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2019 DIGILAW 358 (KER)

Bhaskaran v. Radha

2019-04-12

A M SHAFFIQUE, ASHOK MENON

body2019
JUDGMENT : Ashok Menon, J. 1. This Mat.Appeal is filed by the respondent-husband challenging the judgment of the Family Court, Thrissur in OP No.155/2006, by which the respondent was directed to pay an amount of Rs.2,55,000/- to the petitioner-wife within two months and in default thereof to pay interest at the rate of 6% per annum from the date of petition along with costs. 2. The facts in brief are thus: The petitioner and the respondent got married on 02.02.1992 and three daughters were born in that wedlock. At the time of marriage, the petitioner was working as a Teacher in an English Medium School, while the respondent was a Karate Coach working in various institutions at Kozhikkode. Consequent to the marriage, the petitioner was forced to resign her job and reside in the matrimonial home. It is alleged that the respondent was of a suspicious nature. She was not permitted to talk to anybody outside the house. Though she had passed a clerical test for employment in the Guruvayur Devaswom, she was not allowed to attend the interview. That apart, the petitioner was also harassed both mentally and physically by the respondent. The respondent also accused the petitioner for having given birth to the first child, who was fair in colour, and therefore, he disowned the paternity of the child. When she became pregnant for the second time, he compelled her to go for an abortion. When she was 9 months pregnant with the third child, she was beaten up badly. In October, 1999, the respondent compelled her to obtain a sum of Rs.75,000/- from her father for construction of the house. He gave up his job in the various institutions and started a Marma Chikilsa Kendram in his native place. The respondent was also treated by psychiatrists, Dr.P.N.Sasi and Dr. V.K.Mohandas, but never took medicine regularly. Unable to bear with the cruelty of the respondent, the petitioner and her children left the matrimonial home on 21.09.2005 and joined her parents. Thereafter, the respondent was neglecting the petitioner and her children. It is stated that the petitioner is bound to return the gold ornaments and a sum of Rs.75,000/- and therefore, a total sum of Rs.2,55,000/- was claimed by her. 3. Per contra, the respondent-husband denied all the allegations of cruelty made against him. Thereafter, the respondent was neglecting the petitioner and her children. It is stated that the petitioner is bound to return the gold ornaments and a sum of Rs.75,000/- and therefore, a total sum of Rs.2,55,000/- was claimed by her. 3. Per contra, the respondent-husband denied all the allegations of cruelty made against him. It is also stated that there was no sufficient reason for the petitioner to live separately. He is always willing to look after the petitioner-wife and children. He denied of appropriation of the gold ornaments belonging to the petitioner and also of having received a sum of Rs.75,000/- as alleged. 4. The petitioner was examined as PW1. The allegation in the petition was that the respondent-husband was put in trust with the gold ornaments she had obtained during her marriage, and the ornaments her daughters had got as present from relatives. It is also alleged that the respondent had without the consent of the petitioner, Mat. Appeal 724/2012 -5- sold some of her ornaments to purchase a property, which he sold later. But the respondent, who was examined as RW1, had contradicted such an allegation and stated that the property was obtained as per his father’s Will executed in 1996 and he constructed a house measuring 950 sq. feet in the property. But the respondent admitted that he had purchased some property in Kozhikkode in the year 1995 by paying a sum of Rs.1,50,000/- and thereafter sold it for an amount of Rs.3,50,000/-. The court below on consideration of the evidence adduced by both sides, came to the conclusion that the petitioner is entitled to get the value of the ornaments and the money, totalling to Rs.2,55,000/-, as claimed by her. 5. We heard both sides and perused documents. 6. The specific argument of the learned counsel for the appellant/respondent-husband is that there is no evidence that the gold ornaments of the petitioner were entrusted to the respondent. There is no specific pleading about how the ornaments were entrusted or appropriated by the respondent. It is only at the time of examination of PW1 that she testified that her gold ornaments were sold for the purchase of the property. There is no evidence regarding the extent of ornaments sold to buy the property. There is no specific pleading about how the ornaments were entrusted or appropriated by the respondent. It is only at the time of examination of PW1 that she testified that her gold ornaments were sold for the purchase of the property. There is no evidence regarding the extent of ornaments sold to buy the property. The petitioner had in her examination admitted that she was in possession of the ornaments till 1995 and that she sold the gold ornaments to a goldsmith, named Subran, who was not examined. More over, the pleadings of the petitioner is that Rs.75,000/- was given for construction of the house. But there is contradiction regarding that also in the cross examination of PW1. Without specific pleadings and evidence regarding the description and weight of the gold ornaments sold by the respondent, and the manner in which the ornaments were entrusted to the respondent, the court below was not justified in allowing the petition and directing the respondent to pay a sum of Rs.2,55,000/- as value of the ornaments, including the money, to the petitioner. We, therefore, are of the view that the impugned judgment cannot be sustained. The same is, accordingly, set aside. The Mat. Appeal is allowed and OP No.155/2006 on the file of Family Court, Thrissur is dismissed. No costs.