IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941

Mat.Appeal.No.650 OF 2012

AGAINST THE JUDGMENT DATED 14-08-2012 IN O.P.(OS) NO.919/2010 OF
FAMILY COURT, ALAPPUZHA

APPELLANT/RESPONDENT:

C. MATHEW,
AGED 50, S/O. CHACKO, 127, CHRIS BAKERY, SIRUVANI
MAIN ROAD, PERUR, COIMBATORE – 641 010, FROM
ALAPPUZHA, PONNADU P.O., MANNANCHERRY.

BY ADV. SRI.K.V.SADANANDA PRABHU

RESPONDENT/ PETITIONER:

KUNJUMOL @ KATHREENA,
AGED 44, W/O. C. MATHEW, PARAPALLY, KAYALPURAM,
MANNANCHERY, ALAPPUZHA, NOW AT RAVEENDRA NIVAS, D.
NO. 9, C.G.V NAGAR, KARAPALAYAM P.O., PERUR MAIN
ROAD, COIMBATORE – 641 026.

BY ADV. SRI.NIREESH MATHEW

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14-10-2019, ALONG WITH Mat.Appeal.652/2012, THE COURT ON
23-10-2019 DELIVERED THE FOLLOWING:
M.A. No.650 652/2012
-:2:-

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941

Mat.Appeal.No.652 OF 2012

AGAINST THE JUDGMENT DATED 14-08-2012 IN O.P.NO.530/2009 OF
FAMILY COURT, ALAPPUZHA

APPELLANT/PETITIONER:

C.MATHEW,
AGED 50 YEARS, S/O.CHACKO, 2/23,CHRIS BAKERY,
SIRUVANI MAIN ROAD, KALAMPALAYAM,
COIMBATORE-641010, FROM ALAPPURATH HOUSE, PONNADU
P.O. MANNANCHERRY VILLAGE.

BY ADV. SRI.K.V.SADANANDA PRABHU

RESPONDENT/RESPONDENTS:

1 KUNJUMOL,
AGED 44,W/O. C MATHEW, REAVEENDRA NIVAS, D.NO.9,
C.G.V. NAGAR, KOMARAPALAYAM P.O.,SELVAPURAM,
COIMBATORE, 641026.

2 M.SATHAR,
AGED 51, D.NO.52,RUBY BAKERY, SELVAPURAM,
COIMBATORE, 641026.

3 AYSHATH,
AGED 43,W/O.M.SATHAR,D.NO.52,RUBY BAKERY,
SELVAPURAM, COIMBATORE-641026.

BY ADV. SRI.NIREESH MATHEW

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14-10-2019, ALONG WITH Mat.Appeal.650/2012, THE COURT ON
23-10-2019 DELIVERED THE FOLLOWING:
M.A. No.650 652/2012
-:3:-

Dated this the 23rd day of October, 2019

C O M M O N J U D G M E N T

T.V.ANILKUMAR J.

Appellant in these two Mat. Appeals is the

husband before the Family Court, Alappuzha. His

Original Petition No. 530 of 2009 for dissolution

of marriage was dismissed and wife’s Original

Petition(O.S.No.919 of 2010) for recovery of

parental share and gold ornaments was allowed by

the common order dated 14.08.2010 passed by the

court below. Mat. Appeal No.650 of 2012 arises from

dismissal of O.P.No.530 of 2009 whereas Mat.Appeal

652 of 2012 arises from the order passed in

O.P.No.919/10. The appellant challenges the

impugned common order in these appeals.

2. The short facts which led to institution of

the O.P. Nos.530 of 2009 and 919 of 2010 are

narrated below:

3. Appellant married the 1st respondent in Mat.

Appeal No.652 of 2012 on 02.05.1994. She is the

sole respondent in Mat. Appeal No.650 of 2012. The

respondents 2 and 3 in Mat. Appeal No.652 of 2012

are the close neighbours of the 1 st respondent. For
M.A. No.650 652/2012
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convenience sake, the reference to parties

hereunder will be in accordance with the rank of

the parties in Mat. Appeal No. 652 of 2012, unless

the context otherwise requires.

4. The spouses have two children born out of

their wedlock. The appellant was employed in Gulf,

when he married the 1st respondent and after he

returned from Gulf in 1996, the family shifted to
Coimbatore and settled there. He opened a bakery

shop in Coimbatore and started leading a happy life

with the 1st respondent and two children. According

to him, the matrimonial relationship strained after

he purchased five cents of land in Coimbatore in

2004 without obliging his wife’s words to include

her name also in the document. She became very

strange in her behaviour and conduct to the

appellant. She started harassing him by using

obscene words and picking up quarrels even on silly

matters. She physically assaulted by throwing at

him household articles and scandalised him with

false allegations of illicit relationship with a

woman by name Vasantha, who is a close family

friend of his. The 1st respondent refused to share

bed with the appellant and established illicit
M.A. No.650 652/2012
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relationship with a neighbour, who is the 2 nd

respondent. On 27.02.2007, she inflicted cut

injuries on him with a kitchen knife. When she

started launching false complaints against him, he

shifted his residence to a rented house and

thereafter filed this Original Petition for

dissolution of marriage under Section 10(1)(x) of

Indian Divorce Act, 1869.

5. The 1st respondent denied allegations of

cruelty raised against her after admitting that her

matrimonial life with him was happy until the

appellant began illicit connection with Vasantha.

According to her, there is no matrimonial issue

between spouses other than appellant’s illicit

connection with the aforesaid woman. She claimed

to be a faithful wife discharging the matrimonial

obligations of an ideal wife. She denied the

allegations of harassment levelled against her. She

stated that purchase of property in the sole name

of the appellant was never an issue in their life

and there was no occasion for her to demand

inclusion of her name also in the document.

According to her, appellant used to mingle with

Vasantha in such a manner that his conduct amounted
M.A. No.650 652/2012
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to committing matrimonial cruelty. A criminal case

was also in this respect registered against him in

Selvapuram Police Station as Crime No.1277 of 2010

under Sections 498A, Section406, Section323 and Section506 of the Indian

Penal Code. She had also to suffer manhandling of

the appellant whenever she protested and questioned

his relationship with Vasantha. She denied having

had any relationship or connection with the 2 nd
respondent, her neighbour.

6. In support of her claim for recovery of

assets made in Original Petition No.919 of 2010 she

said that at the time of marriage she was adorned

with 15 sovereigns of gold ornaments and on the

date of betrothal, there was an entrustment of

Rs.1,00,000/- with the appellant. She alleged that

the ornaments were taken away by the appellant and

converted for his personal use without her consent.

Further, the parental share entrusted at the time

of betrothal was also misused. According to her,

the appellant, as a trustee for her, was bound to

hold the assets in her interests and return the

same in view of the continuing strained

relationship.

7. The appellant filed objection denying
M.A. No.650 652/2012
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entrustment of cash and misappropriation of the

gold ornaments. According to him, he was in

affluent circumstances while being employed in

Saudi Arabia and there was no need for taking any

dowry and even after coming down to Coimbatore

also, he had no need to take away any ornaments of

her. He denied liability to account for the

alleged conversion of gold and misappropriation of
cash.

8. The court below while ordering joint trial

of both original petitions, took up Original

Petition No.530 of 2009 as the main case and

examined the appellant and the husband of Vasantha

as PWs.1 and 2 respectively and marked Ext.A1. The

1st respondent was examined as RW.1 and her paternal

uncle was examined as RW.2. Her documents were

marked as Exts.B1 to B4.

9. On consideration of the entire evidence,

the court below found that the appellant failed in

proving the alleged acts of cruelty levelled

against the 1st respondent and held that her case of

appellant maintaining illicit relationship with the

wife of PW.2 was more probable and accordingly

dismissed his claim for divorce. Believing the
M.A. No.650 652/2012
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testimony of the 1st respondent and oral evidence of

her paternal uncle PW.2, the court below held that

there was entrustment of cash at the time of

betrothal and the gold ornaments of her were also

misappropriated by the appellant for his personal

purposes. Consequently, Original Petition No.919 of

2010 was allowed granting the petitioner a decree

for recovery of Rs.1,00,000/- and 15 sovereigns of
gold ornaments or in the alternative, Rs.2,40,000/-

being the market value of the gold ornaments.

10. The contention of the learned counsel for

the appellant is that the order for realisation of

money and gold is not supported by any evidence and

the court below acted only on surmises and further

it accepted the testimony of her paternal uncle,

RW.2 though his evidence was highly interested. It

was further submitted that dismissal of plea for

divorce by the court was without application of

mind and appreciation of evidence and probabilities

of the case. On the other hand, the learned counsel

for the respondent sought to sustain the impugned

common judgment contending that it was rendered

after proper appreciation of facts, evidence and

the probabilities of the case.

M.A. No.650 652/2012
-:9:-

11. The two questions that arise for

consideration in these appeals are (1)whether the

appellant could establish by evidence and

circumstances that the 1st respondent treated him

with cruelty in such a manner as to render him

incapable of leading a normal matrimonial life with

the latter and (2) whether the 1 st respondent

succeeded in establishing entrustment of
Rs.1,00,000/- being her parental share, with the

appellant and he mis-utilised the amount as well as

15 sovereigns of gold ornaments alleged to have

been taken away from her.

12. There is no dispute between spouses that in

the initial years, they were leading a very happy

married life with their two children in Alappuzha

and later in Coimbatore for some time where the

appellant could successfully conduct bakery

business also. The evidence on record indicates

that the matrimonial relationship strained after

2004 and the spouses started living separately in

the year 2009. It is an undisputed fact that the

appellant is presently living in a rented building

in Coimbatore.

13. The case set up by the appellant as borne
M.A. No.650 652/2012
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out from his testimony is that the 1st respondent

underwent vast changes in her character and conduct

after he purchased five cents of property in

Coimbatore without obliging her request to include

her name also in the document. He testified that

his neglect to include her name in the document

made her hate him and pick up quarrels off and on

even on silly issues. He did not get any peace in
his house and she even went to the extent of using

insulting and obscene words on him. On 27.02.2007,

she used a kitchen knife and caused cut injuries on

him and he had to undergo treatment in a nearby

private hospital. She made scandals to the effect

that he had illicit connection with the wife of

PW.2, without any basis, suppressing the fact that

she was, in fact, keeping illicit relationship with

the 2nd respondent, a close neighbour of her.

14. On the other hand, RW.1, the wife denying

all these allegations testified that the

matrimonial issue between spouses has no connection

with purchase of property in the sole name of the

appellant in 2004. She denied having made any

request for including her name in the document.

According to her, the problems started in 2005 when
M.A. No.650 652/2012
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she realised for the first time that the appellant

was keeping illicit relationship with Vasantha.

She had witnessed appellant moving around along

with her in public and he used to mingle and engage

with Vasantha in her own house. He was once caught

red-handed in connection with the above unholy

affair and arrested also in Crime No.1277 of 2010

of Selvapuram police station on a complaint
launched by first respondent alleging his illicit

relationship with Vasantha.

15. The first question for consideration is

which of these two versions is true and whose case

is more probable than the other. The court has to

take a just and proper decision in the matter based

exclusively on the testimonies of parties, since

there is no independent evidence coming forth to

prove the disputed acts of cruelty levelled between

each other. Having gone through the whole evidence

on record and the circumstances of the case, we are

of the opinion that the case set up by the

appellant in support of dissolution of marriage is

more probable than of the case of denial of claim

as set up by the 1st respondent. It is an

undisputed fact that the appellant purchased
M.A. No.650 652/2012
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property in Coimbatore in 2004. He said that the

wife, the 1st respondent also wanted her name to be

included in the document and on his refusal, she

became estranged and used to conduct herself in

such a manner as to keep him away from her company.

She refused to discharge her matrimonial duties and

became more arrogant and on a few occasions he was

subjected to physical assault also. This was
totally denied by RW.1.

16. PW.2’s testimony in this respect is very

relevant and decisive. He is the husband of

Vasantha. His evidence is that the major reason for

the breakdown in the relationship between the

appellant and 1st respondent was the issue that

related to the property purchased by the appellant

in 2004 and his refusal to incorporate wife’s name

also in the sale deed. It appears from his

evidence that PW.2 and his wife Vasantha lived as

close family friends of the appellant and the 1st

respondent since 1999 till 2005. PW.1 also said

that he acquainted with PW.2 and wife in 1999 and

they soon became family friends visiting their

houses each other. PW.2 and his wife came to know

that the spousal relationship between the appellant
M.A. No.650 652/2012
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and the 1st respondent became worse following

appellant’s refusal to incorporate wife’s name in

the document of sale, when the former purchased

five cents of property in Coimbatore. Following

this information, PW.2 claims to have intervened in

the issue along with wife-Vasantha and tried to

patch up the differences between the spouses. Even

though they made attempts to bring the spouses
together, 1st respondent stuck to an uncompromising

stand that the document ought to be re-registered.

17. A reading of testimony of PW.2 discloses

that 1st respondent took an adamant and recalcitrant

attitude of neglecting the appellant which

gradually paved the way for the matrimonial break

down in the present form. When this part of

evidence of PW.2 is read along with that of PW.1,

the case set up by the appellant that cause for

matrimonial breakdown proceeded from the 1st

respondent’s conduct appears to be probable. PW.2

denied his wife having any illicit relationship

with the appellant or vice versa. He is conducting

a computer centre in Ootty and according to him, he

used to come to his house in Coimbatore during week

ends. On rare occasions, his mother also used to
M.A. No.650 652/2012
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be with his wife and on all days, she was always in

the company of the children in the house. According

to him, he and his wife took appellant and the 1 st

respondent as their close family friends and after

they started advising the 1 st respondent to

compromise on the issue properly, she showed hatred

face towards PW.2 and his wife also. According to

him, the allegation connecting his wife and the
appellant has no ring of truth and he has absolute

faith and fidelity in his wife. He denied the

incident that gave rise to Ext.B3 crime initiated

at the instance of the 1st respondent, as a false

story.

18. In our view, there is no reason to reject

the testimony given by PW.2 . Nothing has been

brought out to discredit his testimony during the

cross-examination. When PW.2, husband places

absolute faith in Vasantha with whom the appellant

is alleged to have unholy relationship, the

contrary evidence given by RW.1 cannot be put on a

higher pedestal. Neither RW.1 nor anyone has a case

that PW.2 and his wife are not in good terms or

living in hostility. Further, there is nothing

also brought in evidence to suggest that PW.2 has
M.A. No.650 652/2012
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got any special interest in PW.1 except as a close

friend of his. Though PW.2 has no direct

knowledge, he has narrated a few acts of cruelty

suffered by PW.1 at the hands of the 1 st respondent

and her aggressive nature with which she treated

the appellant.

19. When the testimonies given by PWs.1 and 2

are read together, there is reason to assume that
the appellant treated the 1 st respondent with

cruelty on many occasions. But the allegation

against 1st respondent that she used to maintain

relationship with the 2nd respondent, a neighbour

could not be corroborated by any supportive

evidence. RW.1 further stoutly denied the said

allegation in her evidence. The learned counsel for

the 1st respondent on the strength of Ext.B3 crime

contended that the allegation of illicit

relationship between appellant and Vasantha was

proved to be true and convincing. The learned

counsel for the appellant, on the other hand,

submitted that this was a matter arising for

decision before a criminal court and it was not

proper to pre-judge a issue which would have the

effect of prejudicing the parties.
M.A. No.650 652/2012
-:16:-

20. We do not propose to comment on the

veracity of the incident which is the subject

matter in Ext.B3 crime, since a decision has to

flow from the concerned criminal court based on the

facts and evidence presented before it. We only say

that the materials on record do not probabilise the

alleged illicit relationship between the appellant

and Vasantha as being true. The assumption of the
court below that the appellant was maintaining

illicit relationship with Vasantha cannot be

therefore said to be correct. When probability of

such a relationship is far and open to doubt, the

denial of allegations of cruelty raised against her

could be regarded only as far from being true. If

this is the position, the case of cruelty set up by

the appellant requires to be accepted.

21. He has narrated several occasions when he

was ill-treated by denying food and cohabitation.

There were instances when obscene and insulting

words were used against him. Household articles

were pelted on him. On going through the entire

evidence, it is seen that his life became

unbearable to such an extent that it was impossible

for him to lead a normal life with the 1 st
M.A. No.650 652/2012
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respondent. The court below failed to appreciate

the evidence in its correct perspective which

resulted in the claim of appellant for divorce

being erroneously refused.

22. It is an admitted fact also that the

spouses have been leading separate life since 2009

and have not been able to come to cordial terms in

spite of several efforts taken for settlement in
repeated mediations and counsellings. There is

ground to believe that spousal relationship has

become irretrievably broken. It is impossible for

the spouse to live together leading a normal

matrimonial life. In such circumstances, we are of

the opinion that plea for dissolution of marriage

should only be accepted and a decree in that regard

passed. That part of the impugned common order

passed by the court below therefore requires to be

reversed.

23. The next question that arises for discussion

is whether the order allowing recovery of money

from the appellant requires to be interfered with

and the decision taken by the court below in that

respect is correct. The testimony of RW.1 indicates

that she was adorned with 15 sovereigns of gold
M.A. No.650 652/2012
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ornaments at the time of marriage. She was not in a

position to produce any bill or document to prove

the quantum of gold ornaments purchased by her

parents for her. No bank details were also produced

to prove that her parents had sufficient funds

for purchase of gold ornaments. Without production

of any evidence in that respect also, there is

enough material on record to prove that she
possessed 15 sovereigns of gold ornaments at the

time of marriage. Even though the appellant denied

in his pleadings that she wore 15 sovereigns,

during cross-examination he did not dispute quantum

of ornaments claimed to be worn by her. His only

stand is that ornaments were only kept in her

custody and there was no entrustment with the

appellant. As regards entrustment, we have evidence

of RW.1 alone. RW.2, her paternal uncle has only

hearsay knowledge of what he heard from his niece.

It is true that PW.1 denied having taken any

ornaments and used them for his personal purpose.

24. On weighing the testimonies of parties on

oath against oath, we are of the opinion that the

view taken by the court below accepting the case of

the 1st respondent is only to be endorsed. The
M.A. No.650 652/2012
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reliability of RW.1’s evidence as regards the claim

for gold stands unshaken. The very probability of

the case itself indicates that appellant would only

have tended to demand gold for his needs. He is a

business man conducting bakery in Coimbatore and in

2004 he purchased five cents of land in his own

name. Even according to him, the cause for

matrimonial issue between spouses was denial of her
demand for inclusion of her name in the document.

This would rather probabilise her contention that

she was deprived of her ornaments and she hoped

the appellant to account for its value.

25. With respect to her claim for return of

Rs.1,00,000/- alleged to have been entrusted with

appellant also, the finding of the court below does

not require any interference. She testified that

at the betrothal ceremony, cash amount of

Rs.1,00,000/- was entrusted with the appellant and

her parents had sufficient capacity to raise funds.

The amounts were raised from the income of their

agriculture and also the grocery shop. RW.2, her

paternal uncle said that it was he who entrusted

the amount at the betrothal function with the elder

brother-in-law of the appellant on his behalf.
M.A. No.650 652/2012
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PW.1 plainly denied the allegation of entrustment,

as if he did not demand any amount as dowry. His

denial does not appear to be true and convincing.

The court below observed that it was a usual

practice among Xians to offer parental share to the

bride at the time of betrothal. When a question

with respect to the practice among the Xians was

put to PW.1, he pleaded ignorance. His conduct only
discloses that he has something to hide from the

court. We find from the testimonies given by RW.1

and 2 that the entrustment of Rs.1,00,000/- with

the appellant was true and he converted the cash

for his private needs. The appellant being in the

position of a trustee to keep the assets taken from

the wife, is bound to return it as rightly held by

the court below. We fully agree with the impugned

common order passed by the court below directing

the appellant to make payment of the cash amount as

well as return the gold ornaments or its value in

the alternative. We do not find any reason to

interfere with the order passed in Original

Petition No.919 of 2010 and it is liable only to be

confirmed.

In the result, Mat. Appeal No.650 of 2012 is
M.A. No.650 652/2012
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dismissed and Mat.Appeal No.652 of 2012 is allowed

reversing the order refusing dissolution of marriage.

O.P.No.530 of 2009 on the file of the Family Court

is allowed declaring the marriage between the

appellant and the 1st respondent to be dissolved. The

parties should suffer their respective costs.

Sd/-

A.M.SHAFFIQUE,JUDGE
Sd/-

T.V.ANILKUMAR,JUDGE
DST //True copy//

P.A.To Judge