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2017 DIGILAW 1094 (KER)

Viji v. Sureshkumar

2017-07-31

A.M.SHAFFIQUE, ANU SIVARAMAN

body2017
JUDGMENT : Anu Sivaraman, J. 1. This appeal is preferred against the judgment dated 28th April, 2011 of the Family Court, Alappuzha in O.P (HMA) No. 179 of 2008. The O.P was preferred by the appellant/petitioner/wife seeking a decree of dissolution of marriage and the return of Rs.2,70,000/- being the value of 20 sovereigns of gold ornaments and an amount of Rs.1,00,000/- which was entrusted in cash with the respondent at the time of the marriage. 2. The averments in the OP were as follows:- The parties were married on 06.06.2004 according to Hindu Religious Rites. At the time of marriage, the petitioner had 20 sovereigns of gold ornaments and her parents had given her Rs.1,50,000/- as patrimony. The respondent is a rubber tapper. After the marriage, the parties resided at the house of the respondent where the petitioner was treated with utmost physical and mental cruelty. She was not permitted by the respondent's mother to have any cohabitation with the respondent and was even denied food and water. It is stated that due to the extreme cruelty, the petitioner was unable to live at the respondent's house and from 02.09.2004 onwards, the spouses resided at the petitioner's house till 02.11.2004. However, the respondent had gone back to his own house thereafter. When the petitioner went to the respondent's house on 22.02.2004, his mother had brutally manhandled her and had driven her out from the house asking her to come back only if she can bring money for the construction a house in his property. 3. The respondent/ husband filed objections admitting the marriage and the fact that there where no issues in the marriage. The entrustment of 20 sovereigns of gold ornaments and the amount of Rs.1,50,000/- as patrimony were completely denied by the husband. So also, the allegations of matrimonial cruelty were denied. It was stated that the marriage had been consummated and that there was no incident of driving the petitioner out from the house as alleged. It was further stated that, all the gold ornaments of the petitioner were returned to her in the presence of both family members and members of NSS Karayogam concerned. 4. On these pleadings, the Family Court raised the following issues. 1. Whether respondent/husband treated petitioner with cruelty? 2. Whether respondent deserted her permanently? 3. Whether she is entitled to decree of dissolution of marriage 4. 4. On these pleadings, the Family Court raised the following issues. 1. Whether respondent/husband treated petitioner with cruelty? 2. Whether respondent deserted her permanently? 3. Whether she is entitled to decree of dissolution of marriage 4. Is she entitled to recover Rs.2,70,000/- being the value of 20 sovereigns from respondent 5. Is she entitled to recover Rs.1,50,000/- from respondent? 5. The petitioner wife was examined as PW1 and Ext.A1 was marked. The respondent examined RW1 to RW3 and marked Ext.B1 document. Considering the oral and documentary evidence adduced, the Family Court came to the conclusion that the evidence adduced in support of the ground of cruelty setup by the petitioner is not convincing. However, it was found that the parties were living separately since November 2004 and no steps have been taken by either of the parties to get the cohabitation resumed. Therefore, on the ground of continuous desertion, a decree of divorce was granted. 6. The question of return of Rs.1,50,000/- which was handed over as patrimony and the value of 20 sovereigns of gold ornaments was also separately considered by the Family Court. Ext. B1 receipt had been produced by the respondent in support of his contention that the gold ornaments belonging to the petitioner had been returned to her in a mediation conducted in the presence of members of both the families and also the NSS Karayogam. The respondent examined the petitioner's uncle one Ravindran Nair as also the Secretary of the NSS Karayogam. They gave evidence supporting the respondent to the effect that settlement talks had been held in the house of RW3, Secretary of the NSS Karayogam on 17.11.2004. It is stated that the petitioner and her father and other relatives had attended the mediation and petitioner had received all the ornaments which were in the possession of the respondent at the end of the mediation proceedings. The agreement which was produced as Ext. B1 was proved by RW3 who was the Secretary of the NSS Karayogam at that time. The Family Court considered this evidence and accepted that though the petitioner had denied her signature in Ext B1, from the evidence adduced by RW1 to RW3, it stood proved that all the ornaments belonging to the petitioner had been returned to her in pursuance to the mediation conducted on 17.11.2004. 7. The Family Court considered this evidence and accepted that though the petitioner had denied her signature in Ext B1, from the evidence adduced by RW1 to RW3, it stood proved that all the ornaments belonging to the petitioner had been returned to her in pursuance to the mediation conducted on 17.11.2004. 7. With respect to the handing over of the money as patrimony, as well as on a consideration of the evidence on record, Family Court had come to the conclusion that the petitioner had not proved the source of the funds or the entrustment of the money to the respondent. Taking note of Ext. B1, the Family Court came to the conclusion that, if any such amount had been handed over to the respondent at the time of the marriage, the same would have found a place in the discussions which preceded Ext.B1. In the above circumstances, the decree of divorce was granted on the ground of desertion and the claim for return of 20 sovereigns of gold and Rs.1,50,000/- as patrimony were dismissed. 8. We have heard the learned counsel for the appellant and learned counsel appearing for the respondent. The learned counsel appearing for the appellant would submit that the findings of the court below that the petitioner had not adduced reliable evidence to show the entrustment and the appropriation of the gold and money was totally misconceived. It is further stated that, the testimony of PW1 would clearly show that the gold and money had been handed over and appropriated by the respondent. It is submitted that in a matrimonial relationship, no documentary or independent oral evidence would be available with regard to the entrustment of gold and money and refusal of the Family Court to rely on the uncontroverted testimony of PW1 was misconceived. 9. The learned counsel appearing for the respondent would, on the other hand, contend that the entire body of evidence let in by the petitioner and the respondent had been taken note of by the Family Court in coming to the conclusion that the entire gold ornaments which were in the possession of the respondent had been returned to the petitioner on 17.11.2004. In the light of the testimony of RW1, which was amply supported by Ext. In the light of the testimony of RW1, which was amply supported by Ext. B1 document, as well as the supporting testimony of RW2 and RW3, the Family Court is perfectly justified in rejecting the claim for returned the gold and money. 10. We have considered the contentions advanced in considerable detail. The contention of the parties was that they were married on 06.06.2004 and had lived together only for about 5 months. The claim for divorce filed by the petitioner wife was mainly on the ground of cruelty. The allegations of cruelty were mainly directed against the mother of the first respondent. Though an instance of physical assault on 22.11.2004 was alleged, no evidence was adduced to support the said allegation. After analysing the voluminous deposition of the wife as PW1, the Family Court came to the conclusion that the contentions of matrimonial cruelty, physical or mental, had not been satisfactorily proved by the petitioner wife. Though allegations were made as to the refusal by the mother to permit her to live with the respondent as a wife, on an appreciation of the evidence in its entirety, the Family Court came to the conclusion that the wife's testimony which was completely denied by the respondent could not be accepted to prove the case of matrimonial cruelty. However, the divorce was granted on the ground of desertion. In the above circumstances, since the parties have already been granted a decree of divorce we are not persuaded to interfere with the finding of the Family Court on the question of cruelty. 11. With regard to the finding on the return of gold and money, the body of oral evidence would go to show that after the parties were separated in November 2004. There was an attempt at mediation of the disputes between them. Ext.B1 would go to show that the gold ornaments belonging to the petitioner had been returned to her in pursuance of the said mediation. The oral testimony of the husband as RW1 was amply supported on this point by testimony of RW2, who is an uncle of the petitioner as well as RW3, who is the secretary of the NSS Karayogam. Taken in conjunction with Ext. B1 document the evidence adduced by the respondent was plausible and believable. The oral testimony of the husband as RW1 was amply supported on this point by testimony of RW2, who is an uncle of the petitioner as well as RW3, who is the secretary of the NSS Karayogam. Taken in conjunction with Ext. B1 document the evidence adduced by the respondent was plausible and believable. With regard to the return of money, though the petitioner had claimed that an amount of Rs.1,50,000/- had been handed over, she could not substantiate the said claim by examination of any person who was present at the time when the money was handed over. PW1 admittedly did not see the money being handed over. Though it was stated in her deposition that she would be able to produce evidence showing the source of funds, no such documentary evidence was produced by her. No other person was examined to prove that the money was, as a matter of fact, handed over. In the above circumstance, we are of the opinion that the finding that the petitioner had not succeeded in proving the handing over of the money was also well founded. We find no merits in the appeal. The appeal fails and same accordingly dismissed. There will be no order as to costs.