T.K. Rajasekharan v. Ammukkutty Amma and Remani Devi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 6TH DAY OF OCTOBER 2017/14TH ASWINA, 1939 Mat.Appeal.No. 594 of 2010 ( ) ------------------------------- AGAINST THE COMMON JUDGMENT IN OS.131/2005 of FAMILY COURT, NEDUMANGAD DATED 16-03-2010 APPELLANT(S)/APPELLANT IN MAT.APPEAL/DEFENDANT IN O.S: ----------------------------------------------------- T.K.RAJASEKHARAN, S/O.KRISHNAN, AGED 54 YEARS, THUNDUVILAKATHU VEEDU, MANKATTUKADAVU THIRUMALA, THIRUVANANTHAPURAM TALUK NOW WORKING AS ELECTRICIAN, ELECTRICAL, FOREMAN OFFICE SOUTHERN RAILWAY, THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENTS IN MAT.APPEAL/PLAINTIFFS IN O.S.: -------------------------------------------- 1. AMMUKKUTTY AMMA, KRISHNA VILASOM BUNGLOW CHEMBU PARAMBU, VALIYARA, VELLANADU VILLAGE NEDUMANGAD TALUK, THIRUVANANTHAPURAM. (DIED) 2. REMANI DEVI, AGED 47 YEARS, D/O. AMMUKUTTY AMMA, RESIDING AT KRISHNA VILASOM BUNGLOW, CHEMBU PARAMBU, VALIYARA VELLANADU, VILLAGE, NEDUMANGADU TALUK THRIUVANANTHAPURAM. - R2 BY ADV. SMT.K.KUSUMAM ADV.BASANT BALAJI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2017, ALONG WITH MA. 596/2010, THE COURT ON 06-10-2017, DELIVERED THE FOLLOWING: MAT.APPEAL NO.594 OF 2010 ------------------------- APPENDIX -------- ANNEXURES OF THE APPELLANT -------------------------- A1: TRUE COPY OF RELEASE DEED NO.889/92 A2: TRUE COPY OF SETTLEMENT DEED NO.1755/2002 ANNEXURE I: COPY OF ORDER DATED 27/02/2016 IN EP NO.44 OF 2014 IN O.S.NO.131/2005 OF FAMILY COURT, NEDUMANGAD. ANNEXURES OF THE RESPONDENTS ---------------------------- NIL TRUE COPY P.S TO JUDGE ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** Mat.Appeal Nos.594 & 596 of 2010 ---------------------------------------Dated this the 6[th] day of October 2017 ## **J U D G M E N T** ## **Shaffique, J** Since these appeals have arisen out of a common judgment dated 16/03/2010, they are heard and decided together. 2. Mat.Appeal No.594/2010 is filed against O.S.N.131/2005 in which the defendant is the appellant. Mat.Appeal No.596/2010 has been filed by the 1[st] respondent in O.P.No.1159/2006. The appellant in both these cases is Sri.T.K.Rajasekharan who was the husband of Smt.Remani Devi, the 2[nd] respondent in Mat.Appeal No.594/2010 and 1[st] respondent in Mat.Appeal No.596/2010. 3. The short facts arising in these two cases are as under and the parties are referred to as shown in Mat.A.No.594/2010 unless otherwise stated. 4. O.S.131/2005 was filed by the respondents seeking return of gold ornaments and recovery of money. O.P.No.1159/2006 has been filed by the 2[nd] respondent and her Mat.Appeal Nos.594 & 596 of 2010 2 daughter who was a minor claiming maintenance and marriage expenses for the daughter. 5. The couple got married as per Hindu religious rites and ceremonies on 27/08/1987. At the time of marriage, the 2[nd] respondent was given 10 sovereigns of gold ornaments and Rs.7,000/- as cash along with certain household articles. Two sovereigns of gold ornament was given to the appellant when he visited the wife's house after marriage. They were living together in their matrimonial home. In the meantime, the 2[nd] respondent conceived and a child was born in the wedlock. Allegation is that on 31/03/1988, the appellant left the wife at her family house and deserted her while she was three months' pregnant. The gold ornaments were not returned to her. Thereafter, she and her child was neglected. She filed M.C.No.31/1990 claiming maintenance. The case was disposed and the appellant agreed to pay maintenance. However, he was not willing to take his wife back and resume co-habitation. Therefore, she filed the suit as well original petition claiming return of gold ornaments or its value, return of money and maintenance. Mat.Appeal Nos.594 & 596 of 2010 3 6. The appellant filed a written statement admitting marriage and denying having been entrusted with any gold or money. According to him, she had voluntarily gone to her house and not returned. Therefore the appellant sought for setting aside the judgment of the Court below. 7. Before the Family Court, the 2[nd] respondent was examined as PW1 and another witness was examined as PW2 and the appellant examined himself as DW1. The Family Court decreed the suit permitting realization of 12 sovereigns of gold ornaments or its value of Rs.48,000/- and return of cash Rs.7,000/- with interest @ 10% per annum from the date of the petition till realisation. The Family Court also decreed O.P.No. 1159/2006 directing maintenance to be paid to the daughter from the date of petition till her marriage and realization of Rs.2 lakh towards marriage expenses. 8. Learned counsel for the appellant submits that the above findings of the Court below was erroneous and therefore re-appreciation of evidence is required in order to substantiate the contentions urged by the 2[nd] respondent. It is submitted that Mat.Appeal Nos.594 & 596 of 2010 4 there was no evidence to prove the claim in O.S.No.131/2005 and even in the absence of any proof, a decree had been passed which is liable to be set aside. As far as the claim for maintenance is concerned, it is contended that at the time when O.P.No.1159/2006 was filed, the daughter had attained majority. The contention urged is that, in so far as the daughter's date of birth was 22/10/1988, she had attained the age of majority as on 22/10/2006. The parties got divorced as per order dated 26/12/1995 in OP(HMA) No.746/1995 After the daughter had attained the age of majority, the 2[nd] respondent has no right to prosecute the matter further. It is also contended that the amount awarded as marriage expenses is totally uncalled for especially in the light of the fact that the daughter was employed and the 2[nd] respondent had sufficient income for taking care of the marriage expenses. 9. Perusal of the judgment would show that the Family Court considered the claim for return of gold ornaments based on Exts.A1 and C2 photographs and found that there was no exaggeration regarding the description or weight of gold Mat.Appeal Nos.594 & 596 of 2010 5 ornaments. The 2[nd] respondent as PW1 had placed reliance upon Exts.A2 and A3 which were receipts for purchase of gold ornaments and coupled with the evidence of PW2, the uncle of the 2[nd] respondent, the Court below felt that the evidence of the wife was believable and probable rather than the blanket denial of the appellant. It is, in the said circumstances, that a decree had been passed. 10. As far as the claim for maintenance is concerned, it was contended by the 2[nd] respondent that the appellant was working as Chief Electrical Foreman in Southern Railways and his total income would come to Rs.28,000/- per month. The Family Court observed that from Ext.C1 salary certificate dated 31/10/2008, it could be seen that he was getting 13,791/- and after deductions, he is entitled for Rs.8,321/- per month. Under such circumstances, the daughter was entitled for maintenance as well as reasonable expenses for conducting her marriage. Accordingly, taking into account the salary of the appellant, direction has been issued to pay the daughter Rs.750/- per month and a further amount of Rs.2 lakhs towards marriage expenses. Mat.Appeal Nos.594 & 596 of 2010 6 11. With regard to the decree for recovery of gold ornaments and money, we do not find any specific reason to interfere with the said judgment. PW1, in her pleadings and evidence, has clearly stated regarding entrustment and appropriation of gold ornaments. The quantum of gold ornaments was only 12 sovereigns. 10 sovereigns was given at the time of marriage and 2 sovereigns was given to the appellant. It is her case that the appellant deserted her and the gold ornaments belonging to her were not returned when she was left at her parental house. This fact is disputed. But, considering the nature of evidence adduced in the matter, PW1 has clearly stated that the gold ornaments were made by one Appu Achari who had issued Ext.A2 and certain ornaments were purchased as per Ext.A3 receipt. Her version had been supported by the evidence of PW2 as well. It is clearly indicated by PW2 that he had entrusted Rs.7,000/- to the appellant along with 2 sovereigns of chain. PW1 had given evidence stating that the appellant had taken the gold ornaments and it was not returned. When she enquired, he stated that it was pledged as he had some financial Mat.Appeal Nos.594 & 596 of 2010 7 liabilities. When the evidence of PW1 is believable which is supported by the evidence of PW2, nothing has been brought out to take a different view in the matter. Hence we do not intend to interfere with the judgment in O.S.No.131/2005. 12. As far as the claim for maintenance is concerned, it is trite that a female child is entitled for maintenance until the date of marriage. An issue had been projected stating that she was not a minor at the time of filing the original petition. The original petition was filed on 23/11/2006 and her age was shown as 17 years. Whereas, according to the appellant, she having born on 22/10/1988, she would have attained the age of majority on 22/10/2006 and therefore the petition filed by the mother as guardian of the minor itself is not maintainable. 13. On the other hand, learned counsel for the 2[nd] respondent produced a Secondary School Leaving Certificate of the daughter in which her date of birth is shown as 22/10/1989. Apparently, there is a mistake in the date of birth of the girl child. Learned counsel had also produced the marriage certificate and other particulars to show that the date of birth was 22/10/1989 Mat.Appeal Nos.594 & 596 of 2010 8 and therefore, at the time of filing the original petition, she was a minor. But, as already stated, there is some discrepancy in the matter especially when the allegation is that the appellant had deserted his wife on 31/03/1988. She got conceived while living in the matrimonial home and if she had conceived immediately after marriage and she was left at the wife's house on 31/03/1988 and thereafter there was no cohabitation, the possibility of the child being born on 22/10/1989 is remote. However, we do not intend to go into the controversy arising in the matter. In so far as the minor child got married on 18/01/2013, there is an obligation cast upon the father to maintain the daughter either until the date of marriage or at the time when she has become capable of taking care of herself [ **Viswambharan v Dhanya** _(2005(1) KLT 708)_ ]. The Family Court had already observed that the maintenance has to be paid at the rate of Rs.750/- per month for the daughter which we do not find to be exorbitant in any manner. However, it is made clear that she is entitled for maintenance only until the date of her marriage. Mat.Appeal Nos.594 & 596 of 2010 9 14. With reference to the claim for marriage expenses, the petition was filed at the time when she was not married. But, during the pendency of the appeal, necessarily records produced would show that the marriage was held on 18/01/2013 and it was registered before the local authority as well. Marriage expenses is also an item of expenditure that forms part of maintenance and therefore there is no legal infirmity in demanding any amount towards marriage expenses ( **Sneha Prabha v. Ravinder Kumar** _[AIR 1995 SC 2170_ ], **Ismayil v. Fathima** [ _2011(4) KLT 40])_ . The Court below had awarded Rs.2,00,000/- as a reasonable amount. But, marriage as per Hindu religious rites and ceremonies, is only a simple function which does not involve much expenditure. The expenditure is for the purpose of conduct of marriage. But the expenditure should not be incurred in order to mulct the entire liability on the father. His responsibility is to pay the expenditure for conducting the marriage with the least possible expenses. 15. Taking into account the overall facts and situation of the parties, we are of the view that the expenditure of the marriage which is directed to be paid can be reduced to Rs.1 lakh Mat.Appeal Nos.594 & 596 of 2010 10 instead of Rs.2 lakhs already awarded. - In the light of the aforesaid circumstances, - i) Mat.Appeal No.594/2010 is dismissed. - ii) Mat.Appeal No.596/2010 is partly allowed as under: - _The direction to pay Rs.2,00,000/- as marriage expenses is reduced to Rs.1,00,000/- (Rupees one lakh only)_ - iii) In all other respects, the decree shall stand confirmed. - (iv) Parties shall bear their own costs. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) **(ANU SIVARAMAN, JUDGE)** jsr