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:
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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:
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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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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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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.
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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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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.