IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: MR.JUSTICE A.M.SHAFFIQUE,MR.JUSTICE K.RAMAKRISHNAN
6TH DAY OF APRIL 2017
Mat.Appeal.No.681 of 2007
The respondent wife in OP.No.613/2003 on the file of the Family Court, Kottayam at Ettumannor is the appellant in Mat.A.No. 681/2007. The petitioner/wife in OP.No.455/2004 on the file of the same court is the appellant in Mat.A.No.682/2007 and respondent/husband in the same case is the appellant in Mat.A.No. 653/2007.
2. OP.No.613/2003 on the file of the Family Court, Kottayam at Ettumannor was filed by the husband for dissolution of marriage under Section 13(1)(ia) and (ib) of Hindu Marriage Act (hereinafter called the Act) on the ground of cruelty and desertion. It is alleged in the petition that the marriage between the petitioner and the respondent was solemnized on 8.11.1977 as per Hindu custom and they lived together as man and wife till 12.4.1982. Two children were born to them in that wedlock, one of whom was a boy and the other is a girl. While the respondent was residing with the petitioner, she was not obeying him and not loyal to him. She had removed 15 sovereigns of gold ornaments from his custody without his knowledge and consent. She was always in the habit of picking up quarrel with him for even silly matters. On 12.4.1982, without any reasonable cause, she withdrew from the company of the husband along with the children who are aged 3 = years and two years respectively. Though he made all attempts for a reunion, she was not amenable for the same. She started residing in her parental house. She had denied all his marital rights. While so, petitioner sent a notice to the respondent asking her to resume cohabitation for which she sent a reply expressing her unwillingness to join him. So petitioner filed OP(HMA)No. 53/82 before the Sub Court, Kottayam for restitution of conjugal rights u/s 9 of the Act. Though an attempt was made of settling the issues between them, and to restart their life together with the children, that failed due the adamant attitude of the respondent. Respondent contested the case and after evidence, the Sub Court, Kottayam granted a decree for restitution of conjugal rights holding that the respondent was residing separately without any reasonable cause. The respondent filed appeal before this court as MFA.No. 348/84 and by judgment dated 16.3.1987, this court has set aside the decree passed by the Sub Court and dismissed the petition. The petitioner was a graduate working in the Dairy Department of Government of Kerala as a senior Gazetted Officer. The respondent was working as Secretary in Govt. Employees Co-operative Bank, Kottayam and getting good income. He was also backed by a good fortune as inherited by his father. After dismissal of the petition for restitution of conjugal rights, though he made attempts to have a reunion considering the welfare of the children through mediators including the office bearers of the SNDP sakha of the area, but it failed. The attitude of the respondent wife amounts to cruelty and desertion and so he had no other option except to file the petition for divorce on the above grounds as there was no possibility of reunion and the marriage tie between them had been irrecoverably broken down. Hence the petition.
3. He amended the petition as per order in IA 1498/2005 wherein he had alleged that the respondent used to behave very cruelly both physically and mentally towards the petitioner from 12.04.82 onwards. She was living separately from the petitioner. She was making baseless and false accusation against the petitioner with malicious intention to defame him before the public and relatives. She was accusing him as a womanizer and a drunkard. She without any basis accusing him that he was having illegal relationship even with his close relatives and several women. Making such false and baseless accusation caused great anguish and mental torture to the petitioner. She was sending false and frivolous complaints to the higher authorities. Even after lapse of 21 years from the date of separation, she filed false complaints against him before the DYSP kottayam and a case was registered under section 498A of the Indian Penal Code and the same was charge sheeted and he was arrested on 11.11.2003 and later he was released on bail on 12.11.2003. She made complaints to his higher authorities so as to see that his employment is lost to him. On 11.10.04 at about 4 P.m at the instance of the respondent, nine persons armed with weapons attacked him from the courtyard of his house with an intention to kill him and he escaped from them. On several occasions, respondent through her henchmen attempted to attack his sisters, Ammini and Janaki. A vigilance enquiry was initiated at the instance of the respondent and memo has been issued to him on 23.12.2003. She tried to prevent his family pension being disbursed. Petitioner filed WP(C).No.33813/2004 before this court and obtained police protection. So the act of the respondent amounts to cruelty.
4. Respondent earlier filed counter admitting the marriage and birth of the children but denying the allegations of cruelty and desertion alleged in the petition. She denied that she was cruel to him while they were living together and she was picking up quarrel with him for silly things. In fact he was torturing her demanding more dowry and picking up quarrel with her for flimsy and silly matters. In fact he deserted her and the children and he is residing with another woman. He had extorted the entire assets of the respondent. She has already filed a petition for getting back her assets. In fact respondent never withdrew from the company and cohabitation of the petitioner. In fact it was he who had deserted her. She admitted the filing of OP (HMA)No.52/82 by the petitioner and the same was being allowed by the Sub Court, later she filed appeal which has been allowed. The high court while allowing the appeal filed by her categorically held that she was living separately with reasonable cause. She was only opposing the prayer for divorce on the ground that her children became major and their marriage has to be solemnized in a decent manner and she did not want to be titled as a divorcee. She never expects any benefits and grace from the petitioner. She is looking after herself and children from 1982 onwards. Son was studying for MBBS course and daughter is studying for MCA. She never approached the petitioner for any help or assistance. She is not intended to cohabitate with the petitioner since he is having another wife and child. But she is not interested in divorcing the petitioner. There is no cause of action for the petitioner to file the petition for divorce. So she prayed for dismissal of the petition.
5. After amendment, she filed additional written statement reiterating all her contentions in the earlier statement. According to her, they are residing separately from 1982 onwards. Petitioner and others attempted to assassinate her and so she had to escape from the matrimonial home due to fear of death. According to her, even prior to the marriage, the petitioner had a female child through a relative which has become a talk among the family members. The residential building and property purchased by the father was sold by the petitioner. Anticipating some risk in continuing the relationship, on 11.4.1982, the petitioner and the lady attempted to kill her and so she had to leave the matrimonial home with children. Thereafter, he never cared to look after her. On 9.2.1989, the petitioner married another lady and a female child was born to them in that relationship and she was a Plus One student then. The petitioner’s family consist of more than 12 members and all of them were residing separately, even without caring their parents and they are in enemical terms with each other. Such an unpleasant situation and surroundings of the petitioner’s family is the root cause for his misbehaviour and bad character. During 1981, the brother of the petitioner deserted his wife complaining that the petitioner was having sexual relationship with her. Due to the cruelty of the petitioner, his sister Janaki and her husband committed suicide after consuming poison at the residence of the petitioner. He had quarrelled with his younger brother by name Ponnappan who was murdered by his elder brother Gopi. The daughter of his elder sister Santhama, committed suicide by hanging on account of the harassment met at the hands of the petitioner and his sister Janaki. Such a person is now making allegations of cruelty against the respondent. When she arranged the marriage of their daughter, apprehending that the respondent is likely to approach him, he had transferred his properties in the name of his second wife and published seveal scandalous news against her and her daughter, and on account of such attitude and act, several proposals were dropped by the groom’s party and the marriage of her daughter was delayed. The second wife of the petitioner and his sister Janaki abused her with obscene language over phone. On 21.4.2004 at about 9.45 a.m, Mini and Janaki wth the petitioner attempted to beat the respondent using slippers in front of her office and due to the intervention of an autorickshaw driver, she was saved from that attack. A complaint was filed before the Chief Judicial Magistrate court. Even prior to that, she was threatened by the petitioner, his second wife and sister on several occasions. On 8.12.2003, there was an attempt of attack in conspiracy with the petitioner with his friend who was a defaulter of a bank, in which, the respondent was working, as she had taken steps to recover the dues from him. Frivolous complaint filed by the petitioner before the Sub Inspector of Kottayam East police station was later dismissed. So, there was no merit in the petition and she prayed for dismissal of the same.
6. The respondent in the above case, the wife, filed O.P.No.455/04 claiming certain amounts from the respondent/husband originally. Thereafter, additional second respondent was impleaded with the following allegations: The marriage between the petitioner and respondent was solemnized on 8.11.1977 and two children were born to them in their wedlock and she was deserted by the 1st respondent and she is now residing along with her children in her parental house and later shifted to her self acquired residential building. On 11.4.1982, he had brutally manhandled her and attempted to kill her and so, out of fear of death, she had to leave the matrimonial home with the children. He filed HMA (OP)No.553/82 before Sub Court, Kottayam for restitution of conjugal rights and the same was allowed and she filed MFA No.348/84 before this Court and the same was allowed by this Court by judgment dated 16.3.1987 setting aside the order passed by the Sub Court, Kottayam. Thereafter, no steps were taken by the 1st respondent against that judgment. The elder son was doing his House Surgency at Bulgaria and her daughter was expecting admission for M.Tech course. The 1st respondent filed O.P.No.613/03 for divorce. Even before filing of the petition, the respondent married another woman by name Mini, Thinavitha Chathil, Karinkulam on 9.2.1989. On the basis of the complaint given by the petitioner, a case was registered as Crime no.481/03 under Section 498A of IPC against him. A female child by name Pournami was born to them in that wedlock. From 11.4.1982 onwards, the husband was not looking after the affairs of the wife and children.
7. At the time of marriage, 292 gms. of gold ornaments and Rs.5,000/- was given towards the share of the petitioner in her family and the gold ornaments and the amounts have been misappropriated by him without her knowledge. Since he insisted for more and more amounts, the father of petitioner purchased 5.5 cents of property with a residential building in Kottayam, as per sale deed no.1873/79 in the joint names of the petitioner and the 1st respondent, out of which, 2 cents was purchased in the name of her father. The entire amount for purchase of the property was paid by her father and the respondent did not contribute any amount for the same. Later, on 22.6.1979, the 2 cents of property purchased by her father was gifted in her favour in full and final settlement of her claims over the family property due to the coercion exerted by the 1st respondent. During June 1980, petitioner went to her parental home and at that time, the respondent had taken all the household articles in the residential building and the same was rented out to a third party. On 11.6.1981, he sold that property vide sale deed nos.2006/81 and 2007/81 for a total consideration of Rs.25 lakhs which was in his custody. Later utilising a portion of the amount, he purchased 13 cents of property near railway station at Kottayam, out of which, 6.5 cents was purchased in the name of the petitioner and the remaining 6.5 cents was purchased in the name of respondent for a consideration of Rs.20 lakhs and the balance amount of Rs.5 lakhs was misappropriated by him. Thereafter, he sold his portion by sale deed no.1338/83 and purchased another property at Kadamuri using that amount vide sale deed No.601/92 and he is residing in that house. So she is entitled to get Rs.15 lakhs from the respondent being the balance sale consideration obtained by sale of 5.5 cents property near Parthas textiles, as he was only a trustee for that property for and on behalf of the petitioner and he is liable to return the same.
8. She had suffered severe mental and physical cruelty and she has been denied all the benefits of a family life and since the marital rights had not been dissolved, he had committed breach of contract of not looking after the wife and children and she is entitled to get compensation for the same from him. The petition schedule property was purchased by the 1st respondent by utilising the sources obtained from her father and using that amount by virtue of Sale Deed No.601/92 and the same is liable to be set aside, as he had no right over the same and the entire propety belongs to her and she is entitled to get vacant possession from the possession of the 1st respondent as he is in possession of the property as a trustee and she is also entitled to get injunction restraining him from selling the property or trespassing into the property. The property was entrusted with the 1st respondent as a trustee which was created by her father making her as beneficiary. This Court while disposing the appeal filed by her against the decree of restitution of conjugal rights granted by the Sub court, found that she was residing separately with reasonable cause. He is now trying to sell the property to the second wife with an intention to deny enjoyment of the property by the petitioner and children and he is trying to get a decree for divorce against her as well. The property obtained in the name of the first respondent is a binami transaction as the entire fund was utilised by selling the property of the petitioner which was given to her towards her share in the family property. He had got 53 cents of land from his family property which he had sold to the second wife vide sale deed No. 1197/03. So she prayed for return of the gold ornaments or its value and damages and also for return of the balance sale consideration which she quantified the amount as Rs.36,55,000/- with 18% interest and for a declaration that the petition schedule property belongs to her and her children, and direct the respondent to entrust vacant possession of the same after cancelling sale deed No.601/92 and for permanent prohibitory injunction restraining him and his men from committing any act of waste in the property and alienating the same to any third party and inducting strangers in the property or creating any encumbrance.
9. The original respondent filed counter contending as follows: The suit is not maintainable. The present suit has been filed as a counter blast to O.P.No.613/03 filed by him for divorce. The allegation that he married a lady by name Mini and a chlid was born to them in that wedlock is not correct. Due to the influence of the petitioner, Kottayam East police registered a case against him and he challenged the same before this Court by filing Crl.M.C.No.1457/04 and further proceedings in the crime were stayed by this Court. The allegation that the property covered by document no.1817/1979 having an extent of 5.5 cents was purchased by utilising the funds of her father is not correct and hence denied. In fact, the entire consideration was paid by him out of his funds. The property having an extent of 3 cents with a building therein was purchased for a total consideration of Rs.30,000/- in the joint names of himself and the petitioner, and the western 2 cents of property was purchased in the name of the father of the petitioner for a consideration of Rs.15,000/-. Since the respondent was not in station at the time when the document was registered, her father’s name was also included without his consent. When this was challenged, the father of the petitioner had gifted his right in the property in favour of the petitioner. So it is clear from this that the entire amount was paid by the respondent and no amount was paid by her father. It is admitted that he had sold the property as per Document Nos.2006 and 2007 of 1981 dated 11.6.1981. But the allegation that it was sold for Rs.25 lakhs is not correct. In fact, the property covered by document no.2006/81 was sold for a consideration of Rs.50,000/- and the property covered by document no.2007/81 in the name of the petitioner was sold for a consideration of Rs.30,000/- and that amount has been entrusted to her. Utilising Rs.50,000, they had purchased 13 cents of land in the joint names of the petitioner and the respondent showing the extent of the property as 6.5 cents each for a total consideration of Rs.13,000/- and the balance amount was used for discharging the liabilities. The property in the name of the petitioner was sold by her while she was residing separately. The allegation that he had purchased the property at Kadamuri using the funds obtained by sale of the property is not correct. That property was purchased in the joint names of himself and his elder sister Janaki for an amount of Rs.25,000/-. He purchased the present property by using a fund obtained by taking loan of Rs.64,000/- from his department and the petitioner has no right over the same. The petitioner is not entitled to get any amount being the balance consideration obtained by sale of 5.5 cents obtained earlier. She is not entitled to get any compensation for breach of contract said to have been committed by respondent. In fact she is residing separately and she had no intention to come and reside with him. In fact he is entitled to get compensation from the petitioner for not discharging her obligation as a dutiful wife. The petitioner is not entitled to get any declaration in respect of Document No.601/92 and she is not entitled to get any injunction or possession as claimed. There was no trust created as claimed. So he prayed for dismissal of the petition.
10. Subsequently the 2nd defendant was impleaded in the case as per the order in IA.No.1909/2005 on the allegation that the original respondent had sold the property to the additional second respondent with a view to defeat the right of the petitioner.
11. The 2nd respondent entered appearance and filed counter to the original petition contending as follows: The application is not maintainable. She came to know that the petitioner is the wife of the 1st respondent and she had deserted him long back and she was not aware of the other allegations in the petition. The allegation that she married the first respondent 9.2.1989 is false. It is true that a case has been registered as Crime No.481/2003 by Kottayam East Police Station against the first respondent alleging that he had committed the offence punishable under Section 498 A of the Indian Penal Code on the basis of false allegations made by her. Subsequently, she was also added as additional second accused. The allegation that a child was born to the relationship between herself and the first respondent is not correct. Though she is having a child, it was not born in the relationship with the first respondent.
12. She filed Crl.MC.No.935/2004 before this Court and the further proceedings in C.C.No.203/2004 of Chief Judicial Magistrate Court, Kottayam was stayed. Later the case against her was quashed. She purchased 10 cents of land with an incomplete building therein as per document No.979/2003 dated 11.6.2003 of Puthupally Sub Registrar’s Office and she has been in possession and enjoyment of the same. The petitioner is not entitled to get any declaration or injunction in respect of that property. She had spent huge amount for completing the building and making improvements in the property. She purchased the property 14 months prior to the date of institution of the petition. The first respondent has no right or title over the above 10 cents and that is separated by well defined boundaries. She purchased the property for valuable consideration. When she purchased the property, the sister of the first respondent, Smt. K.A. Gouri and brother K.A. Krishnan and Kunhumon called her over phone and told her that it was intended to be conveyed in their favour by the first respondent and purchase of 10 cents out of the same is ill motivated and they will teach a lesson to her. They were enmical terms towards the first respondent. She had no intention to purchase any more portion of the respondents’ property. The second respondent also purchased some more property from the first respondent as per document No.1197/2003. The petitioner is not entitled to get any relief against this respondent and she prayed for dismissal of the petition.
13. Both these cases were tried jointly and evidence was recorded in OP.No.613/2003 treating that case as a leading case. The petitioner in OP.No.613/2003 was examined as PW1 and his sister was examined as PW2 and Exts.A1 to A40 were marked on his side. The respondent in that case was examined as RW10. Her son was examined as RW11. Power of attorney holder of the second respondent in OP.No.455/2004 was examined as RW12 and other witnesses were examined as RWs1 to 9 on the side of the respondent in that case and Exts.B1 to B26 and Ext.X1 were marked on the side of the respondent in that case. After considering the evidence on record, the Court below came to the conclusion that the petitioner in OP.No.613/2003 has proved cruelty and desertion and allowed the application and granted a decree for divorce dissolving the marriage between the petitioner and the respondent in that case. Aggrieved by the same, the respondent in OP.No.613/2003 has filed Mat.A.No.681/2007.
14. The Court below allowed OP.No.455/2004 in part and rejected the prayer for declaration of title and possession over the property claimed in the petition and also rejected the claim for return of balance sale consideration said to have been in the possession of the first respondent in that case and damages claimed for breach of contract said to have been committed by him in denying the marital obligation to be performed by him to her, but allowed the application directing the first respondent to return 30 sovereigns of gold ornaments and Rs.5001/- entrusted at the time of marriage and also directed him to pay a sum of Rs.3,00,000/- towards educational expenses of the daughter and in the alternate of return of gold ornaments directed him to pay a sum of Rs. 1,80,000/- with 6% interest and educational expenses of the children quantified as Rs.3 lakhs together with 6% interest from the date of the order. There was interest ordered at the same rate for return of gold ornaments and money obtained at the time of marriage was directed to be paid from the date of petition namely 6.8.2004. Dissatisfied with the quantum of amount ordered and rejection of the other claims, the petitioner in that case filed Mat.A.No.682/2007 and aggrieved by the order to return the gold ornaments or its value and Rs.5001/- and the educational expenses to the tune of Rs. 3 lakhs, the first respondent filed Mat.A.No.653/2007. Since both these appeals arose out of a common order on the basis of common evidence, this Court is also disposing of all these appeals by a common judgment. For convenience sake, we are referring to the status of the parties as mentioned in OP.No.455/2004 before the Court below as all the parties are party to that proceedings alone.
15. Heard Sri. K.Gopalakrishna Kurup, learned senior counsel appearing for the appellant in Mat.A.No.681/2007, Mat.A.No.682/2007 and the first respondent in Mat.A.No.653/2007, Sri. Varghese C. Kuriakose, learned counsel appearing for the respondent in Mat.A.No.681/2007, the first respondent in Mat.A.No.682/2007 and the appellant in Mat.A.No.653/2007.
16. The senior learned counsel for the petitioner argued that the Court below was not justified in granting a decree for divorce on the ground of cruelty and desertion. In fact, the petition filed by the 1st respondent for restitution of conjugal rights as OP(HMA). No.53/1982 on the file of the Sub Court, Kottayam though decreed by that court, was later set aside by this Court as per judgment in MFA.No.348/1984 dated 16.3.1987 and that will go to show that she is residing separately from the first respondent and her separation is justified by reasonable cause and due to cruelty alleged by her against the first respondent and as such the husband is not entitled to get a decree for restitution of conjugal rights and allowed the appeal and dismissed the petition filed by him for that ground. So he cannot tack on that period for desertion or cruelty so as to claim divorce on that ground and that will operate as resjudicata between the parties. There was no cruelty or desertion thereafter occurred and as such, the first respondent is not entitled to get divorce and the Court below is not justified in granting a decree for divorce on the ground of cruelty and desertion. She had relied on the decision reported in an unreported decision of the Delhi High Court in Mat.A.(FC) No.82/2014 dated 6.1.2017 between Mrs. Nisha Rani v. Sri.Sohan Singh Nehra.
17. As regards the dismissal of the claims in OP.No.455/2004 is concerned, according to the learned senior counsel, the Court below had not properly appreciated the evidence and in fact, the evidence will go to show that the property was purchased by her father and by sale of those properties, the subsequent properties were obtained and he had sold the property without her consent and appropriated the amount and as such, he is liable to return the amount and the petitioner is entitled to get declaration and injunction as prayed for. He had also argued that on account of the wrongful act of the first respondent, she was denied the matrimonial status and the benefit of co-habitation with the first respondent and thereby he had committed breach of contract of promise of not fulfilling his marital obligation towards the petitioner. Further having admitted that the first respondent has not paid any amount for the maintenance of the children and educational expenses etc and he had not discharged the obligation of the father to give in marriage of her daughter born to them in that wedlock, the Court below ought to have believed the evidence of RWs10 and 11 and granted the entire amount claimed under that head.
18. On the other hand, the learned counsel for the first respondent argued that though this Court has set aside the petition for restitution of conjugal rights filed by him, even thereafter the cohabitation did not resume and she was filing false complaints one after the other before the police and also to the higher authorities of his department with false allegations so as to cause mental stress for him and that will amount to mental cruelty. Further she was trying to project him as a womanizer and a drunkard which she knew is false and such false allegations have been raised by her in all her statements filed before the Court below in different proceedings knowing that those allegations are false and intended only to bring down his reputation in the society and that will amount to cruelty. Further her evidence will go to show that he had no intention to come back and revive cohabitation with him and she had even denied the access of children with him and there is no possibility of reunion and their marriage relationship has been irretrievably broken down and they are residing separately since 11.4.1982 onwards. So there is no animus on the part of the petitioner to come and join the first respondent and as such, the Court below was perfectly justified in granting the relief of divorce on the ground of cruelty and desertion and those findings do not call for any interference. He had relied on the decisions reported in Praksh Chandra Kapoor v. Ritu Kapoor (2015 KHC 2020), Monika @ Mona v. Chandra Prakash (2015 KHC 3189), Rashmi Porwal v. Vivek Porwal (2015 KHC 1384), Kamal Singh Sisodia v. Rama Sisodia (2015 KHC 2303), Rajesh Shivhare v. Archana Shivhare (2015 KHC 1340), Vinita Sixena v. Pankaj Pandit (2006 KHC 479), Supratim Datta v. Moutushi Sen (2015 KHC 5333), Sheelu v. Amar Singh and Another (2016 KHC 2786), Rohin Kumar v. Silvia (2015 KHC 2930), Imlesh v. Amit (2014 KHC 3107) Jayachandra v. Aneel Kaur (2005 KHC 7), Jyotsna Sharma v. Gaurav Sharma (2015 KHC 2653), David M.D v. K.G. Mercy (2013 (3) KHC 739), Jagbir Singh V. Nisha (2015 KHC 3455), Srinivas K. v. K. Sunitha (2014 KHC 4728), Geeta Sharma v. Anil Kumar Sharma (2015 KHC 1067), Beena S.S. v. Sundaresan and others (2016 (1) KHC 355), Naveen Kohli v. Neelu Kohli (2006 KHC 621) and Suman v. Gajender (2015 KHC 3201) in support of his case.
19. As regards the claim of the wife in OP.No.455/2007 is concerned, the learned counsel has argued that since the right in the property of the petitioner was sold by her after the relationship strained, it cannot be said that he is in custody of those amount. Further, not claiming the return of gold ornaments till 2004 and claiming the same after lapse of 22 years of their relationship strained, the malafides on the part of the petitioner has to be presumed and except the interested testimony of RW10, there is no evidence to prove this fact. So the Court below was not justified in ordering return of gold ornaments or its value and Rs.5001/- said to have been given at the time of marriage. Once she had a case that it was he who had deserted her in 1982, the right to claim those articles arose for her and as such, the Court below should not have granted the relief in her favour. He had also argued that the right to claim maintenance and marriage expenses or educational expenses is given to the daughter under Section 20 of the Hindu Adoption and Maintenance Act and the mother is not entitled to claim that amount as daughter alone is entitled to claim that amount as such right has given only to the daughter. Further the daughter ought to have filed the suit for that amount within 3 years of attaining majority and failure to claim that amount will amount to forfeiture of right which cannot be substituted through her mother. So the Court below should not have granted a relief of Rs.3 lakhs in favour of the petitioner towards educational expenses of the daughter. He had relied on the decisions reported in Ashwani Kumar v. State of Uttranchal and others (2005 KHC 1547) Roopa J.M v. Jallur Musturappa and Others (2006 KHC 3719), Viswambharan v. Dhnaya (2005 KHC 119), Jagdish Jugtawat v. Manju Lata (2002 KHC 1275), Binulal K. V. Roopa R.S. (2011 (3) KHC 738) and Commissioner of Gift Tax v. Indira Devi (1998 KHC 403) in support of his case.
20. Before going to the facts of the case, we shall consider the precedents and the legal aspects arising in the case on the basis of facts.
21. In the decision reported in Jayachandra v. Anil Kower (2005 KHC 7), the apex court has held that:
“Cruelty which is a ground for dissolution of marriage may
be defined as willful unjustifiable conduct of such character as to
cause danger to life, limb or health, bodily or mental or/as give
rise to a reasonable apprehension of such danger”.
22. It is further observed in the same decision that:
“To constitute cruelty, the conduct complained should be
grave and weighty so as to come to the conclusion that the
petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more than serious than ordinary
wear and tear of married life. The conduct taking into consideration
of the circumstances and the background has to be examined to
reach the conclusion whether the conduct complained of amounts to
cruelty in matrimonial law. Conduct has to be considered as noted
above in the background several factors such as social status of
parties their education, physical and mental condition, custom and
tradition. It is difficult to lay down a presice definition or to give
exhaustive description of the circumstances which would constitute
cruelty. It must be of the type as to satisfy the conscience of the
court. That the relationship between the parties had deteriorated to
such an extent due to the conduct of the other spouse that it would
be impossible for them to live together without mental agony,
torture or distress to entitle the complaining spouse to secure
divorce. Physical violence is not absolutely essential to constitute
cruelty and a consistent course of conduct inflicting immeasurable
mental agony and the torture may well constitute cruelty within the
meaning of Section 10 of the Act. Mental cruelty may consists of
verbal abuses and insults by using filthy and abusive languages
leading to constant disturbance of mental peace of other party”
23. In the decision reported in Srinivas K.v. K.Sunitha (2014 KHC 4728), it has been held that:
“Filing false complaint against husband and his family
members u/s.498A and Section 307 of Indian Penal Code will
amount to matrimonial cruelty defined u/s.13(1)(ia) of Hindu
24. It is further held in the same decision that:
“Though irretrievable break down of marriage though
not a ground of divorce as yet, but Supreme Court in exercise
of its plenary powers under Article 142 has power to pass such
decree or make such order as is necessary for doing complete
justice in any case or order pending before it. It is also held in
the same decision that, criminal complaint was filed by the wife
subsequent to filing of husband’s divorce petition and being the
subsequent event could have been looked into by court.”
25. In the decision reported in Naveen Kohli v. Neelu Kohli ( 2006 KHC 621), it has been held that:
“The conduct of one of the spouse is such that,it is
impossible for other spouse to live together and making false
complaints before the police and authorities causing innumerable
mental stress and making false and defamatory allegations will
amount to mental cruelty”.
26. The same view has been reiterated in the decision reported in Vinita Saxena v. Pankaj Pandit (2006 KHC 749).
27. In the decision reported in Geetha Sharma v. Anil kumar Sharma (2015 KHC 1067), the Punjab and Haryana High Court held that:
“A launching false criminal case against the husband and
family members at the behest of the wife, which ended in acquittal
will amount to cruelty. In the same decision it has been held that,
if the spouse is not joining the husband for a long period in spite of
attempts made for that purpose will amount to desertion.”
28. In the decision reported in Jagvir Singh v. Nisha (2015 KHC 3455), the Punjab and Haryana High Court has held that:
“False allegation by the wife against the husband that
subject to cruelty with alleged demand of dowry will amount to
mental cruelty. Further publication in newspaper of alleged
cruelty committed in connection with alleged demand of dowry
bringing disrepute to family and husband will amount to mental
cruelty and husband is entitled to get divorce on that ground.”
29. The same view has been reiterated in the decision reported in Rohin Kumar v. Silvia (2015 KHC 2930), Imlesh v. Amit (2014 KLT 3107), Jyotsna Sharma v. Gaurav Sharma (2015 KHC 2653).
30. In the decision reported in Suman v. Gajender (2015 KHC 3201) it has been held that:
“Making false allegation of illicit relation of husband made
by wife will amount to mental cruelty.”
31. In the decision reported in Beena S.S. v. Sundaresand and Other (2016(1) KLT 355) a Division Bench of this court has held that:
“In order to establish grounds for mental cruelty, there
should be sufficient pleadings and evidence which is substantial
and material in nature to the extent of creating a permanent
mental distress and ever lasting disturbance in the mind of a
person alleging cruelty. Bond created by marriage cannot be
dissolved by relying of flimsy, shallow and baseless allegations.”
32. It is further held in the decision that:
“Stray and inconsequential allegation made even if proved
will not by itself contribute to the factum of cruelty.”
33. In the decision reported in David M.D. v. Mercy K.G. (2013 (3) KHC 739), it has been held that:
“Making false allegations against the husband and child
and making false complaints to the authority by the wife will
amount to cruelty.”
34. The same view has been reiterated in the decision reported in Sheelu v. Amar Singh and another (2016 KHC 2786), Supratim Datta v. Moutushisen (2015 KHC 5333), and Mangesh Balkrushna Bhoir v. Sauleena Mangesh Bhoir (2016 KHC 3057).
35. In the unreported decision of the Delhi High Court bin M.F. (F.C.) 82/2014, between Mrs. Nishrani v. Sri.Sohan Singh Nehra, dated 6.1.2017, it has been held that, mere wear and tear in the family life will not amount to cruelty, relying on the decision in Ravikumar V. Julmidevi (2010 (4) SCC 476), where Supreme Court has observed that, it may be noted only after the amendment of the said Act by amending Act 68 of 1976, desertion became a ground for divorce. On the question of desertion the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus desarandi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.
36. In the decision reported in Rajesh Shivhare v. Archa Shivhare (2015 KHC 1340), it has been held that:
“Husband and wife living separately for 11 years and love
was lost and emotions had dried up and efforts failed, then it will
amount to desertion.”
37. The same view has been reiterated in the decision reported in Kamal Singh Sisodia v. Rama Sisodia (2015 KHC 2303), Rashmi Borwal v. Vivek Borwal (2015 KHC 1384), Monica @ Mona v. Chandraprakesh (2015 KHC 3189), Prakash Chandra Kapour v. Ritu Kapour (2015 KHC 2020).
38. It is clear from the above dictums that, if the conduct and behavior of the wife is of such a nature that it causes mental agony and stress making it impossible for the husband to live together or continue the marital tie, not possible will amount to mental cruelty. Further filing false complaints against the husband and his family members alleging offences u/s.498A and 406 of Indian Penal Code and making false allegations of illicit relationship with other woman or leading immoral life and spreading such allegations among the public on the part of the wife will amount to mental cruelty. If there is long separation making the reunion impossible and there is drained marital relationship between the parties and all attempts made on the part of the husband for a reunion failed, then it will amount to desertion on the part of the wife. With this principles in mind, the case in O.P.No. 613/2003 against which Mat.A.No.681/2007 filed has to be considered.
39. The above petition was filed by the husband for divorce on the ground of desertion and cruelty on the part of the wife. The fact that the marriage between them was solemnised on 8.11.1977 and two children, a male and a female were born to them in that wedlock and they were residing separately from 12.04.82 is not in dispute. It is also not in dispute that husband filed O.P.(HMA)No. 53/82 before Sub Court, Kottayam for restitution of conjugal rights, which was allowed originally but later set aside by this court by Ext.B17 judgment in MFA.No.348/84 dated 16.03.1987. It is also not in dispute that finding of this court for allowing the appeal was that there was an incident occurred on 12.04.1982, which is sufficient cause for the wife to live separately and as such the husband is not entitled to get the relief of restitution of conjugal right as the wife is justified for her separate residence. So till that date, the allegations are not sufficient to come to the conclusion that there was desertion on the part of the wife.
40. But it is also an admitted fact that even thereafter the attitude of the wife of causing mental stress to the husband continued and there was no attempt on the part of the wife to join the husband. It is an admitted fact that on the basis of the complaint filed by the wife before the Dy.S.P., Kottayam evidenced by Ext.A19(b) dated 28.10.2003 which resulted in registering of the crime Ext.A14 against the husband and the 2nd respondent one Mini alleging offences u/s.498A and 494 of Indian Penal Code and after investigation, it resulted in filing a final report before Chief Judicial Magistrate Court, Kottayam, where it was taken on file as C.C.203/2004. It is also an admitted fact that he was arrested on 11.11.2003 in connection with the above crime as Crime No.481/2003 of Kottaym East Police Station and he was released on bail by the magistrate on the next day. It is also an admitted fact that, the husband and the said Mini who were accused in the above case filed Crl.M.C.9358/2004, and Crl.M.C.1457/2004 before this court and this court by Ext.A24 judgment dated 21.06.2006 quashed the proceedings in C.C.203/2004 of Chief Judicial Magistrate Court, Kottayam holding that, there was no prima face evidence to prove the subsequent marriage and the allegation of demand for dowry so as to attract the offence u/s.498A of Indial Penal Code, alleged after nearly 21 years of separation causes doubt regarding the allegation and it was made only to enable the police to register a case and harass the accused persons. The fact that the case itself was filed after 21 years of separation by the wife will go to show that it was made only for the purpose of harassing and causing mental stress to the husband as a vindictive method on the part of the wife.
41. It is also seen from the counter statement filed by her in O.P. 53/1982 and the counter statement filed by her in the present proceedings that, she had made allegations against the husband projecting him a person having immoral character having illicit relationship with several women including his brothers wife and his niece without any basis and made to examine RW9 one Santhamma, the wife of one of the brothers of her husband to prove these allegations and reading of her deposition will go to show that, she is having enmity with the petitioner herein. All theses things will go to show that her attempt was to bring loss of reputation for her husband before the public. Though she had produced Exts.B1 to B8, B16 and examined Rws 1 to 9 to prove that the husband is having illicit connection with a lady by name Mini, whom he married on 09.05.1989 and having a female child and he is residing with her, the evidence of those witnesses are not helpful to prove these facts. Further it is also seen from the documents produced by the petitioner namely Ext.A13 dated 12.12.97, an order of suspension issued on him by the department on the basis of the complaint given by the wife and later it was revoked. It is also seen from the documents produced namely Exts.A19(a), Ext.A20 and subsequent documents produced before this court and received as per order in I.A.1942/2014 and marked as Ext.A41 to A49 will go to show that even now she was filing complaints before the authorities on the basis of which inquiries have been initiated by the department preventing him to get his terminal benefits. Further it is also seen from Ext.A45 that a case registered at the instance of the father of the wife as Crime No.550/2006 of Ettumanoor police station which was tried as C.C.74/2007 u/s. 341, 506(1) and 294(b) read with Section 34 of Indian Penal Code by Judicial First Class Magistrate-I, Ettumanoor was ended in acquittal.
42. Further the evidence of RW10, the wife also will go to show that, she had no intention to join her husband, but she wanted to retain the label of his wife and she does not want to be known as a divorcee. So all these things will go to show that even after her leaving of the matrimonial home on 12.04.1982, the wife was filing complaints against the husband before the police and also before the authorities after lapse of 21 years of their separation which later ended in acquittal of the husband and other persons against whom the cases have been registered. It is also seen from the documents produced before the Court below and this Court that on account of the act of the wife, petitioner has to face several enquiries departmentally and he was put under suspension for sometime and thereafter he was reinstated as per the orders of this court. It is also seen from the evidence available on record that even at the fag end of his service, he has to face certain enquiries which resulted in withholding of disbursal of his pensionary benefits as well. Further she is also making allegations against the husband that he is having illicit connection with several women and having children in those relationship as well which has not been proved by producing proper evidence. The persons examined and the documents produced for this purpose on the side of the wife is not sufficient to prove those aspects as the persons examined have no direct knowledge about the contents of the documents produced or the identity of the persons mentioned in those documents. A cumulative effect of all these acts of the wife will go to show that her intention is to harass the husband making his matrimonial life impossible with her and these things were done with an intention to vindicate her personal vendata against him giving him unnecessary mental stress and agony and loss of reputation in the society and that will amount to mental cruelty entitles the husband to get a divorce on the ground of cruelty u/s.13(1) (ia) of Hindu Marriage Act.
43. As regards the desertion aspect is concerned, the attitude of the wife will go to show that she had no intention to join the husband. Even after the dismissal of the application for restitution of conjugal right, there was no attempt on the part of the wife to have reunion with her husband taking into account the welfare of the children. On the other hand even thereafter she was residing separately without having any communication with the husband and not even allowing the children to meet their father. So under such circumstances, the attitude of the wife living separately for nearly 25 years even now without any intention to rejoin and making the relationship more worse by filing complaint after complaint against him will go to show that she had permanently gone out of the matrimonial home with an intention not to return making the relationship irretrievably broken down and unrepairable so as to infer animus deserdanti on her part. So the court below was perfectly justified in coming to the conclusion that the husband had proved desertion on the part of the wife and he is entitled to get divorce on that ground as well and rightly granted the relief of divorce both on the grounds cruelty and desertion and we do not find any reason to interfere with the same. So the Mat.A.No. 681/2007 fails and the same is hereby dismissed.
44. As regards Mat.A.No.682/2007 and Mat.A.No.653/2007 are concerned, the case of the petitioner in the court below was that at the time of marriage 295 grams of gold ornaments and cash of Rs.5,001/- was entrusted to the husband. Further as insisted by the husband, her father had purchased 5.5 cents of land and building near Parthas Textiles in Kottayam as per sale deed No.1817/79 evidenced by Ext.B10 dated 29.05.79. Out of 5.5 cents father of the petitioner had purchased 2 cents with building therein as per the same document, later he had gifted that right in favour of the petitioner as per Ext.B11 Gift Deed No.21040/79 dated 22.06.79. According to the petitioner, later this property was sold as per Ext.B12 Sale Deed No.2006/81 dated 11.06.1981 and Ext.B22 Document No.2007/81 of the same date, according to the petitioner, for a total consideration of Rs.25 lakhs, out of which by utilizing Rs.20 lakhs, he had purchased 13 cents of property of 6.5 cents each in favour of the petitioner and first respondent and sold his right in that property as per Ext.B13 document No.1338/83. Thereafter he had purchased the petition schedule property as per sale deed No.601/92 evidenced by Ext.B14 dated 30.04.92. So according to the petitioner, he is in possession of Rs.5 lakhs, the balance consideration obtained by the sale of property covered by Ext.B10 and B11. She had also claimed Rs.15 lakhs being the value of the share of the petitioner in the property. She had also claimed that she is entitled to get compensation for breach of contract committed on the side of the husband and also for education and marriage expenses of the children to the tune of Rs.10 lakhs each and she had claimed a total amount of Rs.36,55,000/- as follows:
i The amount entrusted at the time of marriage Rs.5,000
ii. Market value of 30 sovereigns of gold ornaments Rs. 1,50,000/-
iii. Remaining sale consideration while selling the property at Kottayam near Parthas Textiles excluding the utilized amount for purchasing the schedule property Rs.15,00,000/-
iv. Damages for the petitioner for spoiling her life and sufferings caused to her by the respondent Rs. 5,00,000/-
v. Damage towards breach of contract by conducting second marriage without dissolving the marriage of the petitioner Rs. 5,00,000/-
vi. Expenses for higher studies and marriage of the daughter Rs. 10,00,000/-
45. She had also claimed declaration of title over the plaint schedule property and also for injunction restraining him from alienating the property. The 2nd respondent was later impleaded as purchaser of a portion of the property from the 1st respondent.
46. The first respondent filed objection denying the claims made. According to him, the properties were purchased with his funds and there is no amount available with him as claimed as excess consideration and she is not entitled to get any damages. It is on account of act of the petitioner that the marriage relationship has been ruined and he had also stated that there is bar of limitation for claiming the reliefs regarding the property. He had not mentioned anything about his liability to pay maintenance to the child daughter or marriage expenses. He prayed for dismissal of the petition.
47. The additional second respondent filed written statement denying the allegations and also stating that she had purchased a portion of the property for valuable consideration and the petitioner is not entitled to get any relief in respect of the same.
48. The fact that the petitioner and the first respondent were wife and husband and a property having an extent of 5.5 cents was purchased in the names of the petitioner, the first respondent and the father of the petitioner as per Ext.B10 Sale Deed No.1817/79 is not in dispute. It is also an admitted fact that two cents of property was purchased as per Ext.B10 by the father of the petitioner was later gifted to her as per Ext.B11 Gift Deed No.21040/79 dated 22.6.1979. It was admitted by RW10 in her evidence that at the time when this property was purchased, the first respondent was not in station and when he came to know that a portion of the property was purchased in the name of her father, he questioned the same and it was thereafter that the father had executed Ext.B11 gift deed. It was also admitted by RW10 that the property covered by Exts.B10 and B11 were later sold by her and the first respondent as per Sale Deed No.2006/81 and 2007/81 for the sale consideration mentioned in the document. She had no case that the sale consideration mentioned in those documents is less than the actual consideration received. It was also admitted by her that a property having an extent of 13 cents was purchased in the joint names of the petitioner and the 1st respondent by using that amount with 6.5 cents each and later they have sold the same separately. Admittedly, sale of this property was after their separation on 12.4.1982. There is no evidence adduced on the side of the petitioner to prove that the property covered by Exts.B10 and B11 were sold for a total consideration of Rs.25 lakhs and only Rs.20 lakhs was used for purchasing 13 cents of land in the joint names of the petitioner and the first respondent of 6.5 cents each and the balance amount of Rs.5 lakhs was with the first respondent. So under such circumstances, the Court below was perfectly justified in coming to the conclusion that the first respondent was not in possession of the balance consideration of Rs.5 lakhs and he is not liable to account to the petitioner and rightly rejected that claim.
49. As regards the declaration of right over the petition schedule property which was obtained as per Document No.601/92 evidenced by Ext.B14 dated 30.4.1992, it cannot be said that any amount was contributed by the petitioner for purchase of that property. In fact, she had admitted that she had sold 6.5 cents of land obtained in her favour and she had utilized that amount for herself. The father of the petitioner was not examined to prove that the entire consideration was paid by him for purchasing the property covered by Ext.B10. Further, the evidence of PW1 and the documents produced by him evidenced by Ext.A35 and Ext.A13 will go to show that he had taken loan from the Department. Further Ext.B5 coupled with the evidence of RW5 will go to show that building regularization application was filed by the first respondent. Further all these things have transpired after they were living separately and Exts.A25 to A28 ration cards will go to show that the first respondent was residing alone in the house after the petitioner had left the matrimonial home. So under such circumstances, the Court below was perfectly justified in coming to the conclusion that she is not entitled to declaration or injunction as prayed for as she has no right over the property covered by DocumentNo.601/92 and rightly rejected those claims and we do not find any reason to interfere with that finding.
50. As regards compensation claimed from the first respondent for breach of contract of marriage and contracting second marriage, it is seen from the evidence adduced that the petitioner is also responsible for the ruining of the relationship between them and even after the disposal of the appeal filed by her against OP(HMA)No.53/1982 of Sub Court, Kottayam, she did not take any steps for reunion and the attempts made by the first respondent for reunion was not accepted by her as well. On the other hand, she was filing complaints after complaints before the police and the departmental authorities of the first respondent causing hardship to him making the relationship more worse than ever. So under such circumstances, the Court below was perfectly justified in rejecting the claim for compensation of Rs.10 lakhs and we do not find any reason to interfere with the same.
51. As regards the claim for educational expenses and future marriage expenses of their unmarried daughter, in fact there was nothing mentioned in the counter statement regarding the same. Section 20 of the Hindu Adoption and Maintenance Act gives right for the unmarried daughter to claim maintenance from her father or mother till the date of marriage if she is not having sufficient income to maintain herself. Admittedly at the time when the original petition was filed by the mother, the daughter was not married and she was a student. So there is no possibility of any income for her.
52. In the decision reported in Roopa J.M v. Jallur Musturappa and Others (2006 KHC 3719), it has been held that there is a duty cast on the father to maintain the minor daughter till her marriage and meet her marriage expenses. At the time when the daughter was not married, when the petition was filed and she had married subsequent to the institution of the suit or during the pendency of the suit, it was for the father to meet the marriage expenses irrespective of the fact that the marriage was conducted by the mother by taking loan.
53. In the decision reported in Viswambharan v. Dhnaya (2005 KHC 119), it has been held that a Hindu unmarried daughter on attaining majority is entitled to continue her claim for maintenance from the father until marriage if she is unable to maintain herself out of her own earnings or property. The same view has been reiterated by the Apex Court in the decision reported in Jagdish Jugtawat v. Manju Lata (2002 KHC 1275). In that decision it has been held that though Section 125 of the Code of Criminal Procedure entitle the daughter to claim maintenance from her father but a combined reading of section 125 Cr.PC and Section 20(3) of Hindu Adoption and Maintenance Act makes it clear that she is entitled to get maintenance till marriage and that can be awarded under Section 125 Cr.PC in order to avoid multiplicity of proceedings.
54. In the decision reported in Binulal K. V. Roopa R.S. (2011 (3) KHC 738), a Division Bench of this Court has held that in a proceedings under Guardians and Wards Act seeking custody by the husband, there is no provision for payment of litigation expenses invoking Section 24 of the Hindu Marriage Act and awarding litigation expenses under that Act is without jurisdiction and Section 7(1)(f) of the Family Court Act cannot be invoked for that purpose as what is contained in Section 7 is substantive law conferring right to sue on specific grounds. That dictum is not applicable to the facts of this case.
55. In the decision reported in Commissioner of Gift Tax v. Indira Devi (1998 KHC 403), this Court had considered the question as to whether any gift given post marriage to secure her marriage will be liable to be exempted from Gift Tax and it is held that it does not come within the purview of Section 20 Hindu Adoption and Maintenance Act and as such the person who gifted cannot claim exemption from payment of Gift Tax as there is no legal obligation to pay any amount to the daughter after the marriage. That dictum is also not applicable to the facts of this case.
56. In the decision reported in Vijaykumar Jagdishrai Chawla, Indian Inhabitant v. Reeta Vijayakumar Chawla, Indian Inhabitant (2011 (108) AIC 356=MANU/MH/1079/2011=III(2011 DMC 687), the question arose as to whether the wife can seek relief of maintenance for and on behalf of her major daughter and the Bombay High Court has held that subsection (3) of Section 20 is exception which provides for the obligation of a person to maintain his or her daughter who is unmarried and is unable to maintain herself out of her own earnings or other property and Section 21 of the Act defines the term dependents. Clause 5 of Section 21 encompasses unmarried daughter as a dependant. Having regard to the relevant provisions therefore there can be no doubt that the unmarried daughter is entitled to receive maintenance amount from her father or mother as the case may be and so long as she is unable to maintain herself out of her own earnings and other property and if he is being looked after by the mother, then the father is also liable to share the liability of providing maintenance to his daughter and mother is entitled to recover the amount on behalf of the daughter.
57. In the decision reported in Smt. Sneh Prabha v. Ravinder Kumar (AIR 1995 SC 2170), it has been held that daughters who are grown up living with mother and maintained by mother and she is earning handsome salary however in view of Section 20 of Hindu Adoption and Maintenance Act considering the burden to pay towards education and other expenses and give daughter for marriage, husband was ordered to pay certain amount to daughters till their marriage or they earn their livelihood and reserved the right of the daughters to get more financial assistance at the time of their marriage. That was a case which arose out of the proceedings under the Hindu Marriage Act and not under Hindu Adoption and Maintenance Act. At the time when divorce was granted, this aspect was also considered by the Apex Court and granted the relief to the daughter who was not even a party to that proceedings at the instance of the mother.
58. In the decision reported in Kirtikant D. Vadodaria v. State of Gujarat and another (1996(4) SCC 479), it has been held that according to the law of the land with regard to maintenance, there is an obligation on the husband to maintain his wife which does arise by reason of any contract express or implied, but out of jural relationship of wife and husband consequent to the performance of marriage. Such an obligation of the husband to maintain his wife arises irrespective of the fact whether he has or has no property as it is considered an imperative duty and solemn obligation of husband to maintain his wife. The husband cannot be heard to say that he is unable to maintain due to financial constrains so long as he is capable of earning. Similarly it is obligation on the part of a son to maintain his aged father and mother by reason of personal obligation. But under old Hindu Law, the obligation was imposed on the son alone But now the present day Hindu Law extends this obligation both on sons and daughters. Further Section 18 of the Hindu Adoption and Maintenance Act gives a right to the wife to claim maintenance from her husband during her life time and by virtue of the above said Act, both son and daughter are liable to maintain aged or infirmed parents including childless stepmother when the latter is unable to maintain herself. It is well settled that a son has to maintain his mother irrespective of the fact whether he inherits any property or not from his mother as on the basis of the relationship alone he owes a duty and obligation, legal and moral to maintain his mother who has given birth to him. Further according to Section 20 of the Hindu Adoption and Maintenance Act, 1956 a Hindu is under legal obligation to maintain his wife, minor son, unmarried daughters and aged or infirmed parents.
59. In the decision reported in Mohinder Singh v. Ravneet Kaur (AIR 2007 Punjab and Haryana 49), it has been held that the minor children are entitled to claim maintenance from both father and mother if both are capable to maintain the child, liability can be fixed on both.
60. In the decision reported in Thadisina Chinna Babu Rao, S/o. late Ankkayya v. Kum. Thadisina Sarala Kumari D/o. Chinna Babu Rao (AIR 2010 NOC 330 (AP)=II(2010 DMC 806) =Manu/AP/0480/2009, it has been held that unmarried daughter who claimed maintenance from her parents irrespective of the religion which he belongs even after attaining majority and can maintain a suit in the Family Court under section 7 of the Family Courts Act and this can be claimed irrespective of religion to which she belongs.
61. Section 3(b) of Hindu Adoption and Maintenance Act, 1956 defines maintenance as follows:
Mat.A.No.681,682653 of 2007 46
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage;
62. Section 20 of the above said Act deals with maintenance
of children and aged parents which reads as follows:
“20. Maintenance of children and aged parents:-
(1) Subject to the provisions of this Section a Hindu is
bound, during his or her lifetime, to maintain his or her
legitimate or illegitimate children and his or her aged or
(2) A legitimate or illegitimate child may claim
maintenance from his or her father or mother so long as the
child is a minor.
(3) The obligation of a person to maintain his or her
aged or infirm parent or a daughter who is unmarried
extends insofar as the parent or the unmarried daughter,
as the case may be, is unable to maintain himself or
herself out of his or her own earnings or other property.
Explanation:- In this section “parent” includes a
63. It is an undisputed fact that under the old Hindu Law the liability to maintain the minor children was on the father and the right of the unmarried daughter to claim maintenance from the father extended upto her marriage or till she is capable of maintaining herself. But by virtue of subsequent development of law that obligation has been cast on both the parents if both are earning members and having sufficient means to meet the maintenance of the children and the liability to maintain parents cast on both the son and the daughter by virtue of Section 20 of the Hindu Adoption and Maintenance Act. It is also settled law that by virtue of the obligations deriving from tradition that such an obligation to maintain the wife and the children on the husband/father is personal and both moral and legal and that arises not on account of any contract, but due to the relationship created by virtue of the marriage which creates a bond between the parties making him responsible to look after the wife and the children and in the case of unmarried daughters to maintain them till their marriage if they are unable to maintain themselves. By virtue of the development of law, maintenance to the children has now been a joint responsibility of of both the parents if both are earning. Even in a case where the unmarried daughter is living with the mother, who is getting some income and being looked after by her, she is entitled to claim maintenance from the father also which includes the educational expenses and marriage expenses. Merely because the mother is looking after the affairs of the unmarried daughter including performance of marriage, it will not exonerate the legal and personal obligation of the father to contribute his share for that purpose. Since it is a joint responsibility of both earning parents to perform the obligation of maintaining unmarried daughters and giving them in marriage, then the spouse who is spending the amount is entitled to get due contribution from the other spouse who is not looking after them and other spouse is not entitled to take advantage of the fact that the unmarried daughter is being maintained by the mother who is also an earning member. So an obligation to get contribution from the husband by the mother has to be extended so as to strengthen the liability of the father to pay his due contribution for the maintenance and welfare of his unmarried daughter and he should not be left free of such liability.
64. As far as Hindu Marriage is concerned, it is not a contract but a sacrament. At the time of marriage, both man and woman take an oath before the Goddess of Fire that they will mutually understand each other and share the happiness and sorrow equally and try to make each other happy and shower love on each of them. They will share the burden of running the family institution taking into the concept of family a basic unit and necessity of the existence of that unit for the welfare of the society. The solemn oath taken by them creates a responsibility on the husband to look after the wife and children both male and female till they attain majority and in the case of female takes up the responsibility of looking after her till her marriage. Under the Pristine Hindu Law, there is a responsibility on the father to give daughter in marriage as in olden days, men alone are expected to work and earn money and it is the responsibility of the women to manage the household effectively which includes her responsibility to look after the children and husband. But as the time passes, women also started earning and shared the burden of running the family along with the husband and that was the reason why when the law was codified on the aspect of maintenance the burden of providing maintenance has been cast on the mother as well. Since the responsibility of the father and mother to look after the children has become mutual and joint as far as the children are concerned by virtue of the law and an option has been given to the children to proceed against either of them and by virtue of the precedents that liability has become joint, they are liable to share the responsibility in pro-rata to their income. That be the case merely because the mother is earning and looking after the daughter and taking the responsibility of giving her in marriage by burdening herself by taking loan will not absolve the liability of the father to make his contribution for this purpose and the wife is entitled to enforce the liability of the father to provide his contribution if he has not contributed anything and the entire burden has been taken by her for this purpose by virtue of his obligation and oath taken at the time of marriage and become a liability on him by virtue of the law made by the legislature and judge made precedents. Since it is a liability arising out of a marriage relationship which wife is entitled to claim by virtue of the above principle, then the claim for that purpose by the mother will be maintainable before the Family Court by virtue of Section 7 Explanations (c) (d) of the said Act. So the contention of the counsel for the first respondent that he is not liable to pay the marriage expenses or educational expenses of an unmarried daughter and such a claim by the mother will not be maintainable before the Family Court is unsustainable in law.
65. In this case, the marriage between the petitioner and the first respondent and the birth of the children are not in dispute. The first respondent had no case that after 12.4.1982, when the petitioner left the matrimonial home with the children, he had provided any maintenance or looked after the affairs of the children. It is also brought out in the evidence of RWs10 and 11, the wife and the son of the first respondent that the mother is looking after the children and taking care of their education as well. At the time when the above petition was filed in 2004, the daughter was unmarried and she was a student and under the protection of the mother. It is brought out in the evidence of Rws 10 and 11 that the marriage of the daughter was solemnized during the pendency of the proceedings and in spite of invitation given to the first respondent, he did not attend the marriage. He had no claim that he had contributed anything for the same as well. It is seen from Ext.B25 certificate issued by the employer of the petitioner that she was getting a gross salary of Rs.26,910/- and after deduction, she was getting only Rs.1509.80Ps as take home salary. Further Ext.B26 the certificate issued by Manager State Bank of Travancore, Changanassery dated 20.2.2007 gives the details of the loans availed by the petitioner which includes two education loans of Rs.4 lakhs and 3 lakhs, out of which an amount of Rs.4,13,262/- and Rs.2,51,484/- were due as outstanding and in one of the loans it appears that no payment has been made as on the date of certificate, the outstanding was shown Rs.4,83,914/- which appears to be the education loan taken on behalf of the daughter as the date of payment would not have been started. So under such circumstances, the first respondent is also liable to contribute towards the education expenses and marriage expenses of the unmarried daughter. There is no evidence adduced on the side of petitioner to prove the actual expenses incurred for the marriage of the daughter. However considering the burden cast on the wife to discharge the liabilities of the unmarried daughter and expenses incurred for conducting the marriage especially when there is no evidence to show that at the date of marriage, the daughter was employed and getting an income, the amount of Rs.3 lakhs fixed by the Court below as share payable by the first respondent towards that account appears to be reasonable and we do not find any reason to interfere with the same.
66. As regards the gold ornaments and amount paid at the time of marriage of the petitioner is concerned, she had adduced evidence as RW10 and produced Ext.B8 marriage register which was proved through RW8, the Secretary of Anandashramam SNDP Sakha Yogam. It is seen from Ext.B8, 292 grams of gold ornaments with its details and Rs.5001 was given by the parents of RW10 at the time of her marriage. This was proved through RW8. He was not cross examined at all. So the genuineness of the document and its contents thereof were not disputed. Further RW10 had categorically stated that out of these gold ornaments, 30 sovereigns of gold ornaments and Rs.5001/- were taken by her husband and the same was not returned. This aspect has not been challenged in the cross examination as well. PW1 had no case that these gold ornaments were taken back by the wife when she left the house. Further it will be seen from the evidence of RW10 that on 12.4.82, there was an incident occurred in which she was manhandled and she had to leave the matrimonial home with the children. Neither PW1 nor RW10 had a case that thereafter there was any possisblity for RW10 coming to the matrimonial home and taking the gold ornaments. PW1 also had no case that till 2004, she had made any claim for the same. PW1 also had no case that the gold ornaments and the amount were used for any common purpose for the benefit of either RW10 or their children. When gold ornaments and the amount given to the wife in connection with the marriage were entrusted to the husband, then it will be in the nature of a trust and so long as the marital relationship continues, the trust created also will continue till the dissolution of marriage. Further when there is a trust created, by virtue of Section 10 of the Trust Act, there is no limitation so long as the trust continues.
So under such circumstances, once it is proved that gold ornaments and amount was entrusted by the wife to the husband, then the burden is on the husband to prove as to what happened to the gold ornaments and if it is taken by the wife when she left the matrimonial home, the same has to be proved by the husband. No such evidence was adduced in this case by PW1. So under such circumstances, the court below was perfectly justified in holding that the wife is entitled to get return of either 30 sovereigns of gold ornaments or its value at the rate of Rs.6,000/- per sovereign totaling Rs.1,80,000/- and also Rs.5001 with interest at the rate of 6% per annum from the date suit namely 9.8.2004. But the court below was not justified in restricting the interest for the educational and marriage expenses from the date of order. She is entitled to get interest for that amount also from the date of suit namely 9.8.2004. To that extent the order passed by the court below has to be modified and on all other aspects the same has to be confirmed.
So Mat.A.No.682/2007 is allowed in part granting interest on Rs.3,00,000/- the amount payable towards educational and marriage expenses from the date of petition namely 4.8.2004 till payment at the rate of 6% per annum instead of interest granted by the court below from the date of order and on all other aspects the order passed by the court below is hereby confirmed. Mat.A.No.653/2007 filed by the husband against the order in O.P.No.555/2004 of Family Court Kottayam at Ettumanoor is dismissed. Mat.A.No.681/2007 filed by the wife against the order of divorce passed in OP.No.613/2003 of Family Court, Kottayam is dismissed and the decree dissolving the marriage passed by the court below is hereby confirmed. Considering the circumstances parties are directed to bear their respective costs in all the appeals.