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2020 DIGILAW 416 (KER)

BRIJESH P. S v. SUJATHA P. P

2020-05-20

A.M.SHAFFIQUE, MARY JOSEPH

body2020
JUDGMENT A.M.Shaffique, J. - The respondent in O.P.No. 388/2011 has preferred this appeal challenging the judgment dated 20/5/2014, by which a decree had been granted by the Family Court dissolving the marriage between the couple, and directing return of 45 sovereigns of gold ornaments and in the alternative to pay ?9 lakhs to the 1st petitioner and also maintenance in favour of the petitioners. 2. The short facts of the case would disclose that the 1st petitioner and the respondent got married on 6/5/2007 as per Hindu religious rites and ceremonies. It is the case of the 1st petitioner that at the time of marriage, she was adorned with 67y2 sovereigns of gold ornaments. After the marriage, the gold ornaments were entrusted to the respondent. During the marital life, she was being treated with cruelty by the respondent, by abusing her and not treating her properly. There was also a demand for more dowry. A child was born in the wedlock and even while she was at her house, she was being abused. The respondent was a drunkard and was not willing to take care of the petitioner and their child. The respondent left the petitioner and the child on 5/11/2008 when their son was 7 months old. He never came back to enquire about them. It was further alleged that in addition to the gold ornaments she was wearing at the time of marriage, her family had given a gold chain weighing 3 sovereigns to the respondent, an ear ring weighing half sovereign and a bracelet chain weighing 4 sovereigns, which are also in the possession of the respondent. She contended that she was having only 30 sovereigns of her gold ornaments including the wedding chain and the balance 45 sovereigns were sold by the respondent and the sale proceeds was utilised by him for his own purposes. She further contended that the respondent was having sufficient income, but he was not taking care of the petitioner and the minor child and therefore, she sought for maintenance as well. The petition was later amended claiming the value of certain household articles given to the respondent, after their marriage. 3. Respondent/appellant denied the allegations of cruelty and appropriation of gold ornaments. He contended that when his wife was taken for delivery, she was wearing all her gold ornaments. The petition was later amended claiming the value of certain household articles given to the respondent, after their marriage. 3. Respondent/appellant denied the allegations of cruelty and appropriation of gold ornaments. He contended that when his wife was taken for delivery, she was wearing all her gold ornaments. But when she came back after delivery, she was not wearing all the gold ornaments given at the time of marriage. He also denied the fact that he had appropriated any of her gold ornaments and denied the obligation to pay any maintenance. He also raised a counterclaim for restitution of conjugal rights. 4. Evidence in the case consists of oral testimony of the parties. On the side of the petitioner, three witnesses were examined. Respondent relied upon the testimony of DW1 and DW2. The Family Court believed the version of the petitioner and allowed the claims as stated above. 5. While impugning the aforesaid judgment, learned counsel for the appellant would submit that the Family Court failed to consider the pleading and evidence in the case properly. It is pointed out that the petitioner was unable to prove that she was having 67 sovereigns of gold ornaments at the time of marriage. The document relied upon by the petitioner by itself was not enough to prove that she was having such quantity of gold ornaments. That apart, there is no evidence of entrustment or appropriation of the gold ornaments. It was also argued that the Family Court committed serious error in directing dissolution of the marriage as there is no evidence of any cruelty being meted out against the wife/petitioner. Learned counsel also pointed out that the maintenance awarded was not in accordance with the settled principle of law, as the petitioner was remaining away from the company of the respondent without valid cause. 6. On the other hand, learned counsel appearing on behalf of the petitioners supported the judgment of the Family Court and it is contended that no materials had been placed before this Court to take a different view from what has already been considered by the Family Court. The learned counsel also argued that the Family Court had placed reliance upon sufficient material to grant a decree and therefore there is no reason to interfere with the said judgment. 7. Petitioner sought for divorce on the ground of cruelty. The learned counsel also argued that the Family Court had placed reliance upon sufficient material to grant a decree and therefore there is no reason to interfere with the said judgment. 7. Petitioner sought for divorce on the ground of cruelty. This fact had been pleaded and spoken to by her in her testimony as PW1 and is supported by the evidence of PW3, her relative. Respondent took up a contention that he had not committed any act of cruelty. Normally no lady and that too with a child will refuse to leave her husband, unless there are specific reasons. In the case on hand, the petitioner had stated that the respondent was a drunkard and she was abused and assaulted. That apart, he was not keen to look after his wife and child. When such facts have been spoken to by PW1, it amounts to cruelty towards the wife and there is no reason to doubt her credibility in respect of the said version. When PW1's evidence is credible enough to grant a decree of divorce, consequently the request for restitution of conjugal rights fails. Therefore, we don't find any reason to interfere with the decree directing dissolution of marriage. 8. According to the petitioner, she was having 67 sovereigns of gold ornaments at the time of marriage. The respondent in his objection denied the said fact. He denied having knowledge about the quantity of gold ornaments his wife had at the time of marriage. He had not enquired about it and he was not entrusted with any such gold ornaments. He also contended that when his wife was taken to the parental house for delivery, while she was 7 months pregnant, she was wearing all the gold ornaments along with 7 sovereigns, which he had given at the time of marriage. In order to prove the quantity of gold ornaments, petitioner placed reliance on Ext.A1, which is a certified extract of the marriage register relating to the marriage between the couple. In the said register, the quantity of gold ornaments were shown as roughly 540 gms. PW2 was the present secretary of SNDP Shaka, and at the time of the couple's marriage, he was a committee member. 1st petitioner is his cousin. In the said register, the quantity of gold ornaments were shown as roughly 540 gms. PW2 was the present secretary of SNDP Shaka, and at the time of the couple's marriage, he was a committee member. 1st petitioner is his cousin. He deposed that in their marriage register, the details of gold ornaments given to the bride will be recorded after verifying with the parents and thereafter it will be signed by both the parties. Such a practice is followed in most of the SNDP Shakas. During cross-examination, he asserted that Ext.A1 is the copy of the marriage register maintained in his office and the register is available, and if requested, he can produce the same. During cross-examination, the suggestion was that the entry 540 gms was written by someone later. He admitted that the words 540 gms was written by some other person on account of the fact that the handwriting of the other entries were different. According to him, the entry 540 gms was written by the then Secretary, who is no more. The argument raised by counsel for appellant is thatPW2 being a relative of the petitioner has given false evidence in the case and even going by Ext.A1, the entry 540 gms was subsequently incorporated. In fact, the respondent/appellant has no specific case regarding the quantity of gold ornaments his wife had at the time of marriage, which itself is unbelievable. It is quite common among the members of the community that when a girl is given in marriage, there will be some understanding between the members of the family regarding the gold ornaments, the bride will be wearing at the time of marriage or in respect of the gold she takes to the matrimonial home. The very fact that there is such a column in the marriage register itself indicates that there is such a practice among the members of the community. It is also evident from Ext.A1 that the quantity of gold ornaments will be incorporated subsequently. The evidence of PW1, coupled with Ext.A1 and the oral testimony of PW2 and PW3 prove the aforesaid fact, despite the denial by the respondent. The Family Court has also relied upon the aforesaid evidence to arrive at a finding that the bride was having 7 sovereigns of gold ornaments at the time of marriage. There is no reason to interfere with the said finding. 9. The Family Court has also relied upon the aforesaid evidence to arrive at a finding that the bride was having 7 sovereigns of gold ornaments at the time of marriage. There is no reason to interfere with the said finding. 9. The next question is regarding appropriation of gold ornaments. According to the petitioner, other than 30 sovereigns of gold ornaments, all other gold ornaments were appropriated by her husband. She had also alleged that in addition to 7 sovereigns of gold ornaments, he was given 7 sovereigns of gold ornaments and therefore the total quantity of gold ornaments was 75 sovereigns. Therefore she is entitled for return of 45 sovereigns of gold ornaments. We have already held that she was having 540 grams of gold ornaments, which is equivalent to 67y2 sovereigns. But there is no evidence to prove that her family had given 7 sovereigns of gold ornaments to the respondent after the marriage. She had not specifically stated as to when such quantity of gold ornaments were entrusted. Therefore, we have to proceed on the basis that she was having a total quantity of 67 y2 sovereigns of gold ornaments. The petitioner contended that all her gold ornaments were entrusted to the respondent. It is her case that she was having 30 sovereigns of gold ornaments with her. Contention of the respondent is that he did not know the quantity of gold ornaments his wife had. However, he had stated that his wife was wearing all her gold ornaments, while she was taken to the parental home during the 7th month of her pregnancy. We have already decided that the 1st petitioner was having 7 sovereigns of gold ornaments. Until she was taken to her parental house, the gold ornaments were kept in the house of the respondent. To plead ignorance regarding the gold ornaments, which was very much kept in the house of the respondent cannot be believed. The 1st petitioner does not have a case that she did not have any gold ornaments. According to her, she was wearing 30 sovereigns of gold ornaments with her, which apparently means that the balance gold ornaments were entrusted to the respondent. Therefore, the Family Court was justified in directing return of gold ornaments. The 1st petitioner does not have a case that she did not have any gold ornaments. According to her, she was wearing 30 sovereigns of gold ornaments with her, which apparently means that the balance gold ornaments were entrusted to the respondent. Therefore, the Family Court was justified in directing return of gold ornaments. But in view of the fact that we have arrived at a finding that there is no evidence to prove entrustment of 7 sovereigns of gold ornaments, the same is to be deducted from the quantity of gold ornaments directed to be returned. 10. As far as maintenance is concerned, there is no reason to interfere with the said finding. Admittedly, the respondent is employed. He did not choose to produce any material to prove his income, whereas he had taken up a contention that his wife has to come back and sought for restitution of conjugal rights. The Family Court had directed grant of past and future maintenance at ?2,500/- for the 1st petitioner and Rs. l,000/- for the 2nd petitioner, every month. We don't think that the said award is exorbitant in any manner, especially in a case where the respondent failed to produce any material to prove his income. In the result, this appeal is partly allowed as under: -The judgment and decree directing return of 45 sovereigns of gold ornaments stand modified by reducing the same to 31V* sovereigns of gold ornaments or its value of Rs.7,50,000/- with interest as directed by the Family Court. In all other respects, the decree stands confirmed.