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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.
ANITHA KESAVADAS – Appellant
Versus
K. BABUKUTTAN PILLAI – Respondent
Mat. Appeal Nos. 311, 403, 404, 562, 575 of 2015
Decided On : 13-03-2017
FAMILY COURT - MATRIMONIAL DISPUTE - HUSBAND AND WIFE - MAINTENANCE - DAMAGES - INJUNCTION - LEASE AGREEMENT - VIOLATION OF INJUNCTION ORDER - PROSECUTION - FAMILY COURTS ACT, 1984 - SECTION 7 - EXPLANATION.
Fact of the Case:
The parties, husband and wife, were involved in a matrimonial dispute. They had entered into a compromise agreement, Ext.A3, which allowed the husband to run the wife's industrial unit for a period of one year. The husband was also to transfer 25 cents of land to the wife. However, the wife filed a suit for injunction, O.P. No. 600/2010, and obtained an ex-parte interim injunction restraining the husband from entering the property. The husband filed an appeal, Mat. Appeal No. 403/2015, challenging the injunction order. The wife filed a cross-appeal, Mat. Appeal No. 311/2015, seeking maintenance, damages, and educational expenses. The husband's brother and his wife filed Mat. Appeal Nos. 562/2015 and 575/2015, respectively, seeking recovery of money spent on the industrial unit.
Finding of the Court:
The Family Court dismissed O.P. No. 600/2010, 508/2011, and 662/2011. O.P. No. 1521/2011 was allowed in part, allowing past maintenance at Rs. 4000/- per month from the date of filing the petition, future maintenance at Rs. 7000/- per month, Rs. 20,000/- per month as damages for use and occupation of the building from the date of O.P. till vacating the property with the industrial unit, Rs. 3 lakhs as educational expenses of the children, and litigation expenses of Rs. 15,000/-. The claim for return of gold ornaments or its value was disallowed. Respondents 1 and 2 were also found to have committed violation of the interim injunction order and liable to be prosecuted under Order 39 Rule 2A of the Code of Civil Procedure.
Issues: 1. Whether the husband was liable to pay maintenance to the wife? 2. Whether the wife was entitled to damages for the husband's alleged illegal occupation of the industrial unit? 3. Whether the wife was entitled to educational expenses for the children? 4. Whether the husband and his brother were liable to pay damages to the wife for breach of the lease agreement? 5. Whether the husband and his brother were liable to be prosecuted for violating the interim injunction order?
Ratio Decidendi: 1. The husband was liable to pay maintenance to the wife as he had the capacity to pay and the wife was without any source of income. However, the quantum of maintenance was reduced from Rs. 4,000/- per month to Rs. 2,500/- per month, considering the husband's financial situation. 2. The wife was not entitled to damages for the husband's alleged illegal occupation of the industrial unit as the husband had taken possession of the unit based on an agreement and the wife had not filed a suit for recovery of possession. 3. The wife was entitled to educational expenses for the children as she had incurred expenses for their education and the husband had not shown any interest in meeting those expenses. 4. The husband and his brother were not liable to pay damages to the wife for breach of the lease agreement as the wife had filed a suit for injunction restraining the husband from operating the industrial unit, which resulted in the closure of the unit. 5. The husband and his brother were not liable to be prosecuted for violating the interim injunction order as the wife had not provided a schedule of property in the injunction suit and the injunction order was ambiguous.
Final Decision: Mat. Appeal No. 403/2015 was allowed in part, setting aside the judgment and decree of the Family Court in O.P. No. 1521/2011 and granting a decree in favor of the petitioner in O.P. No. 1521/2011, for past and future maintenance at the rate of Rs. 2500/- per month. Past maintenance shall be payable only from December, 2010 till the date of filing the petition. Arrears of maintenance can be recovered with interest at the rate of 6% per annum. Mat. Appeal No. 404/2015 was allowed setting aside the order of the Family Court in I.A. No. 1946/2014 in I.A. No. 1705/2010 in O.P. No. 600/2010. Mat. Appeal Nos. 311/2015, 562/2015 and 575/2015 were dismissed.
A.M. SHAFFIQUE, J.
1. Since these appeals arise out of separate original petitions decided by the Family Court by a common judgment dated 07.02.2015, they are heard and decided together.
2. M.A. No. 311/2015 has been filed by the petitioner in O.P. No. 1521/2011 and the respondent's appeal is M.A. No. 403/2015. M.A. Nos. 562/2015 and 575/2015 have been filed by the petitioner in O.P. No. 508/2011 and the petitioners in O.P. No. 662/2011. M.A. No. 404/2015 has been filed by the respondents in O.P. No. 600/2010 by which the Family Court had directed that the appellant should be prosecuted under Order 39 Rule 2A of the CPC.
3. Brief outline of the factual circumstances involved in the matrimonial dispute which has arisen in the facts of the case can be narrated as under:
(i) The petitioner/wife and the 1st respondent in O.P. No. 600/2010 are the parties to the marriage which was solemnized, as per Hindu religious rites and custom on 05.11.1989. Marriage was dissolved as per judgment dated 28.2.2011 in O.P. No. 471/2010 of the Family Court, Ernakulam. They have two children and both have become majors presently. After the marriage, petitioner and 1st respondent were living at the parental home of the petitioner at Kaloor. Petitioner claims to have started a small scale industrial unit by name and style M/s. Snowhite Soaps and Detergents. It is alleged that when the 1st respondent started interfering with the business and management of the unit, their marital life became strained, he started harassing her and demanded that the unit, be transferred in his name. The 1st respondent left the petitioner and children in August, 2009 and is living separately. On account of the nuisance created by the respondent, petitioner filed O.P. No. 1683/2009 before the Family Court, seeking for a permanent prohibitory injunction restraining the 1st respondent from interfering with the affairs of the petitioner. Later, the parties settled the disputes based on an agreement dated 30.11.2009. A decree was passed on the basis of the compromise agreement. She further alleged that she was forced to enter into an agreement dated 8.2.2007, by which she agreed to lease out an extent of 20 cents on the north eastern side of the her property for a period of 10 years, in favour of the 2nd respondent, but the lease deed was not registered. When the matrimonial disputes arouse between the petitioner and the 1st respondent, the respondents attempted to start another unit, M/s Snow Valley Cosmetics in the name of the 2nd respondent, in the same premises. According to her, 2nd respondent was only a name lender and the 1st respondent himself was conducting business. Respondents filed written statement contending that the petition is barred by principles of res judicata on account of the compromise entered into between the parties after the decision in O.P. No. 1683/2009. He also narrated the manner in which he got experience in conducting the unit and the manner in which his brother had arranged the putting up of a unit etc. It is submitted that in terms of the agreement, though he had complied with his part of the agreement, the petitioner did not transfer 25 cents of land in his name. It is stated that without performing the terms of the compromise, she had filed injunction suit against the petitioner, and had issued letters to all the licensing authorities to cancel the license of the unit.
(ii) O.P. No. 508/2011 has been filed by the petitioner/husband against the 1st respondent/ wife and her father. His claim is for Rs. 12 lakhs, which he alleges to have expended for completing construction of the residential house. It is contended that they have constructed a house having a plinth area of 3400 sq. feet in the year 2007. He was shouldered with the responsibility to complete the construction of the house. He had incurred Rs. 12 lakhs to complete the construction, out of which, Rs. 5 Lakhs was spent for purchase of wood and for its craft work and Rs. 7 lakhs
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