Dr.Suresh Kumar Vs. Sindhu.R. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1101705
CourtKerala High Court
Decided OnDec-11-2013
JudgeHONOURABLE MR.JUSTICE ANTONY DOMINIC
AppellantDr.Suresh Kumar
RespondentSindhu.R.
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice antony dominic & the honourable mr. justice p.d.rajan wednesday, the11h day of december201320th agrahayana, 1935 mat.appeal.no. 661 of 2007 ( ) ------------------------------- against the order/judgment in op702006 of family court, thiruvalla dated1510-2007 appellant/ist respondent in o.p.: --------------------------------------------------------- dr.suresh kumar s/o.sarojini amma, aged41years, asok bhavan paravoor p.o., punnapra panchayat, alappuzha. by advs.sri.v.v.sidharthan (sr.) sri.d.g.vipin respondent(s)/petitioner & 2nd respondent in o.p.: --------------------------------------------------------------------------------- 1. sindhu r., aged35years d/o.late ramachandran thandar santha mandiram chenneerkara muri chenneerkara village, kozhenchery taluk pathanamthitta district.2. sarojini amma, asok bhavan, paravoor p.o., punnapra panchayat alappuzha. r1 by adv. sri.philip m.varughese this matrimonial appeal having been finally heard on1112-2013, the court on the same day delivered the following: antony dominic & p.d.rajan, jj.======================== mat. appeal no. 661 of2007======================= dated this the 11th day of december, 2013 judgment antony dominic, j.the appeal arises from the judgment of the family court, thiruvalla in op no.70/06. the op was filed by the 1st respondent herein seeking recovery of `8,21,560/- towards the amount entrusted to the appellant in connection with the marriage and the value of the gold ornaments misappropriated by him.2. the appellant married the 1st respondent on 7/8/03 at the sree mahadeva temple, chengannur. thereafter, they lived as husband and wife and a female child was born in the wedlock on 14/9/04. according to the 1st respondent, for various reasons, the marriage did not survive and it was in such circumstances that she filed the op for recovery of the amount mentioned above.3. the 2nd respondent in the op, the mother of the appellant, remained ex parte. the appellant contested the mat.appeal no.661/07 :2. : matter denying the allegations against him. according to him, the marriage was null and void and therefore he had filed op (hma) no.689/06 for a declaration that the marriage is null and void.4. both the cases were jointly tried and evidence of the appellant and his witnesses were recorded as pws 1 to 3 and the 1st respondent and her witnesses were examined as cpws 1 to 4. exts.a1 and a2 and exts.b1 to b6 were also marked by the parties. the family court by a common judgment rendered on 15th october, 2007, allowed op no.70/06 filed by the 1st respondent directing the appellant to pay `6,74,600/- in one month. it was also ordered that on failure of payment, 1st respondent would be entitled to recover the amount with 7% interest from the date of petition till realisation. op no.689/06 was also decreed and the marriage was declared as null and void. it is in this background, the appellant husband has filed this appeal aggrieved by the decree passed by the family court mat.appeal no.661/07 :3. : allowing op no. 70/06 mentioned above.5. we heard the learned counsel for the appellant.6. the first contention raised by the learned counsel for the appellant is that since the marriage between himself and the 1st respondent was declared as null and void by the family court as per its decree in op no.689/06, he and the 1st respondent are not "parties to a marriage" and therefore, the proceedings initiated by the 1st respondent under section 7 of the family courts act was not maintainable. in other words, what he contended was that in the absence of a valid marriage, the petition ought to have been dismissed by the family court as not maintainable.7. it is true that as per explanation (c) to section 7(1) of the family courts act, a suit or proceedings between the parties to a marriage with respect to the property of the parties or either of them, alone is maintainable before the family court. however, in so far as this case is concerned, it is the admitted position of the parties that they had mat.appeal no.661/07 :4. : married in accordance with the customary rites on 7/8/03 and lived as husband and wife and a child was also born in the wedlock. this marriage subsisted as on the date of the presentation of the petition before the family court and the decree was passed in op no.689/06 only much later to it.8. jurisdiction of a court or tribunal to entertain a lis is to be determined with reference to the date of presentation of the petition. as on the date of the petition, the marriage subsisted and the appellant and the 1st respondent were parties to a marriage. therefore, a subsequent development, resulting in declaration of nullity cannot deprive the family court of its jurisdiction to entertain a petition, which on the date of its presentation, was validly presented.9. even apart from that, dispute on jurisdiction is a matter which should be raised by the party concerned at the earliest possible opportunity. in so far as this case is concerned, neither the pleadings before the family court mat.appeal no.661/07 :5. : nor the judgment shows that such a contention was raised by the appellant. if that be so, since this contention is raised after courting an adverse order from the family court and for that reason, we are also not prepared to entertain the plea 10. coming to the merits of the controversy, the case of the 1st respondent was that prior to the marriage, the appellant was given `2 lakhs as her share and that she was wearing 101 sovereigns of gold ornaments at the time of the marriage. the gold ornaments claimed by her consisted of 16 items and the total weight of the ornaments was 791 grams . the description of the gold ornaments are given in annexure a to the petition. she had also claimed 19 items of furniture and house hold articles, the details of which are given in annexure b and the total amount claimed was `36,220/- .11. in so far as the claim for `2 lakhs paid and the ornaments claimed by the 1st respondent is concerned, the mat.appeal no.661/07 :6. : case was spoken to by cpws 1 to 4, among which, cpw2 is the 1st respondent herself. these witnesses have spoken consistently that the lady was wearing ornaments as claimed by her and that the same was misappropriated by the appellant. on the other hand, the case of the appellant was one of complete denial.12. among the documentary evidence that was available, ext.b5 is the copy of the marriage register maintained at muttathukonam sndp sakha, which was proved through cpw3. this document was signed not only by the couple but also by their parents and witnesses and it shows that at the time of marriage, the bride was wearing roughly 101 sovereigns of gold ornaments. though it was the case of the appellant that this is a document which is fabricated, he could not prove that allegation in any manner.13. ext.b1 marriage photographs also show that the bride was wearing substantial quantity of gold ornaments, which cannot be less than what she had claimed. therefore, mat.appeal no.661/07 :7. : the oral evidence coupled with ext.b5, fully substantiated the case of the 1st respondent that she had gold ornaments as claimed by her.14. in so far as the entrustment and misappropriation is concerned, cpw2 had deposed that the entire ornaments belonging to her except a pair of studs and 2 bangles were at the residence of the appellant and that he is refusing to return it despite intervention by the leaders of the community. she had also deposed that out of the quantity thus entrusted, 50 sovereigns were already sold by the appellant and that the remaining were in the almirah in the residence of the appellant. as against this, the appellant who was examined as pw1 had no case that his wife had taken back any of her ornaments when she returned to her house. it was on the basis of these evidence that the family court upheld the claim of the wife for 791 grams of gold ornaments. the family court also on evidence found that mat.appeal no.661/07 :8. : the claim for return of `2 lakhs paid in connection with the marriage also is liable to be returned. on the evidence that is available, these two findings upholding the claim of the respondent wife cannot be said to be illegal and we see no reason to interfere with the order passed by the family court and the appeal is therefore dismissed. sd/- antony dominic, judge sd/- p.d.rajan, judge rp //true copy// pa to judge
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE11H DAY OF DECEMBER201320TH AGRAHAYANA, 1935 Mat.Appeal.No. 661 of 2007 ( ) ------------------------------- AGAINST THE ORDER

/JUDGMENT

IN OP702006 of FAMILY COURT, THIRUVALLA DATED1510-2007 APPELLANT/IST RESPONDENT IN O.P.: --------------------------------------------------------- DR.SURESH KUMAR S/O.SAROJINI AMMA, AGED41YEARS, ASOK BHAVAN PARAVOOR P.O., PUNNAPRA PANCHAYAT, ALAPPUZHA. BY ADVS.SRI.V.V.SIDHARTHAN (SR.) SRI.D.G.VIPIN RESPONDENT(S)/PETITIONER & 2nd RESPONDENT IN O.P.: --------------------------------------------------------------------------------- 1. SINDHU R., AGED35YEARS D/O.LATE RAMACHANDRAN THANDAR SANTHA MANDIRAM CHENNEERKARA MURI CHENNEERKARA VILLAGE, KOZHENCHERY TALUK PATHANAMTHITTA DISTRICT.

2. SAROJINI AMMA, ASOK BHAVAN, PARAVOOR P.O., PUNNAPRA PANCHAYAT ALAPPUZHA. R1 BY ADV. SRI.PHILIP M.VARUGHESE THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON1112-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & P.D.RAJAN, JJ.

======================== Mat. Appeal No. 661 OF2007======================= Dated this the 11th day of December, 2013

JUDGMENT

Antony Dominic, J.

The appeal arises from the judgment of the Family Court, Thiruvalla in OP No.70/06. The OP was filed by the 1st respondent herein seeking recovery of `8,21,560/- towards the amount entrusted to the appellant in connection with the marriage and the value of the gold ornaments misappropriated by him.

2. The appellant married the 1st respondent on 7/8/03 at the Sree Mahadeva Temple, Chengannur. Thereafter, they lived as husband and wife and a female child was born in the wedlock on 14/9/04. According to the 1st respondent, for various reasons, the marriage did not survive and it was in such circumstances that she filed the OP for recovery of the amount mentioned above.

3. The 2nd respondent in the OP, the mother of the appellant, remained ex parte. The appellant contested the Mat.Appeal No.661/07 :

2. : matter denying the allegations against him. According to him, the marriage was null and void and therefore he had filed OP (HMA) No.689/06 for a declaration that the marriage is null and void.

4. Both the cases were jointly tried and evidence of the appellant and his witnesses were recorded as Pws 1 to 3 and the 1st respondent and her witnesses were examined as CPWs 1 to 4. Exts.A1 and A2 and Exts.B1 to B6 were also marked by the parties. The Family Court by a common judgment rendered on 15th October, 2007, allowed OP No.70/06 filed by the 1st respondent directing the appellant to pay `6,74,600/- in one month. It was also ordered that on failure of payment, 1st respondent would be entitled to recover the amount with 7% interest from the date of petition till realisation. OP No.689/06 was also decreed and the marriage was declared as null and void. It is in this background, the appellant husband has filed this appeal aggrieved by the decree passed by the Family Court Mat.Appeal No.661/07 :

3. : allowing OP No. 70/06 mentioned above.

5. We heard the learned counsel for the appellant.

6. The first contention raised by the learned counsel for the appellant is that since the marriage between himself and the 1st respondent was declared as null and void by the Family Court as per its decree in OP No.689/06, he and the 1st respondent are not "parties to a marriage" and therefore, the proceedings initiated by the 1st respondent under Section 7 of the Family Courts Act was not maintainable. In other words, what he contended was that in the absence of a valid marriage, the petition ought to have been dismissed by the Family Court as not maintainable.

7. It is true that as per Explanation (c) to Section 7(1) of the Family Courts Act, a suit or proceedings between the parties to a marriage with respect to the property of the parties or either of them, alone is maintainable before the Family Court. However, in so far as this case is concerned, it is the admitted position of the parties that they had Mat.Appeal No.661/07 :

4. : married in accordance with the customary rites on 7/8/03 and lived as husband and wife and a child was also born in the wedlock. This marriage subsisted as on the date of the presentation of the petition before the Family Court and the decree was passed in OP No.689/06 only much later to it.

8. Jurisdiction of a Court or Tribunal to entertain a lis is to be determined with reference to the date of presentation of the petition. As on the date of the petition, the marriage subsisted and the appellant and the 1st respondent were parties to a marriage. Therefore, a subsequent development, resulting in declaration of nullity cannot deprive the Family Court of its jurisdiction to entertain a petition, which on the date of its presentation, was validly presented.

9. Even apart from that, dispute on jurisdiction is a matter which should be raised by the party concerned at the earliest possible opportunity. In so far as this case is concerned, neither the pleadings before the Family Court Mat.Appeal No.661/07 :

5. : nor the judgment shows that such a contention was raised by the appellant. If that be so, since this contention is raised after courting an adverse order from the Family Court and for that reason, we are also not prepared to entertain the plea 10. Coming to the merits of the controversy, the case of the 1st respondent was that prior to the marriage, the appellant was given `2 lakhs as her share and that she was wearing 101 sovereigns of gold ornaments at the time of the marriage. The gold ornaments claimed by her consisted of 16 items and the total weight of the ornaments was 791 grams . The description of the gold ornaments are given in Annexure A to the petition. She had also claimed 19 items of furniture and house hold articles, the details of which are given in Annexure B and the total amount claimed was `36,220/- .

11. In so far as the claim for `2 lakhs paid and the ornaments claimed by the 1st respondent is concerned, the Mat.Appeal No.661/07 :

6. : case was spoken to by CPWs 1 to 4, among which, CPW2 is the 1st respondent herself. These witnesses have spoken consistently that the lady was wearing ornaments as claimed by her and that the same was misappropriated by the appellant. On the other hand, the case of the appellant was one of complete denial.

12. Among the documentary evidence that was available, Ext.B5 is the copy of the marriage register maintained at Muttathukonam SNDP Sakha, which was proved through CPW3. This document was signed not only by the couple but also by their parents and witnesses and it shows that at the time of marriage, the bride was wearing roughly 101 sovereigns of gold ornaments. Though it was the case of the appellant that this is a document which is fabricated, he could not prove that allegation in any manner.

13. Ext.B1 marriage photographs also show that the bride was wearing substantial quantity of gold ornaments, which cannot be less than what she had claimed. Therefore, Mat.Appeal No.661/07 :

7. : the oral evidence coupled with Ext.B5, fully substantiated the case of the 1st respondent that she had gold ornaments as claimed by her.

14. In so far as the entrustment and misappropriation is concerned, CPW2 had deposed that the entire ornaments belonging to her except a pair of studs and 2 bangles were at the residence of the appellant and that he is refusing to return it despite intervention by the leaders of the community. She had also deposed that out of the quantity thus entrusted, 50 sovereigns were already sold by the appellant and that the remaining were in the almirah in the residence of the appellant. As against this, the appellant who was examined as PW1 had no case that his wife had taken back any of her ornaments when she returned to her house. It was on the basis of these evidence that the Family Court upheld the claim of the wife for 791 grams of gold ornaments. The Family Court also on evidence found that Mat.Appeal No.661/07 :

8. : the claim for return of `2 lakhs paid in connection with the marriage also is liable to be returned. On the evidence that is available, these two findings upholding the claim of the respondent wife cannot be said to be illegal and we see no reason to interfere with the order passed by the Family Court and the appeal is therefore dismissed. Sd/- ANTONY DOMINIC, JUDGE Sd/- P.D.RAJAN, JUDGE Rp //True Copy// PA TO JUDGE