Kerala High Court
Prince vs Manju
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 12TH DAY OF APRIL 2017/22ND CHAITHRA, 1939
Mat.Appeal.No. 785 of 2015 ()
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AGAINST THE JUDGMENT IN OP 655/2011 of FAMILY COURT,KOLLAM DATED 18-
05-2015
APPELLANT(S)/RESPONDENTS:
------------------------
1. PRINCE
YAMUNA HOUSE, MALOOR COLLEGE PO,
PATHNAPURAM, KOLLAM DISTRICT.
2. BALAN, YAMUNA HOUSE
MALOOR COLLEGE PO, PATHNAPURAM, KOLLAM DISTRICT.
3. KUSUMAM
YAMUNA HOUSE
MALOOR COLLEGE PO, PATHNAPURAM, KOLLAM DISTRICT.
BY ADV. SRI.V.PREMCHAND
RESPONDENT(S)/PETITIONER:
-------------------------
MANJU
SIVA VIHAR, MOVARAKONAM,
PARIPALLY, KOLLAM DISTRICT.
R1 BY ADV. SRI.B.SURESH KUMAR
R1 BY ADV. SMT.C.B.ANUROOPA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24-
01-2017, ALONG WITH CO. 148/2015, MA. 822/2015, THE COURT ON
12/4/2017 DELIVERED THE FOLLOWING:
A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.
===========================
Mat.Appeal Nos.785 & 822 of 2015
& Cross Objection No.148/15
in
Mat.Appeal No.785/2015
=======================
Dated this, the 12th day of April, 2017
J U D G M E N T
Shaffique, J.
Since both these appeals arise out of the common judgment dated 18/5/2015 in OP No. 655/11 and OP (HMA) 1137/2011 of the Family Court Kollam, they are heard and decided together.
2. Mat.Appeal No.785/2015 is filed against the judgment in OP No. 655/11 by the respondents and Mat.Appeal No.822/15 has been filed by the respondent in OP(HMA) No.1137/11.
3. For easy reference, parties to the marriage are referred to as husband and wife. OP No.655/11 was filed by the wife claiming return of gold ornaments and for recovery of money from the husband, who is arrayed as the 1st respondent and respondents 2 and 3, his father and mother.
4. The short facts arising in the case are as under:-
Mat.Appeal Nos.785/15 & conn.cases -:2:- The parties got married as per customary rites and ceremonies of Hindu Ezhava community on 17/6/2001. The wife contended that at the time of marriage, she was given 107 sovereigns of gold ornaments and `5 lakh was given to the husband on 30/5/2001. The said amount was deposited at SBT, Pathanapuram Branch in the account of the husband's father. It is alleged that after marriage, a demand was being made for more dowry and she was being harassed. According to her, she was driven out of the matrimonial home and thereafter she had given birth to a child on 4/10/2002. At the time when she had gone from the matrimonial home, she was in possession of only 20 sovereigns of gold ornaments and the remaining 87 sovereigns of gold ornaments were kept by the respondents in a locker in the joint name of husband's father and mother. She filed a suit as OS No.427/2003 for realisation of the misappropriated amounts and since the respondents undertook to return the gold ornaments, the suit was withdrawn. She also returned to her matrimonial home. It is said that they led a happy life for another 11 months. However, in December, 2007, the husband took away another 9 sovereigns of gold ornaments for meeting his personal expenses. Mat.Appeal Nos.785/15 & conn.cases -:3:- It is alleged that his attitude changed and again he started harassing her and she was also manhandled. It is further contended that he was having an illicit relationship with one Smt.Omana and when questioned about the same, he behaved cruelly towards her and she was manhandled. She was driven out of the house on 22/2/2011. However, she returned to the matrimonial home, but the harassment continued and at last on 29/5/2011, she was again ousted from her matrimonial home. At that stage, this Original Petition is filed.
5. Respondents 1 to 3 filed objection disputing the contentions urged. The husband however admitted that he had received `5 lakhs. However, he said that the amount was returned as per the terms of mediation in OS No.427/2001. He also denied having taken any of the gold ornaments. It is contended that the 2nd respondent was employed in Gulf as Insurance Manager and their family was financially stable. The 1st respondent was working as a Higher Secondary School Teacher. Petitioner joined B.Ed Course after the marriage and the educational expenses were met by him. He also denied having appropriated any of the gold ornaments. Smt.Omana was a home nurse who had attended the Mat.Appeal Nos.785/15 & conn.cases -:4:- 2nd respondent who was laid up due to Parkinson disease. She was ousted from the house by the petitioner alleging that she was having illicit connection with the 1st respondent. It is stated that the petitioner had on her own left the matrimonial home. The respondents therefore denied the liability to pay any amount or to return the gold ornaments.
6. OP(HMA) No. 1137/11 was filed by the husband seeking divorce on the ground of cruelty. It is contended that the wife used to lead an independent life without obeying the husband or his parents. His father got laid up due to Parkinsons disease. It is contended that the wife used to pick up quarrels for petty reasons and she used to call her colleagues and abuse him. She used to tell that she was in love with one Deepu who was residing near her house and her parents were against her love affair and she was compelled to marry the petitioner. Her attitude did not change even after settlement of OS No.427/2003 and she was preferring false complaints against him. It is alleged that on account of the strange behaviour of the wife, he is not intending to continue the marital life and has sought for divorce on the ground of cruelty. Objection was filed by the wife denying the Mat.Appeal Nos.785/15 & conn.cases -:5:- allegations raised against her and reiterating the contentions already urged.
7. The Family Court considered OP No. 655/11 as the main case. On behalf of the wife, PWs 1 to 7 were examined and Exts.A1 to A10 were relied upon. On behalf of the husband, he was examined as RW1 and reliance was placed on Exts.B1 to B15. The Family Court on an appreciation of the evidence made available, granted a decree of divorce on the ground under Section 13(1)(i-a) of the Hindu Marriage Act and also directed realisation of 87 sovereigns of gold ornaments or its present market value with 6% interest from the respondents and their assets along with an amount of `5 lakh with 6% interest from the respondent and their assets.
8. Having regard to the fact that both the judgments are under appeal, the validity of the judgment is to be ascertained on a reappreciation of the pleadings and evidence available in the case. The wife has also filed a cross objection in Mat.Appeal No.785/2015 claiming the disallowed portion of the claim.
9. The learned counsel appearing for the husband and his parents contended that the Court below was not justified in Mat.Appeal Nos.785/15 & conn.cases -:6:- granting a decree for recovery of gold ornaments as there is no pleading or evidence to prove either entrustment of gold ornaments or appropriation by the appellants.
10. On the other hand, learned counsel appearing for the respondent/wife supported the judgment of the Family Court to the extent that the Family Court allowed recovery of gold ornaments and return of the amount of `5 lakhs, however, objecting to the grant of divorce on the ground of cruelty. It is contended that neither physical or mental cruelty has been proved in the case and the Court below only acted on the evidence of RW1, which is not enough to prove the allegation of cruelty. That apart, the Court below committed serious error in disallowing the entire claim.
11. The first question to be considered is in regard to the return of gold ornaments.
12. In OP No.655/11, in regard to the gold ornaments, the contention urged is that, at the time of marriage, petitioner's parents had given 107 sovereigns of gold ornaments to the petitioner. She further contends that when she was ousted from the matrimonial home, she had only 20 sovereigns of gold Mat.Appeal Nos.785/15 & conn.cases -:7:- ornaments with her. She demanded the remaining 87 sovereigns of gold ornaments soon after ouster from the respondents' house, which they refused to return. The allegation is that on enquiries, she could understand that the remaining gold ornaments were kept in a locker with No.217(key No.76) with SBT, Pathanapuram branch in the joint names of 2nd and 3rd respondents. She alleges that she had come to know that the entire 87 sovereigns of gold ornaments were misappropriated and the sale consideration was spent by respondents jointly without the consent of the petitioner. It is further contended that after she came back to the matrimonial home after settlement in the earlier proceedings, he had taken 9 sovereigns of gold ornaments from her and appropriated the same.
13. In the objection filed, respondents have denied that the petitioner was having 107 sovereigns of gold ornaments. They also contended that they have not taken any of her gold ornaments. They also denied the fact that the gold ornaments were kept in a locker and it was misappropriated by them. They further contended that at the time of marriage, the 1st respondent had given the petitioner a chain weighing 6 sovereigns, another Mat.Appeal Nos.785/15 & conn.cases -:8:- chain weighing one sovereign and a ring weighing 1 sovereign which he is entitled to get back.
14. The petitioner relied upon Ext.A3 document to prove her contention. In column No.8 of Ext.A3, reference is made to 107 sovereigns of gold ornaments. The Family Court observed that the entries in column 8 of Ext.A3 is made in a different handwriting. It is a marriage register of KKV Smaraka SNDP Yogam during 2001. It is observed that column No.8 is not filled up in any other pages other than in Ext.A3. Further it was found that Ext.A3 does not prove the weight of the gold ornaments. But the Family Court verified the photographs in the album which is marked as Ext.A10 and the schedule of gold ornaments attached to the petition and found that the same are tallying. The Family Court observed that petitioner is the only daughter of her parents and she comes from a wealthy family and being a financially sound person, the petitioner's father, has the financial capacity to provide her with such gold ornaments. Therefore, it was found that the version of PW1 that she was having 107 sovereigns of gold as shown in the petition was believed. Further the Family Court proceeded to observe that respondents 2 and 3 have hired Mat.Appeal Nos.785/15 & conn.cases -:9:- a locker at SBT, Pathanapuram on 27/6/2001, 10 days after the marriage of the couple. The respondent husband also joined as locker hirer w.e.f. 13/2/2003. Reliance is placed on Ext.A4, the agreement for hiring locker and Ext.X3 series indicated that respondent had operated the locker several times. The locker was closed and reissued on 7/11/2007. The Family Court observed that since the locker was opened for the purpose of keeping the gold ornaments, no evidence has been adduced to prove the case set up by respondents. The only inference that could be drawn from the circumstance that the locker facility was opened only on 26/1/2001, that is 10 days from the date of marriage, is for the purpose of keeping the gold ornaments belonging to the petitioner. The Family Court therefore believed the version of PW1, the petitioner, and therefore, it was found that 87 sovereigns of gold ornaments were in the custody of respondents which they are bound to account for.
15. The question to be considered is from the available evidence on record, whether it was possible for granting a decree as claimed in respect of the gold ornaments. A relook at the evidence may be required for understanding as to whether there Mat.Appeal Nos.785/15 & conn.cases -:10:- is any infirmity in the appreciation of evidence by the Family Court. Ext.A3 is the certified copy of marriage register dated 17/6/2001, wherein the details of the gold ornaments given to the bride have been mentioned. As rightly observed by the Family Court, Column No.8 of Ext.A3 is written in a different hand writing compared to the other entries and therefore, the Family Court has rightly rejected the same as a material piece of evidence to find out the quantity of gold ornaments. 7 witnesses were examined on behalf of the petitioner. PW1 is the petitioner herself. In the affidavit in chief, she relied upon Ext.A3 in order to prove that she had 107 sovereigns of gold ornaments. In the affidavit she has stated that 8 sovereigns of gold belonging to their daughter and 9 sovereigns of gold mentioned in C schedule was taken by the 1st respondent and utilized for his own purpose. It is further stated that the respondents have no right to retain A to C schedule properties. In cross examination, she deposed that she had filed complaints under Section 498A of the Indian Penal Code. Proceedings under the Domestic Violence Act is pending before the Sessions Court in appeal. Case had been filed before the Parur Magistrate Court under the Dowry Prohibition Act. It is also Mat.Appeal Nos.785/15 & conn.cases -:11:- admitted that a case was filed for return of money and gold in the year 2004 which was compromised on 24/3/2007 and they have decided to live together. In regard to the gold ornaments, she was questioned and her answer was that at the time of marriage, she had 107 sovereigns of gold. In regard to Ext.A3, the suggestion was that Column No.8 was written subsequently. Her answer was that it was written in the office. The cross examination proceeded on the basis that the entry in column 8 has been prepared due to their compulsion. A question was asked whether any bills were produced for purchasing gold. According to her, 33 sovereigns of gold were purchased, but the bill was not produced. She further deposes in cross examination that the gold was weighed in the weighing machine at the respondent's house at about 6 p.m. The respondents 2 and 3 were entrusted with all the gold ornaments except 20 sovereigns. The suggestion of the respondent was that she was giving a false story. Another question was asked whether the gold ornaments were weighed in the presence of Secretary of the Sakha and whether the Secretary was convinced about the weighing and her answer was that she does not know. She further submits that 107 sovereigns were weighed and purchased from Mat.Appeal Nos.785/15 & conn.cases -:12:- the jewellery. 74 sovereigns belonging to the mother was with them and 33 sovereigns were purchased. She was convinced about the weight as the ornaments were weighed. Further questions were asked stating that there is no bank at Pattazhi. After weighment of gold ornaments, it was separately put in a plastic cover, pinned and kept in a safe and she was told that after 10 days, the gold will be kept in a locker. She further states that, on 27/6/2001, the gold was taken for keeping it in a locker and she does not know in which bank's locker the same is deposited. When she was asked that, she was in possession of all the gold ornaments belonging to her, her answer was in the negative. She further deposes that it is after she was ousted and on enquiry it was understood that the gold ornaments were kept in the locker. Questions were put regarding certain contradictions in her pleadings and deposition. She further states that after they started residing together, in the year 2007, he had further taken 9 sovereigns of gold from her. PW2 is the Secretary of SNDP Sakha. He produced Ext.A4, which was marked subject to proof. During cross examination, he stated that he joined as the Secretary only in February, 2013. He does not know anything about the marriage Mat.Appeal Nos.785/15 & conn.cases -:13:- which was conducted in 2001. In the register, there is no seal of the sakha. After he becoming the Secretary, seal is affixed. He admits the fact that in Ext.A3 at column No.8, details of the gold ornaments are written in a different hand writing. He further deposes that except in page No.35, (Ext.A3), in all other pages, column 8 is not filled up. PW3 is a person who knows the petitioner and the respondent. He has stated in his chief examination that he had attended the marriage on the request of the respondent. During marriage, the bride was wearing ornaments. He had mediated in regard to the problems between the couple. He does not remember the date. According to him, it was 10 years back. He does not remember about any discussion regarding property. He heard that the gold is at the bank locker and he does not know in whose locker it is. In the mediation, the understanding was that the couple will reside together. Thereafter, he does not know anything about the matter. In cross examination, he says that he had gone to the respondent's house along with the petitioner's father and a lawyer. Suggestion in cross examination was that he was giving a false evidence, which he denied. PW4 is a person who had attended the marriage of the Mat.Appeal Nos.785/15 & conn.cases -:14:- couple. He had also participated in the discussion prior the marriage. He is the respondent's uncle. The 1st respondent's relatives asked for `5 lakhs and gold not less than 101 sovereigns which they have agreed and 107 sovereigns of gold were given as ornaments. He says that she had worn such gold ornaments at the time of marriage. In cross examination, he stated that he had come to know about the demand made only through the respondent's father. It is not in his presence that the money was given. He does not know how many persons were present when the amount was given by petitioner's father to the 1st respondent. In regard to the quantity of gold ornaments, he says that he knew about it from what has been stated by the petitioner's father. He also understood from what she had worn on that day. Suggestion was that there was no such incident by which a demand had been made and that she had only very less ornaments. He further deposed that 34 sovereigns were purchased and a suggestion was put that he was giving false evidence which he denied. PW5 is the Chief Manager of State Bank of Travancore, Pathanapuram branch. He deposed that the Bank has locker facility. He deposes that a locker was opened in Mat.Appeal Nos.785/15 & conn.cases -:15:- the name of S.Balan and Kusumam Balan on 27/6/2001. On 13/2/2003, name of Prince was also included. Ext.X1 is the locker key register and Ext.X2 is the report prepared on the basis of Ext.X1 register. When the locker is closed, the key will be surrendered and he cannot say as to when it was surrendered without looking into the records. The witness was bound over and he was examined on another day on which day, he deposed that the key was surrendered on 27/9/2007. The name of Prince was added on 13/2/2003. He produced the register from 27/6/2001 to 4/1/2011 along with a copy. Copy was marked as Ext.X3 series. As per Ext.X3, locker was operated by S. Balan until 13/2/2003 and thereafter, Prince was operating the locker. The date and time on which the locker was operated is mentioned in Ext.X3 series. During cross examination, he deposed that Kusumam Balan has not operated the locker. They requested for locker facility during the year 2000-01. When a question was asked whether it was possible to give locker facility to all the customers, his answer was that he does not know. It was not possible to give locker facility to all the customers. He also stated that he is not aware whether any application was given for including Prince to operate the Mat.Appeal Nos.785/15 & conn.cases -:16:- locker. PW6 is a broker for the marriage. According to him, the offer was to give `5 lakh and 101 sovereigns of gold. He had attended the marriage. `5 lakh was paid which was recorded in a document in which he is a witness. He identifies his signature in Ext.A2. He further states that she was wearing 107 sovereigns of gold at the time of marriage which was recorded in the SNDP Register. During cross examination, he says that he had become a broker only for this marriage. He is running a medical store. The cross examination proceeded on the basis that he was not the broker for the marriage, which he denied. He further indicates that he is a Homoeo Doctor whereas he has not done any treatment after 1968. He is an allopathic pharmacist and is conducting a medical store. He further states that the money was given at Sivanandan's house. 4 to 5 people were present at the relevant time. He was also present along with others. Document was written at around 11.00 am in the presence of Prince. During cross examination he was asked as to whether he was giving false evidence for the purpose of helping the respondent, which he denied. PW7 is a person who had attended the marriage. He is the person who had signed Ext.A3. According to him, the details of Mat.Appeal Nos.785/15 & conn.cases -:17:- the gold ornaments were recorded in the office of the auditorium. The entries were made based on instructions given by the girl's father. Girl was also present. There were no others at the relevant time. Question was asked whether he has seen the gold ornaments and his answer was that he had seen her wearing it. In cross examination, he further deposed that he had seen Ext.A3 for the first time after seeing the same at the time of marriage. According to him, he had put his signature at the office of the auditorium which is after half an hour from the time of marriage.
16. From a reading of the evidence as a whole, it is rather clear that the petitioner had some gold ornaments and the witnesses have spoken to the fact that even before marriage, the proposal was to give her not less than 101 sovereigns of gold ornaments. As rightly pointed out by the Family Court, there is justification for assuming that the petitioner's parents had the financial capability to provide such quantity of gold ornaments. According to PW1, 74 sovereigns belonged to her mother were also taken and 33 sovereigns were purchased from a jewellery, though no bill was produced. True that based on photographs produced, it may not be possible for the Court to arrive at a Mat.Appeal Nos.785/15 & conn.cases -:18:- conclusion regarding the quantity of gold ornaments. But the respondent does not have any specific case regarding the quantity of gold ornaments. In the objection filed, they have only made a bare denial of the said fact. But, taking into account the overall evidence that had been adduced in the matter, it can as well be found that she was in possession of 107 sovereigns of gold ornaments.
17. Next question is in regard to appropriation of gold ornaments by the respondents. As already indicated in the petition, the contention was that 87 sovereigns of gold ornaments were taken by stating that it has to be kept in a locker in SBT, Pathanapuram Branch. Evidence in the case also proves the fact that a locker facility was opened on 27/6/2001. The marriage between the parties was on 17/6/2001. Therefore, it is apparent that the locker facility was opened for the purpose of keeping the gold ornaments belonging to the petitioner as well. Further evidence of PW5 would show that the locker facility was in the name of respondents 2 and 3 and the name of the husband was added on 13/2/2003. Ext.X2 is a letter which will prove the aforesaid fact. Ext.X3 is a register of safe deposit locker daily Mat.Appeal Nos.785/15 & conn.cases -:19:- transaction which would show the time at which the locker was opened. It can be seen that the 2nd respondent had opened the locker at 12.15 pm on 27/6/2001, at 11.30 am on 20/12/2001 and at 11.05 am on 2/1/2002. The 1st respondent/husband has opened the locker at 10 am on 29/7/2002, at 11.55 am on 15/3/2003, at 12.20 pm on 29/4/2003, at 1.50 p.m on 18/8/2003, at 11.15 am on 2/1/2004, at 11.15 am on 18/9/2004, at 10.25 am on 18/3/2005, at 10.45 am on 27/5/2005, at 11.30 am on 19/12/2005, at 10.50 am on 6/4/2006 and 10.25 am on 27/9/2007. In the petition, petitioner had clearly stated that the gold ornaments were taken from her to be deposited in the locker. She had also given the locker number and her contention is that she had come to know that the entire 87 sovereigns were misappropriated and then sold and the sale consideration was used for their own purpose. In the objection filed by the respondents, they denied the said fact. But they did not specifically admit that a locker was opened with the number as stated by the petitioner. RW1 in the affidavit filed in lieu of chief examination has reiterated the averment in the objection filed. In cross examination he admits to have received `5 lakhs and Mat.Appeal Nos.785/15 & conn.cases -:20:- executed a document. But according to him, it is not as per Ext.A2. Questions were asked as to whether he had denied Ext.A2 in his written statement and his answer was that he had stated that it has no legal validity. He further admits to have received `5 lakhs, which he had stated in the written statement and his only contention is that Ext.A2 is not the said document. In cross examination, he has stated that there was no locker facility in the name of his parents. Application was given a few months prior to the date of marriage. There was an attempt of theft at his residence and therefore they applied for locker facility. In 1998, there was a theft. A suggestive question was put that locker facility was taken for the purpose of keeping the ornaments of his wife, the answer was in the negative. He further admits that the locker was at SBT, Pathanapuram which was taken 10 days after the marriage. Father was operating the same. From 13/2/2003, he was also operating the same. Question was put that the locker was kept only for the purpose of keeping the gold ornaments of the petitioner, which he denied. According to him, the gold and other documents of his mother were kept in the locker. He further deposes that a police case was registered when there was an Mat.Appeal Nos.785/15 & conn.cases -:21:- attempt to theft. The theft had occurred in the year 1998. He was asked whether he had tried to keep the gold ornaments of his wife in safe custody and his answer was in the negative. According to him, the gold ornaments of the petitioner were kept in another locker and he further said that he is unable to produce any document. He further states that he and his father alone were operating locker No.217. According to him, he had returned `5 lakhs which he had received and the gold ornaments are very well with the wife-petitioner.
18. From the pleadings and evidence it could rather be seen that the respondent never admitted to have had the locker facility whereas the petitioner was specific about the respondent's parents having a locker facility. She had even given the number. In the objection, respondents did not have a case that they had a locker facility and the number was the same and that it was used only for the purpose of keeping the ornaments of 1st respondent's mother whereas in evidence, the 1st respondent tried to impress that the petitioner was having her own locker facility. When there is no such contention in the objection, evidence of PW5, the Bank Manager, virtually indicates that the locker facility was opened Mat.Appeal Nos.785/15 & conn.cases -:22:- after 10 days from the date of the marriage which itself is enough to prove the fact that the locker was opened to keep the gold ornaments of the petitioner. Once that fact is proved, it is still in evidence that either the 1st respondent's father, the 2nd respondent, was operating or after some time 1st respondent was operating the locker facility. Therefore, on an over all consideration of the factual aspects, it is rather clear that the 1st respondent was bound to explain the details of the gold ornaments kept in the locker facility. As already indicated in his objection, he did not even attempt to admit the fact that there is a locker facility. The objection reads as under:-
" 8 10 . .
87
. ."
In th chief affidavit also, he had only repeated what he has stated in the objection. He did not explain under what circumstances the locker facility was opened and whether he was operating the Mat.Appeal Nos.785/15 & conn.cases -:23:- same. In cross examination he says that the locker facility was taken for keeping the gold ornaments and documents of his mother. There is no such case in the pleading. Therefore, the version of RW1 to that extent cannot be believed. Learned counsel for appellant would contend that evidence of PW1 cannot be believed as there are lot of contradictions. But, we are of the view that the evidence as a whole has to considered while evaluating a case based on preponderance of probabilities. In the said circumstances, we are of the view that the petitioner had proved her case and there is no infirmity in the judgment of the Family Court with reference to the direction to return the gold ornaments or its value.
19. In regard to `5 lakhs, the receipt of the same has been admitted by the petitioner, whereas according to him, it was returned. There is no evidence to show that the said amount has been returned and therefore the Family Court was justified in directing return of the said amount with interest. We do not find any infirmity in the said finding of the Family Court warranting interference at the appellate jurisdiction.
20. Cross objection has been filed in MA No.785/15 Mat.Appeal Nos.785/15 & conn.cases -:24:- claiming the disallowed portion of the claim. In the original petition, petitioner claimed recovery of `11 lakhs and further 9 sovereigns of gold ornaments also. `11 lakhs was claimed by adding on interest on `5 lakhs at the rate of 12% per annum. Grant of interest is purely a discretion of the Court and is not a right. The Court below had already granted interest on the said amount of `5 lakhs at the rate of 6% per annum. But it appears that no specific date has been mentioned in regard to the interest portion. Taking into account the fact that the original petition was filed as early as on 31/5/2011, it is appropriate to grant interest at the rate of 6% per annum on `5 lakhs from the date of filing the petition till realisation. In regard to 9 sovereigns of gold ornaments, the contention of the petitioner is that the 1st respondent has taken away 9 sovereigns of gold ornaments in December 2007 as detailed in C schedule. In the objection filed, respondent denied the said fact. Other than the oral testimony of PW1, there is no evidence to prove the aforesaid fact. Under such circumstances, we do not think that the Family Court has committed any error in rejecting the said claim. Further the allegation that 9 sovereigns were taken was made after Mat.Appeal Nos.785/15 & conn.cases -:25:- settlement in OS No.427/2003. Under such circumstances, the Family Court was justified in rejecting the said claim. We do not find any infirmity in the said judgment warranting interference in the cross objection.
21. The next question is with reference to the grant of divorce in OP(HMA) No.1137/11. The Family Court on a consideration of the factual aspects involved in the matter came to a finding that Family Court observed that PW1 and RW1 were blaming each other and both of them are making allegations and counter allegations of cruelty. Further, several cases have been filed and a case is registered under 498A of the Indian Penal Code against RW1 and his parents on the basis of a complaint given by PW1. Case is chargesheeted and pending as CC No.1847/12. Cases are also pending under the Protection of Women from Domestic Violence Act, 2005. Another case is pending under the Dowry Prohibition Act. It can therefore be seen that the spouses are at loggerheads and it is possible that they will go to any extent in order to justify their respective contentions. The wife has an allegation of illicit relationship between the respondent husband and one Omana. Making such allegation by itself without Mat.Appeal Nos.785/15 & conn.cases -:26:- any proof regarding the same amounts to cruelty. Family Court however finds that it is not possible for the couple to live together and though no specific allegations were made out to prove mental cruelty, dissolution of marriage will make pain and anguish. In regard to the claim for desertion, it was found that the minimum period of desertion had not occurred. Though it is found by the Family Court that the pleading and evidence do not justify a finding of cruelty, the facts involved in the case by itself would show that cruelty had been meted out against the petitioner husband. There is an allegation that he was having some illicit relationship with one Omana who was a home nurse who had come to take care of his father as he was suffering from Parkinsons disease. Such unsubstantiated allegation by itself amounts to cruelty and when allegations are raised in the form of pleadings and evidence, it is held by the Apex Court in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate (AIR 2003 SC 2462) that the same amounts to cruelty. Taking into account the overall factual circumstances in the matter, we are of the view that a case of cruelty had been made out and though there is no finding by the Family Court, for different Mat.Appeal Nos.785/15 & conn.cases -:27:- reasons, we are of the view that the marriage is liable to be dissolved. Accordingly, there is no merit in challenging the judgment in OP(HMA) 1137/2011.
22. Taking into consideration the aforesaid factual circumstance, we do not find any error in the judgment warranting interference by this Court.
In the result, the appeals are dismissed and the cross objection is partly allowed.
The judgment and decree of the Family Court in OP No.655/2011 is modified to the extent of permitting the petitioner to recover a sum of `5 lakhs with interest at the rate of 6% per annum from the date of petition till realisation. In all other respects, the decree is sustained.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
K.RAMAKRISHNAN, JUDGE Rp //True Copy// P.S to Judge