James Lukose vs Beela James

Since these appeals are filed challenging a common judgment passed in OP 480/2006 and OP 283/2005 of the Family Court, Kottayam at Ettumanoor, both the appeals are heard together and disposed of accordingly. In both the appeals the husband of the respondent is the appellant. The appellant filed OP 480/2006 under Sec.10 of the Indian Divorce Act for a decree dissolving the marriage between the appellant and the respondent under Sec.10 (1) (ix) and (x) of the Divorce Act 1869. The parties are referred to as in the original petition. OP No.283/2005 was filed by the respondent/wife seeking a decree for realizing the money and gold ornaments from the appellant. The brief facts of the case can be summarized as follows:

The marriage between the appellant/petitioner and the respondent/respondent was solemnised on 9.6.1996 as per christian rites and ceremonies and two children were born out of the said wedlock. While they were living together, the respondent used to quarrel with the appellant unnecessarily and she has even manhandled the appellant. She was always picking quarrel with the appellant for silly matters. She always scolded the parents of the appellant also. The appellant was not getting a peaceful mind when he returns after the job due to the cruel behaviour of the respondent. Even though he has shifted the residence with the respondent to a house purchased by him in the joint name, there was no change in the behaviour of the respondent. Thereafter he sold the said residential building and purchased another one near his house and started to reside there. While residing there the respondent manhandled the appellant and the younger child on 9.1.2004. On the next day, when the appellant had gone to purchase some medicines, the respondent called her parents and left the house with elder child taking all her belongings. Thus, from 9.1.2004 onwards, the appellant is residing separately along with the younger child and respondent is residing with the elder child in her parental house. There was no sufficient reason to reside separately. So the appellant is entitled to get a decree of divorce on the ground of cruelty and desertion.

The respondent filed objection denying the allegations of cruelty and desertion levelled against her. According to her, it is the appellant and his mother who behaved cruelty towards the respondent. During the period of her pregnancy, the mother of the appellant manhandled her and there was a criminal case against the mother-in-law, in this respect. Because of the cruelty of the parents of the appellant, they shifted their residence to another property, after purchasing the same and there they constructed a house, by selling gold ornaments of the respondent. She denied the allegation that she has been suffering from mental disorder. According to her, the appellant made a false allegation of mental disorder to get a decree of divorce and there is no bona fides at all in that allegation. She never manhandled the appellant or the child. While they were living together at Mattakkara the appellant kept Ganja in that house and when the respondent objected it, the appellant manhandled her. The neighbours intervened and filed a police complaint against the appellant. The respondent also filed a complaint against husband. The appellant has thrown out the respondent and children from the house at Ayarkunmam and left the place after locking the house. Even though she made an attempt to live together pursuant to a compromise on 25.7.2003, the appellant demanded the gold chain worn by the respondent and when she refused, he manhandled her and left the place taking the younger child. On 6.1.2004 the appellant came back and manhandled the respondent and she was taken to hospital by her father. When she returned from the hospital on 10.1.2004 the house was found locked and because of that reason she was constrained to start living along with her parents. With the aforesaid averments the respondent prayed for dismissal of the original petition seeking dissolution of marriage.

OP 283/2005 was filed by wife/respondent claiming an amount of Rs 75,000/- and 40 sovereigns of gold ornaments which were given to the appellant in connection with the marriage at the time of marriage. That apart, she claimed an amount of Rs 21,600/- as the value of the articles which were given to the appellant by the parents of the respondent and 12¾ sovereigns of gold ornaments or its value which was given to the children at the time of baptism.

The appellant filed objection denying the averments that Rs 75,000/- was given to him and the respondent was wearing 40 sovereigns of gold ornaments at the time of marriage and the same has been misappropriated by the appellant. According to him, he has not appropriated any gold ornaments. No amount has been entrusted with the appellant at the time of betrothal. All the household items were taken away by the respondent when she has gone from the house with elder child. The gold ornaments given at the time of baptism of the children were with the respondent. Thus, according to the appellant, he is not liable to return any amount or gold ornaments or household items to the respondent.

With the aforesaid pleadings in both cases, both parties adduced evidence, which consists of oral testimony of PW1 to PW4 and RW1 to RW4, the documentary evidence Exts A1 and A2, Exts B1 and B2 and X1 were marked.

After considering the said evidence on record, the Family court dismissed OP 480/2006 on a finding that the appellant miserably failed to prove the allegation of cruelty and desertion alleged against the respondent. Further, the Family Court allowed OP 283/2005 in part by granting a decree for realising Rs 75,000/- with 6% interest from the date of suit and also for returning 40 sovereigns of gold ornaments or its present value Rs 3,50,000/- with 9% interest to the respondent. The legality and correctness of the findings whereby the family court dismissed OP 480/2006 and allowed OP 283/2005 in part are assailed in these appeals.

Mat.Appeal No.275/2008

The marital status of the appellant and the respondent and the parentage of the two children born out of the said wedlock are admitted. They lived together from 9.6.1996 to 9.1.2004. Initially, they were lived in the parental house of the appellant and thereafter they purchased another property at Mattakkara and constructed a house therein and lived together for sometime. Thereafter they sold away the said property and purchased another property at Ayarkunnam and started to live there. However, it is admitted case of both parties that, they fell apart on 9.1.2004 and started to live separately with one child each. The elder child is living along with the respondent and the younger is living along with the appellant. It is a case of the appellant that the respondent treated him with cruelty and she used to pick up quarrels for silly matters and she always scolded the parents of the appellant. Further, it is contended that the respondent manhandled him and younger child on 9.1.2004 and this is the only specific incident of cruelty alleged in the petition. Though, there was no pleadings to the effect that the respondent has been suffering any kind of mental disorder during the course of evidence, the appellant has made an attempt to prove the alleged mental disorder of the respondent by examining PW3, a Psychiatrist.

On an analysis of the pleadings alleging cruelty it could be seen that all the allegations except the specific incident of alleged manhandling are vague and flimsy even if those allegations are taken its face value they are only wear and tear of the matrimony only. The expression cruelty is not defined in the Act. But according to Sec.10 (I) (X), the alleged act of cruelty must cause a reasonable apprehension in the mind of the appellant that it would be harmful or injurious for the appellant to live with the respondent and it is the standard of pleadings and proof required to grant a decree dissolving the marriage under cruelty. We are of the opinion that according to the pleadings and evidence available on record the act the of the respondent would not have caused a reasonable apprehension to the mind of appellant that it would be harmful or injurious for the appellant to live with the respondent. It is needless to say, the appellant miserably failed to prove the alleged act of cruelty of the respondent with the above standard of proof.

9.As regards the specific incident allegedly happened on 9.1.2004, PWs 1 to 4 were examined in evidence, no convincing evidence was adduced to prove the said incident. On the other hand, it is a specific case of the respondent that the appellant treated her with cruelty. It is her specific case that the appellant manhandled the respondent and neighbours intervened and she filed a police complaint against the appellant alleging offence under Sec.498A of the Indian Penal Code and the registration of the said crime is not disputed by the appellant. Further, she contended that while they were living together at Mattakkara the appellant kept Ganja in the house and when the respondent objected it, the appellant manhandled her and that was the reason for the quarrel. Further it is specifically alleged that on 25.7.2003, the appellant demanded gold chain worn by the respondent and when she refused to give it, he manhandled her and left the place taking the younger child after locking the house. When she returned from the hospital on 10.1.2004, the house was found locked and thereby she was prevented from entering into the house and thereafter she started to live along with her parents. Even though the respondent was cross-examined at length, nothing has been brought out to discredit her evidence. The aforesaid evidence of RW1 is supported by RW2.

RW2 is the father of the respondent and he has sworn proof affidavit to the effect that the appellant used to man-handle the respondent for trivial reasons. In short, it has come out in evidence by the evidence given by RW1 and RW2 that the respondent was suffering from cruelty and harassment of the appellant and his mother.

As regards the alleged mental disorder, as we have held above, there was no pleadings in the petition to the effect that the respondent has been suffering from any kind of mental illness. It is trite law that the evidence without pleadings need not be looked into. Though, PW3, the psychiatrist, who is said to have treated the respondent for mental disorder, was examined in evidence, he unambiguously deposed that the respondent was suffering from paranoid illness and if medicine is continued, there may not be any difficulty to lead a married life as the alleged disease is a curable one. More importantly, it has come out in evidence from PW3 that the appellant was also undergoing a treatment for smoking and short tempered nature under him during the period of treatment of the respondent.

For the aforesaid reasoning, the alleged mental disorder and the evidence adduced by PW3 cannot be taken as aground for granting a decree dissolving the marriage under Section 10(1)(iii) of the Act. There is no evidence to prove that prior to the marriage or after the marriage the respondent has been incurably of unsound-mind.

As regards the mental cruelty alleged against the respondent, PW1 to PW4 were examined by the appellant and the respondent examined RW1 to RW4 to rebut the same. The court below found that the evidence of PW1 to PW4 are not sufficient to prove the alleged mental cruelty towards the appellant. We do not find any reason to interfere with the said finding. Thus, the family court is justified in rejecting the prayer for dissolution of marriage on the ground of cruelty.

As regards desertion, we have already found that the specific case of the respondent is that the petitioner has treated her with cruelty both physical and mental after the marriage and she has examined RW1 to RW4 to prove the same. It has come out in evidence that the petitioner physically assaulted the respondent and a criminal case was registered against him under Section 498A of the Indian Penal Code and the same was pending against him. The respondent has alleged specific incident of cruelty allegedly happened on 25.7.2003 and 9.1.2004. Nothing has been brought out to discredit the evidence eof RW1 to RW4. On an overall evaluation of the evidence of RW1 to RW4, it can be concluded that the respondent has been residing separately on an apprehension that it would be harmful to live along with the appellant. It is a reasonable excuse to withdraw from the society of the appellant. That apart, we find that when she was suffering from a minor mental abrasion, the appellant has made an attempt to exaggerate the same as a major mental disorder and we are of the opinion that the said willfull attempt from the part of the appellant also would constitute a reasonable excuse to withdraw from the society of the 1st appellant.

On the above view, we find that there is no reason to interfere with the findings whereby the family court rejected the prayer for dissolution of marriage under the ground desertion also.

Mat.Appeal.274 of 2008

It is the specific case of the respondent in Mat.Appeal.274 of 2008 that at the time of fixation of marriage, an amount of Rs 75,000/- was entrusted with appellants 2 and 3 by the father of the respondent as her share and she was wearing 40 sovereigns of gold ornaments at the time of marriage. But, the said amount and gold ornaments had been appropriated by the appellants and they did not return the same, so far. The appellants denied the said allegation contending that no amount has been entrusted with the appellants 2 and 3 at the time of the fixation of marriage and the respondent was not given 40 sovereigns of gold ornaments at the time of marriage.

In order to prove the averments in the original petition, RW1 to RW4 were examined. The respondent has given evidence in tune with the averments in the petition and the family court found that the appellants could not shatter the evidence of RW1. The evidence of RW1 stands corroborated by the evidence of RW2, the father of the respondent. He also has testified to the effect that in connection with the marriage, Rs 75,000/- had been handed over to the 2nd appellant and he has entrusted that amount with appellants 1 and 3. Further, the evidence of RW1 and RW2 are supported by Ext.B1 savings bank pass book issued from State Bank of Travancore. Ext B1 would prove that Rs 1,63,000/-had been withdrawn by RW2 from the bank on 4.6.1996. In this context it is pertinent to note that the marriage was on 9.6.1996. So also it has come out in evidence that two sisters of the respondent are working abroad and they have also helped RW2 for giving the said money.

The evidence of RW2 is further supported by RW3. RW3 is the lady who took initiate for the marriage between the 1st appellant and the respondent. She has given evidence that she has took initiative for the marriage and that Rs 75,000/- and 40 sovereigns of gold ornaments were given as share of the bride and she has seen the payment of Rs 75,000/- and giving of gold ornaments. The family court has relied on evidence of RW1 to RW3 and we are not inclined to take a different view in the absence of any contra evidence. In view of the aforesaid evidence, we find that the respondent has succeeded in proving that the 2nd appellant was given Rs 75,000/- and the respondent was given 40 sovereigns of gold ornaments in connection with the marriage between the 1st appellant and the respondent and he has entrusted the amount with appellants 1 and 3, as contended by the respondents. It is needless to say, being a trustee the appellants are liable to return the said amount and there is no evidence ot prove that the appellants have returned the said amount. Therefore the family court is justified in passing the decree for returning Rs 75,000/- to the respondent.

Coming to the gold ornaments, we have already found that the respondent has succeeded in proving grant of 40 sovereigns of gold ornaments at the time of marriage, by adducing sufficient evidence. But, it has come out in evidence and admitted by the 1st respondent herself that they have purchased, in the names of the 1st appellant and the 1st respondent, a landed property at Mattakkara and thereafter constructed a residential house and subsequently, they sold away gold ornaments for constructing the said residential building. Further the respondent herself admitted that subsequently, they sold away the said property and the residential building thereon and purchased another property at Ayarkunnam and constructed a house therein and started residence. The said property, having an extent of 20 cents also, was purchased in the name of the 1st appellant and respondent and constructed a house. Thus, the respondent herself admitted that they sold away the gold ornaments for purchasing property and constructed the building thereon, in the name of the 1st appellant and the respondent. It is not disputed that 20 cents of property at Arumanoor Kara stands in the joint name of the 1st appellant and the respondent and the property was purchased for an amount of Rs 2,75,000/-. We are of the opinion that if the gold ornaments were sold and using that money, the landed property was purchased and constructed a house, the respondent is not entitled to claim again the a return of gold ornaments having value equal to the half of the sale consideration of the property purchased, by them from the appellants as the said property stands jointly in the name of the 1st appellant and respondent. Certainly, the respondent has half right over the said property and building thereon. We further find that the appellants are not liable to return the gold ornaments having a value equal to the half of the consideration of the said property. But, the family court has omitted to consider the purchase of the 20 cents of landed property, by using the money obtained from selling the gold ornaments and the fact that the property stands jointly in the name of the petitioner and 1st respondent.

It has come out in evidence from the admission of the 1st appellant himself that the actual total sale consideration of the landed property, which had been jointly purchased by the 1st appellant and respondent is Rs.2,70,000/-. The family court passed the decree directing the appellants, to return 40 sovereigns of gold ornaments or its present approximate value at Rs.3,50,000/- with 9% interest, from the date of the order. It is not disputed that the property is having a total extent of 20 cents and it stands in the name of both 1st appellant and the respondent, equally as co-owners. Therefore, it can be reasonably presumed that the respondent has contributed an amount of Rs.1,35,000/-, from the sle price of gold ornaments, towards the total consideration of Rs.2,70,000/-. In the above view, it follows that out of the total value of 40 sovereigns of gold ornaments, Rs.1,35,000/- was contributed for the purchase of the landed property. Since the respondent is also having ½ right over 20 cents of property, she is not entitled to get back Rs 1,35,000/- which she had contributed to the said purchase.

Hence, we are of the opinion that the appellants are liable to return the balance amount, after deducting Rs.1,35,000/- from Rs 3,50,000/-. Therefore, the appellants are directed to pay an amount of Rs.2,15,000/- to the respondent with 9% interest from the date of the impugned order, as value of her gold ornaments, which was appropriated by the appellants.

The Mat.Appeal 274/2008 will stand allowed in part. Mat.Appeal.275/2008 will stand dismissed.