Arvind Sadasivan vs Priyanka Pankaj D/o.Sulochana Pankajakashan

Kauser Edappagath, J.

The husband who is the appellant in all the above appeals challenges common judgment passed by the Family Court, Thiruvananthapuram (for short "the court below") in OP Nos.756/2013, 897/13 and 898/13 dated 26/5/2017.

The marriage between the appellant and the respondent was solemnized on 1/6/2010 at Trivandrum Club, Vazhuthacaud, Thiruvananthapuram in accordance with Hindu customary rites. There is no issue in the wedlock. Admittedly the appellant and the respondent lived together only till 24/1/2013. The appellant was a businessman. The father of respondent was also a businessman. The definite case of the respondent/wife is that right from the inception of marriage, their marital life was not cordial and happy. It was alleged that the appellant had no interest in sex and failed to discharge his marital obligation as a husband. In the bedroom he was more interested in seeing obscene pornographic videos, it was alleged. According to the respondent, the appellant used to pick up quarrel with her for no reason. It was further alleged that the appellant had always entertained suspicion about the morality and chastity of the respondent and on many occasions, he even asked her whether she shared bed with her male friends. The respondent has also highlighted instances where she was even physically assaulted by the appellant. The respondent further projected a case that her mother-in-law used to torture her. The respondent further specifically alleged that the appellant was greedy for money and always found one way or other to extract money from her father. According to her, at the time of marriage, she was given with 200 sovereigns of gold ornaments and she further received 20 sovereigns of gold ornaments as gift from friends and relatives. After the marriage, the appellant and his parents compelled her to hand over all the gold ornaments to pledge the same in the bank so as to utilize the amount for his business purpose. Thus, the appellant took away 213 sovereigns of gold ornaments from her and pledged the same in the bank for his business. It was never returned. It was also alleged that the appellant insisted her to get money from her father to buy a property at Attipra Village and due to repeated compulsion, she demanded money from her father who gave Rs 50,00,000/- to purchase the land in the joint name of the appellant and the respondent, but, the appellant clandestinely purchased the property in the joint name of himself and his brother. Thereafter, the appellant again demanded Rs 50,00,000/- for his business purpose and her father arranged a loan of Rs 30,00,000/- by mortgaging his own property and paid to him. Though he agreed to repay the same, it was not paid. The respondent asserted that there were regular instances of outrage and resentment by the appellant causing serious mental agony and pain to her. It was in these circumstances, she preferred original petition for dissolution of marriage on the ground of cruelty as OP No.897/2013 and another original petition for return of gold ornaments and money as OP No.898/2013.

The appellant specifically denied various instances of cruelty allegedly exercised by him on the respondent and pleaded in the original petition. According to him, it was the respondent who often quarrelled with him and failed to discharge marital obligations. The case of the respondent that she was given 200 sovereigns of gold ornaments at the time of marriage by her parents, that 20 sovereigns of gold ornaments were gifted by her friends and relatives and those gold ornaments were handed over to the appellant at his instance to pledge the same with the bank and that later on, the father of the respondent paid to the appellant Rs 50,00,000/- to purchase the property and another Rs 30,00,000/- for his business purpose etc. are denied by the appellant. It was contended that all the gold ornaments worn by the respondent at the time of marriage were kept under her custody and are in her possession. It was further contended that the gold ornaments pledged by him for his business purpose were his own gold ornaments. According to him, he was a loving and dutiful husband and it was the respondent who left his company unilaterally without any valid reason. All his attempts to take her back to the matrimonial home failed due to the adamant attitude of the respondent, it was contended. Hence, he instituted original petition as OP No.756/2013 for restitution of conjugal rights.

The court below tried all the original petitions together. PWs1 to 11 were examined on the side of the respondent and Exts.A1 to A9(a) were marked. CPW1 and CPW2 were examined on the side of the appellant and Exts.B1 to B16 were marked. Exts.X1 to X24 were marked as court exhibits. After trial, the court below dismissed OP No.756/2013 and allowed OP Nos.897/13 and Rs 898/2013. The marriage between the appellant and the respondent was dissolved. The appellant was directed to return 213 sovereigns of gold or Rs 50,00,000/- as its value and also to pay Rs 80,00,000/- with interest to the respondent as per the impugned judgment. Challenging the judgment in OP No.756/2013, Mat.Appeal No.245/2018 has been preferred. Challenging the judgment in OP No.897/2013, Mat.Appeal No.309/2018 has been preferred. Challenging the judgment in OP No.898/2013, Mat.Appeal No.325/2018 has been preferred. Since all the appeals are interconnected, we dispose of the same by this common judgment.

We have heard Smt.S.Karthika, the learned counsel for the appellant and Sri.Philip J.Vettickattu, learned counsel for the respondent.

We will first consider the claim of the respondent regarding return of gold ornaments and money. In the original petition, the respondent has specifically pleaded that at the time of marriage, she was given 200 sovereigns of gold ornaments by her parents and in addition to that, she received 20 sovereigns of gold ornaments as gift from her friends and relatives and that the appellant and his parents compelled her to hand over all the gold ornaments to pledge the same so as to utilize the amount therefrom for the business of the appellant. It was further pleaded that even though the respondent was not agreeable to pledge all the gold ornaments, she had no alternative than to obey the strict instruction of the appellant and his parents and accordingly the appellant took 213 sovereigns of gold ornaments from her and pledged the same in the bank for his business purpose and those gold ornaments were never returned. The respondent gave evidence as PW1 and her father gave evidence as PW2. Both of them gave evidence in tune with the pleadings. PW1 deposed that all of her gold ornaments except few used for daily wear were kept in the bank locker and those gold ornaments were taken by the appellant from the bank locker while she was away at Chennai in connection with her studies and pledged with the bank for raising funds for his business purpose. It has come out in evidence that PW2 was employed in Kuwait for more than 30 years. Thereafter he was running a business as Pankaj Builders. The financial capacity of the respondent and her father is not disputed. PW2 gave evidence that while he was in Gulf, he brought more than 100 sovereigns of gold to India and the same was used for making gold ornaments for the respondent at the time of her marriage. Ext.A1 series are the marriage photographs. It would show that the respondent was wearing large quantity of gold ornaments on the wedding day. The court below on analysis of the evidence found that the gold ornaments shown in Ext.A1 series photographs almost tally with the gold ornaments shown in the schedule of the petition. Exts.A2 and A3 are the bills issued from Kalyan Jewellers. Exts.A1 to A3 were not disputed. Thus, the evidence of PW1 and PW2 coupled with Exts.A1 to A3 series prove the case of the respondent that she was given 220 sovereigns of gold ornaments as gift at the time of her marriage by her parents, relatives and friends.

The respondent relied on the evidence of PWs1 to 4 and Exts.X1, X4(a) and X10 to X22 to prove the entrustment of 220 sovereigns of gold ornaments to the appellant and pledging of 213 sovereigns of gold ornaments out of it by him for his business purpose. It is not in dispute that a bank locker was opened in the joint name of the appellant and the respondent at Dhanlaxmi Bank. PW1 specifically deposed that all of her gold ornaments except few used for her daily wear were kept in the bank locker and when she was studying in Chennai, the appellant pledged her gold ornaments for raising funds for his business purpose. PW3 is the Branch Manager of Dhanlaxmi Bank. Ext.X1 is the document showing the date of opening of the locker issued by Dhanlaxmi Bank. The evidence of PW3 along with Ext.X1 also would show that a safe deposit locker was opened by the appellant and the respondent jointly as locker No.63. Ext.X1 would further show that the said locker was opened on 24/10/2011, 7/12/2011, 23/12/2011, 22/6/2012, 28/6/2012, 22/10/2012, 12/11/2012, 27/11/2012 and on 3/12/2012. It was the appellant who opened the locker except on 12/11/2012 and 27/11/2012.

The appellant has admitted that he had pledged gold ornaments at Catholic Syrian Bank, Thirumala Branch and availed loan for his business purpose. But, according to him, those gold ornaments were obtained by him from his family and not given by the respondent. PW4 is the Branch Manager of Catholic Syrian Bank, Thirumala Branch. Exts.X4(a), X5 and X10 to X22 were marked through him. Ext.X4(a) is the certified copy of the extract of the SB account maintained by the appellant. Exts.X10 to X22 are gold loan opening forms in the name of the appellant. Ext.X5 gives the details of the gold loan taken and closed by the appellant. PW1 in cross-examination had admitted that she had opened the locker on 27/11/2012 and on that day, she had seen her gold ornaments in the locker. Relying on the said admission, the learned counsel for the appellant vehemently argued that the said admission would prove that the gold ornaments pledged by the appellant with the Catholic Syrian Bank were not of the respondent. We cannot subscribe to the said argument. As stated already, it has come out in evidence that on 3/12/2012, the appellant has opened the locker as evident from Ext.X1. Ext.X21 would show that the appellant had pledged 1600.3 grams of gold ornaments on 3/12/2012 itself for a sum of Rs 36,34,000/- and he closed the said loan transaction on 9/2/2013 as evident from Ext.X22. 1600.3 grams is equivalent to 200 sovereigns of gold ornaments. The evidence of PW4 coupled with Ext.X22 would show that the appellant had renewed another loan on 9/2/2013. The case of the appellant is that the gold ornaments pledged by him were his own gold ornaments. But, it is pertinent to note that there is no such contention in the counter statement. In the original petition, the respondent has clearly pleaded that 213 sovereigns of gold ornaments belonging to her were entrusted to the appellant who pledged the same with the Bank to avail loan for his business purposes. It has come out in evidence that the appellant had pledged that much quantity of gold ornaments with the Bank to avail loan for his business purposes. Thus, the burden is on the appellant to plead and prove that those gold ornaments were his own gold ornaments. But, there is no such pleading much less proof. No evidence has been adduced to show that those gold ornaments belonged to him. During cross-examination the appellant had admitted that prior to his marriage, he did not pledge any gold ornaments at all. All these evidence clearly support the case of the respondent that she entrusted 213 sovereigns of gold ornaments to the appellant who pledged it with the Bank for his business purposes. There is no case for the appellant that he returned the gold ornaments to the respondent. It is settled that once entrustment of the gold ornaments by the wife to the husband is made, a trust gets created and being a trustee, the husband is liable to return the same. For all these reasons, we are of the view that the court below was absolutely justified in granting a decree for the return of 213 sovereigns of gold ornaments.

The next claim is regarding Rs 50,00,000/-. Admittedly on 9/7/2011, a property having an extent of 7.1 Ares comprised in Re.Sy.No.133/18-3 of Attipra Village was purchased in the joint name of the appellant and his brother from one Leela Zacharias who was examined as PW10 as per deed No.110/12 of SRO, Kazhakoottam. According to the respondent, as insisted by the appellant, her father funded Rs 50,00,000/- to the appellant to purchase the said property. The said amount was arranged by her father by availing a loan from HDFC Bank, it was contended. On the other hand, the appellant contended that the property was purchased for a consideration of Rs 28,40,000/- and the entire consideration was paid by him and his brother Arun Sadasivan.

PW2, the father of the respondent, gave evidence that a loan of `50,00,000/- was availed by him and his wife and the said amount was directly transferred to the account of PW10 to purchase the land in the name of the appellant and the respondent. PW9 is the Manager (Legal) of HDFC Bank Ltd. His evidence coupled with Ext.X9, the certificate and statement of account from HDFC Bank Ltd., would show that PW2 and his wife had taken a loan of Rs 50,00,000/- in July, 2011 and PW2 was repaying the loan amount. PW6 is the Chief Manager of Bank of India, Thiruvananthapuram. Ext.X6 is the statement of account of PW2 at Bank of India, Thiruvananthapuram. The evidence of PW6 coupled with Ext.X6 would show that on 8/7/2011, Rs 50,00,000/- was deposited in the account of PW2 and on 9/7/2011, that amount was transferred by way of RTGS to the account of PW10. PW11 is the husband of PW10. In evidence, PW10 and PW11 admitted the receipt of `50,00,000/- from PW2. They asserted that the said amount was transferred by PW2 in connection with the purchase of the property by the appellant from them. They also identified Ext.A8, the letter issued by them, evidencing the receipt of Rs 50,00,000/-. In Ext.A8 letter, PW10 and PW11 have acknowledged the receipt of Rs 50,00,000/- from PW2 in connection with the sale of their property to the appellant. The learned counsel for the appellant submitted that admittedly the consideration shown in the document is only Rs 28,40,000/- and it is quite improbable to believe the case of the respondent that Rs 50,00,000/- was advanced by her father to the appellant to purchase the property. True, the consideration shown is only Rs 28,40,000/-. But, the evidence discussed above would establish that the appellant insisted for Rs 50,00,000/- to purchase a property from PW10 and on account of the repeated pressure exercised by the appellant with the respondent, the father of the respondent availed a loan of Rs 50,00,000/- from HDFC Bank and transferred the said amount directly to the account of PW10, who admitted the receipt of the same as towards sale consideration. The evidence tendered in this regard by PW10, PW11 and Bank Managers need not be disbelieved. The undervaluation, if any, shown in the document in a transaction between the appellant and PW10 is not at all binding on the respondent or her father. They can never be part of such undervaluation. There is nothing on record to show that the consideration was paid by the appellant or his brother. The definite case of the appellant is that while receiving the amount, the appellant promised to purchase the property in the joint name of the appellant and the respondent, but, he clandestinely purchased the property in the joint name of himself and his brother. In these circumstances, the respondent is entitled to get back the said amount of Rs 50,00,000/- from the appellant.

The next claim is for the recovery of Rs 30,00,000/-. According to the respondent, after receiving Rs 50,00,000/-mentioned above, the appellant again demanded another Rs 50,00,000/- for his business purposes. When the respondent expressed her reluctance to give the said amount, the appellant made a request with the father of the respondent to arrange a loan of Rs 50,00,000/- for him and promised to repay the same within two months. Thus, PW2 again arranged a loan from HDFC Bank and paid Rs 30,00,000/- to the appellant. But, the appellant did not repay the amount though he paid few instalments. The appellant has admitted the receipt of Rs 30,00,000/-. But, according to him, the said amount was transferred to his account by PW2 for the development of his business. Admittedly, PW2 was running a business under the name and style "Pankaj Builders".

According to the appellant, PW2 invited him to join M/s Pankaj Builders and appointed him as its Vice President and Rs 30,00,000/-was deposited in his account for the business purpose of M/s Pankaj Builders and it was used by him for the development of the business of M/s Pankaj Builders.

PW9 is the Manager (Legal) HDFC Ltd. Ext.A6 is the letter issued by HDFC Bank stating that on 23/7/2012 PW2 and his wife had availed a loan of Rs 30,00,000/- from the Bank. Ext.A6 has been proved through PW9. Ext.X9 is a statement of account issued by HDFC Bank. It has also been proved through PW9. Ext.X9 would show that as per the request of PW2, Rs 30,00,000/-was transferred to the account of the appellant. PW8 is the Manager, South Indian Bank, Chalai Branch. The appellant maintained an account with the said Bank. Ext.X7 is the statement of account of the appellant maintained at South Indian Bank, Chalai Branch. The evidence of PW8 coupled with Ext.X7 statement of account would show that Rs 30,00,000/- was deposited in the account of the appellant as transferred from the account of PW2. Thus, from the above evidence, it stands proved that PW2 and his wife had availed a loan of Rs 30,00,000/- and paid it to the appellant. As stated already, the case set up by the appellant is that the said amount was deposited in his account for the business development of M/s Pankaj Builders. If actually the said amount was meant for the business development of M/s Pankaj Builders, it ought not have been transferred to the business account of the appellant which has no connection whatsoever with M/s Pankaj Builders. The appellant has also admitted that he had remitted interest for the said amount for a period of 9 months from 1/8/2012 to 5/4/2013. If the amount was actually paid for the upliftment of business of M/s Pankaj Builders, there was absolutely no need for the appellant to pay interest out of his profit. The statement of accounts produced would further show that immediately after the credit of Rs 30,00,000/- in his account, the appellant paid Rs 7,92,000/- to one Smt.Radha on 24/7/2012 and another sum of Rs. 9,50,056/- to one Smt.Sonia on 25/7/2012. The appellant has no case that those persons have any connection with the business of M/s.Pankaj Builders. Though the appellant has raised a contention that the above said amount of Rs 30,00,000/- was used for the development of the business of M/s Pankaj Builders, no evidence has been adduced to substantiate the same. The learned counsel for the appellant relying on Ext.B8 series, copies of the emails sent between PW2 and the appellant, submitted that those documents would show that the appellant was actively involved in the business of M/s Pankaj Builders whereas the respondent stated in evidence that the appellant was not at all involved in the said business and hence the evidence given by the respondent with regard to the transaction relating to Rs 30,00,000/- cannot be believed. It is true that the evidence on record would show that the appellant was involved in the business of Pankaj Builders. However, the evidence on record clearly establish that Rs 30,00,000/- was collected by him from the father of the respondent not for the business purpose of Pankaj Builders. The definite case of the respondent is that her father paid Rs 30,00,000/- to the appellant to secure her life. Hence, as rightly held by the court below, the respondent is entitled to get back the said amount as well.

On reappreciation of the entire evidence, we are of the view that the court below was absolutely justified in granting a decree for return of gold ornaments and money of Rs 80,00,000/-in OP No.898/2013. The said judgment is only to be confirmed. We do so.

The wife filed petition for dissolution of marriage on the ground of cruelty and the husband filed petition for restitution of conjugal rights. Normally, matrimonial cruelty takes place within the four walls of matrimonial home and, therefore, independent witness may not be available. Thus, the court can act upon the sole testimony of the spouse if it is found convincing and reliable. The court has to decide the case based on preponderance of probabilities. We have already found that the appellant has extracted 213 sovereigns of gold ornaments and Rs 80,00,000/- from the respondent and her father by exerting pressure on her. It has come out in evidence that the appellant was only interested in money and failed to discharge his marital obligations. This act of the appellant alone is sufficient to constitute mental cruelty. The demand for gold ornaments and money has to be viewed in the background of the fact that the appellant never cared to provide love and care to the respondent. The respondent has given positive evidence that the constant harassment on the part of the appellant demanding gold ornaments and money has caused much mental agony and pain to her. The Division Bench of this Court recently in Xxx v. Xxx (2021 (4) KHC 457) has held that insatiable urge for wealth and sex of a spouse would amount to cruelty. The various acts of cruelty, both physical and mental, as well as harassment meted out by the respondent at the hands of the appellant have been spoken to in detail by the respondent as well as her father. There is nothing to disbelieve the said evidence. It has also come out in evidence that the appellant has caused innumerable mental stress and pain by constantly demanding dowry, sharing abusive words and filthy language towards her and also casting aspersions of inchastity. The respondent specifically deposed that on many occasions, the appellant asked her whether she used to share her bed with others. She has also deposed that the appellant was not interested in sex and never wanted to be with her. Constant picking up of quarrel by the mother of the appellant was also spoken to by the respondent. She asserted that the apathy and indifferent conduct of the appellant made her completely distressed. It is settled that physical violence is not absolutely essential to constitute cruelty. To constitute cruelty, the conduct and behaviour of one spouse towards the other need only be of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him/her to continue the marital tie. From the kind of attitude, conduct and treatment discussed above, it can readily be inferred that the respondent had every reason to apprehend that it was not safe for her to continue the marital relationship with the appellant. Hence, we confirm the decree of dissolution of divorce granted by the court below on the ground of cruelty in OP No.897/2013 and the dismissal of petition for restitution of conjugal rights in OP No.756/2013.

In the light of the above findings, we see no merit in the appeals. Accordingly all the appeals are dismissed. No costs.