B. Deepa v. M. Suresh Babu

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 11TH DAY OF AUGUST 2017/20TH SRAVANA, 1939 Mat.Appeal.No. 138 of 2007 ( ) ------------------------------- AGAINST THE ORDER/JUDGMENT IN OP 308/2005 of FAMILY COURT, NEDUMANGAD DATED 31-01-2007 APPELLANT(S)/PETITIONER: ----------------------- B.DEEPA, D/O.BALAKRISHNA PILLAI, AGED 29, RESIDING AT PEZHUVILA VEEDU, EDAMANNILA, HARADY VETTIYARA P.O., NAVAIKULAM VILLAGE, CHIRAYINKEEZHU TALUK. BY ADVS.SRI.R.S.KALKURA SRI.HARISH GOPINATH SRI.M.S.KALESH SRI.KIRAN SANKAR SRI.V.VINAY MENON RESPONDENT(S)/COUNTER PETITIONER: --------------------------------- M.SURESH BABU, S/O.LATE MADHAVAN PILLAI, AGED ABOUT 34 YEARS, RESIDING AT ANANDA BHAVAN, PUNALUR P.O., PUNALUR. R,R1 BY ADV. SRI.P.K.MANOJKUMAR R,R1 BY ADV. SRI.N.NANDAKUMARA MENON (SR.) R,R1 BY ADV. SMT.SUSHYA RAJAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2306-2017, ALONG WITH MA. 197/2007, THE COURT ON 11/8/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== Mat.Appeal Nos. 138 & 197 of 2007 ======================= Dated this, the 11[th] day of August, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ Both these appeals are filed challenging judgment dated 31/1/2007 in OP No. 308/2005 of the Family Court, Nedumangad. Mat.Appeal No. 138/2007 is filed by the petitioner and Mat.Appeal No. 197/2007 has been filed by the respondent before the Court below. 2. The short facts arising in the case are as under and the parties are described as shown in the Original Petition for easy reference. The OP is filed seeking for dissolution of marriage, for return of gold ornaments and for past maintenance. The parties to the lis got married on 11/6/1998 as per Hindu customary rites and ceremonies. They did not have any children. By middle of November, 1998, the relationship between them strained and it is Mat.Appeal Nos. 138 & 197 of 2007 -:2:- alleged by the petitioner that she was physically and mentally harassed and illtreated. She was kicked on her abdomen and on 15/11/1998, she was taken to the hospital. She was brought back to the parental home on 30/11/1998 and thereafter the respondent neglected to maintain her. 3. It is contended that at the time of marriage, petitioner/wife was given 100 sovereigns of gold ornaments and 8 sovereigns of gold ornaments were given to the respondent. Out of the above gold ornaments, 80 sovereigns were kept in a locker in the Punalur branch of Syndicate Bank. 4. After the matrimonial tie has been broken, attempts were made for reconciliation which turned futile. It is stated that parties agreed to dissolve the marriage by mutual consent and a draft was prepared. Petitioner's demand for return of gold ornaments and payment of past maintenance were acceded to, but, having agreed, the respondent did not comply with the compromise and therefore, petitioner filed OP(HMA) No.368/2000 which was withdrawn with liberty to file fresh petition on Mat.Appeal Nos. 138 & 197 of 2007 ## -:3:- ## 30/9/2002 and thereafter the present petition has been filed. 5. In the objection, the respondent having admitted the marital tie, contended that the wife's parents wanted him to reside near their residence. He is the only son supporting his ailing parents. When he refused the said demand, difference of opinion had arisen between the parties. In regard to the gold ornaments, he contended that it was not entrusted to him and it was taken back by the petitioner herself. The locker was opened at the instance of the petitioner and she herself was operating it. According to him, all the gold ornaments were taken by the petitioner and her father from the locker on 9/1/1999 stating that she requires the same to wear on the occasion of the marriage of her relative. He also denied regarding the alleged compromise and the allegation of ill treatment either physically or mentally. 6. Before the Family Court, six witnesses were examined on the behalf of the petitioner and respondent was examined as CPW1. Petitioner relied upon Exts.A1 to A8. Exts.C1 to C5 and X1 were marked as Court Exhibits. The Family Court after considering Mat.Appeal Nos. 138 & 197 of 2007 -:4:- the evidence adduced in the case rejected the relief for divorce but allowed claim for return of 80 sovereigns of gold ornaments. Both sides are in appeal. 7. Two questions arise for consideration in these appeals. One is whether the petitioner was entitled for a divorce on the ground of cruelty and secondly whether the respondent was liable to return 80 sovereigns of gold ornaments. 8. Heard the learned counsel appearing on either side. 9. They have also placed reliance on certain judgments which we shall consider in the due course. As already stated, the first point to be considered is whether there is evidence to prove cruelty. In the petition, the allegation is that difference of opinion had arisen between the parties when the petitioner's parents failed to provide the respondent `6 lakhs which he demanded for business purposes. Since they did not comply with the demand, respondent started illtreating the petitioner which was encouraged by his mother and sisters. It is further contended that by the end of November 1998, she was taken to her parental Mat.Appeal Nos. 138 & 197 of 2007 -:5:- home and thereafter deserted. The OP was amended by incorporating paragraph 6(A) in which it is stated that the respondent was using filthy and abusive words against her which amounted to mental agony. She was cruelly manhandled demanding more money as dowry. Physical injury was inflicted on her by kicking on her abdomen and squeezing her neck many times till 15/11/1998. On the said day, she was taken to the hospital by her parents and relatives due to urinary incontinence caused by the brutal kicking on the lower umbilical part, by the respondent. She was under life threat during her stay at the respondent's house. Demand for more dowry also amounts to cruelty. On 30/11/1998, she was forced to return to her parental house. Respondent accompanied her and returned after deserting her from the said date. Therefore, this is a case where cruelty and desertion were taken as a ground. Physical and mental cruelty are being alleged. The reason shown is there was a demand for more money. 10. In the objection, the respondent denied the above Mat.Appeal Nos. 138 & 197 of 2007 -:6:- allegations. He had a different story. According to him, the allegations are baseless. He is willing to condone and forgive her misgivings, as according to him, petitioner lacks capacity to take good decisions and judgments. She had withdrawn from his company without any valid cause. There is only a minor difference of opinion between them regarding the place where they have to reside. The request of the petitioner's father and mother is to shift the place of residence of the parties to the marriage from Punalur to a place nearby petitioner's house. They also wanted him to wind up all his business establishment at Punalur and purchase landed properties near to her house as she was the only daughter of their parents. He submits that he is the only son to support the aged and ailing mother and he was constrained to refuse their demand which resulted in the difference of opinion. Additional written statement had been filed in the amendment sought for. He also contended that he filed OP No.227/2001 seeking restitution of conjugal rights where the petitioner having entered appearance filed an objection stating Mat.Appeal Nos. 138 & 197 of 2007 -:7:- that he is an alcoholic and not ready for a reunion. 11. PW1 is the petitioner. She had given evidence in terms with the averments in the petition. In cross examination, she submitted that she along with her husband and mother alone were residing in the building. Four sisters of the respondent were given in marriage and they are all residing separately. She further submits that the gold ornaments were kept in a locker at Syndicate Bank. She heard her husband telling his mother that the gold ornaments were kept in a locker. In regard to the demand for `6 lakhs, according to her, the demand was made after one month from the date of marriage. She also deposed that respondent was aware that such amount cannot be procured by her father. She admitted that in the objection filed in OP No.227/2001, she had taken a contention that she is not willing to go with him since he was a drunkard. In respect of her contention that the respondent used to physically assault her, she was asked, why she did not mention any of such incidents in the objection filed in OP No.227/2001, for which her answer was that, Mat.Appeal Nos. 138 & 197 of 2007 -:8:- she has not specifically stated so. Cross examination also proceeded on the basis that specific allegation regarding the incident on 30/11/1998 was false. PW2 has given evidence stating that he had seen the petitioner being taken to hospital on 15/11/1998. PW3 has stated that the petitioner was given 100 sovereigns of gold ornaments. He further deposed that `6 lakh was demanded from the petitioner's father. According to him, he mediated for reconciliation of the marriage. PW4 is the Manager of UCO Bank. He had produced Exts.C1 to C3. PW5 is an employee of Fashion Jewellery. He was working as the Manager since 1995. He proved Ext.A6 which would show that 96 sovereigns of gold ornaments were purchased for 3,39,738/-. PW6 is a person who was conducting a homoeo clinic. He claims to have attended the petitioner with pain in her abdomen. She was asked to conduct a few tests and come back. She did not come back. He deposed that the cause of pain was assault by her husband. In cross examination, he states that she has come with a complaint of urinary retention. CPW1 is the respondent who has Mat.Appeal Nos. 138 & 197 of 2007 -:9:- ## spoken in terms with the averments in the petition. 12. There is no dispute about the fact that in a case where allegations of cruelty are made, specific allegations are to be stated in the petition. Initially, when the OP was filed, certain general allegations alone were made. Later, it was amended to incorporate a specific allegation regarding an assault on 15/11/1998. To prove the said fact, some witnesses were also examined. None of the witnesses had seen the incident. PW6, the Doctor submits that she had come with a complaint of urinary retention. He did not treat her in any form. Further, from the evidence of PW1 itself, it can be discerned that she did not have a case of any cruelty being inflicted by the respondent while filing an objection in OP No.227/2001 filed by the respondent for restituiton of conjugal rights. In that case, she contended that he was a drunkard. Therefore, it is rather clear that the attempt made to specifically allege cruelty is only an afterthought. On a reappreciation of the evidence adduced by the witnesses, we do not find any error in the judgment warranting interference. The Mat.Appeal Nos. 138 & 197 of 2007 -:10:- allegation of cruelty has not been proved in the case and there is no material to arrive at such a finding. 13. In respect of cruelty, either physical or mental, the Apex Court in _**Jayachandra v. Aneel Kaur**_ [(2005 (1) KLT 26 (SC)] held that the cruelty complained of should be grave and weighty and something more than ordinary wear and tear of married life. Trivial irritations, quarrels between spouses, which happen in day-to-day married life may not amount to cruelty. The cruelty should be of unfounded variety,which can be subtle or brutal. It is further held that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed in that point of view in determining what constitutes cruelty in each particular case keeping in view the physical and mental conditions of the parties, their character and social status. 14. Learned counsel for the appellant/wife however would Mat.Appeal Nos. 138 & 197 of 2007 -:11:- contend that the marriage is irretrievably broken. They were living separately since 1999. That the marriage has been irretrievably broken is not considered to be a ground for divorce. This position of law is rather clear from the judgment in _**Vishnu Dutt Sharma v. Manju Sharma**_ (2009 (1) KLT 940) and _**Shyam Sunder Kohli v. Sushma Kohli**_ (2004 (3) KLT 820 (SC). Of course, the Apex Court in certain cases had found that when the marital tie is irretrievably broken down, there is no need to unite them as the possibility for reunion had become remote. Such judgments had been delivered in exercise of the power under Article 142 of the Constitution of India. 15. Now coming to the allegation of desertion also, when the allegation of cruelty is not proved, there is no circumstances which permits the respondent to remain away from the matrimonial home. The respondent had contended that she was not coming and residing with him on account of the pressure from her parents. As already indicated, they have been living together only for a few months and thereafter they have separated without Mat.Appeal Nos. 138 & 197 of 2007 -:12:- any valid reason. The allegations of cruelty have not been proved. Therefore, when the wife is remaining away from the matrimonial home, without a reasonable excuse, no divorce could be granted on the ground of desertion. 16. Next question is regarding the direction to return gold ornaments. The main contention urged by the petitioner is that the gold ornaments were kept in a locker. In the petition, her contention was that the counter petitioner received the gold ornaments belonging to her weighing 80 sovereigns to be kept in safe custody in a locker in Syndicate Bank, Punalur. The locker number is 70 and he was keeping the key of the locker with him. Further, she contends that when she sought for return of gold ornaments, initially, they agreed to settle the matter, but, later they have backed out. The fact that she was having gold ornaments at the time of marriage is not disputed whereas the contention is that the respondent does not know the quantity of gold ornaments and that the gold ornaments were not entrusted to him or his parents. It is also contended that the bank locker Mat.Appeal Nos. 138 & 197 of 2007 -:13:- was opened at the instance of the petitioner and she was operating the same at her will and pleasure. He also contended that she has taken all the remaining gold ornaments on 9/1/1999. The Family Court found that there is evidence to show that she had the said quantity of gold ornaments, but, formed an opinion that when he admitted that she was operating the locker and she had taken it on 9/1/1999, it is for the respondent to prove the contentions. Since he did not adduce any evidence to prove return of gold ornaments, he is liable to return the same. 17. In order to consider the aforesaid facts, the contention urged by the learned senior counsel appearing for the respondent/appellant in Mat.Appeal No.197/2007 is that in the notice issued by the petitioner, which is produced as Ext.A1, the contention was that the gold ornaments were pledged by the respondent. Nowhere in the notice has she stated anything about the gold ornaments being kept in a locker. It is therefore contended that she does not have a consistent case. 18. But, according to the respondent himself, the gold Mat.Appeal Nos. 138 & 197 of 2007 -:14:- ornaments were kept in the locker though he did not know the quantity as such. The locker was in his name, but, it was operated by his wife and she had taken away all the gold ornaments on 9/1/1999. Therefore, when the gold ornaments belonging to her were very much available in the locker, the question is whether it was taken by her and her father on 9/1/1999. The lawyer's notice demanding the gold ornaments was issued on 17/4/2000 stating that it had been pledged by the respondent. No such case is evident from the pleadings. In the objection filed, he did not deny the fact that the key of the locker was with him. But his contention was that it was opened at the instance of the petitioner and that she was operating the same at her will and pleasure. No evidence is available to indicate as to when the locker was being operated. Photostat copy of the extract of Syndicate Bank, Punalur in respect of locker number 70 in the name of the respondent is seen available in the records. But it only indicates that there was a locker in his name and it was in force and fee was being paid from 16/6/1999 to 17/5/2006. When Mat.Appeal Nos. 138 & 197 of 2007 -:15:- the respondent has a case that the locker was opened on 9/1/1999, he alone is permitted to open the locker, for which evidence will be available with the Bank. No such evidence is forthcoming. When the entrustment of gold ornaments stands proved or rather admitted, the existence of the fact that it was taken away by his wife and her father on 9/1/1999 is a matter to be proved by the respondent and there is no other evidence other than his oral testimony. 19. Another circumstance also requires to be taken note of. Parties admit that there was discord between them and she had gone back to her parental house in November, 1998. Respondent contends that during November 1998, petitioner's parents made a request to him to shift his residence to a nearby place to the petitioner's house which he refused. Therefore, they were living separately since November, 1998. When there was matrimonial issues between them during the relevant time and the gold ornaments were taken on 9/1/1999, the respondent ought to have obtained a receipt for the same especially when Mat.Appeal Nos. 138 & 197 of 2007 -:16:- ## she was going back to her parental house. 20. Taking into account the aforesaid factual circumstance and the burden to prove the return of gold ornaments being heavy on the respondent, having failed to adduce satisfactory evidence to prove the said fact, his version cannot be believed. The Family Court was therefore justified in directing return of the gold ornaments. We do not find any merit in the appeals and accordingly, both the appeals are dismissed. Parties shall bear their own costs. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge