Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 311 (KER)

BINO THOMAS v. REMYA MOL

2017-02-14

A.M.SHAFFIQUE, K.RAMAKRISHNAN

body2017
JUDGMENT : Shaffique, J. MA No.480/2010 is filed against the judgment dated 15/3/2010 in OP No.874/2009 by which the Family Court, Kottayam dismissed a petition for divorce filed under Section 10 of the Indian Divorce Act. The petitioner is the appellant herein. The parties are described as shown in OP No.874/2009. 2. The short facts arising in the original petition are as under:- Petitioner married the respondent on 8/1/2009 as per Christian rites. After a few days of marriage, their relationship strained. Petitioner alleges that the respondent quarreled with him on simple matters and she was not willing to accept him as her husband. She had even behaved indifferently and set fire to the pillows and bed sheet on the second day of marriage. Petitioner further alleges that the respondent quarreled with the petitioner at his sister's house and they had to return without participating in the baptism ceremony of his sister's daughter. When questioned, she attempted to jump from the car and commit suicide. She always threatened him that she will file complaint against him and commit suicide. According to the petitioner, she was not interested in performing her marital obligations. Though he complained to her parents about her behaviour, they did not interfere in the matter. On 14/4/2009, the respondent quarreled with the petitioner demanding that she requires abortion of the pregnancy if the petitioner does not agree for the same. A complaint was filed by the petitioner's father on 27/4/2009. The respondent also filed criminal complaint alleging offence under Section 498A of the Indian Penal Code. Respondent aborted the pregnancy which caused mental pain to the petitioner. Hence, according to him, she had treated him with cruelty and he is entitled for a divorce. It is contended that they were living separately since 14/4/2009. 3. Objection was filed by the respondent inter alia denying the allegations raised and stating that all the averments are false. According to the respondent, she was performing her marital obligations as a wife and the pregnancy was not aborted deliberately. According to her, she is willing to live with the petitioner and there is no reason for divorce. 4. The respondent had also filed OP No.475/2009 for return of money and gold ornaments which was tried along with the above original petition. Common evidence was taken. According to her, she is willing to live with the petitioner and there is no reason for divorce. 4. The respondent had also filed OP No.475/2009 for return of money and gold ornaments which was tried along with the above original petition. Common evidence was taken. Petitioner relied upon the evidence of PWs 1 to 4 and respondent relied upon the evidence of RWs 1 to 3. Exts.A1 to A5 were marked on the side of the petitioner and Exts.B1 to B3 on the side of respondent. As far as the allegation of cruelty is concerned, after considering the evidence on record, the Family Court came to a finding that the petitioner has not succeeded to prove that the wife behaved cruelly towards him and the evidence of PWs 1 to 4 were not sufficient to prove the said allegation. It is also found that there was no evidence to come to a finding that the wife wilfully aborted her pregnancy whereas it is found that the evidence of the respondent was enough to prove that the petitioner had behaved cruelly towards the wife and had made false allegations against her. Accordingly, the claim for divorce was rejected. 5. MA No. 474/2010 has been filed against OP No.475/2009. The OP was filed for return of money and gold ornaments. The allegation raised in the original petition is that an amount of Rs.4,00,000/- and 55 sovereigns were entrusted with respondents 1 to 3 therein as share of the petitioner. Out of the aforesaid quantity of gold ornaments, 7 sovereigns are with the petitioner and remaining 48 sovereigns were appropriated by the respondents. The respondent filed objection denying the aforesaid facts. It is contended that the petitioner's parents had no capacity to give such amount and gold ornaments. According to them, the ornaments which she had worn at the time of marriage were taken on rent from a beauty parlour and it is imitation gold. The marriage between them was a love marriage and the only agreement was to give share in the property. 6. While impugning the aforesaid judgment, it is contended by the learned counsel for the petitioner husband that the Family Court failed to appreciate the evidence of PWs 1 to 4. The marriage between them was a love marriage and the only agreement was to give share in the property. 6. While impugning the aforesaid judgment, it is contended by the learned counsel for the petitioner husband that the Family Court failed to appreciate the evidence of PWs 1 to 4. It is contended that it was possible for the Family Court to have a categoric finding regarding the cruelty inflicted on the petitioner by the respondent and therefore a re-appreciation of the evidence is required in the matter. It is pointed out that immediately when there was a problem between the couple, the petitioner's father filed a complaint before the police on 27/4/2009. As a counter blast to the said complaint, the respondent filed a complaint under Section 498A of the Indian Penal Code. Further, the respondent also filed OP No.475/2009 for return of money and gold ornaments which by itself is a clear indication of the fact that she never intended to reside with the petitioner. The Family Court dismissed the claim for divorce and allowed OP No.475/2009 by which direction had been issued to pay an amount of Rs.4 lakhs and 28 sovereigns valuing Rs.3,25,000/- with interest at 9% to the wife. 7. PW1 has deposed in accordance with the averments in the petition. According to him, when a police complaint was filed by his father on 27/4/2009, as a counter blast, the respondent filed a complaint before the Magistrate Court, Changanassery on 30/5/2009 alleging offence under Section 498A of the Indian Penal Code. According to him, there was no occasion to receive money or gold ornaments as their marriage was a love marriage. PW2 is the uncle of PW1. He denied the entrustment of Rs.4 lakhs and 55 sovereigns of gold ornaments as alleged by the respondent. According to him, only an amount of Rs.50,000/- was entrusted and the respondent had some ornaments. He further deposed that though there was mediation in the presence of a Priest, since the respondent behaved in an indecent manner, the Priest did not attempt for mediation. He also stated that when the respondent was taken for a check up during pregnancy, it was found that she did not have any defect. However, the pregnancy was aborted due to the adamant stand taken by her parents. PW3 is a relative of the appellant. He also stated that when the respondent was taken for a check up during pregnancy, it was found that she did not have any defect. However, the pregnancy was aborted due to the adamant stand taken by her parents. PW3 is a relative of the appellant. According to him, he has visited the hospital in June, 2009 when he heard from the respondent's relative that the pregnancy of the respondent was aborted due to the torture of the petitioner and his father. PW4 is a neighbour of the appellant who had attended the marriage. He also spoke in accordance with the allegations and stated that appellant and the respondent were not in good terms. RW1 relied upon Ext.B1, which was an estimate from Bhima Jewellery on 5/1/2009 for purchase of gold ornaments weighing 15.850 and 205.360 grams. Ext.B2 is a loan pass book which would indicate that she had taken a loan of Rs.1 lakh on 29/12/2008. Ext.B3 is the statement of account of State Bank of Travancore which would show than amount of Rs.4,07,000/- had been withdrawn on 9/12/2008. RW2 is her father who has also supported her version. RW3 is her uncle who again supported the version of the respondent and spoke about the entrustment of Rs.4 lakhs and 55 sovereigns of gold. The Family Court found that there is no evidence to show that the respondent had behaved cruelly towards the appellant and the evidence of PWs 1 to 4 were not sufficient to prove the said fact. There is also no evidence to show that the wife had willfully aborted her pregnancy whereas there is evidence to show that the husband had behaved cruelly towards the wife and he has made false allegations against her. In regard to entrustment of money and gold ornaments, the Court below found that the version of the respondent is believable. However, it is found that there is no evidence to prove that she had 55 sovereigns of gold and has succeeded in proving only entrustment of 28 sovereigns. It is in the said premise that direction had been issued to pay the value of 28 sovereigns of gold. 8. Two issues arise for consideration in the above appeals. One is whether there is evidence to show that the respondent had behaved cruelly to the petitioner warranting grant of a divorce under Section 10(1) of the Indian Divorce Act. It is in the said premise that direction had been issued to pay the value of 28 sovereigns of gold. 8. Two issues arise for consideration in the above appeals. One is whether there is evidence to show that the respondent had behaved cruelly to the petitioner warranting grant of a divorce under Section 10(1) of the Indian Divorce Act. The second issue is whether the Court below was justified in granting a decree for recovery of gold ornaments and Rs.4 lakhs in favour of the respondent. In regard to the allegation of cruelty, the evidence consists of the oral testimony of PWs 1 to 4. They also rely upon Ext.A2, a complaint filed by the petitioner's father before the Police Station. Reliance is also placed on Ext.A4, report of observation of the pregnancy by Doctor to indicate that the wife had aborted the child without permission from the petitioner. In the petition, it is stated that the marriage was held on 8/1/2009. It was a love marriage. A few days after marriage, the respondent started misbehaving with the petitioner and she used to quarrel for silly reasons. She was not willing to accept the petitioner as her husband. She had even gone to the extent of putting on fire the bed sheet and pillow and when questioned, he was informed that she was having cold. Petitioner also ventilates certain incidents at his sister's house and she used to threaten him that she will commit suicide and that she was not interested in looking after his affairs. According to him, on 14/4/2009, it was noticed that she was walking around the well and she shouted to the petitioner that she cannot give birth to his child. The respondent's parents had come to the petitioner's house and requested to abort the pregnancy. Petitioner's father had given a complaint on 27/4/2009 to the police. Pursuant to the said complaint, the respondent and her parents had given a false complaint under Section 498A of IPC against the petitioner and his parents. According to him, he was suffering physical and mental cruelty on account of the action on the part of the respondent and hence the OP is filed. 9. Respondent denied all the allegations. According to her, she is ready and willing to live with the petitioner as a dutiful wife and the contrary allegations are absolutely baseless. According to him, he was suffering physical and mental cruelty on account of the action on the part of the respondent and hence the OP is filed. 9. Respondent denied all the allegations. According to her, she is ready and willing to live with the petitioner as a dutiful wife and the contrary allegations are absolutely baseless. The pregnancy was aborted not on account of her negligence or action and the complaint filed by the appellant's father before the Police was wrong. 10. PW1 in the proof affidavit has given evidence narrating all the facts in the petition itself. In cross examination, he denied having received Rs.4 lakhs whereas admitted receipt of Rs.50,000/-. A suggestion was put that he was demanding money as sthreedhanam and harassing her, which he denied. Further, it is contended that the pregnancy was aborted since he had kicked her which he denied. Allegation was raised that he is an alcoholic, which he denied. Further, when asked whether he had tried to kill her, he denied. In fact in the objection filed by the respondent, other than denying the allegations raised by the petitioner, she had not made any allegation regarding any cruelty against the petitioner whereas according to her, she was living as a dutiful wife. She had only stated that the police complaint given against the respondent's father was wrong and she was ready and willing to live with him. PW2 is the father's brother of the appellant. He has filed a proof affidavit denying receipt of Rs.4 lakhs and admitting receipt of Rs.50,000/-. He refers to a mediation talk in the presence of a priest. The respondent, her father and mother attended the mediation talk. According to him, the priest withdrew from the mediation and asked the respondent's father to show her to some psychologist. After a few days, ie on 26/4/2009, respondent's father and two others had come to the petitioner's house and asked them to permit abortion of the pregnancy and they even went to the extent of threatening the petitioner. He further states that she was scanned at a hospital on 14/4/2009 and the Doctor had informed that there was no problem with the pregnancy. However, on 14/4/2009, she had gone back to her house and she did not return. According to him, the mediation did not succeed since the respondent and her parents insisted for aborting the pregnancy. He further states that she was scanned at a hospital on 14/4/2009 and the Doctor had informed that there was no problem with the pregnancy. However, on 14/4/2009, she had gone back to her house and she did not return. According to him, the mediation did not succeed since the respondent and her parents insisted for aborting the pregnancy. Later, they filed a complaint against the appellant and her parents. In cross examination, he stated that the gold ornaments were not weighed. Cross examination proceeds on the basis that the father of the respondent was in Gulf for the last 15 years and her uncles were also abroad. He says that he does not know under what circumstances the pregnancy was aborted. A suggestion was put that Rs.4 lakhs was given which he denied. PW3 in the affidavit in chief stated that he is the son of appellant's father's uncle. He know about the respondent leaving her matrimonial house in June 2009. When he had gone to the hospital, he was informed by the respondent's mother's sister that the appellant and his father had kicked the respondent on account of which the pregnancy was aborted. He says that he had seen the couple at the hospital on 14/4/2009 when it was told that there was no problem with the pregnancy. According to him, the allegations had created lot of insult to the appellant and his family members. In cross examination, he says that there is evidence to show that he had gone to the hospital on the said date and there is no reason for not producing any document. He denied the suggestion that he has given false evidence at the instance of the appellant. PW4 has filed a proof affidavit stating that he had attended the marriage being a neighbour of the appellant. On that day she was wearing gold ornaments and he had talked to them. This fact was mentioned by him to the appellant's father. Then he was informed that they are not in good terms and she was in her house. Later he came to know that there were cases between them. In cross examination, he stated that video was taken during the marriage. Suggestion was made that the respondent did not attend the said marriage. This was denied. He also denied the suggestion that he was giving false evidence. Later he came to know that there were cases between them. In cross examination, he stated that video was taken during the marriage. Suggestion was made that the respondent did not attend the said marriage. This was denied. He also denied the suggestion that he was giving false evidence. Ext.A1 is the marriage certificate between the couple. The marriage was solemnized on 8/1/2009. Ext.A2 is the complaint filed by the petitioner's father before the police station wherein he stated that the respondent tried to commit suicide about 5 times at his residence and for the last ten days she was residing at her house. On 26/4/2009, her father and a few others had come and threatened that they will be killed. Ext.A2(a) is the receipt for having filed the complaint before police. Ext.A3 is the complaint filed by the respondent alleging offence under Section 498A against the appellant and his parents. The allegation is that the 1st respondent husband used to be under the influence of alcohol and he used to abuse her and demand that she should bring more money and that he would have got more amounts. During pregnancy they did not look after her though she was not capable of taking care of herself and the petitioner used to assault her and she suffered physical and mental cruelty. She also ventilates the nature of cruelty which is stated to have inflicted on her. Ext.A4 is the certificate issued by Dr.Renjith Philip after scanning the pregnancy of the respondent. Ext.A5 is an e-mail message received by the petitioner from the respondent. RW1 has filed proof affidavit. She relies upon Ext.B1 which is a retail invoice for purchase of a bangle on 5/1/2009 for Rs.22,439/-. She alleges that Rs.4 lakhs was paid on 28/12/2008 and at the time of marriage, she had 55 sovereigns of gold which were given by her parents and 48 sovereigns were appropriated by the petitioner. Ext.B2 is a passbook for having taken a loan of Rs.1,00,000/-. Ext.B3 is the statement of account in the name of Smt.Rosamma George to show that there is a transfer credit of Rs.4,07,729/- and withdrawal of Rs.4,07,000/- on 9/12/2008. She states that she was in love with the appellant. Thereafter, the matter was informed to the parents and accordingly the marriage was conducted. Ext.B3 is the statement of account in the name of Smt.Rosamma George to show that there is a transfer credit of Rs.4,07,729/- and withdrawal of Rs.4,07,000/- on 9/12/2008. She states that she was in love with the appellant. Thereafter, the matter was informed to the parents and accordingly the marriage was conducted. The respondent used to quarrel for silly matters and it is on account of his assault on her that the pregnancy was aborted. She denies the fact that she had misbehaved to the appellant and his parents. In cross examination, it is stated that after 14/4/2009 they were not contacting each other and abortion was after 3 ½ months. When questioned whether she had obtained the permission of husband, she answered that it was a natural abortion. He was called and the matter was informed to his father. When the scan report was shown to her, she says that she was assaulted after the scanning. She further states that she was assaulted on 14/4/2009 at about 10.30-11.00 a.m. It is stated that the petitioner had taken her to hospital. To the suggestion that she was giving a false statement, she deposes that complaint was given under 498A after the petitioner's father had given complaint. She further deposes that it is thereafter the petitioner had assaulted her. She admits that she had sent the e-mail even after filing OP No.475/2009. The said e-mail is marked as Ext.A5. She admits that there was a mediation, but no decision was taken. She denies the fact that she had mentally and physically behaved cruelly to her husband. A suggestion was made whether she had worn the gold ornaments during her relatives marriage. She denied the said suggestion. Question was asked to from where they purchased the gold ornaments and she deposes that the gold ornaments were brought from Bhima Jewellery and that they are not being examined. RW2 is the father of the respondent. According to him, he had given Rs.4 lakhs on 28/12/2008 and she had 55 sovereigns of gold which was still with the respondent. Both the family members were known to each other for a quite long time. During cross examination, he states that he had returned from Gulf in 2002 and presently he has two tipper lorries which was purchased for Rs.9 lakhs. He says that in December, Rs.60,000/- was given. Both the family members were known to each other for a quite long time. During cross examination, he states that he had returned from Gulf in 2002 and presently he has two tipper lorries which was purchased for Rs.9 lakhs. He says that in December, Rs.60,000/- was given. The petitioner and respondent were in love, but dowry had to be given. He had seen his daughter being assaulted once. He is willing to send his daughter along with the petitioner. But they should take another house. RW3 is the uncle of the respondent. He deposes that Rs.4 lakhs was entrusted as share money to the petitioner over and above 55 sovereigns of gold. In cross examination, he says that he had Rs.4 lakhs with him which he had given. He had taken the money a few weeks before he had gone for taking gold as well. He denied the suggestion that he was giving false allegations. 11. Before proceeding further, it would be appropriate to refer to the pleadings in OP No.475/09 also. The allegation is that Rs.4 lakhs was paid on 28/12/2008. She had 55 sovereigns of gold at the time of marriage and presently she has only 7 and balance 48 is with the respondents. She alleges that for very silly reasons, she used to be subjected to manhandling and on account of the same, her pregnancy was aborted. Objection has been filed inter alia denying the said facts. It is stated that they were not aware of the fact that she had 55 sovereigns of gold. The ornaments that were worn by her during marriage were taken on lease from a beauty parlour and those were imitations. Since it was a love marriage, the parents of the respondent had offered to give share in the property and therefore, they did not demand any amount at all and no money was paid. It s stated that she had gone to the parental home on 14/4/2009 and thereafter she did not come back. On this evidence, the Court below finds that there is no material to prove that there was any cruelty inflicted on the respondent whereas the finding is that evidence of RW1 and RW2 is sufficient to prove that it was the husband who behaved cruelly towards the wife and he made false allegations against her. 12. On this evidence, the Court below finds that there is no material to prove that there was any cruelty inflicted on the respondent whereas the finding is that evidence of RW1 and RW2 is sufficient to prove that it was the husband who behaved cruelly towards the wife and he made false allegations against her. 12. On a reading of the evidence adduced by either side, we do not think that the Family Court had appreciated the evidence in the proper perspective. The evidence has to be considered based on the pleadings of the parties. Specific allegations had been raised by the petitioner which he had deposed before Court. The same is supported by Ext.A2 a complaint filed by the petitioner's father on 27/4/2009 stating that she attempted to commit suicide for about 5 times at their residence and for the last ten days she was residing at her residence and her father and a few persons had approached them and threatened them with loss of life. Further, the fact that there was a mediation is also an admitted fact. What happened during mediation was spoken by PW2 which fact is not denied. The respondent also does not deny Ext.A5, an email sent by her wherein she does not make any allegations against the appellant. She was in fact lamenting about the loss of pregnancy. Further, it could be seen that immediately after she left the matrimonial home, a complaint is filed before the Judicial Magistrate of First Class alleging offence under Section 498A on 30/5/2009 wherein several allegations are made against the petitioner and members of his family. The evidence of PW1 coupled with the evidence of PW2 and the admission that there was a mediation talk which failed clearly goes to show that the case set up by the petitioner can be believed. There is no reason to disbelieve the version given by PW2. The contention urged by the petitioner is that after the marriage, her behaviour was not found to be proper and there were attempts to commit suicide. He had narrated several incidents which is proved by his own evidence coupled with the evidence of PW2. Such actions clearly amount to cruelty. The fact that she was pregnant and there was no problem with her pregnancy as evident from the scan report at Ext.A4 is also admitted by RW1. He had narrated several incidents which is proved by his own evidence coupled with the evidence of PW2. Such actions clearly amount to cruelty. The fact that she was pregnant and there was no problem with her pregnancy as evident from the scan report at Ext.A4 is also admitted by RW1. According to her, subsequently, he had assaulted her which was the result of the abortion of pregnancy. There is no such medical report forthcoming in the case. If it was a case that he had kicked her and that was the cause of abortion, definitely, the matter would have been informed atleast to the Doctors. PW2 a witness examined on behalf of the petitioner refers to having gone to a hospital in June, 2009. Even according to the respondent, she had left the matrimonial home on 14/4/2009 after the scanning. If that be so, what was the occasion for the abortion of pregnancy in June, 2009 gains importance. As to when the pregnancy was aborted is not pleaded anywhere and there is no medical evidence adduced for the same. The complaint for value of gold and return of money was filed on 19/5/2009 by which time apparently the parties were at logger heads. Divorce petition was filed only on 10/9/2009 much after the filing of the complaint for return of gold ornaments. But in the evidence, RW1 and RW2 says that the respondent was ready and willing to live with the petitioner husband. If he was behaving with such cruelty against the respondent and the allegations of cruelty as in the complaint under 498A was justified, we do not think that the respondent would have offered to go and reside with him. According to the respondent's father, they should reside separately if they want to live together. Taking into consideration the aforesaid evidence, and a re-appreciation of the factual aspects which are borne out, we are of the view that the evidence clearly indicates a probability of a case set up by the appellant. The evidence probablises a fact that the respondent was behaving in a cruel manner to the petitioner and had even gone to the extent of aborting the child without informing him. A complaint was filed under Section 498A of the Indian Penal code immediately after the separation making certain allegations against the petitioner. The evidence probablises a fact that the respondent was behaving in a cruel manner to the petitioner and had even gone to the extent of aborting the child without informing him. A complaint was filed under Section 498A of the Indian Penal code immediately after the separation making certain allegations against the petitioner. All these facts clearly evidences proof of cruelty against the petitioner and therefore he is entitled for a divorce on the aforesaid ground. 13. Now coming to the evidence regarding return of Rs.4 lakhs and gold ornaments weighing 38 sovereigns, in regard to payment of Rs.4 lakhs, the respondent had shown the source by producing Ext.B3 which only indicates that from the account of Mrs.Rosamma George, Rs.4,07,000/- had been withdrawn on 9/12/2008. Ext.B2 is a passbook in the name of Smt.Rosamma George in regard to a loan being taken on 29/12/2008. These documents would show that they had about Rs.5,07,000/- with them during the relevant time. Ex.B1 is a retail invoice which shows the payment of Rs.22,439/- for a bangle. The document forming part of Ext.B1 is not a sale invoice. It is only an estimate showing the value for about Rs.2,92,427/- Apparently, in the second page forming part of B1, there is no indication regarding the date or any other particulars. There is no evidence to show that such quantity of gold had been purchased from Bhima Jewels. In the pleadings in OP No. 475/2009, it is contended that Rs.4 lakhs was entrusted to the petitioner and his parents and out of 55 sovereigns she had, other than 7 sovereigns, 48 was taken by them and it is in their possession. In the original petition, there is no material to indicate that the gold ornaments were purchased immediately before marriage. The petitioner had denied having received any gold ornaments, whereas, according to them, only Rs.50,000/- was received and the gold ornaments might be a fake. They denied having appropriated any of the gold ornaments. As already indicated, the source of funds as far as the respondent is concerned, is only Rs.5 lakhs. Either it might be correct that only Rs.50,000/- was paid and the rest was spent for purchasing gold ornaments and marriage expenditure. They denied having appropriated any of the gold ornaments. As already indicated, the source of funds as far as the respondent is concerned, is only Rs.5 lakhs. Either it might be correct that only Rs.50,000/- was paid and the rest was spent for purchasing gold ornaments and marriage expenditure. On an overall appreciation of the aforesaid factual situation, we are of the view that the respondent could only prove having in possession about Rs.5 lakhs at the relevant time for marriage expenditure. It is probable that they would have purchased some gold ornaments and also paid some amount to the respondent. They would have also spent a portion of the money for marriage expenditure as well. 14. Taking into consideration the overall factual circumstances and the probabilites arising from the same, we are of the view that interest of justice will be served in directing the petitioner to pay the respondent a consolidated amount of Rs.3,00,000/- (Rupees Three lakhs only) instead of the decree already passed in the case and it shall carry interest @ 9% per annum from the date of filing OP No.475/2009. In the result, these appeals are allowed as under:- (i) MA No. 474/2010 is allowed. The judgment in OP No.475/2009 is set aside. OP No.475/09 is allowed in part and the petitioner/wife is permitted to realise a sum of Rs.3 lakhs with 9% interest from the date of suit till realization. Parties shall bear their own costs. (ii) MA No. 480/10 is allowed. Judgment in OP No. 874/2009 is set aside and the following decree is passed. "OP No.874/09 is allowed and the petitioner is entitled to get a decree of divorce and the marriage shall stand dissolved".