LIJU, SON OF GOPALAKRISHNAN v. AJITHAKUMARI, DAUGHTER OF SUMATHI
2017-03-23
A.M.SHAFFIQUE, K.RAMAKRISHNAN
body2017
DigiLaw.ai
JUDGMENT : Shaffique, J. This appeal is filed by the respondent in O.P.No.976/2006 challenging judgment dated 13/07/2009 by which the marriage of the petitioner and the respondent had been dissolved by the Family Court by a decree of divorce and declaring that the petitioner in the original petition is the absolute owner in possession of Petition A and B schedule properties and further directing the respondent to return 27 sovereigns of gold ornaments or its value of Rs.1,89,000/- and Rs.32,850/- being the cost of Petition C schedule household appliances along with maintenance @ Rs.1,500/- per month to the petitioner with effect from the date of filing the petition. 2. The short facts involved in the appeal reads as under: The parties are referred to as shown in the memorandum of appeal. 3. The appellant married the respondent as per Hindu custom and rites on 16/09/2005. According to the respondent, her father had purchased Petition A and B schedule properties in the name of the respondent and the appellant, as per two separate documents No.930/2005 and 920/2005. At the time of marriage, she was given 27 sovereigns of gold ornaments and household utensils worth Rs.2,21,850/- which is shown in Schedule C. According to the respondent, after six months of the marriage, appellants have been demanding dowry and thereafter started harassing the respondent, as a result of which, life had become miserable. Hence the respondent sought for divorce on the ground of cruelty and for return of gold ornaments and value of utensils and also for declaration of title as far as the property is concerned. According to her, the property was intended to be purchased for her and only on account of the fact that the marriage was arranged, the property was purchased in the name of the respondent and the appellant, and the appellant has no right or interest in the property. 4. Written statement was filed by the appellant inter alia disputing the aforesaid fact and contending that the property was purchased with his own funds in the name of the appellant as well as the respondent. In respect of B schedule property, there were two items and one item was set apart to the respondent's brother. The second item in B schedule comprises of 10 cents with a house thereon in which the appellant's parents are residing.
In respect of B schedule property, there were two items and one item was set apart to the respondent's brother. The second item in B schedule comprises of 10 cents with a house thereon in which the appellant's parents are residing. It is alleged that the appellant's mother gifted the property in his favour as per settlement deed No.928/2007. He also denied having been entrusted with the gold ornaments and the household utensils. 5. Before the Family Court, PWs 1 and 2 were examined on the side of the respondent and RW1 and 3 were examined on the side of the appellant. Ext.A1 to A4 series were marked on the side of the respondent and Ext.B1 was marked on the side of the appellant. The Family Court, on a consideration of the facts and evidence in the case, found the entire case in favour of the respondent and decreed the suit as stated above. 6. Learned counsel for the appellant, while impugning the aforesaid judgment, contends that there is no evidence to prove cruelty from his side and there is no evidence to indicate that the property was purchased by the respondent's father in their names. He also contended that evidence was lacking as far as entrustment of gold ornaments and utensils are concerned. Learned counsel for the appellant sought for re-appreciation of the entire evidence contending that the materials available are not sufficient to grant a decree, as sought for. 7. First of all, we shall consider as to whether the allegation of cruelty as found by the Family Court is justified. PW1 is none other than the respondent and PW2 is her father. Both of them have given evidence on the basis of the averments in the writ petition. The appellant was examined as RW1, RW2 is his mother and RW3 is his eldest brother. 8. In the petition, the respondent had contended that despite giving so much dowry, after six months, the demand for dowry became so fierce and she was assaulted. This matter was informed to her parents. When her parents refused to meet the illegal demands, the appellant had taken her to her paternal home on 15/03/2006 and he declared that he will not take her back unless he is given Rs.2 lakhs as dowry.
This matter was informed to her parents. When her parents refused to meet the illegal demands, the appellant had taken her to her paternal home on 15/03/2006 and he declared that he will not take her back unless he is given Rs.2 lakhs as dowry. Respondent also has a case that even before the marriage, the appellant and his parents demanded dowry and therefore A and B schedule properties were assigned in the name of the appellant and respondent by two separate sale deeds dated 07/05/2005 which are produced as Exts.A1 and A2. In the objection filed, the contention raised is that plaint A schedule property is purchased in the name of appellant and respondent by using his own funds and it is out of love and affection that he had included her name in the document. He also denied the fact that the respondent's father bought 20 cents in their names. According to him, item No.1 in the said document was set apart by his parents for giving it to his brother. He expressed his willingness to sell the property at a very low price and it is, as per the instructions of his brother, that the parents of the respondent executed sale deed in the name of appellant and respondent. The consideration was paid by him. In regard to item No.2 of B schedule property also, appellant's mother had executed the document out of love and affection. 9. The above contention of the appellant itself would indicate that the appellant and his family members were keen to get the property from the respondent and her father. Therefore, the contention that respondent was harassed by demanding dowry appears to be a genuine contention. This fact has been spoken to by PWs 1 and 2 as well. The evidence of PW1 further indicates that the appellant demanded Rs.2,00,000/- as dowry. Further, he had kept her gold ornaments in an almirah and later it was noticed that she could not open the same. It was broke open and it was discovered that the ornaments were missing. She lodged a complaint before the police and later it was withdrawn. According to PW1, she did not pursue the complaint because she does not want her husband to be punished and in order to maintain the marital relationship, she withdrew the complaint. The Family Court found that her version was credible.
She lodged a complaint before the police and later it was withdrawn. According to PW1, she did not pursue the complaint because she does not want her husband to be punished and in order to maintain the marital relationship, she withdrew the complaint. The Family Court found that her version was credible. Therefore the demand for dowry is justified. PW2 also deposed that a demand for additional dowry was made for Rs.2 lakhs. The appellant had even gone to the extent of sending her back to her parental home demanding dowry. In fact, this evidence by itself indicate the fact that the appellant was harassing the respondent, demanding dowry. This is enough cruelty as far as the respondent is concerned. Therefore, we do not find any error on the part of the Family Court to have found that the divorce can be granted on the ground of cruelty. 10. Coming to the next issue regarding the right in respect of plaint A and B schedule properties, the contention made by the appellant was absolutely baseless. The documents show that the property was purchased by the father of the respondent in the name of couple well prior to the date of marriage. Further, PW2 deposed that he had remitted Rs.1,32,000/- in the District Co-operative Bank, Vilappilsala to repay the debt contracted by the appellant's parents. He had given evidence that the various liabilities of the parents of the appellant were settled by selling his property. The appellant had a contention that one of the item of the properties were purchased by his own funds and another item was intended to be purchased for his brother. No material is available to arrive at such a conclusion. Ext.A1 sale deed was executed by Smt.Amala, daughter of Smt.Nabeesath Beegum, in favour of the appellant and respondent. The recitals indicate that the consideration was paid by PW2. In Ext.A2, the executants are Sri.Gopalakrishnan and his wife Leela, the parents of the appellant. The recitals would show that PW2 paid the consideration for the sale deed. Therefore, the Family Court also found that the explanation offered by the appellant and their witnesses were not convincing in order to deny the said relief. There is a contention by the appellant that item No.2 of B Schedule was settled by his parents in favour of petitioner and respondent as Ext.B2 document.
Therefore, the Family Court also found that the explanation offered by the appellant and their witnesses were not convincing in order to deny the said relief. There is a contention by the appellant that item No.2 of B Schedule was settled by his parents in favour of petitioner and respondent as Ext.B2 document. But, a reading of Ext.B2 would show that only 3 cents of property was settled and it is excluding this 3 cents that Ext.A2 in respect of item No.2 of the document was executed. So the contention of the appellant that item No.2 of plaint B schedule property covered by Ext.A2 is not obtained as claimed by the petitioner and she is not entitled to get a declaration is not sustainable. It is, therefore, well in evidence that the consideration for purchase of the properties in the name of the couple has been paid by the father of the respondent and therefore the Family Court was justified in declaring the right in respect of petition A and B schedule properties in favour of the respondent. 11. In regard to gold ornaments also, the evidence of PWs 1 and 2 are convincing. The main contention urged by the appellant was that though a complaint was filed, she did not prosecute the matter. As already stated, in her evidence, she deposed that she did not pursue the complaint to maintain the marital relationship with the appellant. The fact remains that the gold ornaments were missing from the almirah kept for that purpose. The appellant is bound to account for the same. 12. As far as the utensils are concerned, the amount of Rs.32,850/- awarded is much less than what has been claimed. But there is no finding regarding the same by the Family Court. In the absence of any finding regarding the loss of property, it was not appropriate on the part of the Family Court to have awarded Rs.32,850/- being the value of household appliances. In the result, this appeal is allowed in part. The direction to pay Rs.32,850/- as value of the C schedule household appliances is hereby set aside. In all other respects, the decree passed by the Family Court is confirmed.