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2020 Supreme(Ker) 202
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M.SHAFFIQUE, MARY JOSEPH, JJ.
Rangan, S/o.Kozhiparambil Ravi, Valiya – Appellant
Versus
Mini, D/o.Padannayil Harshan – Respondent
Mat.Appeal.No.574, 573, 270 of 2014
Decided on : 16-03-2020
Advocate Appeared:
For the Appellant : SRI.V.M.KRISHNAKUMAR
For the Respondent: SRI.P.L.DEVADAS
IMPORTANT POINT
While deciding an application for divorce, the Family Court can direct the husband to pay permanent alimony to his wife, either suo motto or on the application made by the parties.
Headnote:
Hindu Adoptions and Maintenance Act, 1956, Section 25 – The Family Court is empowered to direct the husband to pay permanent alimony to his wife on granting a decree of divorce, either suo motto, even if an express prayer is not sought for, or on the application made by the parties.
Statement of facts:
Mat Appeal No 270/2014 are preferred against the order passed by Family Court, Irinjalakuda on 10.04.2013 in O.P No.18/2012, against an order granting a decree of permanent alimony of Rs.4,00,000/-to the wife.
Finding of the Court:
The wife has thoroughly failed to establish entrustment and appropriation of gold ornaments, by cogent and reliable evidence. She has also failed to establish that 15 sovereigns of gold ornaments have been given to her by her parents at the time of her marriage -If the court decides to grant permanent alimony to a party entitled for that suo motu it can confine the determination of the quantum payable as permanent alimony, to the materials already on record in the original petition seeking divorce, seized of by the court.
Result: Mat Appeal dismissed.
JUDGMENT
Mary Joseph, J
Mat Appeal Nos.573/2014 and 270/2014 are preferred against the order passed by Family Court, Irinjalakuda on 10.04.2013 in O.P No.18/2012 and Mat Appeal No.574/2014, against the order passed by Family Court, Irinjalakuda on the same date in O.P No.10/2012.
2. Against an order granting a decree for dissolution of marriage in favour of the husband on the ground of cruelty and permanent alimony of Rs.4,00,000/-to the wife, the respective aggrieved parties have preferred Mat. Appeal Nos.573/2014 and 270/2014.
3. O.P No.10/2012 was filed by the wife seeking for return of gold ornaments, cash and past maintenance from her husband and it was dismissed by the Family Court. Being aggrieved thereby, the wife has filed Mat Appeal No.574/2014 challenging the said order.
4. Challenge was made against orders in O.P No.18/2012 and 10/2012 by the parties alleging that orders are vitiated for erroneous appreciation of evidence and therefore, illegal. According to Sri.Dinesh Mathew J. Murikan, the learned counsel for the appellant/wife in Mat. Appeal No.574/2014, the court below dismissed O.P No.10/2012 mainly for the reason that entrustment of 6¾ sovereigns of gold and cash worth Rs.50,000/-were not properly pleaded and proved by her. The learned counsel has also contended that Ext.P1 marked in evidence clearly establish entrustment of Rs.50,000/-by her parents as her share from the family. According to him, PW2, the father of PW1 had also spoken categorically that 15 sovereigns of gold ornaments had been given to the latter at the time of her marriage. It is urged that in the schedule appended to the petition, the gold ornaments sought to be recovered is particularly described and the wife has also tendered oral evidence to establish that 6¾ sovereigns of gold was misappropriated by her husband and in laws. According to him, though ample evidence was available supportive of the claim of the wife, the Family Court failed to appreciate the evidence adduced by her in its proper perspective and thereby the decree for recovery of money and gold ornaments was declined to be passed in her favour.
5. Challenge against the order granting Rs.4,00,000/-as permanent alimony to the wife was raised by the husband mainly for the reason that it actually was not applied for by her. According to Sri. V.M. Krishnakumar, Section 25 of the Hindu Adoptions and Maintenance Act, 1956 specifically provides for filing of an application for obtaining that relief and the relief having been granted without any application for the purpose being filed by the wife, the order is per se illegal. It is also pointed out that the fixation of a lumpsum as alimony without considering the income of the husband, is arbitrary and not judicious.
6. According to Sri. Dinesh Mathew J. Murikan, the learned counsel, the Family Court in O.P. No.18/2012 has gone wrong in arriving at a finding of cruelty against the wife solely based on the oral evidence tendered by the husband as PW1 therein, that she was reluctant to do any household work and to mingle with his relatives, that she used to sit idle thinking over some matters and that she attempted to cause miscarriage of child by consuming herbal medicines and to commit suicide. According to him, the alleged acts are not liable to be treated as cruelty, as those, even if taken as true would only tantamount to usual wear and tear in life. According to him, PW2 examined by the husband being a neighbour, his version ought not to have been relied on by the court.
7. O.P Nos.10/2012 and 18/2012 were considered by the Family Court and orders have been passed separately on 10.04.2013 itself. Evidence in O.P No.18/2012 consists of oral evidence of the husband as PW1, his witness as PW2 and the wife as RW1. Documentary evidence adduced consist of Exts.A1 and A2 and Ext.B1 respectively. Evidence of the petitioner in O.P. No.10/2012 consists of oral evidence of PW1 and PW2 and that of the respondents consists of oral evidence of RW1 an
