Kerala High Court
Blessy Susan Samuel vs Anil Sunny on 31 August, 2017
Author: Anu Sivaraman
Bench: A.M.Shaffique, Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939
Mat.Appeal.No. 1066 of 2014 ()
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AGAINST THE ORDER/JUDGMENT IN OP 808/2011 of FAMILY COURT, KOTTAYAM
APPELLANT(S):
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BLESSY SUSAN SAMUEL,
AGED 32 YEARS, D/O.FR.T.D.SAMUEL, THEKKEMANNIL
HOUSE, PONGANTHANAM KARA, VAKATHANAM VILLAGE,
CHANGANASSERY TALUK, KOTTAYAM DISTRICT.
BY ADV. SRI.JOSE PALLATTUKARAN
RESPONDENT(S):
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ANIL SUNNY, AGED 42 YEARS, S/O.T.J.SUNNY,
THAZHATHU HOUSE, KUMALI P.O.,
KUMILY VILLAGE, PEERMADU TALUK,
IDUKKI DISTRICT - 685 531.
R1 BY ADV. SRI.ABRAHAM P.GEORGE
R1 BY ADV. SMT.M.SANTHY
R1 BY ADV. SMT.K V LEKSHMI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
31-08-2017, ALONG WITH MA. 313/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
A.M.SHAFFIQUE
&
ANU SIVARAMAN, JJ.
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Mat.Appeal No. 1066 of 2014
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Mat.Appeal No. 313 of 2015
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Dated this the 31st day of August, 2017
JUDGMENT
Anu Sivaraman, J.
These appeals arise from a common judgment dated 31.3.2014 in O.P.Nos. 769 of 2011 and 808 of 2011 of the Family Court, Kottayam. Mat Appeal No.313 of 2015 is filed by the husband against the judgment in O.P.No.769 of 2011 and Mat Appeal No.1066 of 2014 is filed by the wife against the judgment in O.P.No.808 of 2011.
2. O.P.No.808 of 2011 was filed by the wife for dissolution of marriage on the ground of cruelty and desertion. The material contentions in the original petition were as follows:
The marriage between the partitioner and respondent was solemnized on 5.1.2004 at St.Peter's Marthoma Church, Kumily as per Christian rites and customs. A child was born in the wedlock. After two weeks of the marriage, the parties had shifted residence to a rented house at Nedumkandom and the petitioner conceived the child. She returned to her paternal house in August, 2004 for delivery and was taken back to the Mat.A.1066/14 & Mat.313/15 2 matrimonial home on 26.1.2005. Another house was taken on rent at Nedumkandom and the parties resided there. The respondent resigned his job and started a business in chemicals and pesticides. For starting the business, he pledged the gold ornaments of the petitioner and subsequently, he sold the same. It is further stated that the respondent became a drunkard and used to treat the petitioner with extreme cruelty. He required her to bring more gold and ill treated her for the said purpose. Though attempts were made by the Parish Priest, he was also driven out of the house. When the assault and ill treatment was unbearable, the petitioner returned to her paternal house on 10.10.2006. Thereafter, on a mediation by the relatives, she was again taken back by the respondent and they shifted to a flat at Nedumkandom and all expenses were being met by her father. It is stated that in September, 2007, the petitioner and the respondent shifted to her paternal house at Kollad. It is stated that Rs.2 lakhs was received from her father for construction of a house at Nedumkandom but no such house was constructed. When she asked him about that, she was seriously manhandled and a complaint was preferred before the Police on 10.1.2009. Thereafter, he abandoned her and has been further harassing and humiliating her and she sought for a decree of dissolution of marriage.
Mat.A.1066/14 & Mat.313/15 3
3. Objections were filed by the husband denying all the allegations of matrimonial cruelty and entrustment of any gold or money. It is stated that the petitioner was a person of lavish spending habits. She also had an extremely quarrelsome nature. She needed large amounts of money for her lavish habits and all attempts by the respondent to continue the relationship failed because of her quarrelsome nature. She had shifted residence to her parental home and though the respondent used to visit his wife and child, the petitioner and her family did not like the said visits. He also alleged that she had raised scandalous allegations against him. He claims that the parties lived together till 2011 and thereafter he was driven out of her house.
4. In O.P.No.769 of 2011 instituted by the wife, the allegations were that Rs.1 lakh was handed over to the 2nd respondent at the house of the petitioner on the date of engagement on 30.11.2003. A further sum of Rs.1,70,000/- was deposited on 28.11.2003 in a joint account of the petitioner and 1st respondent at Kolladu Service Co-operative Bank.
Thereafter, a sum of Rs.2,30,000/- was deposited in the same account on 1.12.2003. She was given 51 sovereigns of gold ornaments at the time of marriage apart from a gold ring of half sovereign, which was received as gift. The mother of the Mat.A.1066/14 & Mat.313/15 4 petitioner had given a gold chain of 2= sovereigns to the 1st respondent at his house on the date of the marriage. It is stated that on the date of marriage itself, respondents 1 and 2 took all the gold ornaments except some ornaments retained for daily wear for safe keeping. It is stated that on 19.3.2004, the respondent withdrew Rs.4,04,000/- deposited by her father in the joint account and misappropriated the said amount for his own purposes. It is stated that the parties had stayed in a rented house at Nedumkandom and several articles were purchased by the petitioner's father for the said residence. Thereafter, the 1st respondent resigned his job and started a business in chemicals and pesticides at Nedumkandom. For the said purpose he sold away all her gold ornaments. She therefore, sought return of an amount of Rs.7 lakhs, 41 sovereigns of gold ornaments and the movable scheduled in the petition or their equivalent value.
5. The respondent filed objections denying the payment of Rs.1 lakh on the date of the engagement. It was denied that the petitioner had 51 sovereigns of gold ornaments as alleged. She was having only 30 sovereigns of gold ornaments and those ornaments are still in her possession. The entrustment of the gold and the appropriation thereof was specifically denied. It is stated that the petitioner needed large amounts of money Mat.A.1066/14 & Mat.313/15 5 for her lavish life style and the respondent was unable to provide for the said life style of the petitioner which included a housemaid and large amounts for telephone expenses and cosmetics and dresses. The contention that he had received Rs.2 lakhs from her father for construction of a house was denied. The allegations of matrimonial cruelty were also denied. He also alleged that she was a suspicious person and had some mental disturbances for which she was taking medication. He also alleged that various scandalous allegations had been raised by her against him.
6. The original petitions were tried together. PW1 and PW2 were examined and Exhibits A1 to A7 were marked. The respondent was examined as RW1 and Exhibits B1 and B2 documents were marked. After examining the evidence on record, the Family Court dismissed O.P.No.808 of 2011 filed by the wife for divorce and allowed O.P.No.769 of 2011 in part directing the respondents to return Rs.5 lakhs as well as 19 sovereigns of gold ornaments or its equivalent value of Rs.4,08,500/- and the scheduled articles or its equivalent value of Rs.28,000/-. Aggrieved, the wife has preferred appeals against the dismissal of her petition for divorce while the husband has challenged the decree for return of gold ornaments money and other articles.
Mat.A.1066/14 & Mat.313/15 6
7. Learned counsel for the appellant in Mat.Appeal No.1066 of 2014 has contended that there was ample evidence adduced by the appellant wife to establish matrimonial cruelty as against the husband. It is contended that the finding of the court below was unwarranted in the facts and circumstances of the case. It is submitted that the documentary and oral evidence adduced by the appellant before the Family Court was clearly sufficient to support the prayer made by her for a decree of dissolution of marriage on the ground of cruelty and desertion.
8. Learned counsel appearing for the respondent would, on the other hand, contend that the evidence let in in the instant case did not disclose any cruelty, mental or physical. It is further submitted that it had been clearly substantiated that the petitioner was a person used to an unreasonably lavish life style and that the entire amount of Rs.4 lakhs deposited in the joint account had been utilised by the wife for her lavish living habits. It is therefore contended that the decree for return of money and gold ornaments was unsustainable.
9. We have considered the contentions advanced with reference to the pleadings and materials on record. The pleadings raised by the petitioner in O.P.No. 808 of 2011 were with regard to cruelty. Apart from generalised allegations, we Mat.A.1066/14 & Mat.313/15 7 notice that the pleadings did not contain specific instances of cruelty as against the husband. The petitioner had contended that she had been severely illtreated and that there were several mediation attempts by family members and relatives. However, it is pertinent to note that apart from the petitioner and her mother, no other witnesses were examined on the side of the petitioner wife. In view of the fact that matrimonial cruelty had been clearly denied by the respondent husband, we are of the opinion that the non examination of any of the persons who had attempted mediation in the matrimonial dispute as also the lack of evidence adduced to show that there was any police complaint or medical evidence to prove the alleged acts of physical cruelty, is extremely relevant. It is also pertinent to note that the physical harassment is stated to have happened in 2009. However, the original petition was filed only in 2011. As noticed by the Family Court, there was no material to show that any complaint had been made in the intervening years before any authority regarding the alleged physical harassment. Since the prayer in O.P.No. 808 of 2011 was for dissolution of marriage on the ground of cruelty, on an examination of the evidence on record, we are unable to find any reliable evidence of such matrimonial cruelty as would make it impossible for the petitioner wife to continue in the Mat.A.1066/14 & Mat.313/15 8 matrimonial relationship. We therefore do not find any merit in Mat.Appeal No.1066 of 2014.
10. As regards Mat.Appeal No. 313 of 2015, it was alleged by the wife that an amount of Rs.1,00,000/- had been handed over to the respondent husband on the date of engagement, i.e., 30.11.2003. The evidence of PW2, who is none other than the petitioner's mother, is that an amount of Rs.5 lakhs and 51 sovereigns of gold ornaments had been agreed to be given to the petitioner as patrimony. It is stated that on 30.11.2003, after the engagement, the respondent, his parents and two of his maternal uncle had come to the house of PW2 and an amount of Rs.1,00,000/- had been handed over by the petitioner's father to the 2nd respondent in her presence. It is further stated that a further amount of Rs.4 lakhs had been deposited in the Kollad Service Co-operative Bank in a joint account of the petitioner and 1st respondent. 51 sovereigns of gold ornaments were also given to the petitioner. Apart from that, a gold chain weighing 2= sovereigns had been given by PW2 to the 1st respondent when they had gone to the 1st respondent's house.
11. As PW1, the petitioner had stated that the 1st respondent had pledged and later sold her gold ornaments for his business purposes. Exhibit A2 passbook showing the Mat.A.1066/14 & Mat.313/15 9 deposit of Rs.1,70,000/- on 28.11.2003 and Rs.2,30,000/- on 1.12.2003 is not disputed by the 1st respondent. The passbook would also show that an amount of Rs.4,04,000/- had been withdrawn on 19.3.2004. It is clear from the document that the account was a joint account. The petitioner stated that the amount had been withdrawn from the account and appropriated by the respondent. She specifically stated that she had never withdrawn any amount from the account on her own. She stated that an amount of Rs.1,00,000/- had been withdrawn from the account approximately two months after the marriage. This admission is being relied on by the learned counsel for the respondent husband to contend that she had herself withdrawn amounts from the joint account to support her lavish life style. However, on a reading of the evidence of PW1 as a whole, it is clear that her specific case is that the amount withdrawn from the joint account had been appropriated by the husband. Since the petitioner had produced evidence to show that the amount of Rs.4 lakhs had been deposited in the joint account and withdrawn on 19.3.2004, and had also testified to the effect that the entire amount had been utilised by the respondent husband, it was for the husband to prove that the amount had been withdrawn by the wife for her personal use. On a careful consideration of Mat.A.1066/14 & Mat.313/15 10 the evidence, we are of the opinion that the respondent had not succeeded in rebutting the evidence adduced by the petitioner. In the circumstances, we are of the considered opinion that the appropriation of an amount of Rs.4,04,000/- by the respondent husband stood substantially proved by the evidence adduced. Handing over of Rs.1,00,000/- to the 1st respondent on the date of engagement has also been proved by the evidence of PW2. In the above circumstances, the decree granted for the return of an amount of Rs.5 lakhs was just and proper.
12. However, with regard to the entrustment of the gold ornaments, we notice that there are serious discrepancies in the evidence adduced by PW1 in this regard. It is not seriously disputed by the respondents that the petitioner had about 50 sovereigns of gold ornaments in her possession at the time of marriage. The contention in the petition is that the said gold was appropriated by the 1st respondent by pledging and selling the same for his business purposes. However, there is no clear pleading as to the entrustment of the gold ornaments with either 1st respondent or the 2nd respondent. In cross- examination also, the petitioner does not have a specific case as to the date of entrustment of the gold ornaments or even as to which of the respondents the gold had been entrusted with.
Mat.A.1066/14 & Mat.313/15 11 She stated that even after entrustment, she had been given the gold ornaments to wear on special occasions. She also stated that she had wore ornaments for her sister's wedding in 2005. Thereafter, the gold was entrusted again with the 2nd respondent. In cross exmaination the petitioner stated that she had entrusted 40 sovereigns of gold ornaments to the 2nd respondent on 5th January, 2004. She stated that in May, 2006, the gold ornaments, except 9= sovereigns, which she retained with her, had been entrusted with the respondents. No dates have been stated by the petitioner with regard to the pledging and sale of the gold ornaments as well. Though it is not in dispute that the petitioner had some gold ornaments at the time of the marriage, from an examination of the pleadings and evidence on record, we find that the petitioner did not have a consistent case as regards the entrustment or the appropriation of the said gold ornaments. The dates on which such entrustment was made is also conspicuously absent in the pleadings. Coupled with the discrepancy in the evidence elicited in cross examination of PW1, we are of the opinion that the evidence as to entrustment and appropriation of gold ornaments was clearly insufficient to support the decree for the return of the same. In the above circumstances, the decree for return of 19 sovereigns of gold ornaments is found to be Mat.A.1066/14 & Mat.313/15 12 unsustainable.
In the result, Mat.Appeal No. 1066 of 2014 is dismissed. Mat.Appeal No. 313 of 2015 is allowed in part. The decree for return of Rs.5 lakhs and the petition schedule-II movables or its equivalent value of Rs.28,000/- is confirmed. The decree for return of 19 sovereigns of gold ornaments or its equivalent value is set aside.
The parties shall bear their respective costs.
A.M.SHAFFIQUE JUDGE ANU SIVARAMAN JUDGE vgs