Kerala High Court
Dileep Kumar vs P.B.Mini on 16 February, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939
Mat.Appeal.No. 26 of 2009 ( )
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AGAINST THE ORDER/JUDGMENT IN OP 308/2006 of FAMILY COURT, KOTTAYAM
DATED 16-02-2008
APPELLANT(S):
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DILEEP KUMAR, S/O.LATE KARUNAKARAN,
SREEVILASOM, VANDIPERIYAR P.O.,
IDUKKI DISTRICT.
NOW WORKING IN ELECTRICAL (PV&S) PROJECT,
KARP, BARC-F, KALPAKKAM, CHENNAI.
BY ADVS.SRI.P.C.HARIDAS
SRI.P.K.CHITHRABHANU
RESPONDENT(S):
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P.B.MINI, D/O.LATE P.P.BHASKARAN,
RESIDING AT PARAYIL HOUSE,
KEEZHUKUNNU KARA,
MUTTAMBALAM VILLAGE, KOTTAYAM TALUK,
KOTTAYAM DISTRICT.
BY ADV. SRI.K.K.GOPINATHAN NAIR
BY ADV. SRI.M.R.JAYAPRASAD
BY ADV. SRI.MATHEW SUNNY
BY ADV. SRI.P.MOHANDAS (ERNAKULAM)
BY ADV. DR.K.P.SATHEESAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
28-06-2017 ALONG WITH Mat.APPEAL NO. 31 OF 2009, THE COURT ON
20.7.2017 DELIVERED THE FOLLOWING:
A.M.SHAFFIQUE
&
ANU SIVARAMAN, JJ.
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Mat.Appeal Nos. 26 and 31 of 2009
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Dated this the 20th day of July, 2017
JUDGMENT
Anu Sivaraman, J.
These appeals are preferred by the husband against the common judgment in O.P.Nos.308 of 2006 and 130 of 2007. O.P.No.308 of 2006 was filed by the wife for divorce on the ground of cruelty and desertion. Mat.A.No.26 of 2009 arises from the judgment in the said original petition. O.P.No.130 of 2007 was filed by the wife for return of money and gold ornaments. Mat.A.No.31 of 2009 arises from the judgment in the said original petition.
2. The marriage between the parties was solemnized on 10.5.1992. After the marriage, the spouses had lived in Mumbai where the appellant husband was working. A girl child was born to them. The respondent wife alleged that the appellant herein was alcoholic and was quarrelsome and he was suspicious of the respondent without any reason. It is alleged that he used to lock the respondent in the room when he goes out and manhandled her when she questioned his behaviour. After birth of the child, he continued harassing the respondent and ill Mat.A.26 & 31/09 2 treated the child as well. It is contended that the respondent had informed the mother and sister of the appellant and they had taken him for de-addiction treatment. It is alleged that on 19.9.1995, the appellant manhandled the respondent demanding further share in family property and the respondent being unable to endure the harassment had left the matrimonial home on 19.9.1995. Thereafter, the appellant husband refused to look after or inquire about the respondent and child and she was deserted by him.
3. In O.P.No.130 of 2007, the material averments were that an amount of Rs.30,000/- was entrusted by the mother of the respondent to the appellant on 26.1.1992 and that the respondent was given 41 sovereigns of gold ornaments at the time of marriage. It is stated that the appellant misappropriated the money and gold ornaments and refused to return the same.
4. Counter statements were filed by the appellant admitting the marriage and paternity of the child. He denied all allegations of matrimonial cruelty as also the allegations of handing over of any money or the entrustment or appropriation of gold ornaments of the wife. The appellant husband also denied the allegation of desertion and stated that the Mat.A.26 & 31/09 3 respondent was living in her parental house without sufficient reason. PW1 to PW3 were examined on the part of the respondent and Exhibit A1 to A6 were marked. The appellant examined RW1 and RW2 but no documentary evidence was adduced. Relying on the oral and documentary evidence, the Family Court granted a decree of divorce on the ground of cruelty and desertion. The claim for return of Rs.30,000/- and the value of 41 sovereigns of gold ornaments was also allowed with 9% interest from the date of decree. This is challenged in these appeals.
5. Heard learned counsel for the appellant and the learned counsel for the respondent.
6. It is submitted by the learned counsel for the appellant that the evidence with regard to matrimonial cruelty being only the nature of oath against oath, the Family Court erred in relying exclusively on the oral testimony of PW1 to hold that the case of matrimonial cruelty stood proved. The evidence adduced by the appellant was completely discarded by the court below, it is contended. It is further submitted that the parties had admittedly proceeded to Mumbai soon after the marriage which took place on 10.5.1992. The Family Court, therefore, ought to have taken note of the contention urged by Mat.A.26 & 31/09 4 the appellant that none of the wife's gold ornaments had been taken by the appellant and the same had been left with the parents of the respondent for safe keeping, since the spouses had gone to Mumbai by train. It is therefore contended that the decree for return of money and gold ornaments was completely unreasonable.
7. We have considered the contentions advanced with reference to the pleadings and materials on record. It was the specific case of the respondent in the original petition that an amount of Rs.30,000/- had been handed over by her mother to the appellant before the marriage. She also stated that she had 41 sovereigns of gold ornaments at the time of marriage. She contended that the money was entrusted directly to the husband and the gold ornaments had been entrusted with the appellant immediately after the marriage. She therefore sought return of the same. Exhibit A2 copy of the marriage register was produced to prove that she had the said quantity of gold in possession at the time of marriage.
8. In O.P.No.130 of 2007 the petitioner wife contended as follows:
"3. The marriage was an arranged marriage. In connection with the marriage on 26/01/1992 at the Mat.A.26 & 31/09 5 time of engagement, the mother of the petitioner entrusted the respondent Rs.30,000/- (Rupees Thirty Thousand only) as the paternal share of the petitioner in her family property. Also the mother of the petitioner gave 41 sovereigns of gold ornaments to the petitioner as her share from her paternal property. On the date of marriage the petitioner wore the said gold ornaments. The gold ornaments and money were entrusted with the respondent as petitioner's share in her family property as a trustee for the benefit of the petitioner. While they started living together in Bombay, the gold ornaments were kept in the custody of the respondent and later those ornaments were sold by the respondent and the money was misappropriated by the respondent. The respondent misappropriated the gold ornaments and money entrusted with him without the knowledge, will or consent of the petitioner."
9. In the written statement filed in the said case the pleading of the respondent was as under:
"2. The statements contained in paragraph no.2 are admitted. But the allegations contained in paragraph no.3 are not correct. The engagement of the marriage was taking place during the last week of November 1991. There was no demand of patrimony on the side of the respondent and there was no discussion on the ornaments and the money between the parties on the said day. As dowry or any other type of gift was not a subject of a discussion on the Mat.A.26 & 31/09 6 date of engagement, there was no opportunity of payment of money on the said date. The allegation that Rs.30,000/- was entrusted to the respondent on 26.01.92, is totally false and hence denied. The respondent never demanded the paternal share of the petitioner on the said date. It is true that the petitioner was wearing gold ornaments at the time of marriage and the ornaments were with her, while she was residing with the respondent. But as a matter of fact, the respondent is not aware of the quantity of the gold ornaments, which the petitioner was wearing. No entrustment was made with regard to the ornaments, as the share of the petitioner's family property, to the respondent, as a trustee. The allegation is false."
10. It was on these pleadings that the parties went to trial. In cross examination, PW1 was pointedly asked whether she had left her gold ornaments at her own house when they went to Mumbai two weeks after the marriage by train. She stated that she had her thali chain, one bangle and ear ornaments with her when she left for Mumbai. The entire gold ornaments had been taken by her to Mumbai. On reaching Mumbai, the gold was entrusted to the appellant and he took the same and kept it in the cupboard. When they were travelling, the gold ornaments were kept in the husband's bag. PW2, who is the brother of the respondent had also given Mat.A.26 & 31/09 7 evidence to the effect that Rs.30,000/- was handed over to the appellant on 26.1.1992 by him. It is also stated that the respondent had been given 41 sovereigns of gold at the time of marriage. He also stated that the appellant did not look after the respondent or the child after he came back from Mumbai. Suggestion was also put to PW2 in cross examination that the gold had been left behind at the appellant's house, when they had gone to Mumbai, but this was denied. PW3, who was the Secretary of the SNDP Sagha, was also examined to prove the marriage register.
11. The appellant, as RW1, gave evidence in terms of his petition. He admitted that the respondent had gold ornaments at the time of marriage. He did not know the quantity of the gold. He stated that the wife had taken the gold ornaments along with her when she left in 1995. It is therefore clear that the contention of the wife that she had gold ornaments at the time of marriage and that the said gold ornaments had been taken to Mumbai when the spouses left after the wedding have not been denied by the husband.
12. The case of the appellant is that the ornaments had not been entrusted to the husband and that he was unaware of the quantity of gold available. The suggestion that the gold was Mat.A.26 & 31/09 8 not taken to Mumbai and that the same had been entrusted with the wife's parents at the time they left for Mumbai appears to be an afterthought which does not find a place in the pleadings or in the proof of affidavit. The respondent wife had testified that her gold ornaments had been taken along with her to Mumbai and had been entrusted with the appellant. She had also stated that the gold had not been returned to her at any point of time. Her case in the pleadings and the evidence was consistent. However, the appellant husband did not deny that the wife had gold ornaments and that the same was taken with them to Mumbai. His contention was that he was not aware of the quantity of the gold and that the same was taken back with her when she left in 1995. The inconsistencies in the pleadings and the evidence of the husband on this point reduce the reliability of his evidence.
13. In the above view of the matter, in the light of the oral and documentary evidence adduced on the aspect of the availability of gold with the wife and the entrustment to the husband, we are of the opinion that the wife had succeeded in proving such entrustment of gold with the husband. Since the husband could not satisfactorily prove that the gold had been returned to the wife, we are of the opinion that the wife is Mat.A.26 & 31/09 9 entitled to a decree for return of the gold as has been granted by the Family Court.
14. As regards the handing over of the money also, the respondent wife and her brother had given evidence. PW1 has explained that her mother is ill and indisposed which is the reason for not examining the mother. Apart from a mere denial in the pleadings, we are of the opinion that the appellant has been unable to discredit the testimony of PW1 and PW2 in any manner. In the above view of the matter, we are of the opinion that the respondent wife had succeeded in establishing the entrustment of the gold and money.
15. On a close consideration of the pleadings and the evidence adduced with regard to the allegations of cruelty, we are of the opinion that the unfounded suspicions of the appellant as spoken to by the respondent in her testimony which extended to his action of locking her up when he went out of the house would clearly indicate mental cruelty of such a nature that the wife would find it impossible to continue the matrimonial relationship. PW1 states that she had talked to her mother-in-law and sister-in-law about the appellant's unwarranted suspicions and about his alcoholism and that they had agreed to take him to de-addiction centre for treatment. Mat.A.26 & 31/09 10 The allegation is that she had been manhandled by the respondent demanding further share in family property and being unable to bear the harassment, she was forced to leave the matrimonial home on 19.9.1995. It is trite law that acts of physical cruelty or assault do not have to be proved for the grant of a decree of divorce on the ground of cruelty. Continuing acts amounting to mental cruelty would be sufficient for a decree of dissolution of marriage under Section 13(1)(1a) of the Hindu Marriage Act. In the instant case, the evidence adduced, taken as a whole, was sufficient to indicate that the overt actions of the appellant along his general attitude of suspicion had created a situation where the wife was unable to remain in the matrimonial home.
In the above circumstances, we find no illegality or material irregularity in the judgment of the court below. The appeals fail and are accordingly dismissed.
There will be no order as to costs.
A.M.SHAFFIQUE JUDGE ANU SIVARAMAN JUDGE vgs