Kerala High Court
Sindhu.N vs Haridasan N.K on 3 October, 2018
Author: A.M. Shaffique
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018/11TH ASWINA, 1940
Mat.Appeal.No. 969 of 2009
AGAINST THE ORDER DATED 22-07-2009 IN OP NO.562/2008 of
FAMILY COURT, KOZHIKODE.
APPELLANT/PETITIONER:
SINDHU.N.,
D/O.P.K.NARAYANAN, AGED 40 YEARS,
JYOTHI NILAYAM, PAYYOLI,
MELADI AMSOM, DESOM, KOYILANDY TALUK,
KOZHIKODE DISTRICT.
BY ADVS. M/S.K.M.FIROZ
AND SHAJNA M.
RESPONDENTS/RESPONDENTS:
1 HARIDASAN N.K.
S/O.KUNHIPERACHAN, AGED 49 YEARS,
JANANI, KOMATHUKARA,
KOTHAMANGALAM AMSOM, DESOM,
KOYILANDI P.O., KOYILANDY TALUK,
KOZHIKODE DISTRICT.
2 GOKULDAS,
S/O.KUNHIPERACHAN, AGED 37 YEARS,
JANANI, KOMATHUKARA,
KOTHAMANGALAM AMSOM, DESOM,
KOYILANDI P.O., KOYILANDY TALUK,
KOZHIKODE DISTRICT.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
03.10.2018, ALONG WITH Mat.Appeal.970/2009, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal Nos.969 & 970 of 2009
:: 2 ::
JUDGMENT
A.M. Shaffique, J.
Mat.Appeal No.970 of 2009 arises from O.P.No.439 of 2008 filed by the appellant/petitioner seeking for divorce on the ground of cruelty and on the ground that the first respondent/husband was suffering from mental disorder and she was unable to live with him. O.P.No.562 of 2008, against which Mat.Appeal No.969 of 2009 has been filed, relates to the claim for return of gold ornaments and money. Both the cases were considered together and common evidence were taken. The Family Court dismissed both the cases.
2. The short facts of the case are as under and the parties are referred as shown in the original petitions.
3. The petitioner and the first respondent got married on 30.5.1993 and they have two children in Mat.Appeal Nos.969 & 970 of 2009 :: 3 ::
the wedlock. According to the petitioner, she was given 60 sovereigns of gold ornaments at the time of marriage. According to her, 45 sovereigns of gold ornaments were sold at the time of construction of a house in the property given by the mother of respondents. That apart, she had spent `4.5 lakhs which was given as her share for construction of the house in the year 2004. The petitioner alleges that the first respondent/husband was suffering from mental disorder and she was being treated with cruelty.
4. Before the Family Court, the second respondent, brother of the first respondent/husband, was arrayed as a party in both the original petitions as next friend and guardian on the ground that first respondent is suffering from mental disorder.
5. The first respondent, in his objection, denied all the allegations. He denied having committed cruelty. He denied having appropriated Mat.Appeal Nos.969 & 970 of 2009 :: 4 ::
gold ornaments and even denied that the petitioner had expended any amount for construction of the house. According to him, the entire amount for construction of the house was expended by him alone.
6. Common evidence were adduced in the case. PW1 to PW3 were examined on the side of the petitioner. She relied upon Exts.A1 and A2 documents. RW1 to RW3 were examined on the side of respondents. They relied upon Exts.B1 to B2(b) documents. Ext.X1 was summoned and marked by the Court as court exhibit.
7. The Family Court found that there is no evidence to prove the mental incapacity of the first respondent/husband. That apart, the evidence would indicate that they lived together as husband and wife for fifteen years and if at all there was any sort of cruelty among them during the relevant period it was condoned. Therefore, the claim for divorce was rejected.
Mat.Appeal Nos.969 & 970 of 2009 :: 5 ::
8. With reference to the claim for return of gold ornaments and money, it was found that there was no evidence to prove the same and accordingly, the said claim also was rejected.
9. Learned counsel for the petitioner submits that as far as the demand for divorce is concerned, Ext.X1 summoned and marked before Court proves that he was treated at Mental Hospital, Kuthiravattom. But, what we find is that none of the Doctors who treated the first respondent was examined before Court to prove the medical records. RW1 entered the box and according to him, he is not suffering from any mental problem. In the absence of any medical evidence to prove the mental disorder, the Family Court was justified in rejecting the said claim.
10. As far as the allegation of cruelty is concerned, there was no specific pleading regarding cruelty. According to the petitioner, from the very starting of the marital life she was illtreated in a Mat.Appeal Nos.969 & 970 of 2009 :: 6 ::
cruel manner and she suffered all the period thinking that there might occur some changes. That apart, she had two girl children to be taken care of and therefore, she did not make any complaint. Her marital life continued for about fifteen years and no complaint has been filed before any competent authority. This approach of the petitioner gives an indication that the disputes between the parties were only relating to normal wear and tear in the family and cannot be termed as cruelty of such an extent that the wife was unable to live with her husband. Therefore, we do not find any ground to interfere with the judgment of the Family Court as far as the judgment in O.P.No.439 of 2008 is concerned. Mat. Appeal No.970 of 2009 is therefore liable to be dismissed.
11. Now coming to the claim for return of gold ornaments and money, learned counsel submits that the first respondent in his evidence as RW1 admits that he had sold 5¼ sovereigns of gold ornaments that belonged to the petitioner wife on 18.2.2009. Mat.Appeal Nos.969 & 970 of 2009 :: 7 ::
When this fact is admitted, definitely it gives an indication that the petitioner wife is entitled for return of the said gold ornaments or its equivalent money value.
12. The petitioner's contention is that she had sold her gold ornaments weighing 45½ sovereigns and the money was utilized for construction of the house. There is no evidence to prove the said fact. Therefore, she is only entitled for return of 5¼ sovereigns of gold ornaments as admitted by the first respondent in his evidence as RW1. The Family Court committed error in not considering the said admission and rejecting the entire claim as such. The petitioner is, therefore, entitled for return of 5¼ sovereigns of gold ornaments or its equivalent value.
13. The petitioner has a further claim that an amount of `4,50,000/- was expended by her for construction of the house. According to her, the said amount was given by her parents. The Family Mat.Appeal Nos.969 & 970 of 2009 :: 8 ::
Court found that there is no evidence to prove the said fact. Learned counsel for the petitioner submits that Ext.A1 proves that an amount of `2,30,000/- had been deposited in her account on 19.2.2004. This is part of the amount given by her parents by sale of properties as her share. The said amount was withdrawn from time to time and a total amount of `2,20,000/- was withdrawn during the period when the house construction was going on and the entire amount was spent for construction of the house. That apart, learned counsel submits that a carpenter was engaged by her and he was paid an amount of `77,000/-. The carpenter was examined as PW3, who deposed that he had done certain carpenting works for the house construction and the money was paid by the mother of the petitioner. Ext.A2 had been produced to prove the said fact. The Family Court did not however, rely on any of these materials which, according to the learned counsel, is erroneous and therefore, a decree has to be passed at least for the amount for which the petitioner had adduced proof.
Mat.Appeal Nos.969 & 970 of 2009 :: 9 ::
14. As far as Ext.A1 is concerned, it is the extract of the statement of account in the name of the petitioner from 19.2.2004 to 6.5.2004. It clearly indicates that `2,30,000/- was deposited in cash on 19.2.2004. It further indicates that `30,000/- was withdrawn on 25.2.2004, `50,000/- on 22.3.2004, `25,000/- on 17.4.2004, `50,000/- on 29.4.2004, `25,000/- on 3.5.2004 and `40,000/- on 6.5.2004. The above withdrawals would indicate that it was spent for an immediate requirement and, according to PW1 and as admitted by RW1, the house construction was made during the relevant period, i.e., during 2004. Taking note of the aforesaid facts and circumstances it is rather clear that she had expended `2,20,000/- for the purpose of construction of house. Accordingly, the Family Court was not justified in rejecting the said claim.
15. As far as the claim of `77,000/- allegedly paid to the carpenter is concerned, even according to the carpenter, the money was paid by the Mat.Appeal Nos.969 & 970 of 2009 :: 10 ::
petitioner's mother. The said payment can only be treated as a payment made for and on behalf of the petitioner. PW3 had given evidence and had even produced handwritten receipt for having received the said amount. The Family Court ought to have taken the same into evidence and directed return of the said amount as well. Under such circumstances, we are of the view that the petitioner is entitled to recover an amount of `2,97,000/- (`2,20,000/- + `77,000/-) from the first respondent.
Accordingly, Mat. Appeal No.969 of 2009 is allowed, the judgment of the Family Court in O.P.No.562 of 2008 is set aside and the original petition is allowed. The petitioner is given a decree to recover an amount of `2,97,000/- from the first respondent which shall carry interest at the rate of 6% per annum from the date of petition till realization. The first respondent is directed to return 5¼ sovereigns of gold ornaments or its equivalent value as on the date of decree to the petitioner. The gold ornaments shall be returned Mat.Appeal Nos.969 & 970 of 2009 :: 11 ::
within a period of two months from the date of decree. Mat. Appeal No.970 of 2009 is dismissed. Parties shall bear their own costs.
Sd/ A.M.SHAFFIQUE JUDGE Sd/ P.SOMARAJAN JUDGE ahz.