Subhashini v. Rajan Pillai and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ``` MAT.APPEAL NO.50OF 2014 ``` ``` AGAINST THE JUDGMENT DATED 31.12.2011 IN OP 465 OF 2011 OF THE FAMILY COURT, THIRUVALLA ``` ## **`APPELLANT/PETITIONER:`** ``` SUBHASHINI AGED 50 YEARS ``` ``` D/O.JANAKI, PLAVILA VADAKKETHIL, MAROOR PO AND MURI, ENADIMANGALAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 645 ``` ``` BY ADV SRI.AJEESH K.SASI ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 RAJAN PILLAI, AGED 50 YEARS RENJITH BHAVAN, KODUMON PO AND VILLAGE, IEKKADU MURI, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 645`** - **`2 UTHAMAN PILLAI,AGED 55 YEARS RENJITH BHAVAN, KODUMON PO AND VILLAGE, IEKKADU MURI, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 645`** - **`3 RAJASREE, AGED 37 YEARS RENJITH BHAVAN, KODUMON PO AND VILLAGE, IEKKADU MURI, ADOOR TALUK, PATHANAMTHITTA DISTRICT 689 645`** ``` BY ADVS.SRI.D.KISHORE ``` ## **`SRI.R.MURALEEKRISHNAN (MALAKKARA)`** ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MAT. APPEAL NO. 50 OF 2014 2 ## **JUDGMENT** Anil K. Narendran, J. The appellant filed O.P.No.465 of 2011 before the Family Court, Thiruvalla, against the respondents, namely, the 1[st] respondent-husband, the 2[nd] respondent-brother-in-law and the 3[rd] respondent-sister-in-law for realisation of an amount of Rs.50,000/- towards patrimony, return of 20 sovereigns of gold ornaments or its market value of Rs.3,36,000/- from the respondents and their assets together with interests and costs. 2. The respondents remained absent and they were set exparte. The appellant filed a proof affidavit and Exts.A1 and A2 were marked. After considering the pleadings and evidence on record, the Family Court decreed O.P.No.465 of 2011 allowing the appellant to realize a sum of Rs.50,000/- as patrimony and 20 sovereigns of gold ornaments or its market value of Rs.3,36,000/- with interest at the rate of 9% per annum from the date of original petition till realization and costs from respondents 1 and 2. 3. The appellant has filed this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984 challenging the judgment and decree of the Family Court dated 31.12.2012 in O.P.No.465 of 2011, to the extent of exonerating the MAT. APPEAL NO. 50 OF 2014 3 3[rd] respondent from the liability to return the money and gold ornaments. 4. This appeal was filed along with C.M.Appl.No.281 of 2014 seeking condonation of delay of 348 days, which was condoned by the order dated 26.02.2014, on payment of a cost of Rs.1000/- to the learned counsel for the respondent. 5. On 07.03.2014, the appeal was admitted on file and notice was issued by speed post to the respondents. In I.A.No.483 of 2014, this Court granted an interim prohibitory injunction restraining the respondents from alienating or encumbering the petition schedule property, pending disposal of this appeal. 6. By the order dated 23.11.2021, service of notice on the 1[st] respondent was dispensed with, since he was set ex-parte before the Family Court. Lower Court Records were called for on 23.11.2021. 7. Heard the learned counsel for the appellant and the learned counsel for the 3[rd] respondent. 8. The issue that requires consideration in this appeal is as to whether any interference is warranted in the judgment dated 31.12.2012 of the Family Court, Thiruvalla, in O.P.No.465 of 2011, to the extent of exonerating the 3[rd] respondent, who is the sisterin-law of the appellant, from the liability. MAT. APPEAL NO. 50 OF 2014 4 ## 9. The reasoning of the Family Court in paragraphs 5 and ## 6 of the judgment reads thus:- “5. The averments in the affidavit filed by the petitioner are strictly in consonance with the averments in the original petition. She has also produced Ext.A1 marriage certificate and Ext.A2 copy of a promissory note executed by her father in favour of one Sreedharan showing that he has borrowed Rs.1,00,000/- from him on 01.12.1991 in connection with the marriage.” 6. The unchallenged averments in the affidavit and Exts.A1 and A2 documents would go to show that the marriage between the petitioner and the 1[st] respondent was solemnized on 12.12.1991, in accordance with Christian rites and ceremonies prevailing in their community and after the marriage they lived together as husband and wife and male child was born out of their lawful wedlock on 4.12.1993. It is further clear that before the marriage the father of the petitioner entrusted Rs.50,000/- to respondents 1 and 2 as the paternal share of the petitioner and at the time of marriage the petitioner was given 20 sovereigns of gold ornaments and the 1[st] respondent was given a gold chain weighing 2 sovereigns. It is further clear that the respondents misappropriated the entire patrimony amount and 20 sovereigns of gold ornaments given to the petitioner for the marriage of the 3[rd] respondent and the 1[st] respondent perpetually used to harass the petitioner both physically and mentally demanding more dowry and deserted her on 01.02.2011. So the petitioner is entitled to get back the patrimony amount and gold ornaments from respondents 1 and 2.” 10. Before the Family Court, respondents 1 to 3 remained absent and they were set ex parte. The appellant filed a proof affidavit, in tune with the averments in the original petition. In paragraph 6 of the impugned judgment, though the Family Court MAT. APPEAL NO. 50 OF 2014 5 found that the respondents misappropriated the entire patrimony amount and 20 sovereigns of gold ornaments given to the petitioner for the marriage of the 3[rd] respondent, the decree passed in O.P.No.465 of 2011 is only against respondents 1 and 2 and the 3[rd] respondent is exonerated. 11. The learned counsel for the 3[rd] respondent would submit that the marriage of the 3[rd] respondent was conducted only much later and therefore, the averments in the original petition that the patrimony amount and 20 sovereigns of gold ornaments given to the appellant/petitioner was misappropriated for the marriage of the 3[rd] respondent is absolutely baseless. The learned counsel for the appellant would point out that the 3[rd] respondent has not chosen to file a written statement in O.P.No.465 of 2011. 12. In **Breen v. Amalgamated Engineering Union** **[(1971) 1 All ER 1148]** Lord Denning, M.R. observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decisiontaker to the controversy in question and the decision or conclusion arrived at. MAT. APPEAL NO. 50 OF 2014 6 ## 13. In **Commissioner of Police, Bombay v. Gordhandas** **Bhanji [AIR 1952 SC 16]** the Apex Court held that public orders publicly made, in the exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. 14. Following the principle laid down in **Gordhandas Bhanji** **[AIR 1952 SC 16]** the Apex Court has reiterated in **Mohinder** **Singh Gill v. Chief Election Commissioner [(1978) 1 SCC** **405]** that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 15. Following the principle laid down in the decisions referred to supra, the Apex Court in **Chairman and Managing** **Director, United Commercial Bank v. P. C. Kakkar [(2003) 4** MAT. APPEAL NO. 50 OF 2014 7 ## **SCC 364]** held that reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, speaking out. The 'inscrutable face - of a sphinx' is ordinarily incongruous with a judicial or quasi judicial performance. 16. Viewed in the light of the law laid down in the decisions referred to supra, the impugned judgment of the Family Court, Thiruvalla in O.P.No.465 of 2011 to the extent of exonerating the 3[rd] respondent, in the absence of any reasons stated therein, cannot be sustained in law. The question as to whether the 3[rd] respondent, who is the sister-in-law of the appellant, can be held liable to pay the patrimony amount and gold ornaments decreed against respondents 1 and 2 requires reconsideration by the Family Court, after affording the 3[rd] respondent an opportunity to file MAT. APPEAL NO. 50 OF 2014 8 written statement and the appellant and the 3[rd] respondent to adduce oral and documentary evidence. In the result, this appeal is disposed of by setting aside the impugned judgment and decree dated 31.12.2012 in O.P.No.465 of 2011 of the Family Court, Thiruvalla to the extent indicated above. The question as to whether the 3[rd] respondent can be held liable to pay the patrimony amount and gold ornaments decreed against respondents 1 and 2 shall be reconsidered by the jurisdictional Family Court, after affording the 3[rd] respondent an opportunity to file a written statement and the appellant and the 3[rd] respondent to adduce oral and documentary evidence. Since the original petition is of the year 2011, the Family Court shall finally dispose of the same, as expeditiously as possible, at any rate within a period of three months from the date of appearance of the appellant/petitioner and the 3[rd] respondent. The appellant and the 3[rd] respondent shall appear before the jurisdictional Family Court **on 20.11.2023** . Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **G. GIRISH, JUDGE** rp