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Sabu.M.P vs Sabu.M.P on 25 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

FRIDAY, THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940

Mat.Appeal.No. 718 of 2008

AGAINST THE JUDGMENT IN OP 709/2006 of FAMILY COURT, KOTTAYAM AT
ETTUMANOOR DATED 13-06-2008

APPELLANT/RESPONDENT:

SABU.M.P, S/O PAPPAN,
MATTATHIL HOUSE,, POOTHAKKUZHY BHAGOM,
KANJIRAPPALLY.P.O.

BY ADVS.
SRI.TITUS MANI
SRI.S.SURAJ (PALATHANATHU)

RESPONDENT/PETITIONER:

SABITHAMANI.K.K
D/O. K.A. KUTTAPPAN,, KARUPARAMBIL HOUSE,
KUDALLOOR.P.O, KOTTAYAM.

BY ADV. SRI.R.V.SREEJITH

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.01.2019,
ALONG WITH Mat.Appeal.719/2008, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
Mat.A.Nos.718/2008 719/2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

FRIDAY, THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940

Mat.Appeal.No. 719 of 2008

AGAINST THE JUDGMENT IN OP 670/2007 of FAMILY COURT, KOTTAYAM AT
ETTUMANOOR DATED 13-06-2008

APPELLANT/PETITIONER:

SABU.M.P, S/O PAPPAN,
MATTATHIL HOUSE, POOTHAKKUZHY BHAGOM, KANJIRAPPALLY
PO.,

BY ADVS.
SRI.TITUS MANI
SRI.S.SURAJ (PALATHANATHU)

RESPONDENT/RESPONDENT:

SABITHAMANI.K.K., D/O K.A. KUTTAPPAN,
KARUPARAMBIL HOUSE, KUNDALLOOR PO., KOTTAYAM.

BY ADV. SRI.R.V.SREEJITH

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.01.2019,
ALONG WITH Mat.Appeal.718/2008, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
3
Mat.A.Nos.718/2008 719/2008

JUDGMENT

SHAFFIQUE, J

These two appeals arises out of a matrimonial dispute between the

parties to the lis.

2. O.P.No.670/2007 has been filed by the husband seeking nullity

of marriage and for divorce in the alternative. According to him he got

married with the respondent on 22.04.2001 as per Hindu religious rites and

ceremonies. His complaint was that she was not behaving properly and that

she had left his house by stating that she has a lover named Binoy. She was

not willing to have cohabitation with him and she was giving one excuse

after another. She told him that she would like to continue the relationship

with her lover even after the marriage and that she had contracted the

marriage on account of the threat and compulsion of her lover and family

members. Life became very difficult for him and therefore it was agreed

that the parties may file a joint petition for divorce. Later on, the

respondent’s family withdrew from the decision and filed a petition for

maintenance and for return of money. According to him the marriage was

vitiated by fraud and misrepresentation and therefore it has to be declared

as null and void and alternatively he sought for divorce on account of cruelty

and desertion.

3. Respondent/wife filed objection denying the allegations. She

contended that the marriage was consummated. In the year 2003 she had

constant abdomen pain and the Doctor found that she had fibroid in her
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Mat.A.Nos.718/2008 719/2008

uterus and if the same is not removed she will not be able to conceive and

give birth to a child. She contended that she never had any relationship

with any other person as alleged, whereas, the petitioner was having

relationship with another lady by name Reena, daughter of Thankappan.

She was thrown out from the house in January, 2004 and it was only for the

purpose of avoiding her and to live with Reena that the petition is filed.

4. O.P.No.709/2206 was filed for recovery of Rs.40,000/- which was

paid as her paternal share and for return of 6 sovereigns of gold ornaments.

The husband contended that she did not have 6 sovereigns of gold

ornaments whereas she had only 2 sovereigns of gold ornaments. He

denied having received any money as parental share. Common evidence

was taken in the case. Husband was examined as PW1 and his friend was

examined as PW2. Wife has been examined as RW1 and two other

witnesses were examined as RW2 and RW3. Exts.A1 to A3(c), Exts.B1 and

B2, Exts.X1 and X2 are the documents marked in the case.

5. The Family Court after evaluation of the evidence found that,

allegation of fraud and misrepresentation in conducting the marriage nor the

the ground of cruelty and desertion had been proved and accordingly

dismissed the petition for divorce. With reference to the claim for money by

the wife, a decree had been granted for return of 6 sovereigns of gold

ornaments or its approximate value and to realise Rs.40,000/- with 9%

interest from the date of suit.

6. The learned counsel for the appellant submits that there is no

evidence to prove that the husband had appropriated any gold ornaments or
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Mat.A.Nos.718/2008 719/2008

money. It is also contended that the Family Court committed serious error

in not granting divorce, in so far as sufficient material was available to grant

divorce on the ground of cruelty and desertion.

7. The first question to be considered is regarding the claim of wife

for return of money and gold ornaments. Ext.X2 is the document which had

been summoned and produced which is the marriage register issued by

Kerala Pulayar Maha Sabha. In Ext.X2 it is recorded that the bride was

given 6 sovereigns of gold ornaments and Rs.30,000/-. There is no reason

to disbelieve the contents of the said register. Therefore the contention of

the husband that only two sovereigns of gold ornaments were given to the

wife is belied. That apart, he contended that only an amount of Rs.12,500/-

was paid at the time of marriage, whereas Ext.X2 clearly shows that

Rs.30,001/- was paid at the time of marriage. Therefore, we have no

hesitation in observing that the wife had 6 sovereigns of gold ornaments and

Rs.30,001/- was paid at the time of marriage as her parental share.

8. The counsel for the appellant contended that the appellant had

not taken any of her gold ornaments. But this contention is belied by the

fact that he had not stated the true state of affairs before court. In his

objection he has stated that she had only two sovereigns of gold ornaments

and had received only Rs.12,500/-. The said contention is belied by the

contents of Ext.X2 register. Therefore we are of the view that the wife’s

version is believable and once we had come to such a conclusion, her

contention that her gold ornaments were appropriated by her husband has

to be believed.

6

Mat.A.Nos.718/2008 719/2008

9. The wife had another contention that a sum of Rs.10,000/- was

paid after the marriage. But as rightly pointed out by the learned counsel

for the appellant, there is no evidence to support the said contention. Under

such circumstances, we are of the view that a decree can be granted for a

sum of Rs.30,000/- along with interest and also direction to return 6

sovereigns of gold ornaments.

10. As far as the appeal against the order in O.P.No.670/2007 is

concerned, as rightly pointed out by the Family Court, there is no evidence

to substantiate either fraud or misrepresentation in conducting the marriage

or that she had treated him with cruelty and she had deserted him. The

entire evidence of PW1 and PW2 read together would indicate that the

husband was trying to avoid his wife for reasons best known to him. Of

course the wife has a contention that he was having some relationship with

another lady which had prompted him to seek divorce.

11. Taking into consideration the manner in which the Family Court

had considered the same and since no materials are available to take a

different view, we don’t think that we will be justified in interfering with the

order of the Family Court dismissing the divorce petition. Though it is

submitted that the parties are living separately for quite a long time, in the

absence of any material to prove either cruelty or desertion, it may not be

possible for this Court to grant a decree for divorce.

In the result, Mat.A.No.718/2008 is partly allowed. The decree

granted by the Family Court shall stand modified as under:

Instead of a decree for Rs.40,000/-, there shall be a decree for
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Mat.A.Nos.718/2008 719/2008

Rs.30,000/- with interest as directed by the Family Court. In all other

respects the decree shall stand confirmed.

Mat.A.No.719/2008 shall stand dismissed. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU
kp True copy JUDGE
P.A. To Judge.

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