Kerala High Court
C. Mathew vs Kunjumol @ Kathreena on 23 October, 2019
Equivalent citations: AIRONLINE 2019 KER 618, 2020 AIR CC 392 (KER)
Author: T.V.Anilkumar
Bench: A.M.Shaffique, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941
Mat.Appeal.No.650 OF 2012
AGAINST THE JUDGMENT DATED 14-08-2012 IN O.P.(OS) NO.919/2010 OF
FAMILY COURT, ALAPPUZHA
APPELLANT/RESPONDENT:
C. MATHEW,
AGED 50, S/O. CHACKO, 127, CHRIS BAKERY, SIRUVANI
MAIN ROAD, PERUR, COIMBATORE - 641 010, FROM
ALAPPUZHA, PONNADU P.O., MANNANCHERRY.
BY ADV. SRI.K.V.SADANANDA PRABHU
RESPONDENT/ PETITIONER:
KUNJUMOL @ KATHREENA,
AGED 44, W/O. C. MATHEW, PARAPALLY, KAYALPURAM,
MANNANCHERY, ALAPPUZHA, NOW AT RAVEENDRA NIVAS, D.
NO. 9, C.G.V NAGAR, KARAPALAYAM P.O., PERUR MAIN
ROAD, COIMBATORE - 641 026.
BY ADV. SRI.NIREESH MATHEW
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14-10-2019, ALONG WITH Mat.Appeal.652/2012, THE COURT ON
23-10-2019 DELIVERED THE FOLLOWING:
M.A. No.650 & 652/2012
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941
Mat.Appeal.No.652 OF 2012
AGAINST THE JUDGMENT DATED 14-08-2012 IN O.P.NO.530/2009 OF
FAMILY COURT, ALAPPUZHA
APPELLANT/PETITIONER:
C.MATHEW,
AGED 50 YEARS, S/O.CHACKO, 2/23,CHRIS BAKERY,
SIRUVANI MAIN ROAD, KALAMPALAYAM,
COIMBATORE-641010, FROM ALAPPURATH HOUSE, PONNADU
P.O. MANNANCHERRY VILLAGE.
BY ADV. SRI.K.V.SADANANDA PRABHU
RESPONDENT/RESPONDENTS:
1 KUNJUMOL,
AGED 44,W/O. C MATHEW, REAVEENDRA NIVAS, D.NO.9,
C.G.V. NAGAR, KOMARAPALAYAM P.O.,SELVAPURAM,
COIMBATORE, 641026.
2 M.SATHAR,
AGED 51, D.NO.52,RUBY BAKERY, SELVAPURAM,
COIMBATORE, 641026.
3 AYSHATH,
AGED 43,W/O.M.SATHAR,D.NO.52,RUBY BAKERY,
SELVAPURAM, COIMBATORE-641026.
BY ADV. SRI.NIREESH MATHEW
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14-10-2019, ALONG WITH Mat.Appeal.650/2012, THE COURT ON
23-10-2019 DELIVERED THE FOLLOWING:
M.A. No.650 & 652/2012
-:3:-
Dated this the 23rd day of October, 2019
C O M M O N J U D G M E N T
T.V.ANILKUMAR J.
Appellant in these two Mat. Appeals is the husband before the Family Court, Alappuzha. His Original Petition No. 530 of 2009 for dissolution of marriage was dismissed and wife's Original Petition(O.S.No.919 of 2010) for recovery of parental share and gold ornaments was allowed by the common order dated 14.08.2010 passed by the court below. Mat. Appeal No.650 of 2012 arises from dismissal of O.P.No.530 of 2009 whereas Mat.Appeal 652 of 2012 arises from the order passed in O.P.No.919/10. The appellant challenges the impugned common order in these appeals.
2. The short facts which led to institution of the O.P. Nos.530 of 2009 and 919 of 2010 are narrated below:
3. Appellant married the 1st respondent in Mat. Appeal No.652 of 2012 on 02.05.1994. She is the sole respondent in Mat. Appeal No.650 of 2012. The respondents 2 and 3 in Mat. Appeal No.652 of 2012 are the close neighbours of the 1 st respondent. For M.A. No.650 & 652/2012 -:4:- convenience sake, the reference to parties hereunder will be in accordance with the rank of the parties in Mat. Appeal No. 652 of 2012, unless the context otherwise requires.
4. The spouses have two children born out of their wedlock. The appellant was employed in Gulf, when he married the 1st respondent and after he returned from Gulf in 1996, the family shifted to Coimbatore and settled there. He opened a bakery shop in Coimbatore and started leading a happy life with the 1st respondent and two children. According to him, the matrimonial relationship strained after he purchased five cents of land in Coimbatore in 2004 without obliging his wife's words to include her name also in the document. She became very strange in her behaviour and conduct to the appellant. She started harassing him by using obscene words and picking up quarrels even on silly matters. She physically assaulted by throwing at him household articles and scandalised him with false allegations of illicit relationship with a woman by name Vasantha, who is a close family friend of his. The 1st respondent refused to share bed with the appellant and established illicit M.A. No.650 & 652/2012 -:5:- relationship with a neighbour, who is the 2 nd respondent. On 27.02.2007, she inflicted cut injuries on him with a kitchen knife. When she started launching false complaints against him, he shifted his residence to a rented house and thereafter filed this Original Petition for dissolution of marriage under Section 10(1)(x) of Indian Divorce Act, 1869.
5. The 1st respondent denied allegations of cruelty raised against her after admitting that her matrimonial life with him was happy until the appellant began illicit connection with Vasantha. According to her, there is no matrimonial issue between spouses other than appellant's illicit connection with the aforesaid woman. She claimed to be a faithful wife discharging the matrimonial obligations of an ideal wife. She denied the allegations of harassment levelled against her. She stated that purchase of property in the sole name of the appellant was never an issue in their life and there was no occasion for her to demand inclusion of her name also in the document. According to her, appellant used to mingle with Vasantha in such a manner that his conduct amounted M.A. No.650 & 652/2012 -:6:- to committing matrimonial cruelty. A criminal case was also in this respect registered against him in Selvapuram Police Station as Crime No.1277 of 2010 under Sections 498A, 406, 323 and 506 of the Indian Penal Code. She had also to suffer manhandling of the appellant whenever she protested and questioned his relationship with Vasantha. She denied having had any relationship or connection with the 2 nd respondent, her neighbour.
6. In support of her claim for recovery of assets made in Original Petition No.919 of 2010 she said that at the time of marriage she was adorned with 15 sovereigns of gold ornaments and on the date of betrothal, there was an entrustment of Rs.1,00,000/- with the appellant. She alleged that the ornaments were taken away by the appellant and converted for his personal use without her consent. Further, the parental share entrusted at the time of betrothal was also misused. According to her, the appellant, as a trustee for her, was bound to hold the assets in her interests and return the same in view of the continuing strained relationship.
7. The appellant filed objection denying M.A. No.650 & 652/2012 -:7:- entrustment of cash and misappropriation of the gold ornaments. According to him, he was in affluent circumstances while being employed in Saudi Arabia and there was no need for taking any dowry and even after coming down to Coimbatore also, he had no need to take away any ornaments of her. He denied liability to account for the alleged conversion of gold and misappropriation of cash.
8. The court below while ordering joint trial of both original petitions, took up Original Petition No.530 of 2009 as the main case and examined the appellant and the husband of Vasantha as PWs.1 and 2 respectively and marked Ext.A1. The 1st respondent was examined as RW.1 and her paternal uncle was examined as RW.2. Her documents were marked as Exts.B1 to B4.
9. On consideration of the entire evidence, the court below found that the appellant failed in proving the alleged acts of cruelty levelled against the 1st respondent and held that her case of appellant maintaining illicit relationship with the wife of PW.2 was more probable and accordingly dismissed his claim for divorce. Believing the M.A. No.650 & 652/2012 -:8:- testimony of the 1st respondent and oral evidence of her paternal uncle PW.2, the court below held that there was entrustment of cash at the time of betrothal and the gold ornaments of her were also misappropriated by the appellant for his personal purposes. Consequently, Original Petition No.919 of 2010 was allowed granting the petitioner a decree for recovery of Rs.1,00,000/- and 15 sovereigns of gold ornaments or in the alternative, Rs.2,40,000/- being the market value of the gold ornaments.
10. The contention of the learned counsel for the appellant is that the order for realisation of money and gold is not supported by any evidence and the court below acted only on surmises and further it accepted the testimony of her paternal uncle, RW.2 though his evidence was highly interested. It was further submitted that dismissal of plea for divorce by the court was without application of mind and appreciation of evidence and probabilities of the case. On the other hand, the learned counsel for the respondent sought to sustain the impugned common judgment contending that it was rendered after proper appreciation of facts, evidence and the probabilities of the case.
M.A. No.650 & 652/2012 -:9:-
11. The two questions that arise for consideration in these appeals are (1)whether the appellant could establish by evidence and circumstances that the 1st respondent treated him with cruelty in such a manner as to render him incapable of leading a normal matrimonial life with the latter and (2) whether the 1 st respondent succeeded in establishing entrustment of Rs.1,00,000/- being her parental share, with the appellant and he mis-utilised the amount as well as 15 sovereigns of gold ornaments alleged to have been taken away from her.
12. There is no dispute between spouses that in the initial years, they were leading a very happy married life with their two children in Alappuzha and later in Coimbatore for some time where the appellant could successfully conduct bakery business also. The evidence on record indicates that the matrimonial relationship strained after 2004 and the spouses started living separately in the year 2009. It is an undisputed fact that the appellant is presently living in a rented building in Coimbatore.
13. The case set up by the appellant as borne M.A. No.650 & 652/2012 -:10:- out from his testimony is that the 1st respondent underwent vast changes in her character and conduct after he purchased five cents of property in Coimbatore without obliging her request to include her name also in the document. He testified that his neglect to include her name in the document made her hate him and pick up quarrels off and on even on silly issues. He did not get any peace in his house and she even went to the extent of using insulting and obscene words on him. On 27.02.2007, she used a kitchen knife and caused cut injuries on him and he had to undergo treatment in a nearby private hospital. She made scandals to the effect that he had illicit connection with the wife of PW.2, without any basis, suppressing the fact that she was, in fact, keeping illicit relationship with the 2nd respondent, a close neighbour of her.
14. On the other hand, RW.1, the wife denying all these allegations testified that the matrimonial issue between spouses has no connection with purchase of property in the sole name of the appellant in 2004. She denied having made any request for including her name in the document. According to her, the problems started in 2005 when M.A. No.650 & 652/2012 -:11:- she realised for the first time that the appellant was keeping illicit relationship with Vasantha. She had witnessed appellant moving around along with her in public and he used to mingle and engage with Vasantha in her own house. He was once caught red-handed in connection with the above unholy affair and arrested also in Crime No.1277 of 2010 of Selvapuram police station on a complaint launched by first respondent alleging his illicit relationship with Vasantha.
15. The first question for consideration is which of these two versions is true and whose case is more probable than the other. The court has to take a just and proper decision in the matter based exclusively on the testimonies of parties, since there is no independent evidence coming forth to prove the disputed acts of cruelty levelled between each other. Having gone through the whole evidence on record and the circumstances of the case, we are of the opinion that the case set up by the appellant in support of dissolution of marriage is more probable than of the case of denial of claim as set up by the 1st respondent. It is an undisputed fact that the appellant purchased M.A. No.650 & 652/2012 -:12:- property in Coimbatore in 2004. He said that the wife, the 1st respondent also wanted her name to be included in the document and on his refusal, she became estranged and used to conduct herself in such a manner as to keep him away from her company. She refused to discharge her matrimonial duties and became more arrogant and on a few occasions he was subjected to physical assault also. This was totally denied by RW.1.
16. PW.2's testimony in this respect is very relevant and decisive. He is the husband of Vasantha. His evidence is that the major reason for the breakdown in the relationship between the appellant and 1st respondent was the issue that related to the property purchased by the appellant in 2004 and his refusal to incorporate wife's name also in the sale deed. It appears from his evidence that PW.2 and his wife Vasantha lived as close family friends of the appellant and the 1st respondent since 1999 till 2005. PW.1 also said that he acquainted with PW.2 and wife in 1999 and they soon became family friends visiting their houses each other. PW.2 and his wife came to know that the spousal relationship between the appellant M.A. No.650 & 652/2012 -:13:- and the 1st respondent became worse following appellant's refusal to incorporate wife's name in the document of sale, when the former purchased five cents of property in Coimbatore. Following this information, PW.2 claims to have intervened in the issue along with wife-Vasantha and tried to patch up the differences between the spouses. Even though they made attempts to bring the spouses together, 1st respondent stuck to an uncompromising stand that the document ought to be re-registered.
17. A reading of testimony of PW.2 discloses that 1st respondent took an adamant and recalcitrant attitude of neglecting the appellant which gradually paved the way for the matrimonial break down in the present form. When this part of evidence of PW.2 is read along with that of PW.1, the case set up by the appellant that cause for matrimonial breakdown proceeded from the 1st respondent's conduct appears to be probable. PW.2 denied his wife having any illicit relationship with the appellant or vice versa. He is conducting a computer centre in Ootty and according to him, he used to come to his house in Coimbatore during week ends. On rare occasions, his mother also used to M.A. No.650 & 652/2012 -:14:- be with his wife and on all days, she was always in the company of the children in the house. According to him, he and his wife took appellant and the 1 st respondent as their close family friends and after they started advising the 1 st respondent to compromise on the issue properly, she showed hatred face towards PW.2 and his wife also. According to him, the allegation connecting his wife and the appellant has no ring of truth and he has absolute faith and fidelity in his wife. He denied the incident that gave rise to Ext.B3 crime initiated at the instance of the 1st respondent, as a false story.
18. In our view, there is no reason to reject the testimony given by PW.2 . Nothing has been brought out to discredit his testimony during the cross-examination. When PW.2, husband places absolute faith in Vasantha with whom the appellant is alleged to have unholy relationship, the contrary evidence given by RW.1 cannot be put on a higher pedestal. Neither RW.1 nor anyone has a case that PW.2 and his wife are not in good terms or living in hostility. Further, there is nothing also brought in evidence to suggest that PW.2 has M.A. No.650 & 652/2012 -:15:- got any special interest in PW.1 except as a close friend of his. Though PW.2 has no direct knowledge, he has narrated a few acts of cruelty suffered by PW.1 at the hands of the 1 st respondent and her aggressive nature with which she treated the appellant.
19. When the testimonies given by PWs.1 and 2 are read together, there is reason to assume that the appellant treated the 1 st respondent with cruelty on many occasions. But the allegation against 1st respondent that she used to maintain relationship with the 2nd respondent, a neighbour could not be corroborated by any supportive evidence. RW.1 further stoutly denied the said allegation in her evidence. The learned counsel for the 1st respondent on the strength of Ext.B3 crime contended that the allegation of illicit relationship between appellant and Vasantha was proved to be true and convincing. The learned counsel for the appellant, on the other hand, submitted that this was a matter arising for decision before a criminal court and it was not proper to pre-judge a issue which would have the effect of prejudicing the parties.
M.A. No.650 & 652/2012 -:16:-
20. We do not propose to comment on the veracity of the incident which is the subject matter in Ext.B3 crime, since a decision has to flow from the concerned criminal court based on the facts and evidence presented before it. We only say that the materials on record do not probabilise the alleged illicit relationship between the appellant and Vasantha as being true. The assumption of the court below that the appellant was maintaining illicit relationship with Vasantha cannot be therefore said to be correct. When probability of such a relationship is far and open to doubt, the denial of allegations of cruelty raised against her could be regarded only as far from being true. If this is the position, the case of cruelty set up by the appellant requires to be accepted.
21. He has narrated several occasions when he was ill-treated by denying food and cohabitation. There were instances when obscene and insulting words were used against him. Household articles were pelted on him. On going through the entire evidence, it is seen that his life became unbearable to such an extent that it was impossible for him to lead a normal life with the 1 st M.A. No.650 & 652/2012 -:17:- respondent. The court below failed to appreciate the evidence in its correct perspective which resulted in the claim of appellant for divorce being erroneously refused.
22. It is an admitted fact also that the spouses have been leading separate life since 2009 and have not been able to come to cordial terms in spite of several efforts taken for settlement in repeated mediations and counsellings. There is ground to believe that spousal relationship has become irretrievably broken. It is impossible for the spouse to live together leading a normal matrimonial life. In such circumstances, we are of the opinion that plea for dissolution of marriage should only be accepted and a decree in that regard passed. That part of the impugned common order passed by the court below therefore requires to be reversed.
23. The next question that arises for discussion is whether the order allowing recovery of money from the appellant requires to be interfered with and the decision taken by the court below in that respect is correct. The testimony of RW.1 indicates that she was adorned with 15 sovereigns of gold M.A. No.650 & 652/2012 -:18:- ornaments at the time of marriage. She was not in a position to produce any bill or document to prove the quantum of gold ornaments purchased by her parents for her. No bank details were also produced to prove that her parents had sufficient funds for purchase of gold ornaments. Without production of any evidence in that respect also, there is enough material on record to prove that she possessed 15 sovereigns of gold ornaments at the time of marriage. Even though the appellant denied in his pleadings that she wore 15 sovereigns, during cross-examination he did not dispute quantum of ornaments claimed to be worn by her. His only stand is that ornaments were only kept in her custody and there was no entrustment with the appellant. As regards entrustment, we have evidence of RW.1 alone. RW.2, her paternal uncle has only hearsay knowledge of what he heard from his niece. It is true that PW.1 denied having taken any ornaments and used them for his personal purpose.
24. On weighing the testimonies of parties on oath against oath, we are of the opinion that the view taken by the court below accepting the case of the 1st respondent is only to be endorsed. The M.A. No.650 & 652/2012 -:19:- reliability of RW.1's evidence as regards the claim for gold stands unshaken. The very probability of the case itself indicates that appellant would only have tended to demand gold for his needs. He is a business man conducting bakery in Coimbatore and in 2004 he purchased five cents of land in his own name. Even according to him, the cause for matrimonial issue between spouses was denial of her demand for inclusion of her name in the document. This would rather probabilise her contention that she was deprived of her ornaments and she hoped the appellant to account for its value.
25. With respect to her claim for return of Rs.1,00,000/- alleged to have been entrusted with appellant also, the finding of the court below does not require any interference. She testified that at the betrothal ceremony, cash amount of Rs.1,00,000/- was entrusted with the appellant and her parents had sufficient capacity to raise funds. The amounts were raised from the income of their agriculture and also the grocery shop. RW.2, her paternal uncle said that it was he who entrusted the amount at the betrothal function with the elder brother-in-law of the appellant on his behalf. M.A. No.650 & 652/2012 -:20:- PW.1 plainly denied the allegation of entrustment, as if he did not demand any amount as dowry. His denial does not appear to be true and convincing. The court below observed that it was a usual practice among Xians to offer parental share to the bride at the time of betrothal. When a question with respect to the practice among the Xians was put to PW.1, he pleaded ignorance. His conduct only discloses that he has something to hide from the court. We find from the testimonies given by RW.1 and 2 that the entrustment of Rs.1,00,000/- with the appellant was true and he converted the cash for his private needs. The appellant being in the position of a trustee to keep the assets taken from the wife, is bound to return it as rightly held by the court below. We fully agree with the impugned common order passed by the court below directing the appellant to make payment of the cash amount as well as return the gold ornaments or its value in the alternative. We do not find any reason to interfere with the order passed in Original Petition No.919 of 2010 and it is liable only to be confirmed.
In the result, Mat. Appeal No.650 of 2012 is M.A. No.650 & 652/2012 -:21:- dismissed and Mat.Appeal No.652 of 2012 is allowed reversing the order refusing dissolution of marriage. O.P.No.530 of 2009 on the file of the Family Court is allowed declaring the marriage between the appellant and the 1st respondent to be dissolved. The parties should suffer their respective costs.
Sd/-
A.M.SHAFFIQUE,JUDGE Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy//
P.A.To Judge