wife has given evidence to that effect. When examined as RW1, the husband admitted that the wife is residing in the house in the petition schedule property. The husband did not file any counter statement denying the allegations made against him in O.P No.1123/2009. In such circumstances, the wife is entitled to get a decree of prohibitory injunction restraining the husband from forcibly evicting her from the house in the petition schedule property. 17. However, the case of the sons in O.P.No.1123/2009 stands on a different footing. At the time of filing O.P No.1123/2009, the sons were aged 23 and 26 years. They have no right over the house. They have no right to reside in the house in the petition schedule property against the wish and will of the appellant, their father. In the absence of any legal right to reside in the house in the petition schedule property, they are not entitled to get a decree of injunction against their father. **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **10** 18. In **Sachin v. Jhabbu Lal : AIR 2017 Delhi 1** , dealing with the right of the children to reside in the house of the parents, the Delhi High Court has stated as follows: _“Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life”._ 19 _._ The husband is a senior citizen. In **Dattatrey Shivaji Mane v. Lilabai Shivaji Mane (MANU/MH/1980/2018)** , dealing with the dispute between a mother and son under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the Bombay High Court has very recently held as follows: _“A perusal of the record clearly indicates that the relationship between the respondent no.1 and the petitioner and his family members are very strained resulting in the respondent no.1 filing various police complaints against the petitioner. In these circumstances, the respondent no.1 who is 73 years old cannot be compelled to allow the petitioner and his family_ **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **11** _members to stay with her. It is exclusively for the respondent no.1 to decide whether she wants to permit the petitioner and his family members to stay with her or not. In this case, the respondent no. 1 has decided not to allow the petitioner and his family members to stay with her in the house owned by her. In my view, the Tribunal was thus fully justified in passing an order of eviction not only against the petitioner but also other family members of the petitioner”._ 20. It is also to be noted that the wife is entitled to get a decree of prohibitory injunction only against forcible eviction from the house by the husband and not against eviction by due process of law. 21. In the aforesaid circumstances, the decree of prohibitory injunction passed by the lower court in O.P No.1123/2009 is liable to be modified. 22. Consequently, we allow Mat.Appeal No.1080/2014 and set aside the judgment and decree passed by the lower court in O.P No.821/2008. O.P No.821/2008 is dismissed. We allow Mat.Appeal No. 191/2018 in part and modify the judgment and decree passed by the lower court in O.P No.1123/2009 by vacating **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **12** the decree of injunction granted in favour of the second and the third respondents (the two sons). We also modify the decree of prohibitory injunction granted in favour of the first respondent (wife) by restraining the appellant from forcibly evicting her from the house in the petition schedule property. The parties shall suffer their respective costs throughout in both cases. Sd/- **C.K. ABDUL REHIM, Judge** Sd/- **R.NARAYANA PISHARADI,** **Judge** lsn **Mat.Appeal.No. 1080 of 2014 & Mat.Appeal.No. 191 of 2018** **13** ## **APPENDIX** **PETITIONER'S EXHIBITS :** **ANNX.A1 : COPY OF THE MEDICAL CERTIFICATE. ANNX.A2 : COPY OF THE MERDICAL CERTIFICATE.** **RESPONDENTS EXHIBITS : NIL.** **/TRUE COPY/** **P.A TO JUDGE** ## **LSN**