Ambikadevi, W/o. Rajendrakumar v. Rajendrakumar, S/o. P. K. Gopinathan Nair
2025-08-27
P.KRISHNA KUMAR, SATHISH NINAN
body2025
DigiLaw.ai
JUDGMENT : P. Krishna Kumar, J. The wife filed a petition for recovery of gold and money allegedly entrusted to the husband at the time of marriage and thereafter. The husband also filed a petition for divorce on the ground of matrimonial cruelty. By the impugned common judgment, the Family Court dismissed both the petitions. The husband and wife challenge the respective adverse orders by preferring the above appeals. For the sake of convenience, the wife will hereinafter be referred to as the petitioner and the husband as the respondent. 2. The marriage between the petitioner and the respondent was solemnised on 2.12.1982 in accordance with the Hindu rites. Two girl children were born in this wedlock. The petitioner contended that at the time of marriage, 100 sovereigns of gold ornaments and ?5,00,000/- were given by her parents. She further contended that on different occasions, her parents, brother and sister, who were working abroad, together gave ?6,00,000/-, which she entrusted to the respondent. Using the said amount, the respondent purchased a flat in which they had been living together. The petitioner was constrained to entrust all the gold ornaments to the respondent on different occasions. Using her gold and money, the respondent purchased 7 cents of property in Elamakkara, Ernakulam, and later sold it for ?35,00,000/-. Towards alimony, the petitioner raised a claim of ?8,00,000/-. When her father passed away in 2005, she received ?5,00,000/- in cash as her share in the family property, and that amount was also entrusted to the respondent. Accordingly, she filed the original petition for recovery of a total amount of ?75,00,000/- from the respondent. 3. The respondent denied all the above allegations and contended that the wife had only 15 sovereigns of gold ornaments. The allegation regarding receipt of money from her family members was also stoutly denied. According to him, he purchased the property at Elamakkara in 1991 by availing a loan and using his savings. He also contended that he had given 90 sovereigns of gold ornaments and ?15,00,000/- at the time of the elder daughter’s marriage. 4. In the petition filed for divorce, the respondent further contended that the petitioner subjected him to cruelty and always behaved in an indifferent and uncultured manner. She often refused to have sexual relations with him and frequently threatened to commit suicide.
4. In the petition filed for divorce, the respondent further contended that the petitioner subjected him to cruelty and always behaved in an indifferent and uncultured manner. She often refused to have sexual relations with him and frequently threatened to commit suicide. Owing to the humiliating character and cruel behaviour of the petitioner, the marital relationship had broken down for all purposes, and hence he was entitled to a decree of divorce, it was contended. 5. The petitioner filed an objection denying the above allegations, and according to her, it was the respondent who used to ill-treat her. 6. We have heard Sri. N.K. Subramanian, learned counsel appearing for the petitioner, and Sri. S. Sreekumar, learned Senior Counsel appearing for the respondent. 7. The learned counsel for the petitioner forcefully submitted that she hails from an aristocratic family and that her father was working in the British Merchant Navy at the time of her marriage, and therefore, it is presumable that when she was given in marriage, she would have been provided with sufficient gold and money, which was the prevailing custom in society. To substantiate the contention that documentary evidence cannot be insisted upon for proving the availability of gold ornaments or money at the time of marriage, the learned counsel placed heavy reliance on the judgment of this Court dated 2.7.2005 in X v. Y , Mat Appeal No.773/2020 . 8. By referring to Ext.B1 series wedding photographs, the trial court found that the petitioner possessed only 15 sovereigns of gold ornaments at the time of marriage. The learned counsel for the petitioner challenges this finding on the ground that she was unable to wear all her gold ornaments at the time of marriage because her aunt had passed away some days before the ceremony, and hence the ceremony was conducted in a simple manner. 9. Sri. S. Sreekumar, learned Senior Counsel for the respondent, on the other hand, contended that the marriage between the petitioner and the respondent had collapsed for all practical purposes, and admittedly, both have been residing separately since 19.07.2014. Thus, a decree of divorce is necessarily to be granted, it was urged. According to him, the case of the petitioner in respect of the recovery of gold and money is wholly unbelievable, particularly in the light of her cross-examination.
Thus, a decree of divorce is necessarily to be granted, it was urged. According to him, the case of the petitioner in respect of the recovery of gold and money is wholly unbelievable, particularly in the light of her cross-examination. Referring to Exts.B5, B6 and B9 to B13 produced by the respondent, the learned Senior Counsel submitted that it is proved beyond doubt that the respondent purchased the property and the flat without utilising the petitioner’s gold or money. Referring to the decision in Mohandas v. Sunitha Mohandas ( MANU/KE/4253/2024 ), it was further contended that unless the wife proves entrustment of money and gold ornaments with the husband, she cannot succeed in her claim for recovery. 10. When we consider the contentions advanced by both sides in the light of the evidence adduced in this case, we find no reason to interfere with the findings of the trial court regarding the claim for recovery of gold and money. First of all, though the petitioner claimed recovery of 100 sovereigns of gold ornaments in the petition, at the time of filing the chief affidavit, she limited her claim to 88 sovereigns. That apart, as rightly observed by the trial court, from Ext.B1 series photographs admittedly taken at the time of the marriage, she is seen adorned with only about 15 sovereigns of gold ornaments. The explanation offered by the petitioner for not wearing the remaining ornaments was found by the trial court to be unbelievable, and we also find no evidence to support such a contention. The petitioner did not produce any bill, invoice, or other record to substantiate her contention that her father gave her 100 sovereigns of gold ornaments and ?5,00,000/- at the time of marriage. There is also no documentary evidence regarding the alleged subsequent payments. True, it would be unfair to insist on documentary evidence for that purpose, especially when the marriage took place in 1982. The court can very well arrive at a finding on the basis of oral evidence. However, in the present case, the cross-examination of the petitioner clearly reveals that the case set up by her is incorrect.
True, it would be unfair to insist on documentary evidence for that purpose, especially when the marriage took place in 1982. The court can very well arrive at a finding on the basis of oral evidence. However, in the present case, the cross-examination of the petitioner clearly reveals that the case set up by her is incorrect. For the sake of convenience, the relevant part of her deposition is extracted herein below: Thus, according to the petitioner’s own version, at the time of her daughter’s marriage, she gave about 50 sovereigns of gold ornaments, out of which she claimed that 42 sovereigns were gifted by her siblings. But there is no evidence to prove that contention. As regards the claim of entrustment of money for the purchase of the flat and the property, the petitioner has no documentary evidence. Her oral evidence is not credible in that regard, especially when the respondent proved through Ext.B5 and Exts.B9 to B13 documents that he purchased the properties by availing loans and using his savings. 11. We also find no reason to interfere with the findings of the trial court as to the claim for money, for similar reasons. There is no reliable evidence to show the entrustment of any amount. There is also no documentary evidence supporting her claim that she had such a source. Though the petitioner claimed that her father was in the British Merchant Navy, the respondent denied it and stated that he was just a seaman. 12. The petitioner also raised a claim for alimony. But when we perused the original petition, we found no sufficient pleading or material to substantiate the claim. Apart from making a bald statement that she was entitled to alimony of ?8,00,000/-, the petitioner furnished no particulars. She had also initiated proceedings under the Domestic Violence Act, wherein she also claimed maintenance. During the course of the hearing, the learned counsel for the petitioner submitted that the claim for maintenance was allowed by the Sessions Court in Crl.R.P.Nos.380/2017 and 381/2017 by enhancing the amount to ?8,000/- per month. In these circumstances, we are of the view that there is no reason to interfere with the finding of the trial court in respect of alimony as well. However, we leave it open to the petitioner to approach the appropriate court with a fresh petition in that regard, furnishing sufficient details, if so advised. 13.
In these circumstances, we are of the view that there is no reason to interfere with the finding of the trial court in respect of alimony as well. However, we leave it open to the petitioner to approach the appropriate court with a fresh petition in that regard, furnishing sufficient details, if so advised. 13. To conclude, there is no acceptable evidence to prove entrustment of money or gold as alleged by the petitioner. In the above circumstances, we find no reason to interfere with the impugned judgment insofar as it relates to the monetary claim. 14. Let us now consider whether the respondent is entitled to a decree of divorce. There is no dispute that both parties have been living separately since 19.07.2014. It is admitted by both sides that their marital relationship was not healthy, even much prior to that date. In fact, the findings of the trial court itself are sufficient to conclude that the relationship had fallen apart long before the filing of the petition. The evidence shows that the parties now hate each other and that there is fault on both sides. They blame each other; there is no communication between them as husband and wife, and they are merely leading a routine life. The trial court found elements of cruelty on both sides but concluded that the husband had not absolutely proved his case of cruelty. Considering the future of the daughters, the trial court declined to dissolve the marriage on that ground. 15. Admittedly, both parties have been living separately at least since 2014. Thus, the marital tie can be dissolved on the ground of desertion. The prolonged separation, coupled with the unending discord and the hostile environment portrayed through the pleadings and testimony, clearly establishes that the marital bond has broken down irretrievably. The Apex Court in Samar Ghosh v. Jaya Ghosh [ (2007) 4 SCC 511 ] observed that a marriage becomes a fiction, though supported by a legal tie, when there is continuous separation and loss of the essential bond between the couple. It was further held that if there has been a long period of continuous separation, it is fair to conclude that the matrimonial bond is beyond repair. 16.
It was further held that if there has been a long period of continuous separation, it is fair to conclude that the matrimonial bond is beyond repair. 16. This Court in Sreedharan v. Ahsa [2023(5)KLT559] held that if the parties cannot live together even by sharing residence for more than a decade, it can be presumed that the sense of marriage is lost and they should not be compelled to continue the marital tie. In Shilpa Sailesh v. Varun Sreenivasan [2023 SCC OnLine SC 544] , it has been held that where there is an irretrievable breakdown of marriage, dissolution of marriage is the only solution. In Rajib Kumar v. Sushmita Saha [2023 LiveLaw (SC) 727], the Apex Court held that keeping the parties together despite an irretrievable breakdown of marriage amounts to cruelty on both sides. Such prolonged separation without any intention to resume cohabitation also amounts to cruelty to the spouse. After considering all the above aspects, we are of the view that the marriage between the parties is liable to be dissolved on that ground as well. 17. At this juncture, the learned counsel for the petitioner submitted that if a decree of divorce is granted, the petitioner will be thrown out of the flat in which they are residing. Faced with this situation, the learned Senior Counsel for the respondent submitted that the respondent undertakes that the petitioner will not be dispossessed from the flat and that she can reside there during her life. The said submission is hereby recorded. In the result, Mat.Appeal No.446/2016 is dismissed. Mat.Appeal No.803/2016 is allowed. The marriage between the parties will stand dissolved by a decree of divorce. No costs.