Mat.Appeal No. 166 of 2010 (OP.134/2006, Family Court, Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934** **Mat.Appeal.No. 166 of 2010 ( )** **-----------------------------OP.134/2006 OF FAMILY COURT, ERNAKULAM. .............** ## **APPELLANTS/RESPONDENTS NO.1 AND 2:** **----------------------------------------------------------------** **1. SURESH GOPALAKRISHNAN, AGED 32, H.NO.38/1880, OPPOSITE CENTURY CLUB, PO.VENNALA, COCHIN-28.** **2. DAMAYANTHI, AGED ABOUT 63 YEARS,** **W/O.LATE GOPALAKRISHNAN, NO.12, LOTUS APARTMENTS, KRISHNAKANANDHI ROAD, KOPPAM, PALAKKAD.** **BY ADVS. SRI.K.R.VINOD, SMT.M.S.LETHA.** ## **RESPONDENTS/PETITIONER:** **-------------------------------------------** **1. T. RADHIKA , AGED 28 YEARS, W/O.SURESH, GOPALAKRISHNAN, KRISHNAKRIPA, AYYAPURAM, KALAPATHY P.O., PALAKKAD.** **2. NIVEDA, D/O.RADHIKA, REPRESENTED BY MOTHER AND GUARDIAN, RADHIKA, W/O.SURESH GOPALAKRISHNAN, KRISHNAKRIPA, AYYAPURAM, KALPATHY P.O., PALAKKAD.** **BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE. ADV. SRI.S.SHARAN.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON 25-02-2013 DELIVERED THE FOLLOWING:** **rs.** ## **Mat.Appeal.No. 166 of 2010** ## **APPENDIX** **PETITIONER'S ANNEXURES:NIL.** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE R1A COPY OF THE SCHEDULE ALONG WITH ENCUMBRANCE CERTIFICATE PROPERTY DATED 23/11/2010.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **PIUS.C. KURIAKOSE & P.D. RAJAN, JJ.** ------------------------------------------Mat. Appeal No.166 of 2010 ---------------------------------------------Dated this the 25[th] day of February, 2013 ## **JUDGMENT** ## **P.D.Rajan, J.** The respondents in O.P.No.134/2006 of the Family Court, Ernakulam are the appellants and the petitioners are respondents in this appeal. Petitioners filed the Original Petition under Sections 24 and 25 of Hindu Marriage Act, 1955, seeking permanent alimony, return of gold ornaments and maintenance etc. The 1[st] appellant is the husband and the 2[nd] appellant is the mother. The marriage between the 1[st] appellant and the 1[st] respondent was registered on 12.11.2001 in the Sub Registrar Office, Koduvayoor, after that the marriage was conducted in the nearby temple as per Hindu customary rites. At the time of the marriage, the mother of the 1[st] respondent gave 25 sovereigns of gold and a sum of Rs.10,000/- to her. After the marriage, both of them lead a happy married life, but, subsequently when the 2[nd] appellant demanded more amount as dowry, the marital 2 Mat.Appeal No.166/10 relationship strained. When she was unable to pay the amount she withdrew the Fixed Deposit account and entrusted it to the appellants. In the wedlock, a female child was born out to them on 18.2.2005 at Indira Gandhi Hospital, Ernakulam. In the meantime, the 1[st] appellant filed O.P. No.586/2005 for divorce which was dismissed by the Family Court. The 1[st] appellant is a Marketing Executive in the Standard Chartered Bank, Ernakulam and having landed properties at Palakkad worth rupees thirty lakh and Fixed Deposit in bank for more than ten lakh rupees. Hence, they filed the above petition for getting alimony and for return of the gold ornaments and maintenance. 2. The appellants denied the allegation and contended that the 1[st] respondent voluntarily left her house and joined with the 1[st] appellant. They admitted that the marriage was solemnized at Sub Registrar office, Koduvayoor and no gold ornaments were gifted by the mother of the 1[st] respondent and the other contention is absolutely false. No money and house hold articles were entrusted to the 1[st] appellant and he denied the job as Marketing Executive in the Standard Chartered Bank Mat.Appeal No.166/10 3 and contended that he has no bank balance and Fixed Deposit. The gold ornaments, certificates, dress materials and personal belongings of the 1[st] respondent are in her possession and she is not eligible for any relief as claimed. She also filed additional counter statement. 3. The court below referred the parties for counselling and as it was not successful, their evidence was recorded, which consisted of oral testimony of PW1 and RW1. The court below allowed the petition in part and directed the appellants to return the gold ornaments weighing 40 sovereigns and the 1[st] appellant is directed to pay maintenance at the rate of Rs.1250/- per month to the 1[st] respondent and Rs.1000/- per month to the 2[nd] respondent from 2.2.2006. The claim for permanent alimony was disallowed. Aggrieved by that, husband preferred this appeal. 4. The learned counsel appearing for the appellants contended that no evidence has been adduced by the 1[st] respondent to prove that she gave 40 sovereigns of gold ornaments to the appellants. There was no mental or physical cruelty against the 1[st] respondent demanding more amount as Mat.Appeal No.166/10 4 dowry. The lower court rightly disallowed the permanent alimony but, the maintenance awarded by the lower court is without applying the settled principle of law. There was no evidence in this case to show that the 1[st] appellant is employed in the Standard Chartered Bank, Ernakulam. In the circumstance he contended that the impugned judgment is absolutely a non-speaking one liable to be set aside. 5. But, the learned senior counsel appearing for the respondents strongly resisted the above contention and contended that the claim for permanent alimony was disallowed by the court below. The allegation that the 1[st] respondent went with the 1[st] appellant empty handed is baseless. While residing with the appellants, the mother of the 1[st] appellant ill-treated the 1[st] respondent and her life with the appellants was with tension and miserable. Considering the standards of living, the 1[st] respondent is entitled to get the gold ornaments and maintenance pendente lite. 6. Now the first point that arises for consideration is whether the 1[st] appellant is liable to pay pendente lite alimony to the respondents and the respondents are entitled to cost of Mat.Appeal No.166/10 5 the proceedings? The 1[st] appellant and the 1[st] respondent are husband and wife, who admitted their marriage and there is no dispute for that. The evidence of PW1 in the lower court for recovery of gold ornaments and maintenance pendente lite was assessed by the lower court. The court below directed the appellants to return the gold ornaments weighing 40 sovereigns or its present market value to the 1[st] respondent, after analyzing the oral evidence. It is admitted case of the 1[st] respondent that the 1[st] appellant fell in love with her while she was doing B.Com at the Universal College, Palakkad. The mother of the 1[st] appellant also visited the college and told her that she liked the 1[st] respondent as a daughter-in-law. After discussing her relatives about the relationship, their marriage was registered on 12.11.2001. On the next day, the marriage ceremony was conducted in the nearby temple as per hindu religious rites. At the time of marriage, 25 sovereigns of gold and ten thousand rupees were given to her. As per the demand, the appellants were also given 4 sovereigns of gold as chain and ring and the 1[st] respondent's mother also gave more than one lakh rupees worth gold ornaments to the 6 Mat.Appeal No.166/10 appellants. 7. The specific case of PW1 is that she has no income for her livelihood and her daughter, therefore she need maintenance pendente lite. PW1 also deposed that the appellants have landed property at Palakkad worth thirty lakh rupees and several bank deposits. Moreover, the 1[st] appellant is employed as a Marketing Executive in the Standard Chartered Bank. Even though PW1 deposed so, no documentary evidence has been adduced by her to prove her contention. However, there was no effective cross examination from the side of RW1 to rebut the evidence adduced by PW1. As per Section 24 of the Hindu Marriage Act, in a proceeding under this Act, it appears to the court that either wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Mat.Appeal No.166/10 7 court to be reasonable during pendency of proceedings. A reading of Section 24 of the Hindu Marriage Act clearly support the non earning spouse, besides it indicates that earning spouse must give support to the livelihood of the other party. In that situation court shall take in to consideration the actual income of both parties before determining the quantum of maintenance either monthly or a fixed sum. The need of the aspirant and paying capacity are the relevant factors during pendency of any proceeding under the Act for granting pendente lite maintenance. Therefore it is clear that the 1[st] respondent and her child have no sufficient income and are entitled to get maintenance pendente lite. In the decision of the Madras High Court in _**Rajambal**_ v. _**Murugappan**_ [AIR 1985 MADRAS 284], it is stated thus (para 10): “An order for maintenance pendente lite and costs of the proceedings can, as the initial words of the section clearly state, be made in any proceeding under the Act, viz., for restitution of conjugal rights, judicial separation, divorce or nullity of a void or voidable marriage. When a fact of marriage is acknowledged or proved alimony follows subject of course to the discretion of the court in the matter having regard to the means of the parties. In another decision of the Madras High Court in _**Manokaran**_ _**alias Ramamoorthy**_ v. _**M. Devaki**_ [AIR 2003 MADRAS 212] it is Mat.Appeal No.166/10 8 held thus: (para 5): “............. I have already referred to the language used in Section 24 which makes it clear that for grant of maintenance pendente lite the party should not have sufficient independent income for her support. Here PW1 deposed that the 1[st] appellant is working as a Marketing Executive in Standard Chartered Bank having landed properties and Fixed Deposits. The Court below believed the evidence of PW1 and opined that 1[st] appellant is financially sound to pay maintenance. Even though RW1 totally denied the above facts with regard to his job and income from other assets, but, that denial not substantiated by evidence is not sufficient to disbelieve the evidence of PW1. It is the settled law under Section 24 of the Hindu Marriage Act that a spouse is entitled to prefers an application where the truth of marriage is owned and she or he has no independent income for support and on such application court shall order the respondent to pay maintenance pendente lite and expenses of the litigation after considering the income of the petitioner. RW1 admitted that he is a free lance Marketing Executive and his sisters are well placed. PW1 submitted that she has no job or income to look Mat.Appeal No.166/10 9 after her daughter. When husband is having sufficient independent income, it is his responsibility to look after his wife and daughter during his life time. Hence we are of the opinion that respondents are entitled to get alimony pendente lite. 8. The second point is that whether the appellants are liable to return the gold ornaments of the 1[st] respondent as claimed? The evidence of PW1 shows that at the time of marriage 25 sovereigns of gold and ten thousand rupees were given to her by her mother. This was deposed by PW1 in the court below. But, the 1[st] appellant, who was examined as RW1 in the court below, contended that PW1 fell in love with RW1, while she was a student at Universal College, Palakkad. Subsequently, she left her parental house and resided along with RW1. At that time, there was no gold ornaments with her. It is true that a customary marriage was conducted between PW1 and RW1 and their relatives at the temple. We are of the opinion that, at that time, she might have owned 25 sovereigns of gold and PW1 might have given 4 sovereigns of gold to RW1 as per demand is believable. The specific case of 10 Mat.Appeal No.166/10 RW1 was that when the 1[st] respondent returned to her parental home, she carried all the gold ornaments. Such a vague denial itself is not sufficient in the light of his admission with regard to ornaments. The statement that she carried all the ornaments when she left the residence of RW1 clearly indicates that she brought gold at the time of marriage. This admission made by RW1 in a proceeding may be received as an evidence against him. Admission is the best evidence against the party making it. What is admitted by a party to be true must be presumed to be true unless the contrary is proved. An admission made by a party in his pleading signed by him and verified by him may be used as an evidence against him. Hence, in the light of the above facts, the finding of the lower court with regard to the gold ornaments needs interference, we modify the quantity of gold ornaments as 29 sovereigns only. 9. In the result, the judgment and decree passed by the lower court are modified as follows: The appellants are directed to return the gold ornaments weighing 29 sovereigns or its current market value to the 1[st] Mat.Appeal No.166/10 11 respondent. If they fail to comply with the above direction, the 1[st] respondent will be liberty to realise the amount with 6% interest per annum from the date of the petition till realisation. The appellants are also directed to pay Rs.5 lakh as alimony pendente lite to the respondents. The respondents are at liberty to approach the Family Court for getting future maintenance. The appellants are directed to pay costs of the respondents. The Mat. Appeal is disposed of as above. ## **PIUS.C.KURIAKOSE, JUDGE** ## **P.D. RAJAN, JUDGE.** acd Mat.Appeal No.166/10 12 Mat.Appeal No.166/10 13