IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 956 of 2002(E)
1. SMT.PRAMEELA,D/O.SREEMATHI,
... Petitioner
2. KUMARI.SREELAKSHMI (MINOR),
Vs
1. DR.RAJ KUMAR,S/O.LATE DR.SREENIVASAN,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :04/02/2009
O R D E R
P.R. RAMAN & C.T. RAVIKUMAR, JJ.
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M.F.A. NO. 956 OF 2002
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DATED THIS, THE 4TH DAY OF FEBRUARY, 2009.
J U D G M E N T
Raman, J.
Appellant, along with her minor child filed O.P. 205/2000 before the
Family Court, Manjeri, for a decree for a amount of Rs. 2,34,000/- with 15%
interest and for return of 100 sovereigns of gold ornaments. Besides, they
also claimed maintenance at the rate of Rs. 5,000/- per month to the first
appellant and Rs. 1,500/- per month to the second appellant , who at that
time, was studying in Std. III. The respondent is stated to be a medical
practitioner with a Post Graduate degree in Acu-puncture from abroad. As
per the plaint averments, his monthly income is Rs. 35,000/- and he is
deliberately avoiding to maintain them.
2. In the counter statement filed by the respondent, he denied the
averments made in the plaint. It was contended that whatever property the
first appellant had at the time of marriage were exclusively at her own
disposal and there was no occasion for him to deal with or misappropriate
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those properties. He denied the entrustment and custody of the gold
ornaments belonging to the first appellant.
3. The court below considered the issue as to (i) whether the
petitioners are entitled to past maintenance from the respondent and if so,
what is the quantum, (ii) whether the first petitioner is entitled to return of
gold ornaments of 100 sovereigns or its corresponding and (iii) whether the
first petitioner is entitled for a decree for an amount of Rs. 1,70,000/- from
the respondent.
4. The evidence in the case consists of the oral evidence of PWs 1 to
3. The respondent did not adduce any evidence. The first appellant herself
has given evidence as PW.1. She supported the plaint averments. However,
she did not specifically claimed any past maintenance while examined as a
witness. For this reason, the court below held that even the vague claim
made by her for maintenance in the petition were given up at the time of
trial. This is far from satisfactory. Since the respondent did not contest
the matter and the petitioner claimed maintenance for herself and her
minor daughter and also gave evidence regarding the income of the
respondent, the court below ought to have considered whether the first
appellant is unable to maintain herself and if not, what is the maintenance
that can be awarded to her. At any rate, the liability of the respondent to
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maintain the second appellant, who is his daughter born in the wedlock,
till she is given in marriage, is well recognized by law. The court below
did not even consider that aspect.
5. Coming to the question of return of gold ornaments and cash, it is
true that the evidence is not fully satisfactory. PW.2 is a jeweler who
deposed that the first appellant’s father placed an order for 61 sovereigns.
He is conducting business in gold ornaments in Guruvayur. PW.3 is a
close relative and deposed that the first appellant/first petitioner was given
100 sovereigns at the time of marriage. But no other evidence is
forthcoming. Though the first appellant gave the description of various
items of gold ornaments which she was wearing at the time of marriage in
the petition, she was not aware what is the exact weight of each of such
items. Therefore, in the absence of any material evidence, even accepting
the evidence of PW.2, it could only help the first appellant to prove the
purchase of 61 sovereigns. Therefore, even if PWs 2 and 3 are not cross
examined by the other side, it would have helped the petitioner only to the
extent of proving that 61 sovereigns had been ordered by her father.
6. Now coming to the question of entrustment, except the ipsi dixit of
the first appellant/first petitioner, there is no other evidence. The court
below, in paragraph 13 of its judgment has elaborately discussed her
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deposition and found that she has no consistent case regarding the
entrustment of the ornament with the respondent or regarding the weight of
the ornaments allegedly left with him. The discrepancies in her versions
are highlighted in the judgment for not believing her version as fully true.
We do not find any reason to hold that the finding of the court below is in
any way perverse or illegal. No satisfactory evidence is adduced to inspire
confidence in the mind of the court regarding the case of entrustment of
gold ornaments. Regarding the entrustment of cash also, there is
absolutely no evidence. As rightly pointed out by the court below, neither
the mother nor any other close relatives who would have given better
evidence regarding such things are examined in the case.
7. However, we find that the second appellant/second petitioner,
who is the minor daughter of the first appellant born through the
respondent, is entitled to be maintained by her father. She was studying in
Std. III at the time of rendering the judgment by the court below. More
than six years have elapsed thereafter. In the absence of any evidence
contra, we decree the plaint claim for an amount of Rs. 1,500/- (One
thousand and five hundred only) per month from the date of the petition till
she attains majority. She shall also be given in marriage at the expense of
the respondent. Considering the status of the parties, the respondent shall
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pay an amount of Rs. 2,00,000/- (Rupees two lakhs) towards the marriage
expenses of the second appellant/second petitioner, besides paying
maintenance as ordered above.
The appeal is allowed to the limited extent as indicated above.
P.R. RAMAN, JUDGE.
C.T. RAVIKUMAR, JUDGE.
KNC/-
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P.R. RAMAN &
C.T. RAVIKUMAR, JJ.
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M.F.A. 956 OF 2002
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J U D G M E N T
4.2.2009.