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Matrimonial Appeal
Mat.A. No. 854 of 2008 - K.M. George Vs. Sheela, 2013 (2) KLT SN 142 : 2013 (2) KHC 607
(2013) 306 KLR 028 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 21ST DAY OF MAY 2013/31ST VAISAKHA 1935 Mat.Appeal.No. 854 of 2008 ------------------------------- OP 1290/2005 of FAMILY COURT,THRISSUR APPELLANT(S)/PETITIONER: ---------------------------- K.M. GEORGE, AGED 44 YEARS, S/O. MATHAI, KALLAKATHU HOUSE, KURAVILANGADU VILLAGE KOTTAYAM DISTRICT, PRESENTLY RESIDING AT SWITZERLAND REP. BY HIS P/A, HOLDER K.M. JOSEPH (BROTHER) S/O. MATHAI, KAILAKATHU HOUSE, KURAVILANGAD VILLAGE, KOTTAYAM DISTRICT. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT(S)/RESPONDENT: --------------------------------- SHEELA, D/O. SUBHALITHAN, PADUR DESOM, VENKIDANGU VILLAGE CHAVAKKAD TALUK. BY ADV. SRI.V.G.ARUN ADV. SRI.T.R.HARIKUMAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-05- 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MAT. APPEAL 854/2008 APPENDIX APPELLANT'S EXHIBITS:-
ANTONY DOMINIC & P. D. RAJAN, JJ. =.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.= Mat. Appeal No. 854 of 2008 =.=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=.= Dated this the 21st day of May, 2013 Head Note:- Family Courts Act, 1984 - Section 10 - Kerala Family Courts (Procedure) Rules, 1989 - Rule 5, 7 & 9 - Power of Attorney - Personal appearance of the party - It is open to a party to present a petition either in person or through a power of attorney holder - therefore, the right of the party to be represented by his power of attorney holder in a proceedings before the Family Court has already been recognized - permitting a party to be represented through his power of attorney holder will not detract from the power of the court to insist on the personal appearance of the party concerned at any subsequent stage of the proceedings for counselling or for evidence. J U D G M E N T ANTONY DOMINIC, J. Appellant challenges the order dated 19th August, 2008 passed by the Family Court, Thrissur deciding the preliminary issue of maintainability raised by the respondent in O.P. No.1290/2005 against him. 2. The appellant filed O.P.No.1290/2005 seeking a declaration that the respondent is not his legally wedded wife. He also sought consequential reliefs. In the said proceedings the petitioner was represented by his power of attorney holder, his brother. Maintainability of the proceedings through a power of attorney holder was raised by the respondent before the Family Court and later, before this court in W.P.(C) No.12189/2008. This Court by judgment dated 9th of June, 2008, directed the Family Court to decide the maintainability as a preliminary issue. Accordingly, the Family Court heard the parties and passed order dated 19th August, 2008 holding that the O.P. being a case for declaring the marital status, presence of the appellant in person is highly essential for counselling purposes and that he failed to attend the counselling. It is also held that the power of attorney holder waited to proceed with the case without completing the counselling. The Family Court also held that the appellant did not approach the court with clean hands. For these reasons, the Family Court held that the power of attorney holder was not entitled to continue the prosecution and for that reason the petition was dismissed, which is under challenge in this appeal. 3. The counsel appearing for the appellant referred to the provisions of the Family Courts Act, Family Courts (Procedure) Rules, the Family Courts (Kerala) Rules and also the provisions of the Code of Civil Procedure. She also made reference to a Division Bench decision of this court in Mukundan Naveen V. Anjalika Dinesh (2011(3) KLT 175) wherein, according to her, a similar issue has been decided in favour of the appellant. On the other hand, the learned counsel for the respondent contended that in the nature of the controversy that is arising for adjudication, both for counselling and also for the purpose of evidence, the presence of the appellant in person is necessary to. It is stated that to avoid the presence of the appellant, the proceedings were instituted through the power of attorney holder. He also contended that, as rightly found by the Family Court, the petition was instituted suppressing various material facts. Therefore, according to him, the Family Court was justified in dismissing the petition. 4. We have considered the rival submissions and also gone through the statutory provisions as well as the impugned order. Since the very issue of maintainability of a similar proceedings filed through a power of attorney holder was considered by a Division Bench of this Court in 2011(3) KLT 175 (Supra), we do not think it necessary to refer to all the statutory provisions once again. This was also a case where the Family Court declined to entertain a petition filed through a power of attorney holder. In the above decision, the Division Bench, after making reference to all the statutory provisions and also the relevant precedents, held that it is open to a party to present a petition either in person or through a power of attorney holder. Therefore, the right of the party to be represented by his power of attorney holder in a proceedings before the Family Court has already been recognized by this Court in the decision referred above. However, this Court has clarified that permitting a party to be represented through his power of attorney holder will not detract from the power of the court to insist on the personal appearance of the party concerned at any subsequent stage of the proceedings for counselling or for evidence. 5. In such circumstances, the view taken by the Family Court that since the case involves a declaration of marital status, the appellant cannot be permitted to be represented by his power of attorney holder is untenable. As far as the other conclusion that the appellant did not approach the court with clean hand is concerned, that is a matter on the merits of the controversy and was irrelevant at the preliminary stage. In such circumstances, we are unable to sustain the order of the Family Court. 6. Therefore, we set aside the order dated 19th August, 2008 of the Family Court dismissing O.P. No.1290/2005. However, we notice from the order that on more than one occasion the appellant failed to appear for counselling. Counselling is part of the statutory duty of the Family Court and such a procedure cannot be dispensed with. The failure of the appellant to respond to the orders of the Family Court in this behalf is certainly a lapse on his part. 7. Taking note of all these facts, we dispose of the appeal directing that the Family Court shall entertain the petition and clarify that it will be free to call upon the appellant to be personally present for counselling or at any stage of the proceeding. We also clarify that it shall be the duty of the appellant to co-operate and to be present on all such occasions and that in the event of his failure, the Family Court will be free to pass appropriate orders as it deems fit. ANTONY DOMINIC, JUDGE. P. D. RAJAN, JUDGE. nkm. |
Mat.A. No. 567 of 2011 - Askar Ali Ghan Vs. Mohammed Ali Haji, 2013 (1) KLT 16 : 2013 (1) KLJ 233
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.M. Joseph and M.L. Joseph Francis, JJ. Askar Ali Ghan Vs. Mohammed Ali Haji Mat.A. No. 567 of 2011 Decided On : 06.12.2012 Head Note:- Guardian and Wards Act, 1890 – Sections 9 & 12 – Jurisdiction – Custody of the child - Personal Law of Parties - For deciding the question of jurisdiction, the personal laws of the parties are irrelevant. Held:- In the present case, the child was taken away from the residence of the appellant at Palakkad to Malappuram, at a time when her mother Femina met with unnatural death on 17.11.2009 and the preset application for custody of the child was filed by the father of the child on 2.4.2010. But, in the order under challenge, the Family Court, Palakkad had mistakenly stated that the application was “filed on 2.4.2011 long after that”. This is a factual mistake committed by the Family Court, Palakkad. The application for custody of the child was filed by the petitioner on 2.4.2010, within five months from the date of removal of the child from the custody of the petitioner. Since the appellant/petitioner is the natural guardian of the child and since he is permanently residing at Palakkad within the jurisdiction of the Family Court, Palakkad and the child was residing with the appellant/petitioner till his removal on 17.11.2009, we are of the view that the Family Court, Palakkad alone has jurisdiction to deal with the matter. While deciding the question of jurisdiction, the personal laws of the parties are irrelevant. Therefore, we find that the Family Court, Palakkad is not justified in finding that that court has no territorial jurisdiction to entertain the petition. For Appellant:
For Respondent:
J U D G M E N T M.L. Joseph Francis, J. 1. This appeal is filed by the petitioner in I.A.2334/10 in O.P.338/2010 on the file of the Family Court, Palakkad. That I. A. was filed by the petitioner in the Original Petition under Section 12 of the Guardians and Wards Act, 1890 (for short, ‘the Act’) for interim custody of the minor. The respondents herein are the respondents in that I. A. and Original Petition. 2. The appellant/petitioner is the father of the minor child Asbah Fathima, aged 2 years. According to the petitioner, the child was removed from his custody and is not being brought up ensuring her welfare and hence custody has to be handed over to him. The child is very much attached to him and he is having emotional problems also. The respondents 1 and 2 filed counter statement contending that the Family Court, Palakkad has no jurisdiction to entertain the O.P. and further contending that the mother of the minor child Femina died on 17.11.2009 and it was an unnatural death and that the death is a homicide. A complaint was registered and F.I.R. was originally registered under Section 174 of Criminal Procedure Code which was converted to one under Section 304B and 306 read with Section 341.P.C. It is further contended that a Muslim female chi Id who is under puberty and devoid of her mother due to death or separation from her father should be given in the custody of mother’s mother as per Muslim Personal Law. In this case, the second respondent is the maternal grandmother of the child in question who is now looking after the minor child by providing all benefits for the welfare of the child. They are presently residing at Melattur in Malappuram District and the matter can be entertained only by the Family Court at Malappuram. 3. In the I. A., the question of jurisdiction was considered as a preliminary issue by the Family Court, Palakkad. The Family Court found that the said court has no jurisdiction to entertain the Original Petition and that the Family Court, Malappuram alone has jurisdiction to entertain the Original Petition and on the basis of that finding, that I. A. was dismissed. Against that order, the petitioner in the I.A. filed this appeal. 4. Heard learned counsel for the appellant and the learned counsel for the respondents. 5. At the time of hearing, learned counsel for the appellant raised the following contentions: The court below has wrongly held that as per Section 9 of the Act the ordinary residence of the child is at Malappuram where she is now residing with respondents and therefore, Family Court, Palakkad has no jurisdiction. This is absolutely incorrect. The court below has failed to take note of a decision of this Court reported in Vasu Vs. Muralidharan, 2009 (1) KLT 480, wherein it was held that while dealing with Section 9 of the Act, the ordinary residence of the child can be ordinary residence of either of the parents where both the parents are living apart. If one of the spouse is not living, necessarily the other place having jurisdiction is the place where the spouse is living. Since the father is the natural guardian and he is permanently residing at Palakkad within the jurisdiction of Family Court, Palakkad, the said court has jurisdiction to deal with the matter. For deciding the question of jurisdiction the personal laws of the parties are irrelevant. Since Section 9 of the Act deals with jurisdiction the primary concern of the courts is to interpret the provisions of the Act and to decide the issue of jurisdiction. The learned counsel for the respondent supported the order under challenge. 6. Section 9 of the Guardians and Wards Act provides that an application with respect to the guardianship of the person of a minor should be made to the District Court having jurisdiction in the place where the minor ordinarily resides. The term “resides” is not defined in the Act. After the establishment of the Family Court, the Family Court is exercising the jurisdiction conferred earlier on the District Court. 7. In the decision reported in Sarada Nayar Vs. Vayankara Amma & Ors., 1957 KLT 466 it was held: “The expression “where the minor ordinarily resides” appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of the filing of the application for the enforcement of the guardianship and custody of the minor. The phrase “ordinarily resides” indicates ordinary residence even at the time of the presentation of the application. The emphasis is undoubtedly on the minor’s ordinary place of residence. Such a place has to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of the minor to a different place. Where the application is filed soon after such removal the place of such removal will be ignored for the purpose of determining the jurisdiction of the court to entertain the application and in spite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the minor may have gone or may have been removed, can become the place of ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period and the residence passed the stage of casual or temporary residence.” In the decision reported in Vasu v. Muralidharan, 2009 (1) KLT 480, it was held: “The question as to the ordinary residence of a minor is always to be decided on the facts and particulars of each case. Ordinarily, a child’s ordinary residence will be the place of residence of the parents. The mere fact that a minor child has to temporarily go outside the ordinary residence either for the purpose of continuing the education or because of the fact that the parents are temporarily employed elsewhere by itself will not determine that place as the place of ordinary residence. In other words, ordinary residence must be something more than a temporary residence even though such residence is spread over a long period.” 8. The full text of the decision reported in Prabhu Vs. Rajani, 2007 (2) KLT SN 38 C.No.53 shows that this Court observed that the ordinary residence of the child can be the ordinary residence of either of the parents as well in a situation where both the parents are living apart and that ordinary residence is a matter to be looked into by taking evidence. 9. In the decision reported in Ruchi Majoo Vs. Sanjeev Majoo, 2011 (2) KLT 788 (SC) it was held: “In cases arising out of proceedings under the Guardians and Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardians and Wards Act on the other. Having said that we must make it clear that no matter a Court is exercising powers under the Guardians and Wards Act it can choose to hold a summary enquiry into the matter arid pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under S.9(1) of the Act. 10. In the present case, the child was taken away from the residence of the appellant at Palakkad to Malappuram, at a time when her mother Femina met with unnatural death on 17.11.2009 and the preset application for custody of the child was filed by the father of the child on 2.4.2010. But, in the order under challenge, the Family Court, Palakkad had mistakenly stated that the application was “filed on 2.4.2011 long after that”. This is a factual mistake committed by the Family Court, Palakkad. The application for custody of the child was filed by the petitioner on 2.4.2010, within five months from the date of removal of the child from the custody of the petitioner. Since the appellant/petitioner is the natural guardian of the child and since he is permanently residing at Palakkad within the jurisdiction of the Family Court, Palakkad and the child was residing with the appellant/petitioner till his removal on 17.11.2009, we are of the view that the Family Court, Palakkad alone has jurisdiction to deal with the matter. While deciding the question of jurisdiction, the personal laws of the parties are irrelevant. Therefore, we find that the Family Court, Palakkad is not justified in finding that that court has no territorial jurisdiction to entertain the petition. Accordingly, this appeal is allowed and the order in I.A. No. 2334 of 2010 in O.P. No. 338 of 2010 on the file of the Family Court, Palakkad is set aside on finding that the Family Court, Palakkad has territorial jurisdiction to entertain the petition. The Family Court, Palakkad is directed to proceed with the case in accordance with law. There is no order as to costs. However this judgment will not stand in the way of the respondent applying for transfer of the case to another court. |
Mat.A. No. 507 of 2010 - Muhammed Basheer Vs. P.S. Jameela, 2013 (1) KLT 1 : 2012 (4) KHC 920
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Pius C. Kuriakose and Babu Mathew P. Joseph, JJ. Muhammed Basheer Vs. P. S. Jameela Mat. A. No. 507, 580 of 2010 Dated this the 17th Day of September, 2012 Head Note:- Limitation Act, 1963 - Article 58 - the right to sue for declaration accrues when there is a clear and unequivocal threat to infringe the right. Family Courts Act, 1984 - Section 7 - Benami Transactions and Prohibition Act, 1988 - Section 4 - When an agent purchased the property for and on behalf of his principal by utilising the funds of the principal, even if the property is conveyed or transferred in the name of the agent, such an agent holds the property only as a trustee for the principal. Held:- In the case on hand, it is proved that the respondent was acting as an agent of the appellant for purchasing property and for constructing buildings thereon. It is also proved that the property was purchased and the buildings were constructed by the respondent by spending the money of the appellant. It is further proved that the appellant had given specific direction to the respondent to purchase the property in his name. But, the respondent purchased the property and constructed the buildings, without the consent and knowledge of the appellant and ignoring the direction, in her own name. Thus, the respondent fraudulently purchased the property and constructed the buildings in her own name using the funds of the appellant. When an agent purchased the property for and on behalf of his principal by utilising the funds of the principal, even if the property is conveyed or transferred in the name of the agent, such an agent holds the property only as a trustee for the principal. It is the property of the principal even though it stands in the name of the agent or is held by him. In such a case, the agent acted in a fiduciary capacity for and on behalf of the principal and holds the property as a trustee for the principal. S.4 of the Act does not protect such an agent. The principal, who is the real owner of the property, is entitled to a declaration of his title to that property. Here, the respondent was only an agent and she was holding the property and the buildings only as a trustee for and on behalf of the appellant. Therefore, the contention based on S.4 of the Act raised by the learned counsel for the respondent is rejected. For Appellant:-
For Respondent:-
COMMON JUDGMENT Babu Mathew P. Joseph, J. 1. The respondent in O.P. No. 83 of 2007 on the files of the Family Court, Thodupuzha is the appellant in Mat. Appeal No. 507 of 2010. The petitioner in O.P. No. 83 of 2007 is the appellant in Mat. Appeal No. 580 of 2010. O.P. No. 83 of 2007 was filed by the petitioner / husband for declaring his title and possession over the petition A schedule property and buildings thereon and restraining the respondent / wife from creating any documents touching the said properties, for declaring the title of the petitioner over the petition B schedule movable articles and restraining the respondent from removing them and for other reliefs. The Court below declared that the petitioner has title and ownership over the petition A schedule property and the buildings thereon and the respondent was restrained by a permanent prohibitory injunction from creating any documents relating to the said properties. The other reliefs claimed by the petitioner in that original petition were rejected by the Court below. Aggrieved by the declaration of title and ownership over the petition A schedule property and the buildings thereon and the injunction granted in favour of the petitioner in the original petition, the respondent / appellant / wife has preferred Mat. Appeal No. 507 of 2010. Aggrieved by the rejection of the declaration of title and injunction prayed for in respect of petition B schedule movables, the petitioner / appellant / husband has preferred Mat. Appeal No. 580 of 2010. 2. Heard the learned counsel on both the sides. Since both these appeals arise out of the same judgment and also considering the parties involved in these cases, we have heard both these appeals together and they are being disposed of by a common judgment. For the sake of convenience, the husband is referred to as the appellant and the wife is referred to as the respondent in this judgment. 3. The appellant’s case is briefly stated as follows: The appellant and the respondent are husband and wife. Their marriage was solemnized on 09.03.1996 at Vengalloor in the residential house of the respondent’s father. The appellant hails from Vakayar in Pathanamthitta District. He has worked in Saudi Arabia for nearly 10 years. The landed property described in petition A schedule is 20.750 cents in Sy. No. 1235/1/5 of Kumaramangalam Village within Thodupuzha Municipal limits. There is a two storeyed building in that property bearing Door No. 2B / XXV. There is a kitchen annexed to that building bearing Door No. 2A / XXV. The petition schedule properties and the buildings thereon belong to the appellant. But, the sale deeds in respect of the property and the municipal records in respect of the buildings thereon stand in the name of the respondent. 4. The appellant was working in Saudi Arabia from January, 1997 onwards. He was earning a good income. He used to send amounts from Saudi Arabia to the respondent. He wanted to marry a girl from a poor family. So, had given an advertisement in a paper and through the intervention of a marriage bureau at Muvattupuzha, the respondent’s proposal was processed which led to their marriage. At the time of marriage and even now, the respondent has been working as a Class IV employee under Thodupuzha Municipality. She was drawing only a meagre amount of around Rs. 2,500/- as salary at the time of marriage. 5. The respondent is the eldest among the five children born to her parents Sulaiman and lysha. Her father abandoned his wife and children when the children were in their tender years. As they had only 10 cents of property and a hut as assets, it was lysha, the mother, who had brought up the children by her hard work and toil. The respondent could secure the job of a part - time sweeper in Thodupuzha Municipality at her coming off age and it was with her income that the younger children could grow up. Two younger sisters of the respondent were already married when the appellant married the respondent 6. During the early years of marriage, the respondent persuaded the appellant to purchase a plot of land and to build a house so that he could settle down at Thodupuzha, even though his people were at Pathanamthitta side and he had no relatives at Thodupuzha or in Idukki District. As the appellant’s relationship with his family people was less than cordial, he had acceded to that suggestion. The appellant was sending money by demand draft to the account of the respondent with the State Bank of Travancore, Thodupuzha Branch and also to the NRE Account in his name with the same Bank. Utilising the amount supplied by the appellant from Saudi Arabia, 10 cents of land was purchased as per sale deed No. 2026 of 1998 at the rate of Rs. 20,000/- per cent on 03.08.1998. Another 10 3/4 cents of land adjacent to the above plot was also purchased on 28.12.1998 as per sale deed No. 3654 of 1998 paying Rs. 2,01,200/-. The entire consideration for both the purchases were provided by the appellant. The respondent had hardly any savings to spare. She had only acted as an agent for purchasing the property for the appellant. Except her meagre salary, she had absolutely no source of income. The respondent used to extent financial assistance to her brothers and sisters, utilising the funds provided by the appellant with his leave. The appellant used to leave signed blank cheques with the respondent enabling withdrawal from his account No. 2603 with the State Bank of Travancore. 7. The appellant used to come on leave from Saudi Arabia only once in two years. He used to spend lavishly for the happiness of his wife and her relations. The idea of purchasing the land was mooted over telephone and the appellant agreed to the suggestion as he thought of making Thodupuzha as his abode on his return. Since the appellant has full faith in his wife, he never knew that she had purchased the property in her name. The appellant specifically directed that the sale deed relating to the property should be taken in his name. It never occurred to the mind of the appellant that the wife would think of taking the sale deed in her name. It was only in the middle of February, 2006, the appellant realised that the sale deeds were taken in the name of the respondent. He wanted to advertise for the sale of the property and in order to gather the details of survey number etc., read through the sale deeds and he was surprised to see that the documents were in the name of his wife. The respondent explained that the sale deeds were taken in her name as that alone was convenient and expedient for securing plans, licenses and other clearances and since the appellant was bound to be away it was likely to occasion hitches and hence she had taken the sale deeds in her name. She also offered to transfer the same to the appellant’s name at any time. She suggested that it was better to wait for some more time to sell the property as the price of properties in and around Thodupuzha were showing upward trend. Hence the proposal to sell the property was deferred. The appellant had no reason to doubt the genuineness of the respondent’s explanation. The appellant who was in gulf countries from the age of 20 did not have much idea about the ground realities in the state. No pie was spent by the respondent for the purchase of the plaint schedule properties nor did she have the means to spare any portion of the sale consideration paid for the properties as is evident from the entries in the pass book in the name of the respondent relating to her account No. S.B. 2369. The entries in the pass books show the remittances of Rs. 5,70,000/- made by the petitioner by December, 1998. The respondent was only a trusted agent of the petitioner for purchasing the property for him using his funds. 8. The construction of the residential building was commenced in the second half of 1999. The foundation stone was laid by the appellant when he came on leave in July, 1999. The appellant had suggested that the cost of the house be limited within Rs.10 lakhs. He was sending money to meet the cost of construction of the building. The respondent was freely withdrawing amounts from both the accounts, in her own name and in the name of the appellant. She had made use of the blank signed cheque leaves entrusted by the petitioner for withdrawing amounts from his account. 9. The appellant came on leave in 2001 when the construction of the house was half way through. The appellant then found that the respondent had gone for a big house contrary to his suggestion. He did not demur as he was getting good salary by that time. He had sent more than Rs.15 lakhs between December, 1998 and December, 2000. The appellant was initially working as a salesman at Al - Rashid Food Company and later he was promoted as Area Supervisor in charge of a district. He was earning nearly Rs.75,000/- per month by way of salary and sales commission. Besides sending money through the above said Bank accounts, the appellant had also sent money through other sources to the respondent. During the period from 1999 to 2005 the amounts that the appellant entrusted with the respondent through the above mentioned two Bank accounts alone come to nearly Rs.20 lakhs as is evident from the entries in the pass books. By 2002-2003 the construction of the residential house was completed and costly pieces of furniture were made for the use in the house. The entire items of furniture and other household articles like fridge, T.V., etc., were purchased utilising the funds of the appellant and the respondent had no investment at all. 10. The appellant returned to home cancelling his visa in November, 2005. He had received Rs. 5 lakhs at that time from the Company. He had purchased household articles for Rs. 2 lakhs and entrusted Rs. 3 lakhs with the respondent. The respondent lent it to her brother Rashid for his business purposes. She had given Rs. 1 lakh to her sister’s husband Sri. Saidu Muhammed at Perumbavoor. Both the amounts were paid after taking permission from the appellant. 11. The appellant returned with the idea of starting some business and settling down at Thodupuzha. He had discussed this idea with the respondent. He knew that the respondent had not saved anything out of his remittances. He had suggested that the house would fetch an appreciable amount and they could sell the same and purchase a small house and commence the business with the surplus or purchase some income fetching property with rubber cultivation etc. 12. The above plans and dreams of the appellant were shattered. The respondent’s youngest sister’s husband, Sathar, resides in the adjacent plot. Under the influence of Sathar, the respondent had refused to co - operate to realise the cherished plans of the appellant. By August, 2006 prices of properties were soaring high and the appellant again suggested to go for the sale of the property. Then again the respondent and Sathar suggested that the prices would still go higher by waiting. In January, 2007 an intended purchaser had offered Rs.70 lakhs for the property and the appellant wanted to strike the bargain around that price if possible so that he could pursue his pet ideas for the future. But the respondent and Sathar did not agree and the appellant was forced to declare his decision that he was on to strike some deal for the sale. It was then that the respondent made clear her hidden agenda by saying that she was not willing to sell the property and go away from her relations as she had no children even. Soon the petitioner’s residence in the house became unhappy. The respondent was fully under the vicious and unwholesome influence of Sathar. The appellant understood that Sathar had also started construction of a house in his adjacent plot by the same time by siphoning off part of the amounts that the appellant had been sending over to the respondent. The relationship between the appellant and the respondent became strained considerably on account of the above issues. Under the influence of Sathar, the respondent flatly refused to accept the suggestions and plans of the appellant to sell the house. 13. While so, Sathar came to the appellant’s house on 20.02.2007 and had beaten up him threatening that unless he acted according to their ideas he would be done away with. The appellant had preferred a complaint to the Superintendent of Police, Idukki, touching the said incident. On 25.02.2007, Rashid, younger brother of the respondent, who is also residing nearby, came to the house of the appellant and threatened that he must quit the house or else he would be done away with. The appellant had complained to the Superintendent of Police touching this incident also. As directed by the Superintendent of Police, the Deputy Superintendent of Police had summoned the appellant and the respondent on 23.03.2007. The respondent flatly refused to accept every suggestion of the petitioner to sell the property and even proclaimed before the Deputy Superintendent of Police that the house and the plaint schedule property belonged to her and that it was all her money. 14. The respondent has no title, interest or legal possession over the petition schedule property and the buildings thereon and the furniture inside the house, even though the property and the house stand in the name of the respondent in the revenue records and in the municipal records. The title deeds relating to the property are in the custody of the appellant. The source for acquiring the property and construction of the house has been the hard earned money of the appellant. The appellant has not made a gift or other dedication of the same to the respondent. The plaint schedule properties are the only acquisition of the appellant and he does not have any other property of his own. The respondent acting as a mere agent for purchasing the property has fraudulently taken the sale deeds in her name and has been cleverly concealing the fact from the appellant for long. The secret title that the respondent had secured fraudulently can only enure to the appellant and she cannot legally claim any right upon her fraud. The appellant is in absolute possession of the plaint schedule properties. The respondent is only a licensee in the property as the appellant’s wife. The cause of action for the petition has arisen continuously from 03.08.1998, 28.12.1998 and from the middle of February, 2006. Therefore, the appellant had preferred the original petition for the reliefs prayed for in it. 15. The respondent had contested the matter by filing her objections. Her averments are briefly stated as follows: The petition is not maintainable. It is barred by limitation. The contentions raised in paragraphs 1 and 2 of the petition are admitted. The averment that the petition schedule property and the building thereon belong to the appellant is false. The allegation that the respondent’s father abandoned his family is false. All the members of the respondent’s family are well to do. The averment that 20 3/4 cents of land was purchased by the respondent by utilising the money of the appellant is false. The statement that the respondent acted as an agent of the appellant is also false. The averment that in the middle of February, 2006 the appellant came to know that the property was purchased in the name of respondent is false. The said properties were purchased by the respondent by utilising her own savings. The respondent has been employed in the municipal service from 1978 onwards and she had good savings. The purchase of property by the respondent was known to the appellant in 1998 itself as it was informed to him by her. All the allegations against the respondent’s brother and co - brother are false. The averment that the respondent has no title, interest or legal possession over the petition schedule property and building is false. The petition schedule property was purchased and the building was constructed by the respondent by utilising her personal money. The appellant also gifted some amount to her during the period when he was working in gulf and she had received it and utilised. The averment that the source of purchase of the petition schedule property and the construction of the building are the hard earned money of the appellant is false. The respondent purchased the petition schedule property in the year 1998 with the knowledge of the appellant. At that time, the appellant was well aware that the property was purchased by her in her name. The appellant compelled the respondent to sell the petition schedule property and given him some amount for starting a business. But, she refused that demand. Thereafter, the appellant filed the petition with ulterior motive. The appellant and the respondent are still living together. The documents of the scheduled property were given to the appellant by the respondent for the purpose of paying land tax. Therefore, the respondent prayed for dismissing the petition. 16. The evidence in this case consists of the oral testimony of PWs 1 to 3 and RWs 1 and 2. Exts. A1 to A13 and B1 to B5 were marked. Exts. X1 to X3 series were also marked. 17. The Court below, after considering the matter, entered the following findings: The respondent admitted that she had received Rs. 30 lakhs from the appellant from 1997 onwards. Ext. A3 pass book, in respect of the account of the respondent commenced in 1986, shows that she had only meagre deposits upto 1996. The marriage between the appellant and the respondent was on 09.03.1996. After the marriage, the respondent had good savings as the appellant started depositing good amounts in her name from 1997 onwards. She was getting deposits ranging from Rs. 10,000/- to Rs. 50,000/- per month. The respondent has no other source of income. She has no accounts in any other banks. She is admittedly a Sweeper in the Thodupuzha Municipality and was drawing a meagre amount as salary. Ext. A7 information furnished to the appellant from the Municipality shows that she was drawing a net salary of Rs. 915/- in 1985, the net salary drawn in December, 1998 was Rs. 2525/- and the net salary drawn in January, 2003 was Rs. 5112/-. That the property was purchased in the year 1998 and the construction of the building was completed in the year 2002 stand admitted. The appellant was admittedly working in Saudi Arabia from 1997 to 2005. It is evident from Exts. A3, A4, A5 series, A6 series, X1, X2 and X3 series that the appellant was sending huge amounts in every month to the accounts of the appellant as well as the respondent and the respondent was withdrawing the entire amounts from those accounts. The respondent admitted that the entire amounts shown in Ext. A3 account were sent by the appellant. Even though the respondent had withdrawn all the amounts sent by the appellant, she had asserted in her objections that she had utilised her own money received by way of salary for purchasing the property and constructing the building. Ext. A3 itself proves that she was having only meagre savings in her name. Therefore, her case in her objections that she had good source of income for purchasing the property and for constructing the building and she had utilised the same is false. The evidence shows that the building is about 2500 sq. ft. The respondent had miserably failed to prove that she had utilised her own savings and received financial support from her brother for purchasing the property and constructing the building. The respondent had no case in her objections that her brothers had helped her for purchasing the property and constructing the building. She had admitted that the appellant had sent money from the gulf country from 1997 to 2005. More than Rs.30 lakhs had been sent by the appellant to his account as well as the account of the respondent. The respondent had admitted that she had received Rs.30 lakhs from the appellant. She had also admitted that she had utilised Rs. 50,000/- for purchasing property. She had stated that Rs.14-15 lakhs had been spent for the construction of the building. The respondent has no consistent case. She had stated in her objections that she had utilised her self earned money for purchasing the property and constructing the building. But, in cross - examination she had admitted that she had received Rs.30 lakhs from the appellant and she had utilised part of it for purchasing the property and for constructing the building. Therefore, her contention that she had utilised her own money for purchasing the property and for constructing the building is utter falsehood. The case of the appellant that he never had an occasion to see Exts. A1 and A2 upto 1996 was proved. The case of the respondent that the property was purchased and the building was constructed by utilising her own funds proved to be untrue by her own evidence. Therefore, definitely, the appellant who had spent all the amounts for purchasing the property and constructing the building is the owner of the said property and the building, even though they stand in the name of the respondent. The respondent had played fraud on the appellant and secured the title over the petition schedule property and the building. Therefore, the petition for declaration of appellant’s title and possession over the property is maintainable. Being the wife, the respondent should have been loyal to her husband but, it was proved that she was untrustworthy. The case of the appellant that he came to know about the registration of property in the name of the respondent in the year 2006 is correct. The evidence shows that the respondent received the required amounts from the appellant and fraudulently purchased the property and constructed the building in her name. Therefore, the appellant, who had spent all the amounts for purchasing the property and for constructing the building, is entitled to the declaration that he is the real owner of the property and the building. 18. Learned counsel for the respondent submitted that the O.P. filed by the appellant before the Family Court was barred by limitation. He has relied on the statement made by the appellant in Paragraph 9 of his O.P. that the foundation stone, for constructing the residential building, was laid by him when he came on leave in July, 1999 and the statement made by the appellant in his proof affidavit that his wife had already got the plan for constructing the house prepared by the time he had reached here on leave in 1999. The appellant had seen that plan in 1999 when he came to know the fact that the building plan was in the name of his wife and hence, even if fraud is alleged on the part of his wife, that fraud came to his knowledge in 1999 and hence, the period of limitation for filing the O.P. commenced from that time. Therefore, according to the learned counsel, the O.P. was barred by limitation. The appellant deposed before the Court that he had seen the building plan before laying the foundation stone in 1999. But, he was not aware whether it was an approved plan or not. He also stated that he had seen that plan only on the previous day of his going abroad. There is absolutely no evidence to show that the appellant then came to know that the building plan was prepared in the name of his wife. Not even a suggestion to that effect was made to the appellant while he was in the witness box. Moreover, even if the appellant had understood that the building plan was in the name of his wife, that is not sufficient to find that the period of limitation commenced from that time because, the evidence available on record shows that there was no occasion for the appellant at that time to doubt any threat to or infringement of his right in the property by the respondent. 19. Article 58 of the Limitation Act prescribes a limitation of three years for a declaration of the nature sought for in this case. As per this Article, the period of limitation begins to run when the right to sue first accrues. The Honourable Supreme Court in Daya Singh Vs. Gurdev Singh, (2010) 2 SCC 194 held that the right to sue for declaration accrues when there is a clear and unequivocal threat to infringe the right. Therefore, the real test is not to ascertain when the factum of purchasing the property or constructing the buildings in the name of the respondent came to the knowledge of the appellant for reckoning the commencement of the period of limitation. But, such commencement of the period of limitation depends on the fact when was the clear and unequivocal threat to or infringement of the right of the appellant had taken place. The fact that the property and the buildings stand in the name of the respondent came to the knowledge of the appellant on a previous occasion ipso facto will not determine the commencement of the period of limitation from that occasion so long as the respondent has not denied the title of the appellant in the properties or she has not asserted her title in them. 20. It is the definite case of the appellant supported by evidence that a threat to infringe his right by the respondent occurred only in January, 2007 and not before that. The evidence so given by the appellant could not be discredited. We find no reason to disbelieve the evidence so given by the appellant. Therefore, even if it is true that the appellant came to know the fact that the building plan was in the name of the respondent in 1999, the period of limitation cannot commence from that time as the respondent had not denied the title of the appellant and she had not asserted her title at that time. In other words, the appellant’s right to sue for declaration did not accrue then and it accrued only in January, 2007 and not before that. There was a clear and unequivocal threat to or infringement of the right of the appellant in the properties by the respondent in January, 2007 by denying the title of the appellant and asserting her title in those properties. Therefore, the period of limitation prescribed under S.58 of the Limitation Act commenced only from that time. The appellant has filed O.P. before the Family Court on 26.03.2007. Therefore, the argument of the learned counsel for the respondent that the O.P. was not maintainable as it was filed beyond the period of limitation is rejected. It is the admitted case of the appellant that he came to know in the middle of February, 2006 that the sale deeds in respect of the properties were taken in the name of the respondent. This case of the appellant is also supported by his evidence. Even if the right to sue accrued in February, 2006, the O.P. filed by the appellant before the Court below was within the period of limitation prescribed. 21. Learned counsel for the respondent submitted that as the property and the buildings in question are held benami by the respondent, the O.P. filed by the appellant was hit by S.4 of the Benami Transactions (Prohibition) Act, 1988 (for short, the Act). The respondent had no such case in her objections filed before the Court below. It is the specific case of the appellant that the property had been purchased by the respondent and the buildings had been constructed by her as his agent spending his money. The evidence available in this case is clinching to show that the property had been purchased and the buildings had been constructed by the respondent by spending the hard earned money of the appellant. The definite case of the respondent is that the property had been purchased and the buildings had been constructed by spending her own money. But, the respondent has miserably failed to prove that the property had been purchased and the buildings had been constructed by spending her own money. On the other hand, the evidence shows that the property had been purchased and the buildings had been constructed by spending the money sent and given by the appellant. The evidence clearly shows that the respondent fraudulently purchased the property and constructed the buildings in her name without the consent or knowledge of the appellant and against his specific direction. Therefore, the argument of the learned counsel for the respondent that the O.P. filed by the appellant for declaration of his title over the property and the buildings is hit by S.4 of the Act is totally untenable. 22. The Honourable Supreme Court in P.V. Sankara Kurup Vs. Leelavathy Nambiar, AIR 1994 SC 2694 held as follows: “..........When an agent was employed to purchase the property on behalf of his principal and does so in his own name, then, upon conveyance or transfer of the property to the agent, he stands as a trustee for the principal. The property in the hands of the agent is for the principal and the agent stands in the fiduciary capacity for the beneficial interest he had in the property as a trustee...........” In this decision, the petitioner as an agent and power - of - attorney had purchased the property but ostensibly had his name entered in the sale certificate fraudulently and without the consent of the respondent. Again held in this decision as follows: “........the petitioner is an agent and trustee acted in the fiduciary capacity on behalf of the respondent - plaintiff as General power - of - attorney. He held the property in cestui que trust for and on behalf of the respondent though he fraudulently got inserted his name in the sale - certificate issued by the Court without the respondent’s knowledge and consent. S.4 of the Benami Transactions (Prohibition) Act does not stand in the way for the declaration of title and possession of the plaint schedule property..........” 23. In the case on hand, it is proved that the respondent was acting as an agent of the appellant for purchasing property and for constructing buildings thereon. It is also proved that the property was purchased and the buildings were constructed by the respondent by spending the money of the appellant. It is further proved that the appellant had given specific direction to the respondent to purchase the property in his name. But, the respondent purchased the property and constructed the buildings, without the consent and knowledge of the appellant and ignoring the direction, in her own name. Thus, the respondent fraudulently purchased the property and constructed the buildings in her own name using the funds of the appellant. When an agent purchased the property for and on behalf of his principal by utilising the funds of the principal, even if the property is conveyed or transferred in the name of the agent, such an agent holds the property only as a trustee for the principal. It is the property of the principal even though it stands in the name of the agent or is held by him. In such a case, the agent acted in a fiduciary capacity for and on behalf of the principal and holds the property as a trustee for the principal. S.4 of the Act does not protect such an agent. The principal, who is the real owner of the property, is entitled to a declaration of his title to that property. Here, the respondent was only an agent and she was holding the property and the buildings only as a trustee for and on behalf of the appellant. Therefore, the contention based on S.4 of the Act raised by the learned counsel for the respondent is rejected. 24. The respondent made an attempt to prove that Rs.10 lakhs given by the appellant was given to his family by herself and through her brothers. She had also claimed that her brothers had given substantial amounts for purchasing the property. RW 2, her brother, was examined for proving these facts. But, the attempt so made by the respondent did not succeed. The inconsistent and contradictory evidence tendered by the respondent and RW 2 does not substantiate these facts claimed by the respondent. Their evidence is not believable. The evidence tendered by the appellant disproves the claims so made by the respondent. In fact, the evidence available on record would go to show that RW 2, an autorickshaw driver, had purchased the autorickshaw with the funds made available by the appellant and he (RW 2) was not in a position to give any financial assistance to his sister. Moreover, the respondent has not pleaded such claims in her written objections. Therefore, such claims are also liable to be rejected. 25. The appellant has specifically pleaded in his petition that the movable articles in petition B schedule were purchased by him by spending his own money and hence, prayed for declaring his title over those articles and injunction. But, the Court below has not considered that prayer of the appellant and rejected the same without assigning any reason. Therefore, the judgment rendered by the Court below is defective in that respect. The Court below ought to have considered that prayer made by the appellant in the light of the pleadings and the evidence on record. But, that was not done. Therefore, the judgment of the Court below to the extent it rejects the prayer of the appellant for declaring his title over the petition B schedule movable articles and for restraining the respondent from removing them from the petition schedule buildings is liable to be set aside. That matter has to be considered afresh by the Court below in the light of the pleadings and evidence already on record. Therefore, Mat. Appeal No. 580 of 2010 is liable to be allowed to that extent. 26. Learned counsel on both the sides have advanced detailed arguments before us. We have been taken through the evidence. We have also carefully gone through the judgment rendered by the Court below. We have re - appraised the evidence on record. The Court below entered the findings and arrived at the conclusions in respect of title to the petition A schedule property and the buildings thereon on the basis of sound reasoning supported by cogent evidence. We find no reason to interfere with the declaration that the appellant has title and ownership over the petition A schedule property and the buildings thereon and the permanent prohibitory injunction granted in his favour in the impugned judgment. Therefore, Mat. Appeal No. 507 of 2010 is liable to be dismissed. 27. We may record here that the learned counsel for the appellant made an offer of Rs.10 lakhs to be given to the respondent provided the entire properties and the buildings including the movable articles scheduled in O.P. No. 83 of 2007 are vacated by her within a stipulated period. He also made clear that such an offer was made not because of the entitlement of the respondent to such an amount but for the sake of peace and quietus. Learned counsel for the respondent has rejected that offer as unacceptable. In the result, Mat. Appeal No. 507 of 2010 is dismissed. The judgment of the Court below to the extent it rejects the prayer of the appellant for declaring his title over the petition B schedule movable articles and for restraining the respondent from removing them from the petition schedule buildings is set aside. The prayer of the appellant for declaring his title over the petition B schedule movable articles and for restraining the respondent from removing them from the petition schedule buildings made in O.P. No. 83 of 2007 on the files of the Family Court, Thodupuzha, is remanded to that Court with a direction to consider the same afresh in the light of the pleadings and evidence already on record. Mat. Appeal No. 580 of 2010 is thus disposed of. In the circumstances, the parties are directed to suffer their respective costs. The learned Judge of the Family Court is also directed, notwithstanding this judgment, to explore the possibilities of arriving at a settlement of disputes between the appellant and the respondent. |
Mat.A. No. 245 of 2008 - Zainaba Vs. T.A. Abdul Rasheed, (2012) 271 KLR 569
(2012) 271 KLR 569 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 Mat.Appeal.No. 245 of 2008 ( ) ------------------------------ OP.85/2007 of FAMILY COURT, KASARAGOD APPELLANT/RESPONDENT: ------------------------------------ ZAINABA, D/O.MOURIABBA ALIAS NASER PASHA, W/O.T.A. ABDUL RASHEED, KUBERA MANSION UDAYAWAR, MANJESHWAR, KASARAGOD TALUK. BY ADVS.SRI.M.S.IMTHIYAZ AHAMMED SRI.SHIRAZ ABDULLA SRI.JOJO PAPPACHAN RESPONDENT(S)/PETITIONER: --------------------------------------- T.A.ABDUL RASHEED, S/O.MUHAMMED KUNHI, RAHINA VILLA, THIRUVAKOLI PALLIKARA VILLAGE, P.O.BEKAL, HOSDURG TALUK KASARGOD DIST. BY ADV. SMT.CHINCY GOPAKUMAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-08- 2012, ALONG WITH MA. 896/2011, THE COURT ON 11-09-2012 DELIVERED THE FOLLOWING: C.R. K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Mat. Appeal Nos.245 of 2008 & 896 of 2011 ----------------------------------------------- Dated 11th September, 2012. Head Note:- Family Courts Act, 1984 - Section 7 (1)(a) - Dissolution of Muslim Marriages Act, 1939 - Section 2(ii), (viii)(a) and (d) and (ix) - Under Section 2(ii) of the Act, the wife is entitled to obtain a decree for dissolution of marriage, if the husband has neglected her or has failed to provide maintenance to her for a period of two years. There is nothing in the wording of Section 2(ii) of the Act to suggest that the failure to maintain the wife must be wilful. J U D G M E N T Joseph Francis, J. Mat. Appeal 896 of 2011 is filed by the respondent/husband in O.P.No.251 of 2010 on the file of the Family Court, Kasaragod. The respondent is the petitioner/wife in that Original Petition, which was filed by her under Section 7 (1)(a) of the Family Courts Act, 1984 and Section 2(ii), (viii)(a) and (d) and (ix) of the Dissolution of Muslim Marriages Act, 1939 (for short, 'the Act'). Mat. Appeal No.245 of 2008 is filed by the respondent/wife in O.P.No.85 of 2007 on the file of the Family Court, Kasaragod. The respondent is the petitioner/husband in that Original Petition, which was filed by him for restitution of conjugal rights. Since the parties in both the appeals are the same and the questions involved are interconnected, the above appeals are disposed of by this common judgment. 2. The averments of the petitioner/wife in O.P.251 of 2010 are briefly as follows : The marriage between the petitioner and the respondent was solemnized on 18.5.2003 as per the customs prevailing in the community. Nikah ceremony was performed on 18.5.2003 and the 'Veettukudal' function was conducted on 14.3.2004. No children are born in the wedlock. Prior to the marriage proposal, the respondent had contracted another marriage, which was divorced. No demand for dowry was made from the side of the respondent at the time of marriage proposal. The petitioner's father is a psychiatric patient. At the time of marriage, the petitioner had completed her First Year B.Com. degree course and was preparing for the Second Year. The petitioner accepted the marriage proposal on condition that she should be allowed to complete her higher studies. After the Nikah ceremony, the respondent and his family members insisted the petitioner to discontinue her studies. When the family members of the petitioner conveyed the information regarding discontinuance of her studies, the respondent insisted for payment of Rs.5,00,000/- and 200 sovereigns of gold ornaments as dowry. He also demanded a car, but the petitioner's parents were not in a position to purchase a car. With the help of the relatives, the parents of the petitioner gave 183 sovereigns of gold ornaments. After a few days of the marriage, the respondent and his family members started to ill-treat the petitioner demanding dowry of Rs.5,00,000/- and a car. Many of the gold ornaments were pledged by the respondent in his name. On 24.12.2004 the grandfather of the petitioner was hospitalized. Even though all the family members visited him in the hospital, the respondent did not take the petitioner to see her sinking grandfather. After two days, the grandfather died. The respondent threatened her while going to the hospital that if she disclosed to others the reason of her swelling on the face, she would be killed. On 27.11.2005 when the petitioner and the respondent were to attend the house-warming ceremony of one Mr.Navas and Arifa, the respondent pointed a revolver on the head of the petitioner. On 12.2.2007, the respondent took the petitioner to her house and left there. On 15.2.2007 at 2 p.m., the respondent came along with his family members and entered into the petitioner's room and asked for money. On 14.3.2007, the father of the respondent came to the house of the petitioner and asked them to forget all the past incidents. The Manjeshwar Police has registered Crime No.137/2007 against the respondent and his family members. The police filed charge sheet against the respondent and it is now pending before the C.J.M.Court, Kasaragod for the offence under Section 498A I.P.C. The Original Petition filed by the respondent seeking restitution of conjugal rights (O.P.No.85 of 2007) was decreed on 13.2.2008. The petitioner filed Mat. Appeal No.245 of 2008 against the said judgment. The respondent treated the petitioner with cruelty, both mental and physical. The respondent neglected her and failed to provide maintenance to her for the last more than two years continuously. There is an irretrievable break down in the marital relationship. The respondent has misappropriated and disposed of her gold ornaments given to her at the time of marriage. On the above allegations, the petitioner prayed for a decree for dissolution of marriage. 3. The respondent/husband filed counter contending as follows : The petition is premature and not maintainable in law. The petitioner had filed Mat. Appeal No.245 of 2008 against the decree for restitution of conjugal rights passed in favour of the respondent. The decree passed by the Court is still in force and only the implementation is suspended. Hence this petition for divorce is not maintainable. It is true that the 'Nikah ceremony' was solemnized on 18.5.2003 and the 'Veettikoodal' ceremony was conducted on 14.3.2004. The 'Veettikoodal' ceremony was delayed because the father of the respondent could not come from Singapore prior to March, 2004. The petitioner in her complaint filed before the C.J.M. Court, Kasaragod stated that she was maintaining a diary writing the events of the days after the Nikah and she left the same in the house of the respondent. The Manjeshwar Police has seized the diary and produced before the C.J.M. Court, Kasaragod. The events written by her in the diary reveals the true picture. The petitioner had only 1 = sovereigns of gold ornaments at the time of fixation of marriage. The respondent never pledged gold ornaments belonging to the petitioner. The averment that the respondent did not take the petitioner to visit her grandfather is false. The petitioner's grandfather died on 18.12.2004 at Unity Hospital, Mangalore. It is true that the house warming ceremony of Mr.Navas was on 27.11.2005 at Mogral. The averment that the respondent used to point the revolver to the petitioner and threatened her is false. The petitioner is only a stooge in the hands of Navas, who is the husband of elder sister of the petitioner. The petitioner is not entitled to relief under the provisions alleged in the petition. The petition is liable to be dismissed. 4. In O.P.No.251/2010, the petitioner/wife was examined as PW1, the respondent/husband was examined as RW1 and Exts.B1 to B3 were marked. The Family Court, on considering the evidence on record, allowed divorce under Section 2(ii) and (ix) of the Act and the prayer for divorce under Section 2(viii)(a) and (d) was disallowed. Against the judgment and decree allowing divorce under Section 2(ii) and (ix) of the Act, the respondent/husband in that Original Petition filed Mat.Appeal No.896 of 2011. 5. The husband filed O.P.No.85 of 2007 before the Family Court, Kasaragod for restitution of conjugal rights as the respondent/wife allegedly left his company on 12.2.2007 without any reasonable cause. The respondent/wife filed a detailed counter contending that the petitioner/husband and his family members treated her with cruelty and the petitioner/husband assaulted her and she was driven out of the house. The gold ornaments of the respondent were forcibly removed and misused by the petitioner. In that Original Petition , PW1, RW1 and RW2 were examined and Exts.B1 and B2 were marked. The Family Court, on considering the evidence on record, allowed that Original Petition on finding that the respondent was not at all justified in denying her company to the petitioner and the respondent was directed to return to the consortium of the petitioner within a period of two months from 13.2.2008. Against that judgment and decree, the respondent/wife filed Mat. Appeal No.245 of 2008. 6. The learned counsel for the appellant/husband in Mat.Appeal No.896 of 2011 raised the following contentions, at the time of argument : The Family Court ought not to have found that the petitioner therein deserved dissolution of marriage under Section 2(ii) of the Act, especially when the wife without any reason refused to stay with the husband in spite of an order for restitution of conjugal rights. While allowing the petition under Section 2(ix) of the Act, the Family Court did not consider the position of the respondent/husband who holds a decree for restitution of conjugal rights in his favour. The Family Court ought to have found that the petitioner/wife herself has deserted her husband who has never neglected his wife. The finding of the court below that the respondent therein has failed to maintain the petitioner is highly unreasonable. The decision relied on by the Family Court to allow the petition for dissolution of marriage between the parties is not applicable to the facts of this case. 7. The learned counsel for the appellant further submitted that since the divorce decree is liable to be set aside, the respondent/wife is bound to obey the decree for restitution of conjugal rights. The learned counsel for the respondent/wife supported the judgment and decree in O.P.No.251 of 2010 and submitted that since the divorce decree is passed dissolving the marriage, decree for restitution of conjugal rights passed in O.P.No.85 of 2007 has become infructuous. 8. The main question to be answered in these appeals is whether the Family Court is justified in passing the decree for divorce under Section 2(ii) and (ix) of the Act and if it is justified, what would be the fate of the decree for restitution of conjugal rights passed in O.P.No.85 of 2007. 9. Under Section 2(ii) of the Act, the wife is entitled to obtain a decree for dissolution of marriage, if the husband has neglected her or has failed to provide maintenance to her for a period of two years. There is nothing in the wording of Section 2(ii) of the Act to suggest that the failure to maintain the wife must be wilful. 10. In O.P.No.251 of 2010, it is specifically stated by the petitioner/wife that the respondent has neglected her and failed to provide maintenance to her for the last more than two years continuously and under these circumstances, the petitioner is entitled to get a decree for dissolution of marriage under Section 2(ii) of the Act. In answer to this, the respondent/husband in his counter stated that he has not at all neglected her and failed to provide maintenance to her and that the wife, who is living separately without any cause is not entitled to get separate maintenance under the Mahomedan Law or any other law. It is further stated that the petitioner has not even obeyed or complied with the order of the Family Court in O.P.No.85 of 2007, directing restitution of conjugal rights. In that Original Petition , the petitioner/wife was examined as PW1 before the Family Court on 24.8.2011. PW1 deposed in chief examination that since 17.3.2007 till date, the respondent/husband has not paid maintenance to her. This version of PW1 is not challenged by the respondent/husband in cross examination. The respondent/husband was examined before the Family Court in that case on 29.9.2011 as RW1. In chief examination, he has no case that he had paid maintenance to the petitioner/wife. In cross-examination, RW1 admitted that they were living separately from 12.2.2007 onwards and that he had not given maintenance to the wife thereafter. RW1 has no case that he did not give maintenance to her as she did not comply with the decree for restitution of conjugal rights in O.P.No.85 of 2007. 11. In the decision reported in Muhammed Ashraf v. Nadeera (ILR 2000(3) Kerala 445), it was held thus : "In the present case legislature has not made the ground for divorce under clause (ii) conditional that neglect or failure to provide for maintenance of the wife is without a reasonable cause. On the other hand we find in clause (iv) which provides another ground for divorce such a specific condition is added. It provides that the wife would be entitled to seek divorce on the ground that the husband has failed to perform his marital obligations for a period of three years 'without reasonable cause'. When the very same legislature under the very same section has added the condition 'without reasonable cause' in clause (iv), but omitted the same in clause (ii), it is not for this court to add that condition under clause (ii) also. x x x x x x x x x x x x x As the clause itself enacts that a right to a dissolution will be the consequence of an omission to maintain, every omission to maintain must be spoken of as a failure to maintain in this enactment. The fact that there are no further qualifying words is sufficient to show that nothing more than an omission to maintain could possibly be intended." 12. In the decision reported in Veeran Sayvu Ravuthar v. Beevathumma (2002(2) KLT 741), it was held in paragraph 19 as follows : "19. Thus, the consistent view taken by this Court is that "the construction of Clause (ii) of S. 2 is in consonance with the Islamic law on the subject..... There is therefore no justification in introducing the words "without reasonable cause" into Clause (ii). The Legislature in its wisdom by providing those words in clause (iv) has not thought it necessary to provide this restricting in Clause (ii). "Accordingly this Court held that a wife under such circumstances, even if she had contributed for not to maintain her or even if she was not entitled for maintenance, could have applied for dissolution of marriage under S. 2(ii) on the ground that the husband had neglected or failed to provide for her maintenance for a period of two years. When the consistent view followed by this Court in these three decisions, accepting the view taken by Tayabji, C.J., in Noorbibi's case, is so clear, there is no reason at all for reconsideration, taking into account the phraseology used in S. 2(ii) as compared to S. 2(iv). The excuse if any put forth by the husband in maintaining the wife is not at all a relevant consideration while considering the ground for dissolution of marriage by the wife under S. 2(ii) of the Act. So we are in respectful agreement with the view taken by this Court in the earlier decisions in Yousuf Rawthan, Aboobacker Haji and Moosa's cases." 13. In the present case, it is not disputed that the respondent/husband failed to maintain the petitioner/wife for more than two years. Therefore, the Family Court was justified in granting a decree for divorce under Section 2(ii) of the Act. 14. In the Original Petition, it is alleged by the petitioner/wife that there is irretrievable break down of the marital relationship and therefore, the petitioner is entitled to get divorce under Section 2(ix) of the Act. In the counter, it is stated by the respondent/husband that there is no irretrievable break down of the marital relationship. RW1 admits that from 12.2.2007 onwards, PW1 is residing separately and that she is not interested in residing with him and that PW1 filed a complaint before the Police, alleging offence under Section 498A of the I.P.C. 15. Section 2(ix) of the Act makes statutory provision for the wife for dissolution of marriage on the ground which is recognised as valid for the dissolution of marriage under the Muslim Law. This Court, in the decision reported in Mohammed v. Sainaba Umma (1987(1) KLT 712) held that Section 2(ix) of the Act is really in the form of a residuary ground where the courts have an area of discretion. In that case, the wife lived separately for a number of years and she prayed for dissolution of marriage on the ground of irretrievable break down of marriage. This Court held that in such circumstances, Islam concedes the right to the wife to seek dissolution of marriage on the ground of Khula. 16. In Amna Khatoon v. Kashim Ansari (AIR 2001 Jharkhand 28), the Jharkhand High Court dissolved a marriage under Section 2(ix) of the Act on the ground of irretrievable break down of marriage. In the present case, it has come out in evidence that the marriage between the petitioner and the respondent was irretrievably broken down. Therefore, the Family Court was perfectly justified in granting a decree for dissolution of marriage under Section 2(ix) of the Act. Therefore, we are of the view that Mat. Appeal No.896 of 2011 is liable to be dismissed as it is without any merits. 17. It is well settled that in appropriate cases, the appellate court can take subsequent events into consideration in order to do complete justice between the parties. Since the marriage between the petitioner and the respondent in O.P.No.85 of 2007 on the file of the Family Court, Kasaragod is dissolved as per the judgment and decree in O.P.No.251 of 2010, the decree for restitution of conjugal rights granted in O.P.No.85 of 2007 has become in-executable. Therefore, Mat.Appeal No.245 of 2008 has to be allowed and the judgment and decree in O.P.No.85 of 2007 on the file of the Family Court, Kasaragod has to be set aside. 18. Accordingly, Mat. Appeal No.896 of 2011 is dismissed as it is without any merits. Mat. Appeal No.245 of 2008 is allowed and the judgment and decree in O.P.No.85 of 2007 on the file of the Family Court, Kasaragod is set aside and that Original Petition is dismissed. The parties are directed to suffer their respective costs in both the appeals. Sd/- K.T.SANKARAN, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (true copy) |
Mat.A. No. 211 of 2010 - Rajesh Vs. Shiji, 2012 (3) KHC 904
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Pius C. Kuriakose & Babu Mathew P. Joseph, JJ. Mat.A. No. 211 of 2010 Dated this the 04th day of September, 2012 Head Note:- Hindu Marriage Act, 1955 - Sections 11 r/w 5(ii)(a), (b) and (c) - Void Marriage - For invoking Section 11 of the Act for declaring a marriage null and void, contravention of any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 is necessary. Held:- The condition to be fulfilled under clause (i) of Section 5 is that neither party should have a spouse living at the time of marriage, condition under clause (iv) is that the parties should not be within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two and the condition under clause (v) is that the parties should not be sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two. Therefore, even if the petition filed by the appellant is treated as one preferred under Section 11 read with Section 5(ii)(a), (b) and (c) of the Act as submitted by the learned counsel for the appellant, such a petition is not maintainable and a relief of declaring the marriage null and void cannot be granted on the basis of such a petition. Hence, on this short ground alone the petition preferred by the appellant for declaring his marriage with the respondent as null and void is liable to be dismissed. But, we do not want to dismiss the petition preferred by the appellant on this technical ground. For Appellant:-
For Respondent:- Manjeri Sunderraj
J U D G M E N T Babu Mathew P. Joseph, J. 1. This appeal is directed against the order dated 20.11.2009 on O.P.No.406 of 2006 of the Family Court, Malappuram. By the impugned order, the learned Judge of the Family Court dismissed the O.P. filed by the appellant under Section 11 of the Hindu Marriage Act (for short 'the Act') for declaring the marriage between the appellant and the respondent as null and void. 2. Heard both the sides. The parties are admittedly Hindus by religion. Learned counsel for the appellant submits that even though the O.P. was styled as one preferred under Section 11 of the Act, it has to be treated as one filed under Section 11 read with Section 5(ii)(a), (b) and (c) of the Act. A plain reading of Selection 11 of the Act would show that a petition under Section 11 read with Section 5(ii)(a), (b) and (c) for declaring a marriage as null and void is not maintainable. Section 11 of the Act reads as follows: "11. Void marriages.—Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of, nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5." This Section shows that a marriage solemnised shall be null and void and may, on a petition presented by either party of the marriage against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Therefore, contravention of any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 is necessary for attracting Section 11 of the Act for declaring a marriage null and void. 3. Section 5 of the Act reads as follows: "5. Conditions for a Hindu marriage.—A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (i) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage; (ii) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (iii) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two." A reading of Section 5(ii)(a), (b) and (c) clearly show that a marriage may be solemnised between any two Hindus if the conditions viz. (1) at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or (2) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children or (3) has been subject to recurrent attacks of insanity. So, unsoundness of mind or mental disorder or insanity of a party to a marriage as described under Section 5(ii) bars solemnising the marriage. But, the contravention of the conditions under clause (ii) of Section 5 is not prescribed as a ground for declaring a marriage null and void under Section 11 of the Act. For invoking Section 11 of the Act for declaring a marriage null and void, contravention of any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 is necessary. The condition to be fulfilled under clause (i) of Section 5 is that neither party should have a spouse living at the time of marriage, condition under clause (iv) is that the parties should not be within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two and the condition under clause (v) is that the parties should not be sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two. Therefore, even if the petition filed by the appellant is treated as one preferred under Section 11 read with Section 5(ii)(a), (b) and (c) of the Act as submitted by the learned counsel for the appellant, such a petition is not maintainable and a relief of declaring the marriage null and void cannot be granted on the basis of such a petition. Hence, on this short ground alone the petition preferred by the appellant for declaring his marriage with the respondent as null and void is liable to be dismissed. But, we do not want to dismiss the petition preferred by the appellant on this technical ground. 4. Section 13(1) and clause (iii) under the same show that any marriage solemnised may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. The expressions mental disorder and psychopathic disorder are also explained under clause (iii) as (a) and (b). Therefore, the appellant is entitled to seek dissolution of marriage by a decree of divorce on the ground under clause (iii) of subsection (1) of Section 13. 5. The evidence in this case consists of the oral testimony of PWs.1 to 3 and Exts.A1 to A4 marked on the side of the appellant. RW1 was examined and Exts.B1 to B14 were marked on the side of the respondent. PW1 is the Professor of Psychiatry and Head of the Department of Psychiatry, Medical College, Kozhikode. PW2 is a Gynaecologist. PW3 is the appellant himself. The respondent was examined as R.W1. On a consideration of the evidence on record, the court below found that the case of the appellant was a false one. We have been taken through the evidence of the witnesses by the learned counsel for the appellant. The respondent was examined by PW1. She could not diagnose any mental illness. The evidence of PW2 is also not helpful to the appellant. Going by the evidence of the medical expert viz. PW1, it can be safely found that the appellant has miserably failed to prove a case against the respondent attracting clause (iii) of sub-section (1) of Section 13 of the Act enabling him to get a decree of divorce. 6. We have heard the detailed arguments of the learned counsel appearing on both the sides. We have gone through the impugned order. We have also reappraised the evidence made available. On an anxious consideration of the arguments and the evidence, we find no reason to interfere with the impugned order. Therefore, this appeal is liable to be dismissed. In the result, this appeal is dismissed. |
Mat.A. No. 184 of 2011 - Biju Gopalan Vs. K.S. Sivasankaran, (2012) 257 KLR 794
(2012) 257 KLR 794 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 27TH DAY OF JUNE 2012/6TH ASHADHA 1934 Mat.Appeal.No. 184 of 2011 ( ) ------------------------------ OP.478/2009 of FAMILY COURT, THIRUVALLA APPELLANT(S)/RESPONDENTS: ---------------------------------- 1. BIJU GOPALAN, S/O GOPALAKRISHNAN, AGED 38 YEARS, AASIRVAD HOUSE, V.KOTTAYAM P.O. KOTTAYAM VILLAGE, KOZHENCHERY TALUK PATHANAMTHITTA. 2. GOPALAKRISHNAN, S/O NARAYANAN, AGED 65 YEARS, AASIRVAD HOUSE, V.KOTTAYAM P.O. V.KOTTAYAM VILLAGE, KOZHENCHERY TALUK PATHANAMTHITTA. 3. RAJAMMA, W/O GOPALAKRISHNAN, AGED 56 YEARS, AASIRVAD HOUSE, V.KOTTAYAM P.O. V.KOTTAYAM VILLAGE, KOZHENCHERY TALUK PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S)/PETITIONERS: ----------------------------------- 1. K.S.SIVASANKARAN, S/O SANKARAN, AGED 72 YEARS, URUMBIL VADAKKETHIL HOUSE PARIYARAM P.O., PARIYARAM MURI, ELANTHOOR VILLAGE KOZHENCHERY TALUK, PATHANAMTHITTA.686021. 2. SARASAMMA SIVASANKARAN, W/O K.S.SIVASANKARAN, AGED 61 YEARS URUMBIL VADAKKETHIL HOUSE, PARIYARAM P.O. PARIYARAM MURI, ELANTHOOR VILLAGE KOZHENCHERRY TALUK, PATHANAMTHITTA-626021(DIED) ADDL.RESPONDENTS 3 TO 6 IMPLEADED 3. OMANA O.S, 45 YEARS, RAJENDRA BHAVAN, KARITHOTTA P.O., MEZHVELI VILLAGE, PATHANAMTHITTA. 4. SOBHA K.S, 42 YEARS, HOUSE NO.26/30, T.I.BUNGLOW ROAD, PODE COLONY,SUBHAJI JABALPUR(M.P.) 5. ANIL O.S, 38 YEARS, S/O.SIVASANKARAN, URUMBIL VADAKETHIL HOUSE,PARIYARAM P.O. KOZHENCHERRY TALUK, PATHANAMTHITTA.( LRS OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 3 TO 5 AS PER ORDER DT.9.8.2011 IN IA NO.2209/2011) BY ADV. SRI.N.N.SASI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29-03- 2012, THE COURT ON 27.6L2012 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Mat. Appeal No.184 of 2011 ----------------------------------------------- Dated 27th June, 2012. Head Note:- Dowry Prohibition Act, 1961 - Section 6(3) Proviso - Where a woman dies within seven years of her marriage, otherwise than due to natural causes, the property in question shall be transferred to her parents, if she has not left any children. J U D G M E N T Joseph Francis, J. This appeal is filed by the respondents 1 to 3 in O.P.478/2009 on the file of the Family Court, Thiruvalla. Respondents 1 and 2 herein were the petitioners in that O.P., which was filed by them under Section 7 of the Family Courts Act for recovery of an amount of Rs.8,00,000/- towards the value of gold ornaments and value of movables. 2. The case of the petitioners in the O.P. is briefly as follows : Petitioners 1 and 2 are the parents of deceased O.S.Bindu. The first respondent married Bindu on 3.11.2002 at Lakshmi Auditorium near the residence of the petitioners, as per the custom of Ezhava community. The said Bindu was working as an L.D. Clerk in the Revenue Department and the first respondent was working as a teacher. There are no issues out of the wedlock. Respondents 2 and 3 are the father and mother of the first respondent respectively. In connection with the marriage, Bindu was given 408 gms. of gold ornaments, out of which 280 grams were entrusted to the 2nd respondent on the direction of the first respondent. 80 gms. Of gold ornaments were entrusted to the third respondent on 10.12.2002 as directed by the first respondent which was sold or pledged, and the amount was used by the respondents. The ornaments were taken by the respondents on the date of death of Bindu. On 9.9.2003 Bindu was murdered and was hanged in the bathroom and it was alleged that she committed suicide. A crime is registered by the police under Sections 306, 304B and 498A read with Section 34 IPC and is pending before the Sessions Court, Pathanamthitta as S.C.345/04. At the time of marriage, apart from the above ornaments, presentation items worth Rs.25,000/- were also given to deceased Bindu which are now in the custody of the respondents. Certain certificates described in the petition schedule are also in the possession of the respondents. On the death of Bindu, petitioners approached the SNDP Yogam office bearers and the Pathanamthitta Union for a mediation to get back the above articles or its value. But, so far it is not returned. A notice was also sent on 22.12.2008 but it was refused. Hence, the claim for Rs.7,65,000/- as value of ornaments and value of movables scheduled in the petition and for return of certificates. 3. Respondents filed objection, wherein they contended as follows : The petition is not maintainable. The petitioners have no right to file such a petition. The marriage is admitted. But the claim that she had 408 grams of gold ornaments is denied. The alleged entrustment of ornaments to the respondents is also denied. The allegation that the ornaments of deceased Bindu was appropriated by the respondents on her date of death is also denied. The allegation that it was a murder is also denied. The further allegation that deceased Bindu was assaulted and was treated cruelly by the respondents while residing with them is also denied. The crime registered and the consequent trial before the Additional Sessions Court as S.C.345/04 ended in acquittal finding that the allegations against the respondents in connection with the death of Bindu is false. The further allegation that the deceased was given movables worth Rs.25,000/- in connection with the marriage is also denied. They are not in possession of any of the certificates of the deceased. The notice sent by the petitioners never reached the respondents. They are not liable to pay any amount as claimed in the petition or to return any articles as claimed. 4. Before the Family Court, on the side of the petitioners, PW1 to PW4 were examined and Exts.A1 to A3 were marked. On the side of the respondents, the first respondent was examined as CPW1 and Exts.B1 to B7 were marked. The Family Court, on considering the evidence on record allowed the Original Petition in part directing the respondents to pay Rs.6,12,000/- to the petitioners towards value of 51 sovereigns of gold ornaments within one month, failing which the petitioners will be entitled to recover it with interest at the rate of 7% per annum from the date of decree till date of realization. The petitioners were also allowed to get their proportionate costs in the petition. Against that judgment and decree dated 16.8.2010, respondents 1 to 3 filed this appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the respondents. 6. At the time of argument, learned counsel for the appellants raised the following contentions : The court below ought to have considered the fact that respondents herein were not having financial ability to raise such funds to purchase the said 408 grams of gold ornaments. Even during the trial of S.C.345/04, the respondents averred that their daughter was having only 40 sovereigns of gold ornaments. The ornaments, if any, entrusted to the appellants herein are not held in trust by them and on the death of O.S.Bindu, the cause of action arose and as the same is not claimed within three years from that date, it is barred by limitation. The respondents have no right to seek recovery of gold ornaments or its value, as the gold ornaments were gifted to the first appellant husband through late Bindu(wife). The said ornaments come within the definition of gift under Section 122 of the Transfer of Property Act, 1882. The gift was given unconditionally and voluntarily and has been accepted. Therefore, respondents have no right to claim recovery of the gold. The gold ornaments were never held in trust. The appellants cannot be treated as trustees. On the other hand, they are to be treated as 'donees'. Even if the gold ornaments are not treated as gift, respondents cannot seek recovery of the gold as per the provisions of Hindu Succession Act, 1956. After the death of Bindu, who was the wife of the first appellant, her gold ornaments and properties devolved on the first appellant as per Section 15 of the Hindu Succession Act. So, respondents have no right over the gold ornaments. Learned counsel for the respondents supported the judgment of the court below. 7. The marriage between the petitioners' daughter O.S.Bindu and the first respondent, son of respondents 2 and 3, which took place on 3.11.2002 at Lakshmi Auditorium, near the residence of the petitioners, is not disputed by the respondents. Ext.A1 is the certificate dated 29.9.2003 issued by K.Balan, President of the SNDP Branch No.268, Pariyaram, stating that the above marriage took place on 3.11.2002 and that at the time of marriage, the bride, O.S.Bindu was wearing gold ornaments of 51 sovereigns (408 gms.) and that fact is recorded in the marriage register kept by Pariyaram SNDP Branch register. PW2, Madhusoodanan Nair, the Secretary of the SNDP Branch, Pariyaram has produced the marriage register containing the entries regarding the marriage that took place on 3.11.2002. Photocopy of page 31 of that marriage register containing the entries regarding the marriage between O.S.Bindu and first respondent is marked as Ext.A3. PW3 Balan was the President of the SNDP Branch at the time of marriage and he was also an attesting witness to Ext.A3. In Ext.A3, it is recorded that at the time of marriage of Bindu with the first respondent, she was wearing gold ornaments of about 408 grams (51 sovereigns). 8. PW3 deposed that at the time of marriage, Bindu was wearing 51 sovereigns of gold ornaments and that he signed in Ext.A3 as a witness and as the President of the SNDP Branch. PW3 deposed that in Ext.A3, first respondent and his father had signed. The first petitioner, who is the father of deceased Bindu was examined as PW1. He deposed about the facts as stated in the O.P. PW4 Anil is the son of the petitioners and brother of deceased Bindu. 9. PW4 deposed that at the time of marriage, 51 sovereigns of gold ornaments were given to Bindu. He further deposed that the respondents demanded 51 sovereigns of gold ornaments as the respondents had given that much of gold ornaments when they conducted the marriage of the daughter of respondents 2 and 3. PW4 deposed that the fact that 51 sovereigns of gold ornaments were given to Bindu is recorded in Ext.A3. PW4 deposed that at the time of marriage two pairs of gold rings weighing 2 sovereigns, five gold chains weighing 17 sovereigns, one necklace having a weight of 3 sovereigns, 21 bangles weighing 21 sovereigns, ten rings having a weight of 5 sovereigns, one pair of kolussu having a weight of 2 sovereigns and one gold coin having a weight of 1 sovereign and thus in total, 51 sovereigns of gold were given to Bindu at the time of marriage and the total weight of gold ornaments was recorded in Ext.A3, in the presence of respondents 1 and 2 and they had also put their signatures in Ext.A3. 10. PW4 deposed that out of 51 sovereigns, 15 sovereigns were purchased before the marriage on different occasions and after the engagement, 10 sovereigns of gold ornaments were purchased from a jewellery at Pathanamthitta and 20 sovereigns were purchased in the presence of the first respondent from Bhima Jewellery, Alappuzha and the remaining gold ornaments were gifted by the relatives of Bindu. PW4 deposed that for purchasing gold ornaments, Rs.2,00,000/- was obtained by giving rubber trees standing in one acre of their property for slaughter tapping. Rs.1,00,000/- was borrowed from the Pathanamthitta Pinnokka Vikasana Sahakarana Sangham, Pathanamthitta. PW4 deposed that after one week of the marriage, as per the direction of the first respondent, the second respondent, his father, took 35 sovereigns of gold ornaments from Bindu for the purpose of keeping the same in Bank locker and within one month, as per the direction of the first respondent, his mother, the third respondent obtained 10 sovereigns from Bindu and that ornaments were either sold or pledged. 11. It is pertinent to note that PW4 was not cross examined by the counsel for the respondents and the first respondent was also present before the Family Court at the time of chief examination of PW4. Therefore, it is clear that the respondents are not challenging the testimony of PW4. Ext.A2 is the photograph of deceased Bindu and first respondent which was taken at the time of marriage, which shows that at the time of marriage, Bindu was wearing a number of gold ornaments. In the chief affidavit filed by the first respondent it is stated that one of the gold chains worn by deceased Bindu at the time of marriage was produced before the Fast Track Court in connection with S.C.345/04, which was marked as MO2. In the written statement and at the time of examination of first respondent as CPW1, respondents have no case that the ornaments worn by Bindu at the time of marriage were fake gold ornaments. When cross-examined, CPW1 deposed that as stated by the respondents in the written statement and in the chief affidavit filed by him, they are prepared to give back the gold ornaments of Bindu to the petitioners. Ext.B1 is the copy of the deposition given by the first petitioner before the Sessions Court in S.C.345/04, in which nothing is stated by him with regard to the quantity of gold ornaments given to Bindu. Ext.B3 is the copy of the deposition given by the brother of Bindu, in which it is stated that 51 sovereigns of gold ornaments were given to Bindu at the time of marriage. Ext.B4 is the copy of the deposition given by the second petitioner in S.C.345/04. But, she was not examined before the Family Court. Ext.B5 is the copy of FIR and F.I. Statement given by PW4 before the Police, in which, it is stated that 40 sovereigns of gold ornaments were given to Bindu at the time of her marriage. Since PW4 is not cross-examined by respondents, when he was examined before the Family Court, it has to be held that the respondents are admitting those facts deposed by him. On appreciating the evidence on record, we are of the view that the Family Court is fully justified in finding that 51 sovereigns of gold ornaments were given to Bindu at the time of marriage and that the respondents misappropriated the same. Since PW4 was not cross examined by the respondents with regard to the source of money for purchasing the gold ornaments of Bindu, the appellants cannot at present, contend that the petitioners have no financial ability to raise funds to purchase 51 sovereigns of gold. 12. In the decision reported in Scariah Varghese v. Marykutty (1991 (2) KLT 71), it was held : "Even if there was no previous demand, the plaint itself can be considered as a demand. It is not a correct statement that the dowry would only part take the nature of a trust amount. True under the Trust Act, there are certain obligations which are in the nature of trust and certainly without any other statutory provision the amount given as dowry will legitimately assume the character and nature of trust in the hands of any person other than the person entitled to the amount, viz., the wife. Of course for recovery of a trust amount no period of limitation is prescribed. By virtue of the Dowry Prohibition Act, the statute itself says that the amounts in the hands of the husband or the husband's parents for and on behalf of the wife is a trust amount and so there is no difficulty to say that the obligation is one under trust to return the amount by virtue of the statutory provision and so there is no limitation for such a suit." In the decision reported in Chacko v. Annamma (1993 (1) KLT 675), it was held : Even if the stridhanam property of a married woman, is placed in the custody of her husband or in laws they would be deemed to be trustees and bound to return the same if and when demanded by her. In the case at hand, we are of opinion that in case S. 10 is not applicable, the only Article that is applicable is the residuary Article Art.113. 13. According to the appellants, the claim should have been made within three years of the death of deceased Bindu, which was in 2003. According to Article 113 of the Limitation Act, the period of limitation begins to run only when the right to sue accrues. The right to sue accrues when there is a demand and consequential refusal. In this case, a written demand for getting the articles was made by he petitioners on 22.12.2008. That notice was refused by the respondents. The suit is filed within three years of the written demand. Therefore, we are of the view that the suit is not barred by limitation. 14. Learned counsel for the appellants argued that there is no pleading in the petition to the effect that the petitioners gave 51 sovereigns of gold ornaments to deceased Bindu at the time of marriage as dowry or Stridhanam and as such the petitioners cannot seek return of gold ornaments on the basis of proviso to Sub Section (3) of Section 6 of the Dowry Prohibition Act, 1961 (for short 'the Act'). It is true that in the petition it is not stated by the petitioners that 51 sovereigns of gold ornaments were given to Bindu as dowry. But, it is stated in the petition that 51 sovereigns of gold ornaments were given to Bindu in connection with the marriage. Therefore, those ornaments given by the petitioners will come under the purview of "dowry" as defined in the Act. 15. In the written statement filed by the respondents or at the time of examination of first respondent as CPW1, respondents have no case that 51 sovereigns of gold ornaments were gifted by Bindu to the first appellant. There is also no evidence to show that Bindu gifted those gold ornaments to the first appellant before her death. Therefore, the appellants cannot now contend that Bindu gifted the gold ornaments to the first appellant. In the decision reported in Kunhu Moideen v. Sayed Mohammed (1985 KLT 516), it was held that if in violation of the provisions of the Act, dowry is given and received, the consequence is not that the transaction is invalid, the consequence is that provided for in the Act itself in Section 6. In the decision reported in Scariah Varghese v. Marykutty (1991 (2) KLT 71), it was held : The suit is maintainable even if it is streedhanam or dowry notwithstanding the Dowry Prohibition Act on the basis that "streedhanam is always the property of the woman whoever is given custody of the same. Woman can always claim it back and enforce the return of it. A suit for recovering this amount will not be hit by the Dowry Prohibition Act". A suit by the wife is justly maintainable for the return of her dowry from her husband or his father or whoever is in custody of the same. S.6 of the Dowry Prohibition Act makes it obligatory to repay the amount of dowry received by any person other than the woman to whom it belongs within a particular period. Further it is said that the amount in the hands of `any other person is a trust amount by enacting that the person shall hold it' in trust for the benefit of the woman. The statute docs not stop there. It further says that if any person fails to transfer the dowry as required by S.6(l) of the Dowry Prohibition Act it is an offence and it is punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both; but such punishment shall not absolve the person from his obligation to transfer the property as required by sub-section (1) of the above Act. So it is clear and evident that the husband or the parents of the husband cannot keep the dowry when a demand is made by the wife. It has to be returned and the statute says that if not returned, it is a punishable offence. The Dowry Prohibition Act will not stand in the way of maintaining the suit. The suit is perfectly maintainable. 16. Learned counsel for the appellants submitted that for getting back the gold ornaments, respondents could have approached the Dowry Prohibition Officer and a civil suit for that purpose is not maintainable. That argument cannot be accepted in view of the principles laid down in the decision reported in Pratibha Rani v. Suraj Kumar and another (AIR 1985 SC 628). In the said decision, it was held as follows : "There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong doer in cases like arson, accident etc. It is an anathems to suppose that when a civil remedy is available, a criminal, prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406, I.P.C. or render the ingredients of Section 405, I.P.C. nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law." 17. According to the petitioners in the O.P., the respondents committed murder of Bindu, whereas the respondents contended that Bindu committed suicide. It is an admitted fact that Bindu died within seven years of her marriage with first respondent otherwise than due to natural causes and she had no children in the marriage. 18. The proviso to Sub Section 3 of Section 6 of the Act was inserted by amending Act 43 of 1986 which came into force on 19.11.1986 to the effect that where a woman dies within seven years of her marriage, otherwise than due to natural causes, the property in question shall be transferred to her parents, if she has not left any children. Since Bindu died issue-less within seven years of the marriage otherwise than due to natural causes, the petitioners, who are parents of Bindu are entitled to get back 51 sovereigns of gold ornaments or its value from the respondents, who misappropriated it. Therefore, we are of the view that the Family Court is fully justified in decreeing the suit for return of the value of 51 sovereigns of gold ornaments. Accordingly, this appeal is dismissed, as it is without any merits. The respondents in this appeal are entitled to get the costs of this appeal from the appellants. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (true copy) |
Mat.A. No. 75 of 2008 - Rajesh Francis Vs. Preethi Roslin, 2012 (2) KLT 613 : 2012 (2) KLJ 660
(2012) 263 KLR 156 IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. Basant & K. Surendra Mohan, JJ. Mat.A. No. 75 of 2008 Dated this the 13th day of April, 2012 Head Note:- Divorce Act, 1869 - Section 19 - The fact that the wife was pregnant through another on the date of the marriage is ipso facto sufficient for a court to hold that the consent of the husband for the marriage is vitiated by fraud unless it is shown satisfactorily that the husband had acceded to the situation consciously. This is so whether the wife was aware or not of the fact of such pregnancy and notwithstanding her honest impression that her sexual intercourse prior to marriage with any other had not led to conception. Family Courts Act, 1984 - Section 14 - The Family Courts are also bound by the conclusive presumption under Section 112 of the Evidence Act. Hindu Marriage Act, 1955 - Section 12(1)(d) - Special Marriage Act, 1954 - Section 25(2) - Divorce Act, 1869 - Section 19 - The presumption under Section 112 of the Evidence Act is not available when the validity of the marriage is itself questioned in proceedings on the ground that consent of the husband for the marriage is vitiated by fraud for the reason that wife was pregnant through any other on the date of marriage. Proof of validity of marriage is sine qua non to invoke the conclusive presumption. Evidence Act, 1872 - Section 112 - the presumption deals only with legitimacy and not paternity. The concept of legitimacy need not and does not invariably in all cases include the concept of paternity. There may still be areas within the concept where there is no overlapping between the two concepts. In the interest of welfare of the child, it is perfectly permissible to burden a nonbiological father with obligations arising from legitimacy of a child born during his valid matrimony with the mother of the child. In that event the child's interest - his maintenance, upkeep and inheritance, can be protected by such a presumption. It is not necessary to include within the presumption of legitimacy the presumption of paternity invariably in all cases. Evidence Act, 1872 - Section 112 - As authentic and scientific evidence of the precise date/period when the child was begotten (i.e., the gestational age of the foetus) is forensically possible now, access/non-access as on such date/period has to be specifically ascertained by courts before choosing to draw the conclusive presumption. Evidence Act, 1872 - Section 112 - The expression "access" in Section 112 in the modern era of scientific and technological development is not to be construed merely as physical proximity or the possibility of sexual intercourse between the spouses. It is to be reckoned more appropriately and specifically as the possibility of access of the sperm of the man to the ovum of the woman. In that view of the matter, the result of a valid DNA test would be admissible to authentically rule out (or confirm) access under Section 112. Such an interpretation will be more consistent with the times and will help the courts not to squander available and acceptable evidence of DNA test in a controversy regarding disputed paternity.
For Respondent:
J U D G M E N T R. Basant. J. Mat. Appeal No.75 of 2008: (i) Has not the appellant succeeded in proving that his wife/the respondent was pregnant through another when she entered matrimony with him? (ii) Is he not entitled for a decree of nullity of marriage under Section 19 of the Divorce Act on the ground that his consent for marriage is vitiated by fraud? (iii) Is it fair, just and reasonable to expect him to produce still better evidence to substantiate his claim? These questions are raised for our consideration by Sri.S. Sreekumar, the learned senior counsel for the appellant in this appeal. 2. Facts are simple. Parties are Christians by religion. Theirs was a traditional arranged marriage in accordance with the customary religious rites. The betrothal took place on 05-05-2003. The marriage was solemnized on 17-05-2003. They lived together with ample opportunity for physical access after their marriage. It was realised that she was pregnant. Doctor was consulted. Urine test confirmed pregnancy. USG scan was taken on 26-06-2003. It showed that the gestational age of the foetus was 61 days (8 weeks and 5 days) on 26-06-2003. She gave birth to a healthy baby on 06-01-2004. The husband and his relatives entertained a serious doubt whether the respondent/wife had actually conceived in her relationship with the appellant. It allegedly dawned on them that the respondent/wife must have been pregnant through another on the date of her marriage with the appellant. 3. The appellant on 16-01-2004 filed a petition for declaration of nullity under Section 18 of the Divorce Act on the ground that his consent for marriage was vitiated by fraud. He was not aware of the fact that she was pregnant through another on the date of his marriage. He would not have consented if this information were revealed/available to him. He prayed that his marriage may be declared to be null and void. 4. The respondent resisted the prayer for declaration of nullity of marriage. She was not pregnant on the date of her marriage with the appellant. She had conceived only after the solemnization of her marriage with the appellant. The child was conceived in her physical relationship with the appellant. The child born on 06-01-2004 was a premature child and the child was born in valid matrimony. The respondent invoked conclusive presumption under Section 112 of the Evidence Act contend that the child was legitimate. Paternity and legitimacy have to be conclusively presumed, it was contended. Access after the date of marriage having not been disputed and heavy burden on the appellant to dislodge the presumption under Section 112 of the Evidence Act by the only method of proving non-access having not been discharged, the claim for declaration of nullity must fail, it was contended. It was prayed that the petition may be dismissed. 5. Parties went to trial on these contentions. On the side of the appellant/petitioner before the Family Court PWs 1 to 3 were examined and Exts. A1 to A5 were marked. On the side of the respondent, RW 1 was examined and Exts. B1 and B2 were marked. Exts. X1 and X2 were also marked as court Exhibits by consent. 6. Ext. X1 is the D.N.A. test report obtained from the Rajeev Gandhi Centre for Bio-technology at Trivandrum dated 04-01-2005. After receipt of that report, the respondent claimed that a further test must be conducted. When her prayer was rejected by the Family Court, she came to this Court and obtained judgment dated 14-10-2005 in W.P. (C) No. 28841 of 2005 in her favour. Thereafter an Advocate Commissioner was appointed and the parties were taken to Hydrabad to the Central Forensic Science Laboratory. It was thereafter that Ext. X2 DNA report was obtained. Both Exts.X1 and X2 showed that the appellant was not the biological father of the child born to the respondent after marriage. 7. Before this Court, PW 2 was recalled and examined. PWs 4 and 5 were examined and Exts. A6 and A7 issued by PWs 4 and 5 respectively were marked. RW 2 was examined on the side of the respondent. This Court felt that certain clarifications were required and that is how further evidence was permitted to be adduced before this Court under Order 41 Rule 27 CPC. 8. Arguments have been advanced by the learned counsel for the rival contestants. As we felt that certain interesting questions are raised for consideration, we requested Advocate Sri. C.S. Dias to help this Court as Amicus Curiae. We place on record our appreciation of the efforts taken by the learned counsel including the Amicus Curiae to help this Court in the disposal of this case. 9. Before coming to the specific factual controversy as to whether it has been proved satisfactorily that the respondent was pregnant on the date of her marriage with the appellant, it will be appropriate, we feel, to refer to certain questions of law that have been raised. We shall initially discuss such questions raised and shall later proceed to consider the factual dispute specifically raised. 10. Declaration of nullity is claimed under Section 18 of the Divorce Act. The provisions relating to nullity of marriage appear in Chapter IV of the Divorce Act. Sections 18 to 21 are available in that Chapter. We are primarily concerned with Sections 18 and 19. Section 20 stands deleted. 11. We extract Section 18 and 19 of the Divorce Act below: "18. Petition for decree of nullity.- Any husband or wife may present a petition to the District Court praying that his or her marriage may be declared null and void. "19. Grounds of decree.- Such decree may be made on any of the following grounds:- (1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit; (2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. Nothing in this section shall affect the [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud." (emphasis supplied) 12. We are in this case concerned not with any of the four grounds specifically enumerated in Section 19. Divorce is claimed on the residuary ground in Section 19 emphasised above. 13. The claim for nullity is staked by the appellant on the ground that his consent for marriage was obtained by fraud. This plea is founded on the factual allegation that his wife/the respondent was pregnant on the date of marriage. The first question to be considered is whether the facts, if proved, would justify the grant of a decree for nullity under Section 19. 14. It will be apposite to refer to Section 12(1)(d) of the Hindu Marriage Act and Section 25(2) of the Special Marriage Act which we extract below: "12. Voidable marriages.- (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- x x x x x x x x x x x x (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner." "25. Voidable marriages.—Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,-- x x x x x x x x x x x x x x x (2) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or" 15. A specific statutory provision entitling a husband for a decree for nullity of marriage on the ground that his wife was pregnant through another on the date of marriage is significantly absent in the Divorce Act. Though specific provisions have been made in Section 12(1)(d) of the Hindu Marriage Act and Section 25(2) of the Special Marriage Act incorporating such a ground for declaration of nullity of marriage, such a provision is significantly absent even today under the Divorce Act. By subsequent amendment also, such a stipulation has not been specifically incorporated. This obliges the appellant now to fall back on the residuary saving clause in Section 19 to claim a decree for declaration of nullity of marriage. 16. Our attention has been drawn to the decision in D.M. Raju Vs. S. Janaki, AIR 1974 Mysore 61. 17. Section 7 of the Divorce Act stands repealed now and therefore the fact that the Matrimonial Causes Act, 1937 in England subsequently recognizes and concedes the right of a husband for a declaration of nullity on that ground is of no significance. Divorce can be granted on the ground raised in this petition only if this Court is convinced that the consent of the appellant for marriage was vitiated because of fraud. 18. That takes us to the question as to what is fraud in matrimonial law? It is pointed out to this Court that even accepting the entire case of the appellant as gospel truth the respondent was not pregnant on the date of betrothal i.e, 05-05-2003 Consent for marriage was given on that day and on that day even going by the version of the appellant, the respondent was not pregnant. There is nothing to show that the respondent was aware of the fact that she was pregnant on the date of betrothal or on the date of marriage. In these circumstances, there can be no element of fraud. Reliance is placed on the definition of "fraud" in other Statutes to contend that unless the respondent were actually aware of the fact that she was pregnant, she cannot be held to be guilty of any fraudulent misrepresentation or fraudulent suppression of facts. 19. This evidently must have been the reason why under Section 12 of the Hindu Marriage Act and Section 25 of the Special Marriage Act a separate ground was recognized entitling the husband for a declaration of nullity of marriage. Because of such provisions in the said Statutes, it is not necessary under those Statutes for the husbands in similar circumstances to prove fraud vitiating their consent to marriage. In the absence of such a provision in the Divorce Act, strict proof of fraud vitiating matrimonial consent has to be insisted. If the respondent herself did not know that she was pregnant, there can be no valid contention of fraud vitiating consent, submits the learned counsel for the respondent. 20. We have rendered our anxious consideration to this contention. It is perhaps unfortunate that the mandate of Article 44 of the Constitution for a uniform civil code for the polity has not been translated into the tangible reality even in this 7th decade after the adoption of the Constitution. In a secular democratic republic, in respect of most citizens religion is nothing but an accident of birth. There is no choice for the individual. Discrimination on the grounds of divorce merely because of such accident of birth for which the citizen is not responsible is certainly unjust and constitutionally unacceptable. In this context, we note that the mandate under Part IV of the Constitution is to all instrumentalities of the State and the adjudicator/interpreter exercising sovereign functions is no exception to that mandate. Wherever there is elbow room for an adjudicator/interpreter, he must seize the opportunity readily to put into reality the mandate of Article 44 of the Constitution. Interpretationally it is certainly permissible to bring in uniform provisions in personal laws at least in certain areas. So reckoned, we deem it absolutely permissible to understand the residuary stipulation in Section 19 to permit a declaration of nullity on the ground that the consent for marriage was vitiated - for the reason that the wife was pregnant through any other on the date of marriage. The proof of that crucial fact, in the absence of pleading and proof that the husband had consciously acceded to that situation, can certainly be reckoned as sufficient to entitle a husband for a decree for declaration of nullity. In the absence of such explanation, on proof of such pregnancy, fraud for the purpose of Section 19 can safely be held to be established. 21. It is true that fornication (pre-marital sexual/physical relationship) may by itself not amount to fraud in matrimonial law to justify a claim for declaration of nullity of marriage. If that be so, the mere fact that a wife in such pre-marital sexual intercourse had become pregnant, even without her being aware of the same, cannot operate as a plank for declaration of nullity for the reason that the consent of the husband to such marriage was vitiated, it is suggested. 'Fraud' in law must take in moral contumaciousness or depravity. Wilful representation of falsity or suppression of truth must be shown to exist. If fornication is not a ground, how can unanticipated conception without even awareness of that fact expose the wife to the charge of fraud? How can such a wife be held to be guilty of fraud, it is queried. The argument sounds impressive at the first blush; but cannot certainly stand closer scrutiny. We will assume the worst. Premarital sexual intercourse may be common or may not be uncommon in the modern context. That may not by itself be a ground to vitiate a marriage on the ground of fraud. Virginity is not insisted by law for either spouse as one of the requisites of a valid first marriage. But accepting all this, we are unable to agree that the fact of pregnancy through any other on the date of marriage ipso facto will not entitle the husband for a declaration of nullity. Societal realities have got to be accepted. A husband, in the absence of his conscious acceptance, cannot be compelled to enter matrimony with the burden of a foetus growing in the womb of his wife through another, conceived prior to the marriage. It is easy for law to assume that this constitutes fraud in matrimonial law. It is not necessary to insist on proof that the wife was aware of such pregnancy on the date of marriage. At least the burden is on her, it can safely be assumed, to ensure and satisfy herself that she is not pregnant through any other on the date of marriage. If she enters matrimony without verifying and confirming that she was not pregnant through any other on the date of marriage, that can itself be safely reckoned as an act of fraud constituting a ground vitiating the consent of the husband in marriage. 22. The definition of 'fraud' under Section 17 of the Indian Contract Act need be mechanically and blindly be imported into matrimonial law. Any wife, who has had premarital sex and who has got impregnated in fact, whether to her confirmed knowledge or not, and who enters matrimony without confirming that she is not pregnant, can, according to us, be safely held to be guilty of fraud in matrimonial law. The consent given by her unfortunate husband for such marriage can certainly be held to be vitiated by fraud, even in the absence of evidence of her knowledge of her pregnancy. It is absolutely safe to assume that no husband would have consented to matrimony if he had even a remote inkling of such pregnancy of his wife through another on the date of his marriage. His consent for such marriage can hence safely be held to be vitiated by fraud, unless there is plea and evidence that he consciously acceded to that situation. 23. Such an interpretation, we are satisfied, would bring in uniformity in the provisions relating to declaration of nullity of marriage under the Hindu marriage Act, Special marriage Act and the Divorce Act. Such interpretation, we have no hesitation has got to be preferred, consistent with the mandate of Article 44 the Constitution. 24. We find no merit in the contention that on the date engagement/betrothal the wife had not admittedly conceived consent for matrimony contemplated under Section 19 is certainly not the consent at the time of betrothal. It refers evidently to the consent on the date of marriage. That the wife may have become pregnant after the date of betrothal; but before the date of marriage, even without her own awareness of the fact of such pregnancy cannot certainly be reckoned as a ground defeating the claim for nullity under Section 19 of the Divorce Act. This contention cannot, in these circumstances, be accepted. To avoid any misgiving, we make it clear that the wife/respondent has not raised such a specific contention. She has no contention that she had become pregnant after betrothal but before marriage. In our anxiety to understand the law correctly, questions were raised and the learned counsel and the Amicus Curiae advanced arguments on this aspect of law. 25. We now proceed to consider the next disputed question raised whether the presumption of legitimacy under Section 112 of the Evidence Act can or cannot be invoked while deciding a claim for nullity on the ground that the wife was pregnant through any other on the date of marriage. 26. The contention raised, which contention appears to have been accepted by the court below, is that invoking the presumption under Section 112 a conclusive finding on legitimacy (and paternity) of the child born after marriage can be drawn. If that be so it defeats the contention that the wife had conceived through any other on the date of marriage. 27. This question deserves to be considered carefully. We must first have a look at Section 112 of the Evidence Act. We extract the same below: "112. Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." (emphasis supplied) 28. There is a contention raised initially that the Family Court need not consider itself to be bound by Section 112 of the Evidence Act. We shall first of all consider that contention. This contention is raised with the help of Section 14 of the Family Courts Act. We extract Section 14 below: "14. Application of Indian Evidence Act, 1872.- A Family Court may receive as evidence any report statement documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act 1872 (1 of 1872)." (emphasis supplied) 29. It is true that under Section 14 certain materials can be permitted to be received in evidence by the Family Court whether the same would be relevant and admissible or not, under the Indian Evidence Act. The general and sweeping language used in Section 14 prompts the counsel to contend that the Family Court is not bound by and can even ignore Section 112. We are unable to agree. Section 112 of the Evidence Act incorporates a presumption which is part of the substantive law of this country. The enabling provision under Section 14 of the Family Courts Act which permits the Family Court, considering the nature of the mission/task before it, to ignore the procedural stipulations and avoid unnecessary bottlenecks cannot, according to us, certainly be construed as a permission or licence to ignore a fundamental substantive statutory stipulation like the one in Section 112 of the Evidence Act. We are, in these circumstances, unable to accept that the Family Courts, in view of the provisions of Section 14 can consider themselves to be not bound by Section 112 of the Evidence Act. If that be so, it would be death knell of the said statutory stipulation. We fail to understand which court can be held to be bound by Section 112 if the Family Courts were to be held to be not bound by the said statutory provision. The very purpose of the provision would be frustrated. It is before the Family Court that the aid of the presumption would be most necessary. 30. Notwithstanding the wide sweep of the language used in Section 14, we reject the contention raised that the Family Courts need not consider themselves to be bound by Section 112. Considering the purpose, object and scheme of the Family Courts Act, notwithstanding the sweeping semantics employed in Section 14, we take the view that the stipulation is merely procedural and cannot permit the Family Courts to ignore fundamental and basic stipulations of law which are substantive in nature. This contention raised must hence fail. 31. Section 112 mandates that there must be a valid marriage. The section expressly stipulates so. Binding precedents are galore about the basis of the presumption under Section 112. The provision obviously has its foundation on public policy. Law leans in favour of the presumption of legitimacy of a child born in lawful wed-lock. This principle finds statutory recognition in Section 112 of the Evidence Act. The presumption is conclusive, unless it is rebutted in the only manner contemplated in the section. This is based on the principle "that he is the father whom the nuptials show to be so or the marriage indicates". This presumption is the foundation of every man's birth and status. It is a sensible presumption of law and is the pivot on which rests the entire fabric of the society. 32. It is fundamental and axiomatic that valid marriage must be proved before the presumption under Section 12 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Section 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Section 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Section 112 is built. 33. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Section 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned counsel for the appellant that the presumption under Section 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Section 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Section 112 cannot obviously be invoked. 34. It is, of course, true that a decision on the validity of marriage on this ground (i.e, pregnancy through another on the date of the marriage) may have a reflection on the legitimacy of the child born. But that, according to us, is not a valid reason to justify invocation of the presumption under Section 112 in proceedings where validity of the marriage is impugned on the ground that the wife was pregnant through another on the date of the marriage. The question of responsibility for the pregnancy will certainly have to be ascertained otherwise - without the aid of the presumption under Section 112. We find certain observations of the Supreme Court on this aspect which justify our conclusion. In Mahendra Vs. Sushila, AIR 1965 SC 364 the Supreme Court did have an occasion to consider this aspect. The observations clearly indicate that the presumption under Section 112 though it is certain to affect the legitimacy of the child born, cannot be pressed into service while deciding the validity of marriage assailed on the ground of Section 12(1)(d) of the Hindu Marriage Act. We extract the relevant observations in paragraph-180: "180. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. The question of the legitimacy of the child born to the respondent does not directly arise in this case, though the conclusion we have reached is certain to affect the legitimacy of the respondent's daughter". (emphasis supplied) 35. Of course, the Supreme Court had not specifically declared the law on this aspect; but the observations support and justify our conclusion that Section 112 cannot be called in aid by a wife to support her contention that she was not pregnant or that she had not already conceived through any other at the time of marriage. Whether the wife was pregnant on the date of the marriage and through whom, will certainly have to be considered on other factual inputs available and cannot certainly be decided on the basis of the conclusive presumption under Section 112 of the Evidence Act which we repeat comes into play only after a valid marriage in accordance with law is established. Even if the pregnancy got aborted, the ground for declaration of nullity under Section 12(1)(d) of the Hindu Marriage Act, Section 25(2) of the Special Marriage Act and Section 19 of the Divorce Act would still survive. The question cannot hence be considered in the light of the presumption of legitimacy under Section 112. The mere fact that the finding regarding pregnancy on the date of marriage may have an impact on the legitimacy (including paternity) of the child born cannot permit us to import the conclusive presumption under Section 112 into such adjudication regarding validity of marriage. 36. In this context we take note of the decision of a learned single Judge of this Court on this very question. In P.V. Sabu Vs. Mariakutty, AIR 1998 Ker. 86, Hon'ble Justice C.S. Rajan had considered this specific plea and had held thus in paragraph 18 which we extract below: "18. Thus it can be safely inferred that Section 112 is applicable only if there is a valid marriage. If there was no valid marriage initially, there cannot be any scope for a presumption of legitimacy of the child. The presumption applies only when a child was born during the continuance of a valid marriage or within 280 days after the dissolution of the marriage and the mother remaining unmarried. If the presumption under Section 112 is stretched to other cases, anomaly may occur." (emphasis supplied) 37. We are in complete agreement with the learned Judge on the above observations in paragraph 18. We have reservations to accept the opinion later in the said paragraph that access and non-access after the marriage alone is relevant under Section 112 of the Evidence Act. We shall consider that aspect later. 38. The above discussions lead us to the following firm conclusions of law. (1) The fact that the wife was pregnant through another on the date of the marriage is ipso facto sufficient for a court to hold that the consent of the husband for the marriage is vitiated by fraud under Section 19 of the Divorce Act unless it is shown satisfactorily that the husband had acceded to the situation consciously. (2) This is so whether the wife was aware or not of the fact of such pregnancy and notwithstanding her honest impression that her sexual intercourse prior to marriage with any other had not led to conception. (3) Section 14 of the Family Courts Act does not permit the Family Courts to ignore the substantive conclusive presumption under Section 112 of the Evidence Act. The Family Courts are also bound by the conclusive presumption under Section 112 of the Evidence Act. (4) The presumption under Section 112 is not available when the validity of the marriage is itself questioned in proceedings under Section 12(1)(d) of the Hindu Marriage Act, Section 25(2) of the Special Marriage Act and Section 19 of the Divorce Act on the ground that consent of the husband for the marriage is vitiated by fraud for the reason that wife was pregnant through any other on the date of marriage. Proof of validity of marriage is sine qua non to invoke the conclusive presumption under Section 112 of the Evidence Act. 39. The learned counsel for the appellant submits that even assuming that Section 112 of the Evidence Act can be made use of by the respondent, the respondent is not entitled to succeed in persuading the court to draw any conclusive presumption regarding the paternity of the child. Various contentions are raised. Though the conclusions reached in paragraph 38 is sufficient for the purpose of adjudication of the lis in this appeal, we deem it appropriate to consider the contention raised. 40. First of all it is contended that Section 112 covers only legitimacy and not paternity. It is next (secondly) contended that the date on which the child would have been begotten has to be ascertained. When such elate of conception ascertained falls prior to the date of the marriage, the presumption under Section 112 will not be available to the respondent even in a case where valid marriage has taken place. It is further (thirdly) contended that in any view of the matter, in view of the D.N.A test results it can be concluded beyond the trace of any doubt that there was no possibility of access between the appellant and the respondent on the date when the child could have been begotten. 41. We shall now proceed to consider these three contentions raised by the appellant, though we remind ourselves and are conscious that the exercise is academic and not strictly necessary to resolve the controversy specifically raised. 42. We have considered the question whether the presumption under Section 112 of the Evidence Act can be held to be limited to legitimacy of the child born and whether it can be held that the conclusive presumption applies only to legitimacy and not to paternity of the child. The contention appears to be interesting and crucially relevant. When Section 112 was enacted by the legislature in 1872, science and technology had not developed to any significant extent. Authentic expert scientific evidence as to whether a person is the biological father of the offspring could not then be procured. However, with the advancements in the field of science and technology it is today possible to ascertain paternity authentically by indisputable scientific evidence. In this context the question arises whether a distinction can be drawn between legitimacy and paternity in the operation of Section 112. We certainly consider the question to be very interesting. The presumption, the heading of the section shows is only regarding legitimacy. The semantics employed by the legislature also suggests that the presumption specifically is only regarding legitimacy. Is it possible to exclude paternity from the concept of legitimacy? What would remain and be left in the concept of legitimacy if we were to exclude paternity from the same? It is possible to take the view that legitimacy is permitted to be presumed for certain legal consequences that must follow. In that view of the matter paternity can be distinguished from legitimacy. It is not theoretically impossible for a presumed "legitimate" father to be not the biological father. Legitimacy might bring in legal consequences and obligations. When paternity can be ascertained authentically it would be perfectly permissible, nay laudable, to distinguish between legitimacy and paternity. In most cases legitimacy of a child must include the concept of paternity also. But the two concepts - legitimacy and paternity do not certainly cover the same field entirely. If such a view were taken, we do note that the presumption of legitimacy can certainly exist for certain purposes in the interest of the offspring, excluding the traumatic unjustified presumption regarding paternity against the man where paternity is contra indicated convincingly by scientific evidence. Such an interpretation, we feel, can certainly harmonise the interests of a child regarding whose legitimacy Section 112 can be called in aid and at the same time avoid the trauma of an unfavourable finding regarding paternity when such finding is factually oppressive and unjust. This question, it appears to us, is only academic in this case and it is unnecessary to record any final conclusion on that question. We need only observe that it appears to be theoretically possible to distinguish between legitimacy and paternity and thereby render Section 112 more congruent to the needs of a knowledge society where authentic ascertainment of paternity is factually possible by scientific inputs without at the same time compromising on the interests of a child born in matrimony. We leave the question there accepting that there is a clear distinction possible under Section 112 of the Evidence Act between legitimacy and paternity. We do take note of the observations on this aspect by a learned single Judge of the Delhi High Court Sri. Justice Ravindra Bhat, in paragraphs 26 and 27 in Rohit Shekhar Vs. Narayan Dutt Tiwari and Another, MANU/DE/3701/2010. 43. The next aspect to be considered is about the importance of the expression "at any time when the child could have been begotten". Section 112 incorporates a conclusive presumption regarding legitimacy of the offspring if such child is born during the continuance of a valid marriage between the mother of the child and any person. The period during which the presumption operates is the entire period during continuance of a valid marriage and 280 days after its dissolution, the mother remaining unmarried. If the child is born during the specified period, the presumption operates. If the mother is married to another immediately after the dissolution of marriage and a child is born after such remarriage, the child will be presumed to be the child of the subsequent husband unless it is shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. 44. What perhaps deserves to be noted is that there is no exclusion of any initial period immediately following the marriage to justify invocation of the presumption under Section 112. Even if the child is born on the very next day after the marriage, Section 112 operates with vigour and the presumption of legitimacy can be avoided only by proof of non-access. We do not agree with the learned Judge who in P. V. Sabu (supra) observed that access after matrimony alone is relevant under Section 112. What we intend to note is that it is important to ascertain the date on which the child could have been begotten for a proper operation of Section 112 of the Evidence Act. In a given case if it is shown that the child was begotten on a day prior to marriage and there is no possibility of sexual access between the man and woman prior to marriage, as admitted in this case, the conclusive presumption cannot be invoked. Otherwise, the presumption does certainly operate. The legislature evidently appears to have chosen not to exclude any minimum period immediately after the marriage advisedly. That appears to be done consciously to protect the interests of the children conceived in pre-marital sexual intercourse of parents who enter formal matrimony subsequently with awareness of pre-marital conception. We need only observe that the evidence of access will very strictly be insisted by any prudent mind for the pre-marriage period, in a case where the date of conception is proved to be prior to the date of marriage. 45. When can it be said that the child was begotten? It is certainly not the date of marriage. It is certainly not the date of delivery. It is the date on which the sperm from the father should have met the ovum of the mother. The date of fertilization of the ovum is certainly the date on which the child could have been begotten. The date of successful sexual intercourse which led to fertilization is certainly the date on which the child can be said to have been begotten for the purpose of Section 112. All we intend to note now is that even in a case where the presumption under Section 112 operates, there is burden on the court to ascertain the date on which the child in question could have been begotten. That date has to be ascertained with the help of all relevant inputs. All relevant evidence - direct indirect circumstantial, scientific and expert testimony, will all have to be looked into to ascertain the date on which the child could have been begotten. It is only then that it can be ascertained whether there was access or non-access of the man and the woman to each other on the said date/period. 46. Access cannot be decided in a vacuum. Access on the date when the child could have been begotten has to be ascertained. Science and technology now permits the courts to precisely ascertain the date on which the fertilization of the sperm and ovum could have taken place. It is perfectly permissible even in a case where the presumption under Section 112 is sought to be drawn for the court to consider all evidence to ascertain the date on which the child in question could have been begotten. The age of the foetus can be authentically ascertained today with the help of scientific inputs. It is not necessary any more to rely merely on the oral evidence of the mother (or any one else) about the date of the LMP to ascertain the gestational age of the foetus. The period / date on which the child was begotten can be authentically and specifically ascertained. We repeat that access or non-access has to be considered with specific reference to the time when the child could have been begotten. The precise ascertainment of the date when the child could have been begotten is crucial in a case like the instant one. In this case there is no case that there was any sexual intercourse between the spouses prior to their marriage. That is the admitted case. If the child were begotten prior to the date of marriage, non-access is admitted. Therefore even if Section 112 were held to be applicable, if a safe finding is possible that the child was begotten prior to marriage, the presumption cannot be drawn in favour of legitimacy or paternity. That would be our answer to the second contention raised in law. 47. That takes us to the last contention. The larger question is raised as to what is "access". At a time when science and technology had not developed as to enable courts to ascertain scientifically (and not on the basis of oral evidence) whether the child was born on account of the sexual intercourse between a man and his wife, the expression "access" was used in Section 112 of the Evidence Act. "Access" in Section 112 as understood hitherto is certainly "the possibility of and the opportunity for sexual intercourse between the man and woman". No better and acceptable evidence on that aspect could be authentically secured in yester years and hence access in Section 112 was always understood to mean the opportunity for or the possibility of sexual intercourse between the spouses. But should the expression "access" be understood in such vague, general and non-specific terms any more, is a question which courts will have to consider seriously. By access what is really meant is the accessibility of the ovum for the sperm. That is the only way to understand the expression "access" in a modern knowledge society where authentic ascertainment as to whether sperm from a man had caused fertilization of the ovum of the woman is scientifically possible. 48. In the age of scientific ignorance - before the D.N.A test to authentically ascertain biological parentage came in handy, the expression 'access' in Section 112 may have been understood as the physical proximity of the spouses or the opportunity for them to have sexual intercourse. But when science and technology have taken strides forward and permit courts now to precisely ascertain and conclude authentically whether the sperm from the man did really have access to the ovum of the woman, the expression 'access' in Section 112 can certainly be understood in a different level and dimension. The Supreme Court has accepted in many cases that "the result of a genuine D.N.A test is said to be scientifically accurate". If such D.N.A test can show authentically that there was no possibility scientifically of the sperm from the man having accessed the ovum of the woman, it can certainly be held to be evidence of non access contemplated under Section 112. The D.N.A test result can certainly be accepted as evidence of access or non access of the man to the woman, relevant to the context. It is not necessary hence to squander the advantage of such authentic scientific expert evidence even while considering the play of Section 112 of the Evidence Act. "To develop scientific temper" is the fundamental duty of every indian citizen under Article 51A (h) of the Constitution. Statutes have to be interpreted by the courts conscious of this fundamental duty of all citizens. The provision of law will have to be given contextual relevance and significance in the present age. Updation of words in statute enacted in a bygone era can be achieved by innovative interpretation relevant to the times. If it is possible to harmonise the expression "access' in the Indian Evidence Act enacted in 1872 in such a manner as to accommodate the great advantage and benefit of scientific and technological development in the modern era, such interpretation has definitely got to be preferred. It would be idle to contend or assume that such scientific evidence must be squandered, ignored and overlooked in view of the language of Section 112 of the Evidence Act understood and interpreted in a bygone era. That would be meek surrender to the tyranny of language and precedents at the expense of justice. The line of decisions of the Supreme Court including Kamti Devi Vs. Poshi Ram, (2001) 5 SCC 311, according to us, have not considered this question specifically. The possibility of and the opportunity to understand the expression "access" in Section 112 of the Evidence Act in the light of the modern scientific developments has not been considered in earlier binding precedents which understood the said expression "access' to mean mere possibility or opportunity of the spouses to have sexual intercourse. We extract below the specific observations in para.10 of Kamti Devi (supra): "We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above." 49. We have extracted the above passage only to convince ourselves that in spite of the said observations it is still possible now, after a decade, to consider afresh the question whether "access" in Section 112 can be understood in a more specific sense. It is possible in the light of the modern scientific developments to understand the expression "access" in Section 112 as possibility of access of the sperm to the ovum. This question has not been considered by the Supreme Court. The observations in Kamti Devi (supra), according to us, does not foreclose such an approach by this Court even though such an approach has not been actually made by the Supreme Court in that case. That case was decided on other grounds as the Supreme Court found that there was sufficient evidence otherwise in that case to prove that the husband had no opportunity whatsoever to have liaison with the mother of the child. In that view the observations can be said to be only obiter. 50. The learned counsel for the appellant then points out the injustice and tyranny that would result if a literal interpretation of the word 'access' consistent with the interpretation followed in earlier days (when the advantage of science and technology were not available) were to be mechanically and rigidly followed by courts in the present times. The learned counsel points out that after the decision in Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 every law has to be fair just and reasonable and should not be arbitrary, capricious, fanciful or oppressive. An interpretation which leads to the provision being fair, reasonable and just will have to be preferred and followed. If the interpretation would render the provision of law to be arbitrary, fanciful, capricious and oppressive, the vice of unconstitutionality under Articles 14 and 21 may be attracted. We have no hesitation to agree that in the post Maneka Gandhi (supra) era, Section 112 must receive such a progressive interpretation relevant to the times. Any interpretation which should lead to the tyranny of a conclusive presumption contrary to proved facts will certainly have to be avoided and the other can be preferred. Courts must certainly prefer to come to just conclusions on the basis of facts rather than succumb to conclusive legal presumptions of law. When the fact situation offers a legitimate option for the courts, we have no hesitation to agree that such a construction has to be follow which will cater to the ends of justice. 51. We find ourselves faced with similar dilemma as Justice Ormrod in [(1966) 1 All England Law Reports 356] cited by Sri C.S.Dias, the learned Amicus Curiae. We extract the same below: "When as I think in these days, it is possible to enable the courts to do justice on a footing of fact and not to do injustice on a basis of presumption, I should myself greatly hope that no difficulties will ever be put in the way of a child's blood being supplied for blood grouping. I know that it is a sad thing to bastardise a child, but there are graver wrongs; and this is a matter which I am sure all those concerned will approach with great caution, because there is nothing more shocking than that injustice should be done on the basis of a legal presumption when justice can be done on the basis of fact. That is the first thing." 52. We do also feel that the first concern of any court must certainly be to avoid injustice being done on the basis of a legal presumption when justice can be done on the basis of fact. No court should consider itself a prisoner to the language of a statutory provision or precedents of a bygone era when interpretation consistent with the current legally cognizable inputs and realities can help the court to render justice, to the satisfaction of the judicial conscience. We are hence tempted not to consider ourselves prisoners to the interpretation of Section 112 which was accepted in the yester years and feel persuaded to understand the expression "access" in a more meaningful, effective, vibrant and contextually relevant manner to enable the courts to do justice. 53. The presumption under Section 112 of the Evidence Act must certainly be shivering in its shoes. With the advent of science and technology when biological paternity can be ascertained by authentic scientific data, it would be idle to presume paternity which is contrary to the facts proved. It is of course for the legislature to consider whether the presumption under Section 112 ought to be changed to the "may presume' or "shall presume' variety, rather than permit the same to be continued as a conclusive presumption under Section 4 of the Evidence Act. But it is not necessary for the courts / interpretors to wait till the day that the legislature in a vast country like India intervenes to modify, alter and amend the statutory provision. The interpreter has enough elbow room within the law to do justice. It is hence that we think that a realistic understanding of the expression "access" would help courts to dispense better quality justice. Access, we agree, must be reckoned as the possibility / opportunity of the sperm to access the ovum and not merely physical proximity of the spouses or their mere opportunity to have sexual intercourse. Such an interpretation might have been sufficient to do justice in the bygone era. But in the present day of scientific and technological advancement, access can be understood more specifically to mean access of the sperm to the ovum. If such access is contra indicated conclusively by the DNA test, that can certainly be reckoned as evidence of non access which will help the husband to walk out of the Padmavyuha of Section 112 through the only exit door of non access recognised under Section 112. Not to understand Section 112 in that dynamic manner would, according to us, be certainly an anachronism. Interpretation has to keep pace with modern scientific and technological advancement and we do, in these circumstances, feel that the scope of the expression "access" in Section 112 can, in the present day context, be further realistically limited. "Access" in Section 112 of the Evidence Act can hereafter be safely understood as the possibility of access of the sperm of the man to the ovum of the woman and DNA test result which shows authentically that the sperm of the man did not actually access the ovum of the woman can be admitted as evidence of non access permitted under Section 112. 54. We have already taken the view that Section 112 is inapplicable and cannot be called in aid when the precise question to be decided is the validity of the marriage challenged on the ground that the wife was pregnant through another on the date of marriage. In that view of the matter, it is unnecessary to enter any specific findings on the subsequent questions of law raised. But we feel compellingly persuaded to opine that even if Section 112 were held to be applicable, the following conclusions are perfectly possible now. (i) It is possible to hold that Section 112 deals only with the presumption of legitimacy and not paternity. The concept of legitimacy need not and does not invariably in all cases include the concept of paternity. There may still be areas within the concept where there is no overlapping between the two concepts. In the interest of welfare of the child, it is perfectly permissible to burden a nonbiological father with obligations arising from legitimacy of a child born during his valid matrimony with the mother of the child. In that event the child's interest - his maintenance, upkeep and inheritance, can be protected by such a presumption. It is not necessary to include within the presumption of legitimacy the presumption of paternity invariably in all cases. (ii) As authentic and scientific evidence of the precise date/period when the child was begotten (i.e., the gestational age of the foetus) is forensically possible now, access/non-access as on such date/period has to be specifically ascertained by courts before choosing to draw the conclusive presumption under Section 112 of the Evidence Act. (iii) The expression "access" in Section 112 of the Evidence Act in the modern era of scientific and technological development is not to be construed merely as physical proximity or the possibility of sexual intercourse between the spouses. It is to be reckoned more appropriately and specifically as the possibility of access of the sperm of the man to the ovum of the woman. In that view of the matter, the result of a valid D.N.A test would be admissible to authentically rule out (or confirm) access under Section 112 of the Evidence Act. Such an interpretation will be more consistent with the times and will help the courts not to squander available and acceptable evidence of DNA test in a controversy regarding disputed paternity. (iv) Such an understanding of Section 112 of the Evidence Act will help to make the presumption thereunder to be constitutionally valid and make the law fair, just and reasonable. Such an approach would help to avoid the consequence of the law being arbitrary capricious, fanciful and oppressive. The vice of unconstitutionality under Articles 14 and 21 can certainly be attempted to be avoided by adopting such an interpretation. Such an interpretation will help the courts to do justice on the basis of facts and not perpetrate injustice on the basis of legal presumption. 55. We shall now proceed to consider the factual controversies in the present case and attempt to resolve them primarily in the light of the conclusions of law enumerated in paragraph 38 above. Betrothal took place on 05-05-2003. Marriage took place on 17-05-2003. The child was born on 06-01-2004. The expert evidence available clearly suggests that the child was begotten prior to 17-05-2003, ie. the date of marriage. That is certainly a possible conclusion. That to us is the more acceptable conclusion on facts also. We have considered the oral and documentary evidence including the evidence of experts under Section 45 of the Evidence Act. The foetus was 61 days of gestational age on 26-06-2003. That takes us back to 27-04-2003. To that a maximum of 14 days have to be added. To that provision is made for possible inexactitude in computation. Even after providing for all that it is opined by PW 2 that sexual intercourse must have taken place prior to 17-05-2003 (i.e., the date of the marriage) - at any rate, prior 11-05-2003. PW 4 another expert in Gynaecology also certified that the child must have been conceived prior to 17-05-2003. PW5 who had attended on the respondent during the initial days of pregnancy also asserted that the child must have been conceived before 08-05-2003, at any rate, prior to 10-05-2003. The opinion of RW 2 also confirms that fertilisation must have taken place on 11-05-2003. To this he adds that 7 days either side can be included to make up the error in ascertainment of the gestational age by USG. That opinion is not shown to be authentic. When considered in the light of Exts. X1 and X2 we prefer to accept the opinion of PWs. 2, 4 and 5 over the opinion of RW 2. We conclude that the child must have been begotten/conceived prior to 17-05-2003 during which period there was no possibility admittedly of conception through the appellant. The DNA test results confirm that the appellant is not the biological father of the child born. The presumption under Section 112 of the Evidence Act has already been held to be not available in favour of the respondent to help the court for resolving the controversy in this case. The validity of the marriage is in question. To resolve that controversy as we have already held, Section 112 cannot be called in aid. The question has to be decided without the aid of the presumption under Section 112 of the Evidence Act. Not only the evidence of non access, any other admissible and acceptable data can be made use of - including DNA test results, by the adjudicator to ascertain whether the appellant is responsible for the pregnancy. 56. We have authentic data of the DNA test. Exts. X1 and X2 do both indicate that the appellant is not the biological father of the child born to the respondent. The court had sent the parties for such an expert examination. Ext. X1 turned out to be against the respondent and at the instance of the respondent this Court had directed that a further test be conducted. Ext. X2 also confirms that the appellant is not the biological father of the child born. In the absence of the presumption under Section 112 of the Evidence Act there is nothing to suggest the responsibility of the appellant for the conception and pregnancy. Exts. X1 and X2 must in the circumstances clinch the issue. There is no contention or possibility of conception of the pregnancy after the respondent's marriage with the appellant on account of physical relationship with any other. That again confirms that the pregnancy/conception must have been prior to the date of marriage. There is no contention that the marriage was valid and the extra marital sexual relationship after marriage may/could have caused the pregnancy. Such a weird possibility can be safely ruled out. We do, in these circumstances, take the view that the respondent was pregnant on the date of the marriage and that the appellant was not responsible for such pregnancy. The appellant, we hold on the basis of Exts. X1 and X2, is not the biological father of the child so begotten. His consent for marriage is, we hold, vitiated on the ground of fraud. The marriage deserves to be declared null and void. 57. Even assuming that Section 112 of the Evidence Act is applicable, the available evidence indicates that the fertilisation was prior to the date of marriage. Exts. X1 and X2 further help this Court to conclude that there was non access between the spouses on the date when the fertilisation of the ovum took place. This is indicated conclusively by the DNA test reports which show that the appellant is not the biological father of the child. 58. The argument that the conduct of the wife must suggest convincingly that she was not pregnant through any other on the date of marriage cannot be accepted. The mere fact that she had submitted herself to DNA test initially and had insisted to get the DNA test repeated are not, according to us, sufficient to wish away the result of such DNA tests. May be, the respondent was unaware of the conclusiveness of the test and may have offered to get such test conducted and repeated in the hope that such test results would not go conclusively against her. Even otherwise she may have been obliged to present a picture of injured innocence and offer herself for the test in an obvious bid to highlight the picture of injured innocence. This circumstance, strenuously canvassed, is not sufficient for us to ignore the DNA test results. 59. We do, in these circumstances, come to the conclusion that the impugned order warrants interference. We are convinced that the respondent was pregnant on the date of her marriage with the appellant and that the appellant was not responsible for such pregnancy. The consent of the appellant for the marriage is thus vitiated by fraud, he having been kept in the dark about such pregnancy and it being evident beyond the pale of controversy that he would not have consented to such marriage if he had knowledge of such pregnancy. We are satisfied that this appeal deserves to be allowed and a decree for declaration of nullity under Section 19 deserves to be granted. 60. In the result: a) This appeal is allowed; b) The impugned order is set aside; c) A decree of nullity is granted declaring the marriage between the appellant and the respondent solemnised on 17-05-2003 at St. Mary's Ferona Church, Maruthonkara, to be null and void; d) The parties are directed to suffer their respective cost.Mat. Appeal No.31 of 2010: 1. This appeal is directed against an order passed by the family Court directing payment of maintenance to the claimants/respondents - allegedly the wife and child of the appellant. 2. When this matter came up for hearing, both sides submitted that the decision in this appeal will have to follow the decision in Mat. Appeal No.75 of 2008. That appeal is disposed of by us as per the above judgment. We have come to the conclusion that the marriage between the appellant and the respondent is null and void and have declared so. We have taken the view that Section 112 of the Evidence Act is not available for the 2nd respondent/ the child of the 1st respondent. The respondents/claimants are not hence the legally wedded wife or legitimate or illegitimate child of the appellant. They are hence not entitled to maintenance. 3. It follows that as agreed by the parties, following the decision in Mat. Appeal No.75 of 2008, this appeal is also only to be allowed. 4. In the result: a) This appeal is allowed; b) The impugned order is set aside; c) Parties are directed to suffer their respective costs. |
Mat.A. No. 672 of 2011 - Jayasree Vs. Vivekanandan, (2012) 244 KLR 307
(2012) 244 KLR 307 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933 Mat.Appeal.No. 672 of 2011 (B ) -------------------------------------------- OP.46/2009 of FAMILY COURT, PALAKKAD APPELLANT(S)/RESPONDENT: ------------------------------------------ JAYASREE, AGED 31 YEARS, D/O. SREEDHARAN NAIR, NANDANAM, MANGALAM LAKKIDI, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S):PETITIONER: ------------------------------------------- VIVEKANANDAN, AGED 40 YEARS, S/O. LATE SANKARAN NAIR, IRUPPAKUZHI HOUSE, KARUMALA CHELAKKARA, THALAPPILLI TALUK THRISSUR DISTRICT-680586. BY ADV. SRI.K.B.ARUNKUMAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- Mat. Appeal No.672 of 2011-B ----------------------------------------- Dated, this the 9th day of March, 2012 Head Note:- Code of Civil Procedure, 1908 - Order 6 Rule 16 - strike off the defence - inherent power - distinction between - In the case of striking of the defence under Order 6 Rule 16 the court has to pose a question as to whether the pleadings are scandalous, frivolous, vexatious or whether they tend to embarrass or delay the fair trial of the suit. Further more, the court can strike off the defence if the pleadings constitute an abuse of process of court. Code of Civil Procedure, 1908 - Order 6 Rule 16 - strike off the defence - nature of the pleadings - The most important feature of litigation in a system of courts is the right available for every party to establish his case which is done by settling pleadings. It is on pleadings that parties go to trial after settling of issues. Therefore, the right to plead a case is a very important step in the right to establish a party's case. It is only in the exceptional circumstances that the court would undertake the exercise of striking off pleadings. Code of Civil Procedure, 1908 - Order 6 Rule 16 - strike off the defence - inherent power - Contended that since the petitioner invoked Order 6 Rule 16 the court cannot go beyond and invoke its inherent power. Held, The mere fact that a power which exists is not cited or cited wrongly, cannot avail a litigant to contend that exercise of power is bad for the reason that the source of power is either wrongly cited or not stated. In the application only cited Order 6 Rule 16 cannot stand in the way of the court invoking its inherent powers. J U D G M E N T K.M.Joseph, J. Appellant is the respondent in O.P.46/2009 on the file of the Family Court, Palakkad. The petition was filed before the Family Court by the respondent who is the husband of the appellant seeking custody of two children. The case of the respondent/husband in the OP is as follows inter alia. Respondent and appellant are husband and wife. Their marriage was on 26.1.1997. Within three months from the date of marriage the respondent left India to Gulf countries for continuing his job. The first child was born to them on 23.6.1999. From his hard earned money he purchased a plot for constructing a house in the year 2000. On 31.8.2002 the second son was born. During 2000-2003 the respondent constructed a house in the plot purchased spending about Rs.9 lakhs. Since the respondent was working abroad, minors were under the custody and care of the appellant. There was a tumour in the leg of the elder son and treatment was made. The entire expenses claimed by the appellant for treatment ie about Rs.9 lakhs was sent by the respondent to the appellant. The respondent also bought one innova, one Scropio, one Ambassadar car and an authorikshaw thinking that it will be a good investment and further to provide better facility to the wife and children. One Mr. Santhosh was a driver of one of the vehicles. The appellant's approach towards the respondent started changing when she developed unreasonable intimacy with the driver and later on that became more strong and the money and the vehicles of the respondent is shared by Mr. Santhosh. On verifying the account the respondent found that the amount claimed for treatment of the minor is misused by the appellant by utilizing the same for the whims and fancies of Santhosh. The RC of the innova car purchased in the name of the appellant is transferred in the name of Santhosh. Appellant is not interested in the welfare of the children. The appellant filed counter affidavit contending inter alia as follows: The parents of the appellant also spent money for the purchase of the plot and for construction of the house. It is not correct to say that the petitioner himself spent Rs. 9 lakhs for the construction of the house. The respondent has not spent a single paise for the treatment of the child. Appellant is constrained to spend huge amount for the treatment of the child. Appellant has no relationship with Santhosh other than a driver. No amount has been misused and no amount from the account of the petitioner has been spent for the whims and fancies of Santhosh. Appellant has not transferred the innova car in the name of Santhosh. Santhosh has fabricated some documents with the forged signature of the appellant and transferred the vehicle in his name. When the appellant came to know this she filed a petition before the CI of Police, Ottappalam and due to his interference the vehicle again transferred in the name of the respondent. The appellant is always giving utmost love and care to the minors. The respondent is a total drunkard and it will affect the bright future of the minors if their custody is handed over to the respondent. 2. During the pendency of the case one of the sons died. The parties are left with a 9 year old son. The Family Court has allowed the petition filed by the respondent/father and given permanent custody of the child. The Court made further arrangements which reads as follows. "In the result, petition allowed giving permanent custody of the child Amal Anand aged 9 years to the petitioner from first April 2012 onwards (if it is a holiday on the next working day). Respondent is directed to handover the permanent custody of the minor Amal Anand to the petitioner on the said day in the morning at 11 a.m, before this court. During the current year petitioner can have interim custody of the child on every first and last Saturdays from the morning and custody shall be returned on Sunday evening. Parties can decide the venue and exact time of taking and handing over of the custody of the child. Petitioner is also entitled to have interim custody of the child for half period during the coming Onam and Christmas vacations. The period can very well be decided in between the parties. From April 2012 onwards, the respondent herein is also entitled to have interim custody of the child for half period of the summer vacation, Onam vacation and X'mas vacation. She is also entitled to have interim custody of the child on every second Saturday from the morning and Sunday and also the last Saturday and Sunday and the custody can be handed over to the petitioner on the evening of the Sundays at the time and place convenient for both parties. It is open for both parties to apply for suitable modifications of the order on change of circumstances." 3. We heard the learned counsel for the appellant and learned counsel for the respondent. This is a case where the appellant had filed her objections. It appears that, the case was listed for trial. There were adjournments. The Family Court would state that when the case came up, I.A.599/2011 was filed by the respondent on 18.3.2011 seeking interim custody of the minor child for 15 days. The child was produced on 30.3.2011. The case was posted to 18.4.2011. The child was produced till 1.30 P.M on 18.4.2011. The child interacted with the father. Thereafter, the matter was posted to 28.4.2011. The child was produced for 2 hours. According to the appellant, the child was laid up due to fever on 6.5.2011. The appellant was directed to produce medical certificate or the child. The matter was adjourned to 7.5.2011. According to the appellant, the appellant was absent on 7.5.2011 while the respondent was present on 7.5.2011. On 9.5.2011 again the respondent was present. A medical certificate from a Government Homeo Practitioner was produced. Then the case was posted to 11.5.2011. The doctor apparently advised seven day's rest starting from 4.5.2011. The appellant was asked to produce the child on 11.5.2011. On 11.5.2011 the respondent was present. But, the appellant was absent and the child was also not produced and the matter was taken up for orders to 13.5.2011. It is noted in the order that, in fact, the counsel for the appellant submitted to take the petition for orders. On 13.5.2011 an order was passed directing the appellant to produce the child for giving short term custody of one week to the respondent/father and the respondent was also directed to hand over custody of the child to the appellant at 11 A.M on 23.5.2011. It appears that, the appellant did not produce the child. Thereupon, the respondent/husband filed I.A.1299/2011 under the Guardian and Wards Act for arresting the child and giving custody of the child. The said petition was allowed. It is noted by the court that the warrant was returned un-executed. In the meantime, the school re-opened and the warrant was recalled. Thereafter, the court noted that I.A.1298/2011 dated 18.5.2011 was filed under Order 6 Rule 16 of the Code of Civil Procedure to strike off the defence of the appellant since she has violated the order of the court. As per the order dated 8.6.2011 the court allowed the application and struck off the defence of the appellant. The court took note of the chief affidavit of the respondent and he was examined as Pw1. The extract of statement of account of State Bank of Travancore, Pathirippala branch in the name of the appellant was marked as Ext.A1. Ext.A2 is the statement of account of another account in the name of the respondent. After appreciating the evidence and obviously without looking the defence the court proceeded to find that the respondent was in the gulf and the children were looked after by the appellant/mother. The court relied on the evidence and found that the respondent/husband was looking after the wife and children and he has spent Rs.9 lakhs for the treatment of the elder child. The court referred to the evidence of the respondent that he has purchased some vehicles and one of the vehicles has been transferred in the name of one Santhosh who was a driver in one of the vehicles without his consent which would reveal that the allegation that misuse of amount is correct. The court notes the death of the elder child due to illness despite treatment given to the child on the basis of money given by the respondent/father. It is further noted that the attitude of the appellant in showing reluctance in giving short term custody cannot be tolerated. It is stated that the court notes the grievance of the respondent that the appellant is trying to take the child along with the driver Santhosh. The court also noted as follows: The petitioner also sworn in about the intimacy developed between the respondent and driver Santhosh. The attitude of the respondent also shows that she is not a law abiding citizen. Interest of the child will not be protected if custody of the child is permanently given to such persons. 4. This is a case where admittedly the defence of the appellant has been struck off and it is after appreciating evidence of the respondent inter alia as already stated the court has proceeded to pass an order giving permanent custody of the surviving son after the tragic death of the elder son to the respondent. Learned counsel for the appellant would submit that the court below by cryptic one line order struck off the defence of the appellant. Learned counsel would attempt to find fault with the court for resorting to the provisions of Order 6 Rule 16. He places reliance on three decisions of the Apex Court. They are Iqbal v. His Holiness Dr. Syedna Mohd.Burhanuddin Saheb, (2005) 13 SCC 759, Sathi Vijay Kumar v. Tota Singh, (2006) 13 SCC 353, Abdul Razak v. Mangesh Rajaram Wagle, (2010) 2 SCC 432. This is a ground which is taken in the memorandum of appeal also. He would further point out that, in fact, the court proceeds to provide in the judgment the reasons for dismissing the application under Order 6 Rule 16. He would submit that in regard to the remittance of money as is said to be proved by Exts.A1 and A2 the appellant has a case in the counter affidavit and it is denying the appellant opportunity to substantiate her case the defence was struck off. 5. The learned counsel for the respondent on the other hand would support the order. He would submit that this is a case where the respondent was working in the gulf. With the money earned he had purchased vehicles. He had also provided a driver. Amounts were being remitted for the treatment of the elder child. The case of the respondent is that the conduct of the appellant cannot be countenanced. More importantly, he would justify the order of the Family Court striking off the defence. He would further submit that there is power with the court to strike off the defence outside the four walls of Order 6 Rule 16 CPC, that is to say, the court can strike off the defence in exercise of the inherent power. 6. The first question to be considered is whether the court has acted illegally in striking off the defence by virtue of the order passed in the interlocutory application dated 8.6.2011. We would refer to Abdul Razak v. Mangesh Rajaram Wagle, (2010) 2 SCC 432. That is a case where the Court referred to the provisions of Order 6 Rule 16 CPC and discountenanced the striking off the defence. Order 6 Rule 16 CPC reads as follows: "16. Striking out pleadings.--The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-- (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court." The court proceeded to hold as follows: A reading of the plain language of the above reproduced provisions makes it clear that the court's power to strike out any pleading at any stage of the proceedings can be exercised in either of the three eventualities ie. where the pleadings are considered by the court unnecessary, scandalous, frivolous or vexatious; or where the court is satisfied that the pleadings tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise considered as an abuse of the court. 17. Normally, a court cannot direct or dictate the parties as to what should be their pleading and how they should prepare their pleadings. If the parties do not violate any statutory provision, they have the freedom to make appropriate averments and raise arguable issues. The court can strike off the pleadings only if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of the suit or the court is satisfied that suit is an abuse of the process of the court. Since striking off the pleadings has serious adverse impact on the rights of the party concerned, the power to do so has to be exercised with great care and circumspection." 7. On the same lines are the other judgments which is relied on by the appellant Iqbal v. His Holiness Dr. Syedna Mohd.Burhanuddin Saheb, (2005) 13 SCC 759 and Sathi Vijay Kumar v. Tota Singh, (2006) 13 SCC 353. We are of the view that the learned counsel for the appellant may not be justified in seeking to draw sustenance from the principle laid down by the Apex Court in the aforesaid decisions. The court has power to strike off defence under Order 6 Rule 16 CPC. The power which is declared in Order 6 Rule 16 CPC is intended to be exercised in certain specific circumstances. There can be quarrel with the proposition that if the power is sought to be exercised under Order 6 Rule 16 then the power is confined to the conditions which are referred to in Order 6 Rule 16. Unless any of the circumstances which are referred to in Order 6 Rule 16 are present the court cannot strike off the defence. The learned counsel for the appellant is correct in referring to the Supreme Court judgments for the said proposition. But, outside of Order 6 Rule 16 the court has inherent power to strike off defence. A court is meant to do justice, no doubt, within the confines of law and principles which are settled from time to time. A court is intended to be an effective adjudicator of disputes. If the court is to be an effective adjudicator of disputes it must inevitably be clothed with necessary power to deal with situations which may arise where the court must have power to strike off defence so that the people will continue to repose faith in the system and resort to lawful means which are provided by the courts. It is for the purpose of preserving its power and effectiveness that the courts have recognized inherent power to strike off defence outside Order 6 Rule 16. It is on the said lines a learned Single Judge of this Court (Varghese Kalliath, J.) has in Parukutty Amma v. Thankamma Amma, 1988 (1) KLT 883 proceeded to hold as follows: "5. The next question is, should such a power with the court include a power to strike off the defence in deserving cases for meeting the ends of justice. If the court feels that to meet the ends of justice such a course is necessary, namely, to strike off the defence, I am of the view that such a power inhers with the court from its very constitution as a court and that power is absolutely necessary in certain circumstances to meet the ends of justice. I make it clear that the question is not res integrata. This matter has been considered by other courts also. I shall cite two decisions. In the decision reported in Venkatacharyulu v. Yesobu, AIR 1932 Madras 263 the court held that: "that the striking off of the defence was within the jurisdiction of the Court in the exercise of its inherent powers under S.151 although it was not the only order which the Court could pass under the circumstances of the case". A similar view has been taken in a decision reported in East Indian Railway Company v. Jit Mal, AIR 1925 All.280. Kukerji, J said: "Where payment of costs is made a condition precedent of adjournment granted to the defendants it is open to the Court to strike off the defence and proceed ex parte, when the costs are not paid as directed." 6. I have no doubt that in cases where a party who deliberately disobeys the orders of the court has to incur the liability of his defence struck off by the court. This is essential because if this power is not acceded to the court, it will create great difficulty for the court to control the proceedings of the court and to obtain the co-operation of the parties." 8. We may also refer to the judgment of another learned Singe Judge of this Court in Mangalam v. Velayudhan Asari, 1992 (2) KLT 553 where Paripoornan,J. (as his Lordship then was ) has held as follows. "To hold that the levying of execution is the only remedy for enforcement of an order made under S.24 of the Hindu Marriage Act may result in making such order wholly nugatory and ineffective. Even in the absence of a provision in the Hindu Marriage Act for striking off the defence in case one of the parties to the proceedings willfully refuses to comply with the order of the court, there is inherent power in the court to pass such orders as are necessary for the ends of justice or to prevent the abuse of the process of the court. S.151 of the Code of Civil Procedure saves the inherent powers of the court and, in exercise of that power, the court can strike off the defence in deserving cases for meeting the ends of justice. The court below had inherent jurisdiction under S.151 of the Code of Civil Procedure, to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the court. In giving effect to its order, the court below would have been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act." 9. We must bear in mind the distinction between the inherent power to strike off the defence and the power under Order 6 Rule 16 CPC to strike off the defence. In the case of striking of the defence under Order 6 Rule 16 the court has to pose a question as to whether the pleadings are scandalous, frivolous, vexatious or whether they tend to embarrass or delay the fair trial of the suit. Further more, the court can strike off the defence if it (the pleadings) constitute an abuse of process of court. Necessarily, the distinction between striking off defence under Order 6 Rule 16 and in exercise of the inherent power lies in this. When the court proceeds to exercise under Order 6 Rule 16 the principle which governs the court is whether the pleading is of such a nature as to attract the vice which is contained in the provisions. Therefore, the focus is on the nature of the pleadings. The most important feature of litigation in a system of courts is the right available for every party to establish his case which is done by settling pleadings. It is on pleadings that parties go to trial after settling of issues. Therefore, the right to plead a case is a very important step in the right to establish a party's case. It is for that reason that the court would jealously guard the right to set up pleadings. It is only in the exceptional circumstances that the court would undertake the exercise of striking off pleadings which are objectionable with reference to the criteria laid down in Order 6 Rule 16 CPC. That is a far cry from a case where the court is invited to exercise its inherent power for the purpose of attaining justice. A party may be found to have willfully flouted its orders. In Mangalam v. Velayudhan Asari, 1992 (2) KLT 553, maintenance at the rate of Rs.200/- per month was not paid for several months besides litigation expenses. This warranted invocation of inherent power. It is a threat held out to unscrupulous litigants who do not respect the Majesty of the court, that they will do so at the peril of their not able to establish their case. Therefore, the considerations which weigh with the court in a petition under Order 6 Rule 16 CPC and in a case of inherent power are completely different and that is the reason we reject the contention of the learned counsel for the appellant that the order passed by the court in this case cannot be supported for the sole reason that it was not warranted under Order 6 Rule 16. 10. The further question to be considered is whether the order cannot be sustained for the reason that the respondent had actually invoked Order 6 Rule 16. Learned counsel for the appellant would contend that since the petitioner invoked Order 6 Rule 16 the court cannot go beyond Order 6 Rule 16 and invoke its inherent power. The question to be considered is whether there is total want of power or there exists power. The mere fact that a power which exists is not cited or cited wrongly, cannot avail a litigant to contend that exercise of power is bad for the reason that the source of power is either wrongly cited or not stated. We are of the view that the mere fact that the respondent in the application only cited Order 6 Rule 16 cannot stand in the way of the court invoking its inherent powers provided inherent powers were otherwise available to it. 11. Learned counsel for the appellant would however later submit that he finds that his submission that the court has dismissed the application by a cryptic order is not correct. He submits that actually the court had indeed passed a considered order and what is more giving reasons including reference to the judgment of the learned Single Judge in Mangalam v. Velayudhan Asari, 1992 (2) KLT 553. 12. We went through the order. In the order the Family Court, in fact, after referring to the petition and the counter affidavit finds that the appellant has not produced any document of proof that the child was undergoing treatment in a Government hospital. The Family Court refers to the certificate caused to be produced on 7.5.2011 and that direction to produce the child on 11.5.2011 was after 7 day's rest advised by the Homeo Doctor. But, it is further noted that the child was not produced on 11.5.2011. It is also stated thereafter that there is no medical certificate or any document produced by the appellant to prove that the child is still under treatment and it was because of the same order was passed directing the appellant to produce the child on 17.5.2011. In spite of the said order the appellant did not produce the child and hence summer vacation was already over and the respondent was prevented from getting custody of the child. It is found that the act of the appellant is clearly an abuse of the process of court. Thereafter, the court refers to its inherent powers and that the appellant openly disobeyed the order of the court without producing the child as directed by the court and it is found to be a fit case for striking off the defence. 13. Therefore, there is no merit in the complaint of the appellant that the court has given reasons for passing an unreasoned order in the judgment. In fact, the Family Court has given reasons for allowing the application to strike off the defence in the order by which the defence was struck off. 14. Learned counsel for the appellant would submit that, even then this is a case where the defence was struck off for non-compliance with the order to produce the child on a single day. He also points out that this is a case where the appellant was co-operating in giving custody of the child to the respondent/father on earlier occasions. 15. As far as the decision in Parukutty Amma v. Thankamma Amma, 1988 (1) KLT 883 is concerned, the learned counsel for the appellant would point out that, it turned on the facts presented before the learned Judge. Therein a suit injunction was laid. The court, initially passed an order directing the defendant to give her thumb impression. That was allowed. However, the impression which was given was found to be blurred by the expert. The plaintiff moved the court again to direct the defendant to give her thumb impression. The application was allowed. There was an application to review which was dismissed. The defendant was asked to appear and notice was issued. She did not appear. Her husband filed an affidavit stating that she is unable to appear on account of illness. The court did not apparently accept the affidavit of the husband. In the circumstances the plaintiff filed application stating that the first respondent has deliberately disobeyed the order of the court and he prayed for striking off defence. It is the said application which was allowed by the trial court. The learned Single Judge proceeded thereafter to consider the case law. The learned Single Judge found that what had happened in the case was amply justifying the court to resort to the power of striking off the defence. However, we notice that the court was inclined to grant one more opportunity to the first defendant to comply with the order of the court and the court ordered that if the first defendant satisfies the court that she was really ill and that she cannot appear before the court the court can take appropriate steps in the matter. Further, the court also directed that if the first appellant was in a position to appear and if she refused again to appear the order already passed will take effect. 16. As far as Mangalam v. Velayudhan Asari, 1992 (2) KLT 553, is concerned, the learned Single Judge was dealing with a case where the respondents in a proceeding under Section 24 of the Hindu Marriage Act had been directed to pay maintenance and litigation expenses. The respondent husband was bound to pay Rs.200/- per month towards maintenance and Rs.500/- towards litigation expenses. It was also a case where Rs.5,200/-was outstanding as balance and the amount was not paid in spite of long lapse of time. The learned Single Judge found that the respondent had flouted the orders of court and failed to pay maintenance and expenses due to the revision petitioner without reasonable cause. 17. This is a case where the defence has been struck off by order passed in the interlocutory application. The order striking off the defence has a tremendous impact on the fate of litigation and the rights of the parties. No doubt, we have repelled the argument that there is no power but the existence of power and legality/propriety of exercise are two different concepts. In this case, as already noted, the matter relates to the custody of the child. The child was aged 9 years. There is a case for the appellant that the child was ill and there was a medical certificate. In fact, the first medical certificate appears to have been acted upon and that is why excluding those days the appellant was directed to produce the child on 11.5.2011. No doubt, on 11.5.2011 the appellant was not present, the child was not produced and the case was taken for orders to 13.5.2011 and on 13.5.2011 there was an order to give short term custody for one week and it was on 18.5.2011 I.A.1298/2011 was filed to strike off the defence. The order was passed on 8.6.2011 as already noted striking off the defence. Therefore, we take it that it must be the events prior to 18.5.2011 which is the date of application seeking striking off defence which must have weighed with the court. 18. We would think that this is a case where the matter must be viewed in the context of the totality of facts. It would appear that, the appellant had been complying with the earlier orders for producing the child though for few hours and the father was interacting with the child also. The court itself accepted apparently the medical certificate issued by the Homeo Doctor which was produced on 7.5.2011 and it was accordingly that the child was directed to be produced on 11.5.2011. On 11.5.2011 admittedly the appellant did not produce the child. Thereafter, the matter was taken up for orders on the petition filed by the respondent for giving 15 days' custody. This the court did on 13.5.2011. On 13.5.2011 the court directed the appellant to give custody for one week from 17.5.2011 and the respondent/father was to hand back custody of the child on 23.5.2011. The said order was violated. 19. Learned counsel for the appellant would point out that there is a subsequent medical certificate. It covers the entire period. From the records we find that the appellant has produced another certificate dated 21.5.2011 issued by the very same Homeo doctor. Therein, it is stated by the doctor that the child is having Spasmodic Bronchities and that he considers the period of absence from duty of 10 days with effect from 10.5.2011 to 21.5.2011 is absolutely necessary for the restoration of his health. This certificate, it appears, is produced under a memo of the Advocate dated 7.6.2011. This certificate is not referred to by the Family Court. Apparently, even there appellant cannot blame the Family Court as correctly pointed out by the learned counsel for the respondent the Family Court had taken up the interlocutory application for striking off the defence for orders on 6.6.2011. Therefore, actually the appellant should have brought the certificate to the notice of the Family Court and sought re- hearing of the matter which the appellant did not do. 20. In view of the issues involved, namely, the custody of the child the fact that the appellant has filed counter affidavit setting up a specific case in relation to the use of the funds and other contentions we feel that an opportunity should be given. There is a medical certificate produced. May be if the said certificate dated 21.5.2011 as aforesaid had been brought to the notice of the Family Court, the Family Court may not have passed the order. We would think that in the circumstances of this case we ought to give an opportunity by interfering with the order. If the medical certificate is to be acted upon then clearly the child was not well on 11.5.2011 and 17.5.2011. Therefore in the circumstances of this case we feel that the matter should be considered with the pleadings of the appellant. Since apparently the judgment is essentially premised on the pleadings being struck off, we must necessarily set aside the judgment. We accordingly overturn the order allowing striking off the defence. The judgment also will stand set aside subject to the following conditions. (i). The appellant will pay Rs.6,000/- as costs by depositing the amount before this Court within a period of ten days from today. Upon deposit, it is open to the learned counsel for the respondent to withdraw it. (ii). We further direct that, the respondent can have custody of the child on the first and last Saturdays from the morning and custody shall be returned on Sunday evening. The respondent will take custody of the child through Family Court and for that purpose the appellant will bring the child to the Family Court, Palakkad at 10.30 A.M. The handing over of custody when the child is handed back will be done by the respondent/father at 5 P.M. at the house of the appellant. (iii). While the appellant can keep custody of the child during the first half of the summer vacation till 10.4.2012 the appellant will hand over the custody of the child to the respondent father on 10.4.2012 at 10 A.M and the respondent can keep custody till 1.5.2012. Taking and giving back custody will be done by the same procedure as we have indicated earlier. The parties will appear before the Family Court, Palakkad on 30.3.2012. The Family Court will finally dispose of the matter with opportunity to the parties by 30.6.2012. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS |
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