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2019 DIGILAW 282 (KER)

Radhamony v. Surendran

2019-03-22

A.M.SHAFFIQUE, ASHOK MENON

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JUDGMENT : A.M. SHAFFIQUE, J. 1. These appeals arise out of matrimonial dispute between Radhamony and Surendran. O.P.(HMA).No.1488/2005 has been filed by the husband seeking divorce. O.P.No.705/2005 has been filed by the wife for return of 80 sovereigns of gold ornaments which according to her has been appropriated by her husband after marriage. O.P.No.858/2005 has been filed to declare Ext.A1 document as sham and void. The petitions filed by the wife were dismissed and the divorce petition filed by the husband was allowed against which the wife has filed these appeals. 2. The short facts of the case are as under and the parties are described as husband and wife: The parties got married as per Hindu religious rites and ceremonies on 9.9.1991. A girl child was born in the wedlock and at the time of filing of O.P.(HMA).No.1488/2005 she was 13 years old. The husband alleged that after the marriage, she was behaving in a cruel manner against him. He was employed abroad and during the relevant time while she was at the matrimonial home she never behaved properly to his parents. She was in greed of money and when ever he came back, she was harassing him like anything. He had even brought her 30 sovereigns of gold ornaments while he came back initially in the year 1994. Later he heard that she was having illicit relationship with her paramour who is the 2nd respondent in O.P.No.1488/2005. Though several attempts were made by him and even after interference by SNDP Shaka, they continued their relationship and were living together for quite sometime. He also stated that she had gone away from the matrimonial home on 21.8.2002 and when he attempted to see the child, he was manhandled by her relatives for which a complaint has been registered before the police which is under investigation. He therefore sought for divorce alleging cruelty, adultery and desertion. 3. The wife denied the allegations. The 2nd respondent in the divorce petition remained ex-parte. 4. O.P.No.705/2005 has been filed by the wife inter alia alleging that at the time of marriage she was given 80 sovereigns of gold ornaments. During 1994 her husband purchased 30 cents of property and for purchasing the same all her gold ornaments were utilised. 3. The wife denied the allegations. The 2nd respondent in the divorce petition remained ex-parte. 4. O.P.No.705/2005 has been filed by the wife inter alia alleging that at the time of marriage she was given 80 sovereigns of gold ornaments. During 1994 her husband purchased 30 cents of property and for purchasing the same all her gold ornaments were utilised. Later, when matrimonial issues developed between the parties there was a mediation talk at the instance of SNDP Shaka, and her husband had offered to give her back the entire gold ornaments on or before 5.9.1997. But her husband did not keep up the said promise and hence she sought for return of gold ornaments. In O.P.No.858/2005, the contention is that, without complying with the promise made by her husband to return the gold ornaments, he executed a sale deed within a few days after 5.9.1997 and he assigned 30 cents of property which he purchased during 1994 in favour of his friend. His friend thereafter executed a power of attorney in favour of his brother authorising him to manage the property and even re-convey the property in favour of her husband. Later the power of attorney was given in the name of the husband himself. She therefore sought for a relief to cancel Ext.A1 sale deed of 1997. 5. The husband in his objection denied the fact of appropriation of any of her gold ornaments. He contended that the entire property was purchased with his own funds. He has sufficient funds in his account and the said amount had been withdrawn during the relevant time for purchasing the property in the year 1994. He also denied having entered into any agreement to return her gold ornaments, whereas according to him, she had appropriated the gold ornaments which he had brought from abroad for her own use. He also denied that Ext.A1 is a sham document. According to him the sale deed was executed for valid consideration. 6. O.P.(HMA).No.1488/2005 was decided as per judgment dated 3.3.2010. The other two cases were decided as per common judgment dated 25.9.2009. First we shall consider the divorce petition. In this case the evidence consists of the oral testimony of PW1 to PW3. Exts.A1 to A11 has been produced and marked. RW1 and RW2 were examined on the side of the wife. O.P.(HMA).No.1488/2005 was decided as per judgment dated 3.3.2010. The other two cases were decided as per common judgment dated 25.9.2009. First we shall consider the divorce petition. In this case the evidence consists of the oral testimony of PW1 to PW3. Exts.A1 to A11 has been produced and marked. RW1 and RW2 were examined on the side of the wife. The Family Court found that there is no evidence to prove adultery and accordingly rejected the claim for divorce on the ground of adultery. However, the Family Court proceeded to consider as to whether other grounds were made out and divorce was granted on the ground of cruelty and desertion. It is also found that the marriage has been irretrievably broken and there is no chance for a re-union. 7. The learned counsel for the appellant however would submit that irretrievable break down of marriage is not a ground for divorce. On the other hand, the learned counsel appearing for the respondent would submit that divorce had been sought for on the ground of adultery, cruelty and desertion and the court below had clearly found that the wife had deserted her husband permanently and that apart several complaints had been filed against him which clearly indicates that cruelty was meted against him. It is true that there is no finding regarding adultery. But on perusal of the judgment and the connected records and the evidence adduced in the case, this is a clear where the Family Court did not commit any error in granting divorce on the ground of cruelty and desertion. From the factual background available in the case, it is rather clear that several complaints had been filed by the wife against the husband making allegations which are later found to be false. She had even gone to the extent of filing a petition under S.498A of the I.P.C. and the husband had been acquitted of the charges on merits itself. That apart, in evidence of PW1 and PW2 it is rather clear that there were matrimonial dispute between the parties and PW1 had a specific case that his wife was living with another person for a quite a long time as her paramour. Though there is no finding regarding adultery, still when there are allegations which tend the husband to feel that his wife is not behaving properly, it itself amounts to creating mental agony. Though there is no finding regarding adultery, still when there are allegations which tend the husband to feel that his wife is not behaving properly, it itself amounts to creating mental agony. In a society which has its own law, where a husband expects his wife to behave in a proper manner and to see that family life is kept intact without interference from other persons, when there are contrary allegations that she is living with another person, creating such a situation itself amounts to mental cruelty. Further there are sufficient material in the case to indicate that the wife has filed false complaints against the husband and she has deserted him with effect from 21.8.2002 and there is no reasonable or sufficient cause for her to remain away from the matrimonial home. Under such circumstances we are satisfied that the Family Court was justified in granting divorce on the ground of cruelty and desertion. 8. As far as the claim for gold ornaments are concerned, the husband has succeeded in proving that on the date when he purchased the property in the year 1994, an amount of RS.2,40,000/-and RS.10,000/- was separately withdrawn from his account. This fact proves that he had sufficient funds in his account during the relevant time and the value of property at the relevant time was only RS.50,000/-. Even assuming that a larger amount could have been paid, still an amount of RS.2,40,000/- has been withdrawn by way of cheques, clearly indicates that it was utilised for purchasing the property. Therefore the contention of the wife that her gold ornaments were sold for purchasing the property is not correct and belied by the aforesaid evidence. Under such circumstances, the claim for recovery of 80 sovereigns of gold ornaments was rightly rejected by the Family Court. 9. Once it is found that wife has no claim with reference to the property covered by Ext.A1, she cannot seek for a declaration that it is a sham document. Therefore the Family Court was justified in rejecting the said claim as well. We don’t find any error committed by the Family Court in arriving at the said finding. The Mat. Appeals are dismissed.