Kerala High Court
A.P.Reeja vs D.M.Saiju on 31 May, 2017
Bench: A.M.Shaffique, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939
Mat.Appeal.No. 682 of 2009 ( )
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OP 660/2008 of FAMILY COURT, KOZHIKODE
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APPELLANT/RESPONDENT :
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A.P.REEJA, AGED 31 YEARS,
D/O.A.P.UNNIKRISHNAN, REEJA NIVAS,
CHALIVAYAL PARAMB, KACHERI AMSOM DESOM,
CHAKKORATHU KULAM, P.O. NADAKKAVU,
KOZHIKODE-11
BY ADV. SRI.M.G.KARTHIKEYAN
RESPONDENT/PETITIONER :
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D.M.SAIJU
S/O. D.M.SREEDHARAN, RAG DIRS 25/1964,
VALAYANAD AMSOM DESOM, KINASSERY ,P.O.
POKKUNNU, KOZHIKODE-13.
BY ADV. SRI.P.V.KUNHIKRISHNAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY
HEARD ON 10/2/2017, ALONG WITH RPFC. 385/2009,
MA. 497/2010, THE COURT ON 31-05-2017 DELIVERED
THE FOLLOWING:
bp
A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.
===========================
Mat.Appeal Nos.682/2009, 497/2010
&
RP(FC) No.385 of 2009
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Dated this, the 31st day of May, 2017
J U D G M E N T
Shaffique, J.
Mat Appeal No.682/2009 has been filed by the respondent in OP No. 660/2008. Appellant challenges order dated 25/6/2009 by which the Family Court granted divorce in a petition filed by the respondent herein. RP(FC) No.385/2009 has been filed by the petitioners in MC No.327/2008. First petitioner is the wife and second petitioner is the minor daughter. MC had been filed seeking maintenance and the Family Court allowed the maintenance at the rate of `1,250/- for the wife and `750/- per month for the minor child from the date of petition that is 30/7/2008. Mat.Appeal No.497/10 has been filed by the wife challenging the order passed by the Family Court in OP No.66/2009 by which a claim for return of gold ornaments has Mat.Appeal No.682/2009 & conn.cases -:2:- been dismissed. Since common issues arise for consideration in the above appeals, they are heard and decided together.
2. The facts arising in these cases in brief are as under:-
The petitioner and respondent in OP No. 660/2008 got married on 13/5/2001. He alleged that on the first day of marriage, she complained that she did not know that her husband and family were living in poverty and she was not satisfied with the facilities in the matrimonial home. She did not behave properly to his parents and they were abused. A girl child was born to them on 17/5/2002 and even after delivery, she had behaved in a cruel manner to the petitioner and his parents. She did not even permit the petitioner and his parents to fondle the child. He contends that after a few months of marriage itself, respondent's parents wanted him to go and reside with them which he had denied. It is alleged that during August, 2004, respondent's brother had come to their house and informed that respondent had obtained a good job nearby their residence and it will be easy for her to attend the job if they resided at her house. Without the consent and approval of the petitioner and his parents, she had gone to her parental home along with all her Mat.Appeal No.682/2009 & conn.cases -:3:- articles. Though the petitioner and his father had gone on several occassions requesting her to come back, she did not accede. Though there was attempt to mediate during February, 2005, the same also failed and the petitioner and his relatives were humiliated. The matter was taken up before counselling, but nothing happened. On 11/4/2005, when the petitioner, his father and a relative had gone to the respondent's house to bring her back, she informed that she was not interested in the marriage and they were humiliated. Further, petitioner was manhandled by her relatives. It is contended that for the last 4 years she was not willing to come and reside at her matrimonial home and therefore divorce is sought for under Section 13(1)(ia) and (ib) of the Hindu Marriage Act on the ground of cruelty and desertion. In the objection filed, respondent denied the above allegations. According to her, stating false reasons, she was being scolded and abused by the petitioner and his parents. She was not taken to any of her relatives house or for any function and when enquired they would inform them that she was not keeping well. However, she was tolerating all the misbehaviour towards her and even while she was pregnant, she was mentally abused. Later Mat.Appeal No.682/2009 & conn.cases -:4:- there was a demand for 40 sovereigns of gold ornaments and when it was noticed that it was not possible, she was asked to get her share from her family. When the demand became intolerable, she had to come to her parental house with her child on 29/8/2004. It is further contended that after 29/8/2004, several attempts were made for mediation. But on account of the attitude of the petitioner, nothing happened. Respondent therefore prayed for dismissal of the petition.
3. In MC No.327/2008 filed by the wife and minor child, she contended that she had to leave the matrimonial home on account of the illtreatment by the respondent and his parents and she was unable to tolerate the same. Thereafter, no amount was paid to her and the child as maintenance or she or her child was not taken care of. It is alleged that the husband was working as a Medical Representative and LIC agent and he had got some landed properties also. Alleging that his income would be `15,000/- from the job of medical representative and `12,000/- from the work as LIC agent, she claimed maintenance at `3,000/- each per month for both the parties. Respondent/husband denied the above contentions. According to him, she had gone back to Mat.Appeal No.682/2009 & conn.cases -:5:- the parental home on her own and therefore she is not entitled to claim any maintenance. He further contended that he is working as an LIC agent but he is not a medical representative. He also denied having received so much salary as contended. Therefore, according to him, she is not entitled to claim maintenance at the rate of `3,000/- each. However, he contends that she is working at a Career Guidance Academy as Computer Instructor at YMCA Road, Kozhikode and she is receiving a salary of `12,500/- per month. In the said circumstances it was contended that she was not entitled for any maintenance as claimed.
4. OP No.66/2009 is filed by the wife on the allegation that at the time of marriage, her parents had given her 60 sovereigns of gold ornaments. After the first week of marriage, the first respondent and his mother secured the gold ornaments and she was told that she had bought only 60 sovereigns and they were expecting more gold ornaments. They wanted her to secure 40 sovereigns more gold from her house for which she was illtreated. It is further alleged that on 29/8/2004 she had gone to her parental home. According to her, the respondents have taken all the gold ornaments from her and therefore she is entitled for Mat.Appeal No.682/2009 & conn.cases -:6:- return of the gold ornaments or its value. Respondent denied the above allegations. After having considered the matter, the Family Court dismissed the claim for gold ornaments. It is challenging the same that Mat.Appeal No. 497/2010 has been filed.
5. First we shall consider Mat.Appeal No. 682/2009 by which the Family Court had granted a decree for divorce. The main contention urged by the petitioner/husband was cruelty as well as desertion. Cruelty is alleged stating that she was not satisfied with the facilities at the matrimonial home and she started misbehaving with the petitioner and his parents. The wife's parents wanted the petitioner to live with them which the petitioner was not willing. On the guise that she obtained a job, she had left the matrimonial home along with the brother on 29/8/2004 and thereafter she did not return. Common evidence was taken in the case along with MC No.327/2008. Two witnesses were examined on the side of the petitioner and three on the side of the respondents. Petitioner relied upon Ext.A1 and respondent relied upon Exts.B1 to B3. On a consideration of the evidence, the Family Court came to the conclusion that the allegation of cruelty made by RW1 and the witnesses that PW1 and his family Mat.Appeal No.682/2009 & conn.cases -:7:- members were behaving in a cruel manner is not proved. The finding therefore is that when false allegations are made against PW1, it by itself amounts to cruelty. Further, it is opined that there was no intention on the part of both the parties to desert and therefore case of desertion has not been made out. Family Court further found that though the respondent had offered to go and live with PW1, there was no bonafides in the offer in so far as she had filed criminal cases against PW1 and his aged parents immediately after receiving a notice in OP No. 660/2008. She also filed MC demanding separate maintenance for herself and the child which also indicates that she had no intention to go and live with the petitioner. Taking into account the facts and circumstances of the case, the Family Court observed that the matrimonial relationship had been irretrievably broken and hence a decree for divorce can be granted.
6. PW1 is none other than the petitioner/husband. In his evidence, he had spoken on the basis of the allegations raised in the petition itself. In cross examination, he says that the family life was not happy enough and was not peaceful. He was categoric when he contends that she never permitted even his Mat.Appeal No.682/2009 & conn.cases -:8:- parents to fondle the child. The child was not even shown to his friends. A suggestion was put to him stating that he had illtreated her by demanding balance 40 sovereigns of gold and she had left the matrimonial home only on account of such abuses, which he denied. He further states that his monthly salary is only `3,000/- and the contrary statement is not correct. PW2 deposed that PW1 is an LIC agent. In cross examination, he says that he had gone to see the child after four months of delivery. He was shown the child but the respondent told him that she was not interested to show the child to members of petitioner's family. RW1 is the respondent. She had filed chief affidavit in terms with the objection. In cross examination she admits to have passed M.Com but denies having been employed in an establishment at Calicut. She further states that PW1 or his relatives had not demanded any dowry or amount. She had gone away from the matrimonial home on account of fear to her life. She also submits that child was taken care of by PW1's parents and the contrary is not correct. RW2 is a mediator, who submits that there is a chance for both the parties to reside together. RW3 is a relative of RW1. He is also a person who had entered into mediation. In cross Mat.Appeal No.682/2009 & conn.cases -:9:- examination, he says that the gold was with PW1's father and he had come to know about it during mediation. He further deposes that it was due to mental torture and since the gold was not returned that RW1 had gone back to her house.
7. Learned counsel for appellant would submit that sufficient evidence is not available to prove cruelty. It is contended that the Family Court was trying to find out a reason for granting divorce and a finding that the marriage had been irretrievably broken cannot be a reason to grant divorce. Unless there is proof of cruelty, the Family Court was not justified in granting a decree for divorce. On the other hand, learned counsel for the respondent supported the stand taken in the matter.
8. As already indicated, the Family Court after considering the evidence on record observed that there is no valid reason for the respondent to have separately resided with the petitioner. On receiving a notice in OP No.660/2008 itself, criminal complaint was filed against the petitioner and his parents which according to the Family Court amounts to cruelty. It was also found that the allegation of cruelty made by the respondent against the petitioner and his family members is not proved. Mat.Appeal No.682/2009 & conn.cases -:10:-
9. It is trite that in matrimonial matters, evidence is to be appreciated on the basis of preponderance of probabilities. This is an instance where petitioner alleges that the respondent was behaving in such a manner that it caused mental cruelty. She did not like the matrimonial home. She did not like the petitioner or his parents. She did not permit the child to be taken care of by the petitioner or his parents and ultimately when she obtained a job, she left the matrimonial home. In the chief affidavit, he refers to an incident when he had gone to her house for taking her back after the death of her father's brother. He had stated that on the said day, in the presence of his mother and relatives, her father had slapped him on his face. It is thereafter her brother had come and taken her back. After 29/8/2004, they did not reside together despite several attempts for mediation and reunion. This incident had been spoken to in the original petition itself. Respondent in her objection had denied the aforesaid fact. But in cross examination of PW1, nothing has been brought about to discredit the petitioner in this regard. From this evidence itself, it is rather clear that there was substantial dispute with the parties even at the relevant time and the very fact that he was Mat.Appeal No.682/2009 & conn.cases -:11:- slapped by his father-in-law in the presence of his mother and relatives itself amounts to cruelty. Further, she had left the matrimonial home on 29/8/2004 and thereafter she had not come back. On 6/9/2008 she had filed a complaint before the Chief Judicial Magistrate Court under Sections 406 and 498A alleging offences under the Indian Penal Code and on 29/7/2008, she filed MC No.327/2008. Apparently these cases are filed immediately after OP No.660/2008 has been filed, which was presented on 30/7/2008.
10. Further, the respondent had not explained under what circumstances she was living separately since 29/8/2004. Admittedly she left the matrimonial home on the said date and according to her on account of the ill treatment of the petitioner and his family members. The alleged ill treatment is not proved by any witnesses except the oral testimony of RW1. Mediations had taken place but she was not willing to go back to the matrimonial home. Taking into consideration the fact that the alleged illtreatment by the petitioner and her family members has not been proved, it can only be assumed that she had kept away from the matrimonial home on her own volition. If the alleged Mat.Appeal No.682/2009 & conn.cases -:12:- illtreatment by the petitioner and his family members were correct, the same would have been supported by other witnesses who only had hearsay information. Taking into consideration the overall factual circumstances and the manner in which the Family Court has considered the matter, we do not think it necessary to interfere with the decree for divorce.
11. Now coming to RP(FC) No.385/2009, the direction is only to pay an amount of `1,250/- to the wife and `750/- to the minor child. According to the respondents, the amount is far less. But in the absence of any evidence to prove the actual salary of the husband, it may not be possible for this Court to take a different view from what has already been decided by the Family Court. The maintenance awarded is reasonable and appropriate taking into consideration the evidence adduced in the case. We do not find any reason to interfere in the order impugned in RP (FC) No.385/09 arising from MC No.327/2008.
12. Now coming to Mat.Appeal No. 497/2010, this is a case filed by the wife for return of gold ornaments. Return of gold ornaments depends upon the nature of evidence that is adduced in the matter. In the petition filed, it is alleged that at the time of Mat.Appeal No.682/2009 & conn.cases -:13:- marriage, she was given 60 sovereigns of gold. One week after the marriage, the 1st respondent along with his mother had taken a list of ornaments which was weighed and found to be having 60 sovereigns. She was permitted to have 8 grams of gold bangle and the balance gold ornaments were kept by the 2nd respondent in their almirah. Further demand was made for 40 sovereigns of gold ornaments as well. When it was noticed that the balance 40 sovereigns could not be obtained, she was asked to demand for her share in the property. When it was found that that is not possible, they started to illtreat her and she left the matrimonial home on 29/8/2004 along with her child. The allegation is that out of 60 sovereigns, except 8 grams, balance were in the custody of respondents and they are liable to return the same and for the above purpose this petition is filed. The respondents in their objection had denied the above allegation. It is stated that the respondent had not demanded any dowry or gold as alleged. They have not even cared to enquire as to how many sovereigns she had. As per their information, she had 30 sovereigns of gold and respondents have not cared to verify the same. According to the respondents, she alone was keeping custody of the gold Mat.Appeal No.682/2009 & conn.cases -:14:- ornaments and she had taken it back when she has gone to her parental house. Evidence consisted of oral testimony of PWs1 to 3 and Exts.A1 to A4(a). RW1 was examined on the side of the respondents. In the chief affidavit filed by PW1, she relies upon Ext.A1 sale bill and Ext.A2 estimate of purchase of gold. She says that the balance gold was made by the goldsmith Sri.C.V.Manoj. Ext.A3 is produced to show the making of the gold and the expenditure for the same. She reiterates the fact that after one week of marriage, entire gold except 8 grams were entrusted to respondents. She also denies the fact that she was in custody of the gold and that she had taken it when she had gone back to her parental home on 29/8/2004. In fact, Exts.A1 to A3 were marked subject to proof. In the cross examination, she says that the respondents had forced her to give the ornaments to them and she found that it is not fair. She further deposes that she did not demand the gold ornaments when she went to her house on 29/8/2004. She further deposes that it was during counselling that she demanded the gold ornaments for the first time. In further cross examination she says that she had demanded the gold ornaments prior to 29/8/2004 several times but it was not Mat.Appeal No.682/2009 & conn.cases -:15:- given. That is the reason for not demanding the gold at the time when she left on 29/8/2004. At the time of counselling, she was convinced that she will not get back her gold ornaments. She further admits that before 14/8/2008, she did not take any steps for return of gold ornaments. The suggestion was that she herself was in possession of gold ornaments. She further deposes that it was during mediation talk in 2007 that the respondents have admitted that she was in possession of gold ornaments. In regard to Exts.A1 to A3, suggestion was that they were made only for the purpose of the case. Ext.A1 is a sales bill dated 4/4/2001 for purchasing 8 grams of bangle valuing `3,611/-. Ext.A2 is their purchase estimate where the value of gold ornaments having a weight of 57.680 grams is shown as `26,038/- and after discount, the value shown is `14251.46. Ext.A3 is a handwritten note of C.V.Manoj a goldsmith. Ext.A4 is a photograph which shows that the petitioner was wearing gold ornaments. PW2 is a person who had attended the marriage ceremony. He says that he had participated in the mediation. During the discussion, reference was made regarding the 60 sovereigns of gold and a suggestion was made that the entire 60 sovereigns of gold can be kept in a locker Mat.Appeal No.682/2009 & conn.cases -:16:- in the name of the petitioner and the 1st respondent. Though certain decisions were taken, on the next day, the 1st respondent had informed that he is not willing for the same. In cross examination, PW2 says that he does not know whether the petitioner's gold had been forcibly taken by the respondents. He does not know how many mediations had taken place, but he participated in the last meeting. The petitioner's father had invited him for the discussion as a friend. He further deposes that the 1st respondent during discussion had admitted that the gold was kept in their house. The discussion took place in the morning and it took 3 to 4 hours. Petitioner was ready to go and reside in the house of the respondents. Suggestion was to keep the gold in the joint locker. Decision was taken to keep the same in the locker since it was known that they will not return the gold. PW3 is Sri.Manoj C.V., who had given Ext.A3. According to him he was asked to make 50 sovereigns of gold and Ext.A3 had been issued by him. He says that he was given 10 gold coins and old gold ornaments and he had made gold sovereigns of 384 grams, which was in May, 2001. In cross examination he says that he does not remember when Ext.A3 was given. Normally after making the Mat.Appeal No.682/2009 & conn.cases -:17:- gold ornaments ordinary bill will be given. In this case other bills had been given to PW1. Ext.A3 was given prior to the case and he does not remember when Ext.A3 was given. RW1 is the first respondent. He had spoken in terms with the objections filed. In cross examination, he says that petitioner does not have any capacity to give 100 sovereigns. He had not verified as to how much sovereigns of gold his wife had. He admits Ext.A4 series photographs and he admits that she was having the ornaments as shown in the photos. He further denies the fact that he had verified the gold ornaments of his wife. He cannot say how much sovereigns she was having. According to him, he heard that she was having 30 sovereigns of gold and he had not taken the gold ornaments. The Family Court observed that no reliance can be placed on Exts.A1 to A3. Further, in the absence of any other evidence, it cannot be concluded that the petitioner was having 60 sovereigns of gold. Further, case being filed after 5 years of separation, the case set up by the petitioner is not believable. But it is relevant to notice that the dispute between the parties had arisen only when the respondent herein filed a case as OP No.660/2008. Prior to the said day, it seems that there were Mat.Appeal No.682/2009 & conn.cases -:18:- several discussion with the parties and PW2, a mediator had clearly indicated that one of the suggestion was that the gold ornaments belonging to the petitioner shall be kept in a locker in the joint names of the petitioner and 1st respondent. Ext.A4 series photographs clearly shows that she was having substantial gold ornaments at the time of marriage. Even according to the respondents, she had gold ornaments but in his evidence as RW1, 1st respondent says that he does not know whether it was 60 sovereigns, whereas he heard that it was around 30 sovereigns. Therefore, the fact that the petitioner had atleast 30 sovereigns of gold ornaments at the relevant time cannot be disputed. If evidence of PW3 is believed, the contention that she had 60 sovereigns is believable. But it seems that Ext.A3 was not given at the time of making the gold ornaments but it was given on a later occasion. On an overall consideration of the facts, it is rather clear that petitioner had substantial quantity of gold and she is very categoric in her submission that within one week of the marriage, the gold was weighed and taken and kept by respondents 1 and 2 in their almirah. This apparently is a possible view and there is nothing wrong in believing the Mat.Appeal No.682/2009 & conn.cases -:19:- petitioner. When a girl is given in marriage and she is given gold ornaments, normally the practice is that the ornaments are given to the parents for safe custody or it is kept in a locker facility. In the case on hand, neither parties have a case that they had a locker facility. Therefore, the gold is either kept by themselves or with the parents of the spouse. In so far as the petitioner's case is that the gold was entrusted to respondents 1 and 2 to be kept in safe custody and her evidence in that regard is not shaken in cross examination, it has to be believed that her gold ornaments were entrusted with respondents 1 and 2.
13. There is another reason to believe the petitioner. The respondent feigned absolute ignorance about the gold she had and the manner in which it was kept in safe custody. The 1st respondent does not have a case that the gold was kept in any locker facility nor does he have a case that it was kept in an almirah belonging to the couple. He makes a blanket denial with regard to the extent of gold ornaments petitioner had and also makes a statement that she herself was in custody of the gold ornaments. If she herself was in custody of the gold ornaments, apparently it has to be kept in an almirah or locker available at Mat.Appeal No.682/2009 & conn.cases -:20:- their residence and he too shall have access to the same. The 1st respondent do have a case that while she left the matrimonial home, she had taken away the gold ornaments. She could have taken the gold ornaments if it was in her custody. If it was in the custody of her in-laws and in their almirah, it may not be possible for her to take the same without their knowledge. Further, evidence of the mediator, PW2, clearly indicates about a suggestion about keeping the gold ornaments in a locker in the joint names of the parties which apparently indicates that the gold ornaments were very much available with the respondents.
14. In a matrimonial dispute, especially regarding return of gold ornaments and money, case has to be decided based on preponderance of probabilities. The question to be considered is whether the version set up by the petitioner is believable or not. True that in the case of divorce, the Family Court did not believe the case set up by the respondent regarding illtreatment by the petitioner. But in a case where there is demand for return of gold ornaments, an independent consideration has to be made based on the pleadings as well as evidence available on record. From A4 series of photographs, it is rather clear that the petitioner was Mat.Appeal No.682/2009 & conn.cases -:21:- having substantial quantity of gold ornaments and it might be not less than 50 sovereigns. Even according to the 1st respondent, he heard that she was having around 30 sovereigns. The very evasive manner in which the respondents have pleaded regarding the quantum of gold ornaments by itself gives a shadow of doubt regarding the version of the respondents. If a girl is married to a matrimonial home, it is a practice to know how much gold ornaments she was wearing at the time of marriage. Such matters are even discussed among the relatives and people even verifies the nature of ornaments she is having, atleast by the women folk. Therefore, it is not difficult to know the actual quantity of gold ornaments. The 2nd respondent is the father of the 1st respondent. The contention of the petitioner is that a week after the marriage 1st respondent and his mother took possession of the entire gold ornaments from her. If that is believed, necessarily, they have a duty to account for the gold. No specific case is put up regarding the quantum of gold or in regard to the manner in which it was kept in the matrimonial home and whether she had actually taken it from the matrimonial home. In the objection filed it is stated that the petitioner herself was keeping the gold ornaments in her Mat.Appeal No.682/2009 & conn.cases -:22:- custody and she had taken it when she had gone to her parental home. If she had actually taken the gold ornaments with her, there was no necessity for a mediation as spoken to by PW2. That there was a mediation is not disputed. The dispute is only with reference to the matters discussed during mediation. As already stated, when the respondents had not put up a definite case in regard to the gold ornaments and was only giving evasive replies, there is reason to hold that the version put up by the petitioner can be believed.
15. Taking into consideration the aforesaid facts, we are of the view that the Family Court was not justified in refusing to grant a decree for return of gold ornaments. In the light of what is stated above, petitioner is entitled for a decree for return of 59 sovereigns of gold ornaments valued @ `9,500/- per sovereign, which will come to `5,60,500/-. This amount shall carry interest @ 6% per annum from the date of petition till realisation.
Accordingly, the above cases are disposed of as under:-
(i) Mat.Appeal No. 682/2009 and RP(FC) No.385/2009 are dismissed.
Mat.Appeal No.682/2009 & conn.cases -:23:-
(ii) Mat.Appeal No. 497/2010 is allowed. The order in OP No.66/2009 is set aside and the following decree is passed:-
(a) That the respondents shall return to the petitioner 59 sovereigns of gold ornaments within 30 days from today.
(b) On failure to return the gold ornaments, the petitioner shall be entitled to recover from the respondents `5,60,500/-
(Rupees Five lakhs sixty thousand and five hundred only) with interest @ 6% per annum from the date of petition till realisation.
(iii) Parties shall suffer their own costs.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
K.RAMAKRISHNAN, JUDGE Rp30/6/2017 //True Copy// P.S to Judge