Kerala High Court
Annamma Varughese vs Ommen Kuruvila on 9 March, 2020
Author: Mary Joseph
Bench: A.M.Shaffique, Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941
Mat.Appeal.No.429 OF 2013
AGAINST THE JUDGMENT IN OP 265/2011 DATED 20-12-2012 OF FAMILY
COURT, THIRUVALLA
APPELLANT/PETITIONER:
ANNAMMA VARUGHESE, AGED 29 YEARS, D/O.P.T.VARGHESE,
POTTAKKULAM HOUSE, VELLAVOOR VILLAGE, CHANGANACHERRY
TALUK, KOTTAYAM DISTRICT.
BY ADVS.
SRI.V.SETHUNATH
SRI.S.JUSTUS
RESPONDENTS/RESPONDENTS:
1 OMMEN KURUVILA, AGED 30 YEARS,
S/O.K.K.KURUVILA, KAKKAMALA HOUSE,
PERUMPETTY VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA
DISTRICT. PIN-689 592.
2 K.K.KURUVILA, AGED 62 YEARS,
KAKKAMALA HOUSE, PERUMPETTY VILLAGE, MALLAPPALLY
TALUK, PATHANAMTHITTA DISTRICT. PIN-689 592.
3 SOSAMMA KURUVILA, AGED 58 YEARS,
W/O.K.K.KURUVILA, KAKKAMALA HOUSE, PERUMPETTY
VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.
PIN-689 592.
R1-3 BY ADV. SRI.MANU SEBASTIAN
R1-3 BY ADV. SRI.K.J.SHARATH KUMAR
R1-3 BY ADV. SRI.A.R.DILEEP
R1-3 BY ADV.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04-02-
2020, THE COURT ON 09-03-2020 DELIVERED THE FOLLOWING:
Mat. Appeal No. 429 of 2013
2
A.M. SHAFFIQUE & MARY JOSEPH, JJ.
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Mat. Appeal No. 429 of 2013
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Dated this the 09th day of March, 2020
JUDGMENT
Mary Joseph, J:
The appellant is the petitioner in O.P.No.265 of 2011 of Family Court, Thiruvalla. A common judgment was passed in O.P.No.265 of 2011 and O.P.(Div) No.266 of 2011 by Family Court, Thiruvalla on 20.12.2012. O.P.No.266 of 2011 was decreed granting a decree for divorce in favour of the petitioner. O.P.No.265 of 2011 was decreed in part and aggrieved thereby the petitioner is now in appeal.
2. O.P.No.265 of 2011 was filed seeking recovery of patrimony and gold ornaments or its equivalent value from the respondents.
3. The petitioner and respondents belong to Christian religion. Respondents 1 to 3 are respectively husband, father-in-law and mother-in-law of the petitioner. The marriage between the petitioner and the 1st respondent was solemnized on 31.01.2009 at Athiyal Shalom Marthoma Church, Perumpetty, in accordance with the religious rites and ceremonies of Christian community. While the discussion Mat. Appeal No. 429 of 2013 3 about the marriage was going on, the petitioner was working as a staff nurse at Delhi and the 1st respondent, at Quatar. For want of leave for the 1st respondent, betrothal function was avoided. The parental share of the petitioner was fixed as cash of Rs.1,50,000/- and gold ornaments of 10 sovereigns. At the time of marriage, the father of the petitioner entrusted Rs.1,50,000/- to the 2nd respondent for keeping the same in trust. The petitioner was also given 10 sovereigns of gold ornaments. The petitioner and the 1st respondent started to reside together at the house of the respondents and the petitioner came to know during stay as aforesaid that the 1st respondent is a drunkard. On 13.02.2009, the 1st respondent returned to Quatar to join his work there. The petitioner was directed by him to return to Delhi for joining her employment therein and to hand over her gold ornaments to respondent Nos. 2 and
3. Thus, after handing over the entire gold ornaments belonging to her to the 3rd respondent, she left for Delhi on 18.02.2009.
4. On getting a better employment at Saudi Arabia, she left thereto on 23.06.2009, after spending Rs.1,25,000/- for arranging her visa. At Saudi Arabia, the petitioner was getting 3000 Saudi Riyals as monthly salary and therefore, 1500 Saudi Riyals was sent by her to the account of the 1st respondent with Federal Bank, Chunkapara Branch. In the month of October 2010, 5000 Saudi Riyals were also sent by the petitioner to the account of the 1st respondent. While staying so at Saudi Arabia, based on suspicion of chastity of the petitioner, frequent Mat. Appeal No. 429 of 2013 4 quarrels started to occur among them. Thereupon, the petitioner expressed her willingness to quit her job and to stay at the residence of the 1st respondent. The 1st respondent did not allow her to resign the job. Thereafter, the petitioner and the 1 st respondent arrived at their native place on 24.12.2010. The petitioner had brought 10 sovereigns of gold ornaments from Saudi Arabia. From the first day of her arrival at the matrimonial home itself, the 1 st respondent manhandled her for reasons unknown to her. As directed by the 1 st respondent, 10 sovereigns of gold ornaments brought by her from Saudi Arabia were also entrusted to the 3rd respondent. Though, the petitioner was allowed to wear 5 gold bangles, those were also made to handover to the 3rd respondent after reaching the matrimonial home.
5. While so, the petitioner and the 1st respondent decided to purchase 16 cents of property and a house at Kuttanadu Panchayath for Rs.10,00,000/- and entered into an agreement for sale on 18.01.2011. For arranging the money payable towards sale consideration, gold ornaments belonging to the petitioner were pledged at Pullad and Chunkapara branches of Federal Bank on 17.01.2011. The money sent to the account of the 1st respondent by the petitioner from Saudi Arabia was also spent for the purpose. After purchasing the property, the respondents began to treat the petitioner with cruelty. He compelled her to search for a job having better prospects at Bahrain. Accordingly, she went to Bahrain on 03.02.2011 in search of a job on a Mat. Appeal No. 429 of 2013 5 visiting visa. But it was revealed to the petitioner in the medical examination that she was pregnant. When the matter was informed to the 1st respondent, he compelled her to abort the pregnancy and to continue there. The petitioner could not accede to the demand and therefore returned to the matrimonial home on 18.02.2011. She was received there by the 1st respondent with filthy language and repeated demands to terminate the pregnancy. On 19.03.2011, she was manhandled brutally by the 1st respondent at their bed room. The 1 st respondent had sexual intercourse with her forcibly with a view to get the pregnancy aborted. The petitioner informed the matter to her father. He arrived at the residence of the respondents at 7.30 pm. The petitioner was manhandled by the 1st respondent in front of her father and thereupon she left the matrimonial home with him. Using the ATM card of the petitioner, the 1st respondent had withdrawn Rs.40,000/- from the NRI Account of her with Canara Bank, Nedumkunnam Branch. He also pledged 170 gms of gold ornaments worth Rs.3,29,800/- belonging to the petitioner for purchasing landed property.
6. Thereafter, the petitioner was not permitted to join the 1 st respondent at the matrimonial home. Therefore, she started living separately from the 1st respondent. Thus the marital relationship was broken irretrievably. Accordingly, she applied for getting a decree of divorce from the 1st respondent and for recovery of Rs.1,50,000/- given to him as patrimony, Rs.3,12,000/- sent by her from Saudi Arabia to Mat. Appeal No. 429 of 2013 6 the account of the 1 st respondent, Rs.40,000/- withdrawn from her account by the 1st respondent using the ATM card and gold ornaments of 170 gms pledged by the respondents or its market value of Rs.3,29,800/- from the respondents and their assets.
7. Respondent Nos. 1 to 3 filed counter statement admitting the marriage. It was contended that the 1 st respondent has no idea about the parental share agreed to be paid by the father of the petitioner, that the 2nd respondent had never received Rs.1,50,000/- from petitioner's father as averred by her, that the respondents have no idea regarding the gold ornaments allegedly given to the petitioner by her parents, that the father of the petitioner had promised to settle 1/3rd share of his property in favour of the 1 st respondent as the parental share of the petitioner, that the 1 st respondent had never directed the petitioner to hand over the gold ornaments to respondents 2 and 3 and that the petitioner had never entrusted gold ornaments to the 3rd respondent for keeping those in her custody. It is further contended that since the petitioner left for Delhi on 16.02.2009, there is no basis for the averment of the petitioner that the gold ornaments were handed over to the respondents on 17.02.2009. The contentions that a sum of Rs.2,00,000/- was spent by the respondent for arranging the Visa for the petitioner, that as directed by the 1 st respondent, huge amounts were also spent by the 2nd respondent for meeting the expenses of the studies of the younger sister of the petitioner who was Mat. Appeal No. 429 of 2013 7 a nursing student at Mangalapuram, that the petitioner had never remitted 1500 Saudi Riyals to the NRI account of the 1 st respondent with Federal Bank, that the 1 st respondent never manhandled the petitioner, that landed property was purchased by the 1 st respondent on 18.02.2011 based on an agreement entered into between respondents 2 and 3 and others much earlier, that the gold ornaments belonging to the petitioner were never pledged for purchasing the landed property, that the money stands in deposit in the account of the petitioner was never used for purchasing the property, that there was no compulsion from the 1st respondent on the petitioner to search for employment at Bahrain, that no amount has been withdrawn by the 1 st respondent from the NRI account of the petitioner using her ATM card and that the petitioner had never brought gold ornaments from Abroad, were also raised by the respondents.
8. It was also contended that at the time when the petitioner left the matrimonial home on 28.03.2011, the entire gold ornaments and other properties brought to the matrimonial home by her were taken without the consent and knowledge of the 1 st respondent. Based on the above contentions, it was pleaded by the 1 st respondent that in the absence of a cause of action for the petitioner, the Original Petition deserves to be dismissed.
9. The above original petition was tried alongwith O.P.No.266 of 2011. Evidence was adduced in common in both cases. On the side Mat. Appeal No. 429 of 2013 8 of the petitioner, she was examined as PW1 and Exts.A1 to A7 were marked. On the side of the respondents CPWs 1 to 8 were examined and Exts.B1 to B7 and Exts.X1 and X2 were marked.
10. On appreciation of the evidence, the family court allowed the original petition in part, directing the petitioner to realise a sum of Rs.1,50,000/- with interest at the rate of 9% per annum from the date of the Original Petition till realisation and costs from the respondents and their assets. Other claims were declined. Aggrieved thereby, the appeal on hand is filed.
11. The petitioner as PW1 deposed strictly in tune with her averments in the Original Petition. According to her, on the date of marriage itself, leaving a gold chain of 3 sovereigns with herself, the rest of the gold ornaments were entrusted to the 3 rd respondent as directed by the 1st respondent. According to her, she had sent Rs.3,12,000/- to the NRI account of the 1 st respondent. She had also brought 10 sovereigns of gold ornaments from Saudi Arabia and entrusted the same to the 3rd respondent as directed by the 1st respondent. According to her, Rs.40,000/- was also withdrawn from her account by the 1st respondent using her ATM card. According to her, the money obtained after pledging the gold ornaments and the cash of Rs.3,12,000/- sent by her into the account of the 1 st respondent were utilised by him for purchasing a landed property. PW1 had relied only on her own interested version to establish her claim. Though, her Mat. Appeal No. 429 of 2013 9 parental share was averred as given to the 1 st respondent by her father, she did not examine him to support her claim.
12. Ext.A1 marriage certificate issued from Athiyal Shalom Marthoma Church, Perumpetty, Ext.A2 series of photographs, Ext.A3 bank particulars, Ext.A4 copy of deed and Exts. A5 to A7 statement of accounts from banks were produced. The claim of the petitioner was that she got job at Saudi Arabia on 23.06.2009 and her monthly salary was 3000 Saudi Riyals. According to her, 1500 Saudi Riyal was sent regularly by her to the account maintained by the 1 st respondent with Federal Bank Limited. Therefore, the amount must have been sent during the period commencing from 2009. To establish the purchase of 10 sovereigns of gold ornaments at the time of marriage, the petitioner failed to produce bills or estimates. To establish that she had brought 10 sovereigns of gold from Saudi Arabia also, no materials are available. Though Ext.A2 series of photographs are produced, negatives of those are not made available. It was noticed by the Family Court on a perusal of Ext.A2 series of photographs that petitioner was adorned a small gold necklace, gold chain, some bangles and gold rings. The quantum of the gold ornaments were found by the Family Court, 10 sovereigns, approximately. In that context, Ext.B1 series of photographs produced by the respondents assume relevance. It is disclosed from Ext.B1 series that the petitioner was wearing only few gold ornaments at the time of her marriage. The case of PW1 itself was Mat. Appeal No. 429 of 2013 10 that, leaving a chain of 3 sovereigns, the rest of the gold ornaments were entrusted to the 3rd respondent as directed by the 1 st respondent. Petitioner had a further claim that when she returned from Saudi Arabia on 24.12.2010, 10 sovereigns of gold ornaments were brought and entrusted to the 3rd respondent. PW1 had spoken during examination that her relationship with the 1st respondent started to strain during her stay at Saudi Arabia itself. If that be true, it is impracticable to entrust the gold ornaments to the 3rd respondent, obeying the direction of the 1st respondent.
13. It is pertinent to note that the claim made in the original petition was for recovery of 21 sovereigns of gold ornaments. The averment that 170 gms of gold ornaments worth Rs.3,29,800/- belonging to the petitioner were pledged for purchasing the property was not established by producing any materials either relating to the pledge or the purchase of the property. The claim for 21 sovereigns itself is unsustainable when PW1 herself had admitted that a gold chain of three sovereigns was with her. It is also difficult to believe the version of PW1 that she had handed over even the ear-studs and bangles of normal wear to the 3 rd respondent. A glance at the photographs also impress us that the gold ornaments worn by the petitioner might be approximately 10 sovereigns.
14. Apart from the interested testimony of PW1 that 21 sovereigns were entrusted to the 3rd respondent, other evidence is not Mat. Appeal No. 429 of 2013 11 forthcoming to support her claim. The photographs marked in evidence as Ext.A2 series do not impress us to take a view that 10 sovereigns were worn by her at the time of marriage. Moreover PW1 has stated that the entrustment was after keeping gold chain of 3 sovereigns with herself. The above version do not tally with her claim that 10 sovereigns were originally entrusted to the respondent. There is absolutely no evidence to establish the claim of the petitioner that 1500 Saudi Riyals have been sent monthly to the account of the 1 st respondent. It could have been established from the statement of accounts of the Bank wherein the petitioner is maintaining account. But, those were not procured and marked in evidence. Evidence is also not forthcoming to establish that Rs.40,000/- has been withdrawn by the 1st respondent from the petitioner's account using ATM Card. Evidence is also lacking to establish that 10 sovereigns of gold ornaments have been brought by the petitioner from Saudi Arabia and entrusted to the 3rd respondent. Even the entrustment of 10 sovereigns of gold ornaments claimed as above is improbable to happen in a context wherein the marital relationship of the parties admittedly started deteriorating.
15. It is disclosed from Ext.A2 series that the petitioner had worn some gold ornaments but, apart from her interested testimony, other evidence is not forthcoming to establish the entrustment of those with the 3rd respondent. Even on an elaborate scrutiny of the evidence, it is Mat. Appeal No. 429 of 2013 12 found that the petitioner does not have a claim that the gold ornaments have been entrusted to respondents 1 and 2. The Family Court after a detailed consideration of the evidence found the claim of the petitioner for recovery of Rs.1,50,000/- given to her as patrimony, sustainable. Accordingly, the Original Petition was allowed in part granting a decree for realisation of the said amount from respondents. The appeal on hand is filed claiming the disallowed reliefs for which cogent supporting evidence is lacking. The appeal fails for the reason and deserves dismissal.
In the result, the Matrimonial Appeal is dismissed.
sd/-
A.M.SHAFFIQUE Judge sd/-
MARY JOSEPH Judge NAB 22.02