Saswati alias Saraswati Parichha vs Radhakrushna Pathy

L. Mohapatra, J.—The plaintiff is the appellant before this Court against a reversing judgment. The suit was filed u/s 13(1) of the Hindu Marriage Act for dissolution of marriage and for a direction to the respondent to return all gold ornaments and other articles given at the time of marriage by way of presentation.

The case of the plaintiff-appellant is that she married the respondent on 12.5.1981 at Bhubaneswar according to Hindu rites and customs. At the time of marriage her father, who was working in the Agricultural University had given gold ornaments weighing about 25 tolas besides a refrigerator, a scooter and various other articles including bed, sofa set, dining table set etc.. Sometime after the marriage, she found her husband-respondent taking insulin twice a day being a chronic diabetes patient. The respondent also after marriage stayed for a very short period at Bhubaneswar and left for Berhampur where he was posted as Assistant Surgeon leaving the appellant at Bhubaneswar with her in-laws. During such absence of the respondent, the appellant was cruelly dealt with by the in-laws. On 10.7.1981 the appellant joined the respondent at Berhampur and she found the respondent being involved with another lady-Nurse named Aloka Mohapatra and it is also alleged in the plaint that the respondent wanted the said Aioka Mohapatra to stay along with them, in the plaint it appears that several instances of misbehaviour and ill-treatment have been narrated, on the basis of which, a decree for divorce was prayed for. It is also alleged in the plaint that all the gold ornaments presented at the time of marriage were kept by the respondent with his father apart from the other articles as stated earlier. Therefore, a prayer has also been made for return of the gold ornaments as well as other articles.

In the written statement filed by the respondent all these allegations are denied and it is specifically stated that the appellant and her brother had taken away all the gold ornaments, valuables as well as cash and nothing was left in the house of the respondent. In the written statement also several instances of harassment to the respondent have been mentioned.

On the basis of the pleadings of the parties, the learned Subordinate Judge, Bhubaneswar framed as many as five issues. Issue No. 3 relates to cruelty and while answering the said issue, the learned Subordinate Judge found that the plaintiff-appellant after marriage was treated with cruelty both physically and mentally. On the basis of such finding, the learned Subordinate Judge allowed the prayer for a decree for dissolution of marriage. So far as return of gold ornaments and other articles are concerned, while answering issue No. 4, the learned Subordinate Judge found that 154.050 grams of gold ornaments had been presented at the time of marriage and directed to return the same. So far as refrigerator and scooter are concerned, the trial Court also directed for return of the same.

The respondent challenging the aforesaid judgment and decree preferred an appeal before the learned Additional District Judge, Bhubaneswar. The decree for dissolution of marriage was not challenged in the lower appellate Court. The learned Additional. District Judge on consideration of evidence available on record, reversed the finding of the trial Court so far as it relates to return of gold ornaments, but confirmed the finding so far as return of refrigerator and scooter is concerned.

The present appeal has been admitted on the following substantial questions of law :

(1) For that in the absence of specific denial by the respondent in the written statement regarding the appellant''s assertion in the plaint to the effect that her parents had given golden ornaments weighing 25 tolas, at the time of marriage, the learned lower appellate Court has committed an error of law in reversing the finding of the learned trial Court on this count, which is amply corroborated by the statement of appellant''s father.

(2) For that the learned lower appellate Court having found on the respondent''s own admission in his evidence that the appellant had brought 10 to 12 tolas of gold at the time of marriage the lower appellate Court has committed substantial error of law in rejecting the appellant''s claim for return of the golden ornaments.

(3) For that the parents-in-laws of the appellant having not come to the witness box to deny the sworn testimony of the appellant to the effect that her parents-in-law kept gold ornaments weighing 25 tolas when she left for Bhubaneswar to live with the respondent coupled with the fact that the respondent does not breathe a word on this vital points in his deposition, the finding of the learned lower appellate Court that the appellant has failed to substantiate her case of custody of the gold ornaments is not sustainable in law, based, as it is, on mere surmise and conjecture."

The respondent after appearance also filed a cross-appeal and by order dated 6.8.86 the cross-appeal was admitted on the following substantial question of law :

"if the scooter and the refrigerator were to be returned to the wife u/s 27 of the Hindu Marriage Act, 1955."

The learned counsel referring to the substantial questions of law on which the appeal has been admitted submitted that in support of the claim of the appellant that 25 tolas of gold ornaments were given as present to the respondent at the time of marriage not only averments were made in the plaint but also evidence was led before the Court and on the basis of such evidence, the trial Court had directed return of the gold ornaments. It was contended by the learned counsel for the appellant that the lower appellate Court without appreciating such evidence as had been done by the trial Court, reversed the finding. Though there is no question of law involved in this issue the same being a finding of fact, the appeal having been admitted on the said ground, I proceed to examine the evidence as well as the findings of the courts below.

In the plaint there is allegation that 25 tolas of gold ornaments had been given as present at the time of marriage, but there is no dispute at the Bar that the plaintiff is silent about such presentation of gold ornaments. However, P.W. 2 who is the father of the appellant in his deposition has stated that the gold ornaments weighing about 25 tolas had been given as present at the time of marriage and in support of such statement he also produced two receipts, Ext. 1 and Ext. 1/a issued by Jyotsna Alankar Bhandar in his favour which indicate that 141.850 grams of gold ornaments had been given under one receipt to P.W. 2 and under the other receipt 12.200 grams of gold ornaments had been given to P.W. 2. Much reliance was placed on the aforesaid two receipts to come to a conclusion that such gold ornaments were presented at the time of marriage. The lower appellate Court while scanning the evidence adduced before the court found that the said gold ornaments were purchased on 6.1.81 whereas the marriage took place on 12.5.81. Evidence was also placed before the Court to show that sister of the appellant had been given in marriage two months prior to the marriage of the appellant. Therefore, obviously the gold ornaments were purchased much prior to not only the marriage of the present appellant but also her sister. There is no evidence before the Court to show that these gold ornaments purchased under the two receipts were given to the appellant and so far as sister of the appellant is concerned, some other ornaments were given. The lower appellate Court has taken note of the said evidence in order to come to a conclusion that the two receipts on which much reliance is placed may not relate to the gold ornaments claimed to have been given at the time of marriage. Further the lower appellate Court also observed that some gold ornaments must have been given at the time of marriage, but there is no evidence on record to show that before the appellant left the house of the respondent, the gold ornaments had been kept by the respondent. On consideration of the above evidence, the lower appellate Court reversed the finding so far as return of gold ornaments is concerned.

After going through the evidence on record, I am of the view that the finding of the lower appellate Court in this regard is based on sound reason and there is no reason for this Court to reverse the said finding.

I, therefore do not find any merit in the appeal which is confined to return of gold ornaments only and accordingly, the same stands dismissed.

So far as cross-appeal is concerned, there is clear evidence on record that one refrigerator and a scooter had been given at the time of marriage. Both the Courts have concurrently found that these articles were given at the time of marriage and, therefore, such finding being concurrent finding of facts, this Court cannot interfere with the same in Second Appeal. I, therefore, do not find any merit in the cross-appeal also and the same stands dismissed.