IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 MFA.No. 619 of 2000(A) ---------------------- OS.10/1994 of FAMILY COURT,KOLLAM .................... APPELLANT(S)/1st Plaintiff -------------- OMANA AMMA, D/O.LAKSHMI AMMA RESIDING AT THAZHEKALLINAL VEEDU, KAIPPUZHA MURI, MULANADA P.O., KULANADA VILLAGE, PANTHALAM TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.D.JAYACHANDRAN RESPONDENT(S)/DEFENDANT AND 2ND PLAINTIFF --------------- 1. NARAYANAN NAIR, S/O.NARAYANA PILLAI, RESIDING AT KALPALAYAM, KARIKAL MURI, KARINPINPUZHA, PAVITHRESWARAM VILLAGE, KOTTARAKKARA TALUK (ELECTRICITY WORKER K.S.E.B. EZHUKONE SECTION) 2. GIRISH KUMAR, AGED 18 YEARS, S/O.NARAYANAN NAIR, RESIDING AT THAZHA KALLINAL VEEDU, KAIPUZHA MURI KULANADA P.O., KULANADA VILLAGE, PANDALAM TALUK. PATHANAMTHITTA DISTRICT. ADV. SRI.P.B.SURESH KUMAR(QUILON) FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & C.T.RAVIKUMAR, JJ. ------------------------------- M.F.A.No. 619 of 2000 ------------------------------- Dated this the 3rd February, 2009 J U D G M E N T Raman, J. First plaintiff in O.S.No.10 of 1994, on the file of the Family Court, Kollam, is the appellant herein. The first respondent herein was the sole defendant in that case. The second respondent herein is the child born in the wedlock between the first plaintiff and the defendant. The suit was filed for maintenance. It was the plaint averment that the marriage between the first plaintiff and the defendant was solemnized on 29.8.1971, according to the Hindu Religious rites and customs. The defendant was employed in the Kerala State Electricity Board at Kulamavu. Subsequent to the marriage, they lived together in the quarters allotted to the defendant. While so, when the first plaintiff became pregnant, he took her to her parental house at Koottuvilakuzhi Veedu, Karinpinpuzha, for pre-delivery nursing. In June, 1972, she delivered a male child. But the parents of MFA.No.619 of 2000 2 first plaintiff did not send her back stating that she requires more treatment and nursing after delivery. The defendant annoyed by this, went back to his place of work. Thereafter, the defendant did not enquire about the first plaintiff. Several letters written by the first plaintiff were not even replied. Later in July, 1972, the defendant came to the house of the first plaintiff with a luggage containing her clothes and utensils and after handing over the same to her, demanded dissolution of the marriage, and that the first plaintiff and her parents did not relish the conduct of the defendant and they asked the defendant to went out of the house. Thereafter, he did not turn up. First plaintiff demanded maintenance for herself and also for the second plaintiff, her son. It was further averred in the plaint that the first plaintiff is having 45 cents of land and a residential building in Kulanada Village, where the plaintiffs are residing; that the income received from the property is meagre; that there is no other source of income; that the plaintiffs are depending on the father of the first plaintiff who subsequently died in 1985; that the brother of the first plaintiff was looking after them; that now her family people find it MFA.No.619 of 2000 3 difficult to maintain the plaintiffs; that the defendant was drawing an amount of Rs.2000/= per month as he was the employee of the Kerala State Electricity Board and also that he is having properties earning him income; that the defendant has got sufficient means to pay the maintenance; and, hence claimed maintenance at the rate of Rs.550/= for first plaintiff and Rs.500/= for second plaintiff. Besides the above, it was also stated that they are also entitled to past and future maintenance. 2. The defendant in the written statement contended that the suit is frivolous and vexatious. After the marriage, the first plaintiff and the defendant lived together in the defendant's house only for two days. During these two days, first plaintiff refused to cohabit and consumate the marriage and she stated that she was in love with another person and she wanted to return to her ancestral home or otherwise she would commit suicide. Accordingly on 31.8.1971, the defendant took her to her parent's house and at the request and advice of the parent's of the first plaintiff, the defendant took the first plaintiff MFA.No.619 of 2000 4 to his place of employment at Kulamavu, accompanied by her parents. They lived together in the quarters and her parents returned next day. But the first plaintiff was not co-operating with the defendant to run a smooth family life. Thereafter, the defendant took her to her ancestral home and her parents were told about her attitude. Thereafter, she remained in her ancestral home. Regular maintenance was paid to her and he has also tried to change her attitude. But she refused to return with the company of the defendant. The defendant was not even permitted to see the child and attempted to man handle him. He was shocked by the attitude of the first plaintiff and became sick. As there was no one to look after him, with the consent of the first plaintiff, he married one Malathy Amma and children were also born out of that relation. It was further stated that the first plaintiff is not entitled to claim maintenance as she has by her own volition, acquiescence and waiver had given up her claim for maintenance. It was further stated that the claim was barred by limitation. Further, the first plaintiff has got sufficient income to maintain the plaintiff. It was further stated in the written MFA.No.619 of 2000 5 statement that the income of the defendant as alleged in the plaint was not true. Hence, prayed for dismissal of the suit. 3. The Family Court framed 8 issues. Pws.1 to 4 were examined on the side of the plaintiffs and Exts.A1 to A4 marked. Dws.1 to 4 were examined on the side of the defendants and Exts.B1 to B6 were marked. Besides, Exts.X1 and X2, third party documents, were also marked. 4. On the issue as to whether the plaintiffs were deserted and neglected by the defendant, husband, the court below found that to substantiate the allegations contained in the plaint, no other evidence, except ipsi dixit of the plaintiff is available, and the other witnesses, Pws.2 and 3, were not in a position to say whether the defendant had in fact called the first plaintiff back to his quarters, after the delivery. They had however stated that the defendant was living with another lady in the quarters at Kulamavu. PW.4 is an Engineer in the Kerala State Electricity Board. He was examined only to prove the pensionary benefits of the defendant. MFA.No.619 of 2000 6 5. Defendant himself gave evidence as DW.1. Dws.2 and 3 deposed that there was an attempt of mediation at their instance, but the first plaintiff was not willing to return to the house of the defendant. DW.2 belongs to some other area and he had gone only once to the house of the first plaintiff and that too in a car. Therefore, the evidence given by him cannot be of any help. DW.3 is a former Panchayat Member of Pavithreshwaram Village. He was a person who had attended marriage of the parties and had also mediated for settlement and to find a resolution to the matrimonial dispute between the parties. According to the first plaintiff, DW.3 is a relative of the defendant. But the court below did not chose to discard the evidence of DW.3 for that reason stating that he is not a close relative. In family matters, the fact that close relatives or distant relatives take a leading role to arrive at a compromise is nothing, but usual , and if their evidence is discarded, there will not be any evidence at all, in finding as to whether one or the other was at fault in the matter of not joining with the other spouse. DW.4 is the Village Officer. Though the defendant had deposed that MFA.No.619 of 2000 7 first plaintiff was living with another person by name, Govindan Nair, there was no reliable evidence to substantiate the said allegation. However, on consideration of the entire evidence in the matter and weighing the same, the court below found that the first plaintiff was not able to substantiate the allegation of desertion by the defendant. At the same time, the court below found that the first plaintiff refused to co-habit with the defendant and that it is she who deserted him. On the question of maintenance to be awarded, reliefs were granted in favour of the second plaintiff and also took note of the fact that the defendant had been paying some amount towards maintenance of the child. The court below also awarded maintenance both past and future, until the attainment of majority by the second plaintiff. But did not grant any maintenance to the first plaintiff. This appeal is against the non-awarding of any maintenance to the first plaintiff. 6. The main argument advanced by the learned counsel appearing for the appellant is that the court below was MFA.No.619 of 2000 8 not right in holding that the first plaintiff deserted the husband. It is equally untrue to say that the plaintiffs did not prove any of the plaint averments and according to them, the maintenance ought to have been awarded to the first plaintiff also. 7. We have heard the parties. Admitted facts are that both the first plaintiff and the defendant got married and second plaintiff was born in the wedlock; that after the birth of the second plaintiff, they did not co-habit and that the first plaintiff was with her parents. Even according to the plaint allegation, it was the first plaintiff's father who did not send her stating that she requires some more treatment. The best evidence, as to whether the defendant had deserted her, would be the close relatives of the plaintiffs. At the same time, it is in evidence that the defendant himself re-married one Malathy Amma and in the second marriage, he also got children; that the defendant was residing along with Malathy Amma in the quarters; and hence naturally the first plaintiff is justified in not coming to the quarters and stay with the defendant, when MFA.No.619 of 2000 9 admittedly the defendant was living with another woman. Nobody has got a case that the first marriage was dissolved by any legal proceedings. Even though the defendant would contend that he had made attempts to take her back to his place of employment, there is no credential evidence in this regard. The defendant had also no case that he had been maintaining the first plaintiff by sending any amount. True, he was sending some amount by way of money order, but that is towards the maintenance of the second plaintiff. So long as the marriage subsists in law, the obligation of the defendant to maintain his wife continues. There is no substantial evidence to show that the first plaintiff is having sufficient income to maintain herself. The court below found that the first plaintiff had deserted him. The evidence in this regard is that of Dws. 1 to 4. DW.1 is the defendant himself. Even according to him, he had only made attempts to bring her home back in 1972 and 1973, on two occasions. Some of the witnesses examined had also attempted to mediate. DW.2 is a person living in a different area. Then the only evidence is that of DW.3 who deposed that the first plaintiff MFA.No.619 of 2000 10 refused to go and stay with the defendant. During the pendency of the proceedings, attempts to bring out a settlement by appointing a Conciliator however did not succeed. 8. On the side of the defendant-respondent, he agreed to transfer half right over the property of an extent of 35 cents in Pavithreshwaram Village in Kottarakkara Taluk; that both of them are living separate; that the defendant had married another woman; that the first plaintiff is also not interested to re- join with him and that is justified. Any way, the marriage as such is not dissolved by any order of the court and that the defendant is not at all able to show that the plaintiff has got sufficient income to maintain herself. In these circumstances, it is only appropriate that the offer made by the respondent is made as an order of the court. Accordingly, we direct that towards maintenance of both the plaintiffs, half right over 35 cents of land in Pavithreswaram Village be transferred by the defendant herein within a period of one month, whereupon the liability to maintain the plaintiffs MFA.No.619 of 2000 11 will stand fully discharged. In case, the defendants fail to do so, the first plaintiff will be entitled to execute the decree in accordance with law through the Family Court. The appeal is disposed of in the above terms. P.R.RAMAN, JUDGE C.T.RAVIKUMAR, JUDGE. nj. P.R.RAMAN & C.T.RAVIKUMAR, JJ. ------------------------------- M.F.A.No. 619 of 2000 J U D G M E N T Dated: 3rd February,2009 ----------------------------------