IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Mat.Appeal.No. 423 of 2008() ---------------------------- OS.79/1994 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): APPELLANT/PLAINTIFFS ----------------------------------- 1. MARY, C/O.PUTHENMADATHIL KARTHAYAYANI AMMA, MINOR ROAD, NADATHARA P.O, NEAR PATHIRIKKATTU TEMPLE, THRISSUR DISTRICT. 2. RINTON, S/O.MARY, -DO- -DO- BY ADV. SRI.P.VIJAYAKUMAR RESPONDENT(S): DEFENDANT ------------------------ C.C.ANTONY, S/O.CHAKKUNNI, CHIRANGARA HOUSE, MERLIN GARDENS, P.O.NADATHARA, THRISSUR. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/10/2008, THE COURT ON 14/10/2008 PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - C.M.Appl.No.1304/2008 & Mat.A. No.423 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2008. JUDGMENT Ramachandran Nair, J. This is an appeal filed by the wife, who was married to the second respondent, aggrieved by the judgment of the Family Court dismissing her suit. The Family Court rejected the claim for value of gold ornaments, return of money, past maintenance and future maintenance as per the the impugned judgment. There is a delay of 1818 days in filing the appeal. 2. In the affidavit in support of the application for condoning the delay, it is stated that the suit was dismissed on 29.4.2002 and a copy of the judgment was obtained on 6.1.2003. At that time she was under the care and protection of a Christian congregation and her son was in an orphanage as she had no sufficient money to maintain him. It is stated that absence of sufficient money is the reason for not filing the appeal. It is also stated that she was under considerable depression and had been taking care for the education of her son. 3. The respondent has filed a counter affidavit denying the averments in the above affidavit. It is averred that there is no explanation for the delay MA 423/2008 -2- in getting delivery of the judgment up to 6.1.2003. It is stated that her son was living with her all throughout and is gainfully employed. The appellant was working as a teacher in Seva Sadan Central School, Palakkad and she is an accomplished dancer also. She is conducting dance classes at her residence for training children for inter district and State level competitions. She is at present working as a teacher in the U.P. Section of Nirmala Convent, Ayyanthole, Thrissur. It is stated that the son after graduation, has undergone advanced course in computer and he is a qualified computer technician and earning amounts in that capacity. He is also a qualified photographer attached to a studio in Trichur. It is also submitted that as per the decree in O.S.No.78/1994, a declaration was granted that she was the sole owner of the plaint schedule property therein. On the strength of the decree, the appellant sold away the property in 1997 as per sale deed No.4964/1997 of S.R.O., Perumbavoor for a huge amount. Thereafter, she purchased 6 cents of land in a prime locality at Mannuthy which was sold by her on 20.2.2001 as per sale deed No.746/2001 of S.R.O., Ollukkara. It is submitted that she was having sufficient amounts throughout and the plea that she could not file an appeal for want of sufficient funds, cannot be accepted at all. The appellant has not filed any reply to the counter affidavit filed and has not denied the above averments. 5. There is a huge delay of above 5 years in filing the appeal. The MA 423/2008 -3- averment that she could not file the appeal in time for want of funds, cannot be accepted on its face value, especially in the light of the averments contained in the counter affidavit filed by the respondent. The facts show that the parties were engaged in several litigations, matrimonial and otherwise and this is not an isolated one. The mere statement that the delay occurred for want of funds to file the appeal, cannot therefore be accepted. The huge delay of five and more years has not been satisfactorily explained and we find no reason to condone the delay also. 6. Apart from that, on the merits also we find that the court below has considered the evidence in detail while rejecting the case of the appellant. The parties were married on 18.4.1982 and one child was borne on 8.6.1983. The case of the appellant was that 20 sovereigns of gold and Rs.15001/- was entrusted with the respondent at the time of marriage which were not returned. She claimed past and future maintenance at Rs.1,000/- to her and Rs.500/- to the son. The respondent had denied the entire averments made by the plaintiff. According to him, 35 cents of property was conveyed as per Ext.B2 sale deed in favour of the parties at the time of marriage and no other sum was received by him. After analysing the evidence adduced by the parties, the court below was of the view that the financial position of the family was not quite good at the time of marriage and there is no legal evidence to support the case of payment of Rs.15001/- MA 423/2008 -4- and gold ornaments. There was no evidence also to support the case. The evidence of P.Ws.1 and 2 was not accepted by the court below as they had made contradictory versions before the court in regard to the payment of money and the handing over of the gold ornaments. The parties had separated in March 1984 and the appellant was living separately for a period of 10 years. In between there were several cases filed by the parties concerned and she did not make any claim for return of gold ornaments or money during the entire period. For all these reasons, the court below found that the claim made by the appellant wife is not supported by any legal evidence. We find no reason to interfere with the above findings rendered by the court below also. The petition for condonation of delay is dismissed. Consequently, the appeal is also dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/