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Radhamony vs Surendran on 22 March, 2019

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:
2
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
5
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
6
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
7
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
8
Mat.A.No.172, 178 408/2010

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
9
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.

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