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2018 DIGILAW 625 (KER)

RAICHAL JOHNSON, D/O JOHNSON v. BIJU DANIEL

2018-08-01

A.M.SHAFFIQUE, P.SOMARAJAN

body2018
JUDGMENT : A. M. SHAFFIQUE, J. 1. Appeal No.1050/2016 has been filed by the petitioner in O.P.(Div) No.1198 of 2015 of the Family Court, Mavelikkara by which the petition for divorce has been dismissed. 2. The original petition was heard along with another O.P.No.1197 of 2015 by which the appellant/petitioner sought for return of gold ornaments and money. The said claim was also rejected by the Family Court against which the appellant had filed M.A.No.1066 of 2016. 3. The short facts that has arisen for consideration in the original petition are as under: The petitioner and the respondent got married as per religious rites and custom, that prevailed in the Christian community on 03.11.2005. At the time of marriage the respondent/husband was working abroad and the petitioner was a qualified nurse. However she was not permitted to go for work. The complaint of the petitioner was that she was treated with cruelty. The respondent and his mother used to manhandle her demanding more dowry and gold ornaments. Even the respondent has attempted to pour acid over her face, that apart the respondent has deserted the petitioner since 29.12.2007 without any valid reason. O.P.No.1197 of 2015 has been filed inter alia contending that at the time of marriage she was given Rs. 2,00,000/- and 35 sovereigns of gold ornaments. The money was appropriated by the respondents, which included her husband and his mother. Out of the gold given to her, the first respondent misappropriated 8 sovereigns of gold ornaments. Her parents have also given Almirah and other household articles, which are also not returned. Hence the petition is filed for return of gold ornaments and the amount involved in the matter. 4. The respondent/husband and his mother filed separate written statement. They also filed a counter claim in O.P.No.1197/2015 inter alia contending that he had given Rs. 75,000/- and a gold chain weighing 8 sovereigns to the petitioner at the time of engagement and another gold chain weighing 10 sovereigns at the time of marriage. He also paid an amount of Rs. 50,000/- as stamp duty through his brother on 25.09.2010 to the petitioner's father. Further he denied having received Rs. 2,00,000/- or 8 sovereigns of gold ornaments as alleged. 5. Regarding cruelty also, he denied the allegation raised against him. Before the Family court, petitioner was examined as PW1 and her father was examined as PW2. 50,000/- as stamp duty through his brother on 25.09.2010 to the petitioner's father. Further he denied having received Rs. 2,00,000/- or 8 sovereigns of gold ornaments as alleged. 5. Regarding cruelty also, he denied the allegation raised against him. Before the Family court, petitioner was examined as PW1 and her father was examined as PW2. Respondents were examined as RW1 to RW4. On an appreciation of the factual circumstances involved in the matter, Family court found that there is no evidence to prove either cruelty or desertion as alleged. Further, it was found that the claim for return of money and gold ornaments, is also unsustainable and accordingly dismissed both the petitions and the counter claim. 6. As far as the divorce petition is concerned, the learned counsel for the appellant submits that the evidence clearly indicates a case of cruelty. It is further contended that the respondent had misrepresented that he was an accountant by profession, whereas later, it was understood that he was not qualified and was working as a driver. That apart he had changed his religion to Muslim without the knowledge or consent of the petitioner and later it was learnt that even at the time of marriage, he was working as a Muslim person in Saudi Arabia. The learned counsel submits that though these facts have not been mentioned in the original petition during evidence the petitioner had adduced evidence to prove the said facts. 7. On the other hand, the learned counsel for the respondent while supporting the judgment of the Family Court submitted that the petitioner is pleading a new case, which is not borne out in the original petition. 8. We have gone through the evidence of PW1 in which she had clearly stated the cruelty meted out against her. This fact is supported by PW2, her father. When specific allegations have been made out regarding the cruelty and that she had clearly stated regarding the reason for separation, the court below ought to have considered this in a proper perspective, which apparently has not been done in the case. The court below had come to a reasoning that specific allegation of cruelty had not been made out. But it is relevant to note that the petitioner was not in a position to live with him on account of various facts of misrepresentation and the allegation of cruelty. 9. The court below had come to a reasoning that specific allegation of cruelty had not been made out. But it is relevant to note that the petitioner was not in a position to live with him on account of various facts of misrepresentation and the allegation of cruelty. 9. According to the respondent the case had been filed by the petitioner at the instigation of her father and there was no problem between them. 10. The court below had placed reliance upon the evidence of RW2 and RW3, who are the brothers of the respondents, in support of the contentions urged by the respondent. 11. Before going into the allegation of cruelty, it is also better to understand the case of desertion put forwarded by the petitioner. According to her, she was deserted by the respondent since 29.12.2007. The original petition was filed on 23.12.2010 as O.P.No.1363 of 2010, which was later transferred to the Family Court, Mavelikkara as O.P.No.1198 of 2015. Apparently the respondent was working abroad in between the two year period specified by the petitioner, no attempt has been made by the respondent to bring her back to the matrimonial home and there is no evidence to indicate that he had taken care of her in any manner. In such circumstances, this is a fit case in which divorce could have been granted on the ground of desertion. Hence, we are of the view that this appeal is to be allowed, the judgment of the Family court has to be set aside and the divorce can be granted on the ground of desertion. 12. As far as the claim for return of gold and money are concerned, the Family Court came to the conclusion that there is no evidence to substantiate the aforesaid facts. Though the learned counsel for the appellant had vehemently contended that there is enough evidence to substantiate the claim, we do not think so. There is no evidence to indicate that gold ornaments were misappropriated by the respondents. Apparently respondent was living abroad for a quite long time and he would not have taken the gold abroad. That apart there is no evidence to prove the factum of payment other than the oral testimony of PW2. There is no evidence to indicate that gold ornaments were misappropriated by the respondents. Apparently respondent was living abroad for a quite long time and he would not have taken the gold abroad. That apart there is no evidence to prove the factum of payment other than the oral testimony of PW2. Under such circumstances, the court below having properly appreciated the evidence of the case and arrived at a finding which is not perverse, there is no reason to take a different view. In so far as the claim for gold ornaments and money are concerned, we do not think that it is necessary for us to interfere with the judgment. Accordingly, (I) M.A.No.1066 of 2016 is dismissed. (II) M.A.No.1050 of 2016 is allowed. The judgment in O.P.No.1198 of 2015 is set aside and the O.P. is allowed. The marriage between the petitioner and the respondent shall stand dissolved by a decree for divorce.