IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941
Mat.Appeal.No. 172 of 2010
AGAINST THE JUDGMENT IN OP 705/2005 of FAMILY COURT, ALAPPUZHA
DATED 25-11-2009
APPELLANT/PETITIONER:
RADHAMONY
KANJIRAVILAYIL HOUSE, KADUVINAL MURI,VALLIKUNNAM
VILLAGAE. KAYAMKULAM.
BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL
RESPONDENT/RESPONDENT:
SURENDRAN
PALLIKKASSERRIL VEETTIL,, ELAPPIKULAM MURI, KATTANAM
VILLAGE, KAYAMKULAM.
BY ADV. SRI.B.RENJITHKUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2019,
ALONG WITH Mat.Appeal.178/2010, Mat.Appeal.408/2010, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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Mat.A.No.172, 178 408/2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941
Mat.Appeal.No. 178 of 2010
AGAINST THE JUDGMENT IN OP 858/2005 of FAMILY COURT, ALAPPUZHA
DATED 25-11-2009
APPELLANT/PETITIONER:
RADHAMONY,
KANJIRAVILAYIL HOUSE, KADUVINAL MURI, VALLIKUNNAM
VILLAGE, KAYAMKULAM.
BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL
RESPONDENTS/RESPONDENTS:
1 SURENDRAN
PALLIKKASSERRIL VEETTIL, ELAPPIKULAM MURI, KATTANAM
VILLAGE, KAYAMKULAM.
2 SATHYAN
S/O.BHASKARAN, NETHUNDIL BUNGLOW, VALLIKUNNAM MURI,
VALLIKUNNAM VILLAGE.
BY ADVS.
SRI.B.RENJITHKUMAR
SRI.K.SASIKUMAR
SRI.S.ARAVIND
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2019,
ALONG WITH Mat.Appeal.408/2010, Mat.Appeal.172/2010, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
3
Mat.A.No.172, 178 408/2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941
Mat.Appeal.No. 408 of 2010
AGAINST THE JUDGMENT IN OPHMA 1488/2005 of FAMILY COURT,
ALAPPUZHA DATED 3.3.2010
APPELLANT/1ST RESPONDENT IN OP:
RADHAMANI, KANJIRAVILAYIL HOUSE,
KADUKINAL MURI, VALLIKUNNAM VILLAGE.
BY ADVS.
SRI.RINNY STEPHEN CHAMAPARAMPIL
SMT.ASHA ELIZABETH MATHEW
RESPONDENTS/PETITIONER 2ND RESPONDENT IN OP:
1 SURENDRAN, KRISHNA BHAVAN,
KADUKINAL MURI, VALLIKUNNAM VILLAGE.
2 SURESH KOCHUTHUNDIL HOUSE
VEDARAPLAVU MURI, THAMARAKULAM P.O., THAMARAKULAM
VILLAGE.
ADV.B RENJITH KUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2019,
ALONG WITH Mat.Appeal.178/2010, Mat.Appeal.172/2010, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
4
Mat.A.No.172, 178 408/2010
JUDGMENT
SHAFFIQUE, J
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 cane back initially in the year
1994. Later he heard that she was having illicit relationship with her
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Mat.A.No.172, 178 408/2010
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 form 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 2 nd 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
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Mat.A.No.172, 178 408/2010
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. 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
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Mat.A.No.172, 178 408/2010
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 Section 498A of the IPC 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
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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. 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
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Mat.A.No.172, 178 408/2010
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.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
ASHOK MENON
kp True copy JUDGE
P.A. To Judge.
