Kerala High Court
Jayakumari vs Krishnan Nair.V on 26 February, 2020
Equivalent citations: AIR 2020 (NOC) 559 (KER.), AIRONLINE 2020 KER 62
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
WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020 / 7TH PHALGUNA, 1941
Mat.Appeal.No.754 OF 2013
AGAINST THE JUDGMENT IN OP No.1383/2009 DATED 20-07-2013 OF FAMILY
COURT, NEDUMANGAD.
APPELLANT/PETITIONER:
JAYAKUMARI, AGED 42 YEARS.
D/O.THANKAMMA PILLAI, CHOTHI NIVAS, MARUTHUMKINAM,
VETTAMPALLI, IRINCHAYAM P.O., NEDUMANGAD TALUK,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SMT.MINIMOL R.
SMT.ANU KRISHNA
RESPONDENT/RESPONDENT:
KRISHNAN NAIR.V
S/O.VELUKUTTY NAIR, PATHRAMCODE THADATHARIKATHU
VEEDU, VETTAMPALLI, IRINCHAYAM P.O., ANADU VILLAGE,
THIRUVANANTHAPURAM-695561.
BY ADV. SRI.A.RAJASIMHAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-01-
2020, THE COURT ON 26-02-2020 DELIVERED THE FOLLOWING:
Mat.Appeal.No.754/2013 2
A.M.SHAFFIQUE & MARY JOSEPH, JJ
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Mat.Appeal No.754 of 2013
--------------------------------------------------- Dated this the 26th day of February, 2020 Mary Joseph, J The defeated wife in O.P No.1383/2009 has now preferred this appeal against the order of Family Court, Nedumangad declining to grant a decree for return of gold ornaments and for maintenance. The Family Court found the petitioner as an earning person getting Rs.6,000/- monthly and therefore, declined to pass an order directing the respondent to pay maintenance to her and for the reason that she failed to prove entrustment of gold ornaments, money and house hold articles, declined to pass a decree for return of those in her favour.
2. It is an admitted factum that the respondent married the petitioner on 29.03.1999 as per Hindu religious rites and they had resided together for sometime in the house of the respondent. It is also undisputed that the petitioner was working as a Nursing Assistant in SUT Hospital, Pattom at the relevant time.
3. According to the petitioner, she was given at the time of her marriage 35 sovereigns of gold ornaments, 10 cents of landed property and house hold articles worth Rs.20,000/- by her parents. According to her, the entire salary obtained by her while working as Mat.Appeal.No.754/2013 3 Nursing Assistant at SUT, Pattom were taken by the respondent from her forcefully and by utilising the money received, 10 cents of property and a house were purchased in his name. The entire gold ornaments were taken in custody by the respondent while they were living together and some have been pledged by him for his personal use. The relationship strained on account of the ill-treatment of the petitioner by the respondent and his extra marital relationship. On 29.01.2008, there occurred an incident of brutal assault, following which the petitioner was taken to the hospital and therefrom to her parental house. Thereafter the respondent deserted the petitioner and informed her parents that he does not intend to continue the marital relationship. Thereupon she was constrained to file the Original Petition on hand seeking return of 35 sovereigns of gold ornaments and recovery of Rs.3,00,000/- obtained from her forcibly, Rs.20,000/- as the cost of household articles, Rs.1,50,000/- as arrears of maintenance and her certificates and other documents.
4. Respondent denied the above aspects. According to him, 15 sovereigns of gold ornaments alone were given to the petitioner by her parents at the time of marriage and those were given by the petitioner to her sister at the time of latter's marriage in the year 2003. According to him, he was a workshop mechanic at the relevant time of marriage, earning Rs.5,000/- as monthly income, and with that he had Mat.Appeal.No.754/2013 4 provided all amenities to his wife. According to him, the landed property was purchased out of his own funds and the petitioner had not contributed any amount towards consideration. According to him, treatment in connection with the ailment, the petitioner was having and infertility were met by him in full and the petitioner was never deserted by him.
5. According to him, petitioner's parents took her to the parental home and all his attempts to resume conjugal relationship failed. According to him, due to the adamant attitude of the petitioner, mediation efforts to take her back to the matrimonial home failed. It is contended that being employed at SUT Hospital, Thiruvananthapuram and earning Rs.10,000/- monthly alongwith other benefits and for the reason that she herself deserted him, she is not entitled to get any sum as maintenance from the respondent. The original petition was sought to be dismissed for the reasons.
6. Petitioner examined herself as PW1 and respondent as CPW1. A witness was also examined by the respondent as CPW2. Exts. A1 to A4 and Exts.B1 to B10 respectively were marked in evidence by the petitioner and the respondent.
7. Family Court, Nedumangad having heard the respective counsel and after appraising the arguments in the backdrop of the evidence adduced by the parties arrived at a finding that the petitioner failed to Mat.Appeal.No.754/2013 5 establish her claim for return of money, gold ornaments and maintenance. Accordingly, the Original Petition was dismissed.
8. Smt. Minimol R, the learned counsel for the appellant at the outset of her arguments had contended on the basis of some additional documents produced by her afresh at the appellate stage that despite entrustment of those to the original counsel for the petitioner sufficiently earlier in point of time, he failed to produce and mark those in evidence during trial. According to her, when the case bundle was entrusted to her to prefer the appeal on hand, she came across with the documents and found upon a scrutiny that the documents omitted to be marked are crucial for an effective adjudication of the issues involved. She also found that in case the documents were produced in time, marked, received in evidence and considered, the petitioner would have obtained an order in her favour. According to her the respondent had only a single Life Insurance Policy No.781677395 dated 28.03.1998 for sum assured as Rs.50,000/- with quarterly premium of Rs.1,941/-, prior to the marriage. The petitioner had 14 numbers of Life Insurance Policies in her name. After the marriage, utilising the salary forcibly obtained from her and the money obtained after getting the above mentioned Life Insurance Policies surrendered, the respondent had obtained another LIC with policy No.783845787 for a tenure of 10 years on 21.01.2009. A prosecution for forgery is Mat.Appeal.No.754/2013 6 pending as C.C.No.802/2015 against the respondent before Judicial First Class Magistrate Court-III, Negumangadu. According to the petitioner, her mother had sold 1.62 Ares (6.6 Cents) of property in Survey No.298/7 of Block 8 of Anad Village for meeting the expenses in connection with her marriage and the certified copy of deed No.1129/99 dated 18.03.1999 of SRO, Nedumangadu produced by her would establish that. According to the learned counsel, documents supportive of the above aspects were obtained by her by applying under the RTI Act and are produced alongwith to be marked in additional evidence as Exts.A5 to A29. According to her, those documents are highly essential for a proper adjudication of the issues involved in the case on hand.
9. The above application was opposed by the learned counsel for the respondent stating that the petitioner had not established that the documents were not within her knowledge at the relevant time or could not be procured then even after his exercise of due diligence, as contemplated under Order 41 Rule 27 CPC. It is also contended that the photographs incorporated with the documents sought to be additionally marked in evidence are forged ones as those disclose only her image in the year 2017. According to him, photographs produced are forged using photoshop software and therefore, the application seeking to mark additional documents in evidence is liable to be Mat.Appeal.No.754/2013 7 dismissed and the petitioner, liable to be prosecuted for offences punishable under Sections 193, 468 and 471 IPC.
10. In the context wherein opposition against the genuineness of the photographs is raised in the counter affidavit, the petitioner has moved another application as I.A.No.02/2020 seeking to mark two more photographs produced alongwith. It was contended by her in the affidavit filed in support of the application that 35 sovereigns of gold ornaments which she had worn at the time of her marriage in the year 1999 were intact and those were worn by her at the time of the marriage of her sister on 27.03.2003. According to her, the respondent had raised a contention that 10 sovereigns of gold ornaments were given to her sister's marriage in the year 2003 and the photos produced by her would defeat the said contention. According to her, it is clear from the photographs produced alongwith the application that 35 sovereigns of gold ornaments given at the time of petitioner's marriage in the year 1999 were intact in the year 2003 and those were evidenced as worn by her during the marriage of her sister. Soon after the marriage of her sister, the respondent forcefully taken and sold 35 sovereigns of gold ornaments possessed by her and purchased 2 properties vide sale deeds produced as 3603/2003 and 1732/2003 respectively dated 01.06.2009 and 29.04.2003 making her believe that the property will be registered in their joint names. The sale deeds are also produced to substantiate her claim. According to her, she was not in the habit of wearing imitation Mat.Appeal.No.754/2013 8 ornaments as contended by the respondent and the factum that she had worn only glass bangles matching the colour of her sari in one hand is also evidenced from the photographs produced by her. According to her, photographs produced by her are relevant for adjudication of the disputed claims in the Original Petition and therefore those are produced alongwith I.A. No.2 of 2020. She seeks for allowing the application and marking the photographs in additional evidence.
11. The respondent has filed counter affidavit in the application raising contentions similar to the one raised while filing counter affidavit in I.A. No.1 of 2020 and pleaded for dismissal of the application with costs to him and initiation of prosecution against the appellant under Section 340 Cr.P.C.
12. The petitioner does not have a case in the Original Petition or in the affidavit that money was given by her parents as patrimony at the relevant time of her marriage on 29.03.1999. Her precise case was that 35 sovereigns of gold ornaments and household articles worth Rs.20,000/- were given. Petitioner has no case in the Original Petition that 10 cents of property settled in her name by her father was sold by the respondent and sale consideration derived therefrom was misappropriated by him. Therefore, the sale deeds being totally irrelevant in the context, the prayer to mark those in additional evidence is declined.
Mat.Appeal.No.754/2013 9
13. Petitioner when examined as PW1 has categorically stated that while working as Assistant Nurse at SUT, Thiruvananthapuram she was getting Rs.10,000/- per month. It is also contended that she was deserted by the respondent on 29.01.2008. According to her the salary since the marriage on 29.03.1998 till 29.01.2008 was taken forcibly from her and therefore, she is entitled to get recovery of Rs.3,00,000/- in that regard. PW1 failed to examine anyone or produce any materials to establish her claim as aforesaid. Allegation of forcible extraction of salary was taken but no evidence is forthcoming to establish that the said grievance was ventilated in any legal forum. Either her parents or any of her relatives were examined eventhough the respondent has taken a stand of total denial. Thus, PW1 failed to produce any materials to establish withdrawal of her salary by respondent as contended by her.
14. With regard to the documents pertaining to the LIC policies, the allegation raised was that those were surrendered by forging her signatures. The LIC policies produced by the petitioner only show that those were held by the respondent himself and the petitioner is only nominee to receive the sum insured. A document obtained under the RTI Act was also produced, which would reveal that the policies held by the respondent were surrendered during the period from 2006 till 2012. Since the policies were in the name of the respondent and Mat.Appeal.No.754/2013 10 petitioner being only nominee of the policy, the contention of the learned counsel that the policies had been surrendered by forging her signature, dehors merits and is discarded.
15. It is further contended by the learned counsel that the video CD relating to the marriage of the sister of the petitioner was obtained by her from the respondent's side. According to the learned counsel, the CD as well as the pen drive are with her and she intends to produce those.
16. Documents produced alongwith I.A.No.01/2020 except photographs and the CD and the pen drive proposed to be produced, being irrelevant ones for adjudication of the issues in the appeal on hand, this Court finds no reason to allow the application and to receive those in additional evidence. Therefore, I.A.No.01/2020 is allowed in part and photographs produced alone are received in additional evidence.
17. The photographs produced alongwith I.A.No.02/2020 were also found relevant in the adjudication of the appeal on hand in the context wherein a precise contention was taken by the respondent that only 15 sovereigns was given to the petitioner and those were given by her to her sister when the latter was given in marriage in the year 2003. Therefore, I.A No.02/2020 is allowed and the photographs produced by the petitioner alongwith I.A No.1/2020 and Mat.Appeal.No.754/2013 11 2/2020 were marked in evidence additionally as Ex.A5 series. It is disclosed from the photographs that as on date of sister's marriage the petitioner was wearing the same gold ornaments she had worn at the time of her marriage. Her sister was also found wearing sufficient quantity of gold ornaments.
18. It is admitted by the respondent that the petitioner was adorned with 15 sovereigns of gold ornaments. He had never raised a case that the ornaments worn by the petitioner were imitation ones. The objection raised by the respondent was that the entire gold ornaments given at the time of marriage were in the custody of the petitioner herself. While tendering evidence as RW1, he has stated that only 10 sovereigns were given to her sister at the time of her marriage.
19. It is true that the respondent had denied possession of 39 sovereigns of gold ornaments by the petitioner. Even from Exts.A4 and A5 series of photographs, the gold ornaments worn by the petitioner were not found to be of such quantum. 15 sovereigns of gold ornaments alone is admitted by the respondent in his counter statement, as possessed by PW1. The version of PW1 regarding entrustment and appropriation were denied by the respondent. In the counter statement, it was pleaded that the entire gold ornaments were with PW1 herself and those were given to her sister during her marriage in the year 2003. While tendering evidence, RW1 deviated from his pleadings to state that only 10 sovereigns out of 15 sovereigns possessed Mat.Appeal.No.754/2013 12 by PW1 were given to her sister at the time of marriage. A perusal of Ext.A5 series also disclose that PW1 was wearing the same kind of gold ornaments which she had worn at the time of her marriage. In our scrutiny of Exts.A4 and A5 series of photographs also, we notice that the gold ornaments worn by her at the time of her marriage and those worn at the time of the marriage of her sister appear to be approximately 15 sovereigns. It is also noticed from Ext.A5 series that sufficient quantity of gold ornaments were also worn by PW1's sister at the time of her marriage. Therefore the contention of RW1 that the gold ornaments possessed by PW1 were given by her to her sister is found devoid of any merit. The version of PW1 that the entire gold ornaments possessed by her were taken and misappropriated by him also remained uncontroverted by RW1. A scrutiny of Exts.A4 and A5 series also reveal that identical set of gold ornaments worn by her on her marriage day were also worn by her during her sister's marriage. Therefore, the contention primarily taken by the respondent at the appellate stage that the gold ornaments worn by PW1 during her sister's marriage are imitation ones is also to be rejected. Since RW1 has failed to establish diverse stand taken by him, he lost his credence. In that context, the version of PW1 appears to be probable and we are inclined to believe it.
20. Moreover, we also did not notice any difference in the appearance of the petitioner on a thorough scrutiny of Ext.A5 series of Mat.Appeal.No.754/2013 13 photographs now produced and marked in additional evidence and Ext.A4 photographs already marked during trial and available in evidence. Therefore, the contention of the learned counsel for the respondent that Ext.A5 series of photographs are forged ones using Photoshop software is devoid of any merit. The inconsistent stand taken by the respondent regarding the gold ornaments also give an impression that he is not stating the truth. In the context, we feel it appropriate to sustain the petitioner's claim for recovery of gold ornaments to the extent of 15 sovereigns admitted by the respondent.
21. The factum that the petitioner was working as an Assistant Nurse at SUT, Thiruvananthapuram is not disputed. Therefore, the factum that she was an earning person at the relevant time of marriage can be accepted. She did not adduce any evidence to show that she had discontinued her job and as on date of filing of the Original Petition, she has no earning of her own. The Family Court has rejected her claim for maintenance in that context. The claims in the Original Petition for recovery of 10 cents of property, household articles worth Rs.20,000/-, and certificates were also declined for want of evidence to establish entitlement of the petitioner for that. We find no reason to deviate from the stand taken by the Family Court on those counts.
22. In the result, this Mat. Appeal is partly allowed. The order Mat.Appeal.No.754/2013 14 to the extent of declining the claim for return of gold ornaments is set aside. An order is passed directing the respondent to return 15 sovereigns of gold ornaments or it's equivalent market value at the relevant time, within two months from the date of receipt of a copy of this judgment. If the gold ornaments or its value as on date is not returned within the time frame, the petitioner is entitled to get interest for the sum equivalent to value of gold ornaments at the rate of 6% per annum.
No order as to costs.
Sd/-
A.M. SHAFFIQUE, JUDGE Sd/-
MARY JOSEPH, JUDGE ttb/NAB 01.02 //TRUE COPY//