M. Anilkumar v. Sreelatha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH** **FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942** **Mat.Appeal.No.156 OF 2014** **AGAINST THE JUDGMENT IN OP 1138/2008 DATED 05-11-2013 OF FAMILY COURT,THIRUVANNATHAPURAM** ## **APPELLANT/COUNTER PETITIONER:** **M. ANILKUMAR S/O LATE MANI,KARIMPLAVILA VEEDU,THALAYIL,BALARAMAPURAM.P.O, THIRUVANANATHAPURAM DISTRICT** **BY ADV. SRI.T.K.ANANDA KRISHNAN** ## **RESPONDENT/PETITIONER:** **SREELATHA D/O KARUNAKARAN,SATHI BAHVAN,PLANKALA MUKKU,INDUSTRIAL ESTATE P.O, THIRUVANANTHAPURAM DISTRICT-695001** **R1 BY ADV. SRI.BIJU .C. ABRAHAM R1 BY ADV. SRI.V.J.JAYAKUMAR ABRAHAM** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Mat.Appeal No.156/2014 -:2:- ## **J U D G M E N T** Dated this the 26[th] day of February, 2021 ## _**Dr.Kauser Edappagath, J.**_ This is an appeal filed u/s 19 of the Family Courts Act, 1984 against the judgment of the Family Court, Thiruvananthapuram in OP No.1138/2008 dated 5[th] November, 2013. The counter petitioner before the Court below is the appellant herein. The petitioner before the Court below is the respondent. The parties are referred to as shown in the Original Petition. The petition was one for divorce, realisation of money and return of gold ornaments. 2. The petitioner is the wife and counter petitioner is the husband. Their marriage was solemnized on 24/8/2006 as per Hindu rites and customs. The petitioner is employed as a Process Server in judicial department of Kerala and the counter petitioner is employed in Military Service. According to the petitioner, at the time of marriage, 50 sovereigns of gold ornaments were given to her by her parents and `1 lakh was given to the counter Mat.Appeal No.156/2014 -:3:- petitioner as pocket money which were subsequently misappropriated by the counter petitioner. It is alleged that, on the day of reception, a woman with a child along with some police men came to the house of the counter petitioner claiming that she is his wife and the child was born to him. At the intervention of police and mediators, the said lady and the child were sent back. Thereafter, the petitioner went to Rajasthan along with the counter petitioner to his work place on 18/9/2006 availing leave for six months. According to the petitioner, the counter petitioner started to ill-treat her and exercise cruelty on her both physically and mentally right from the inception of marriage. He often assaulted her demanding ornaments. It is further alleged that at Rajasthan, the counter petitioner even attempted to kill her without providing food. Proper medical care was also not given when she was suffering from illness. It is also the case of the petitioner that she was taken to Kerala in train as she was suffering from chicken guinea and she was assaulted by the counter petitioner even in the train. On another occasion, while she was returning to Trivandrum in the train, counter petitioner also happened to be in the same train and she was Mat.Appeal No.156/2014 -:4:- assaulted in the train in the presence of fellow passengers. The matter was informed to the police. The railway police came and took him into custody. In short, the case set up by the petitioner is that her life with the counter petitioner was miserable. It was in these circumstances, the Original Petition has been instituted for divorce, realisation of money and gold ornaments. 3. The counter petitioner entered appearance and filed objection. He denied the allegations of cruelty. He also denied the case set up by the petitioner that the gold ornaments and money were entrusted and he misappropriated the same. According to him, it was the petitioner who often picked up quarrel with him and failed to discharge marital obligations. The counter petitioner sought for the dismissal of the petition. 4. The parties went on trial. The petitioner was examined as PW1 and a witness was examined as PW2. Exts.A1 to A3 series were marked on the side of the petitioner. The counter petitioner was examined as DW1 and Ext.B1 was marked. The Court below accepted the case set up by the petitioner that counter petitioner exercised cruelty on her and that 40 sovereigns of gold ornaments given to the petitioner by her Mat.Appeal No.156/2014 -:5:- parents was misappropriated by the counter petitioner. Accordingly, a decree for dissolution of marriage as well as return of 40 sovereigns of gold ornaments or its equivalent value was granted as per the impugned judgment. Challenging the said judgment, the petitioner preferred this appeal. 5. We heard the learned counsel for the appellant as well as the respondent. 6. The learned counsel for the appellant/counter petitioner assails the impugned judgment on the ground that the Court below was unreasonable and unrealistic in the appreciation of oral evidence. The learned counsel submitted that the evidence on record, both oral and documentary, are insufficient to prove cruelty alleged so as to grant a decree for dissolution of marriage u/s 13(1)(ia) of Hindu Marriage Act and that the petitioner miserably failed to prove the entrustment of gold ornaments as well as its misappropriation. Hence, the Court below went wrong in granting a decree, argued the counsel. The learned counsel for the petitioner, on the contrary contends that the evidence on record would clearly prove that the counter petitioner has exercised cruelty, both physical and mental, on the Mat.Appeal No.156/2014 -:6:- petitioner and that the petitioner has succeeded in proving entrustment as well as misappropriation of gold ornaments by the counter petitioner. 7. We will consider the first claim of the petitioner for dissolution of marriage on the ground of cruelty. The petitioner mainly relies on her oral evidence. She gave evidence that on the day of reception, a woman with a child came to the house of the counter petitioner claiming to be the wife and child of the counter petitioner and she was pacified by the police as well as his relatives assuring that the claim will be settled within two days and they were sent back. We find no reason to disbelieve the said evidence tendered by PW1. The various acts of cruelty, both physical and mental, as well as harassment meted out by the petitioner at the hands of the counter petitioner at Rajasthan, during train journey and also at native place have been spoken to by PW1. Even though PW1 was cross-examined at length, nothing tangible has been brought out in the cross-examination to discredit her testimony. It has come out in evidence that on one occasion, during her journey in train to her native place, the counter petitioner assaulted her in the presence of fellow Mat.Appeal No.156/2014 -:7:- passengers, the railway police came to the spot and the counter petitioner was taken into custody. She has also deposed that she was not given proper food and medical care while she was ill at Rajasthan. She further deposed that the counter petitioner came to the workplace of the petitioner at Thalassery and handed over mat and pillow at the office in the presence of others. No doubt, these acts of the counter petitioner amount to cruelty so as to grant a decree of dissolution of marriage under Section 13(1)(ia) of the Act. Thus, we hold that the Court below was absolutely justified in granting a decree of dissolution of marriage on the ground of cruelty. 8. The next point is regarding the return of gold ornaments. The definite case of the petitioner is that at the time of marriage, the parents of the petitioner gave 50 sovereigns of gold ornaments to her which was subsequently taken over and misappropriated by the counter petitioner at Rajasthan. In order to prove that the petitioner was having 50 sovereigns of gold ornaments, the petitioner relies on the oral evidence of Pws1 to 3 and Exts.A1 and A3 series. PW1 clearly gave evidence that her parents gave 50 sovereigns of gold ornaments to her at the time Mat.Appeal No.156/2014 -:8:- of her marriage. PWs 2 and 3 are independent witnesses. They are relatives of the petitioner. They have participated in the marriage. Both of them gave evidence that at the time of marriage, the parents of the petitioner gave 50 sovereigns of gold ornaments to the petitioner. Ext.A3 series are the photographs taken in connection with the marriage ceremony. The photographs would support the case of the petitioner that she was wearing gold ornaments at the time of marriage. The definite case of the petitioner is that she had 15 sovereigns of ornaments before marriage and the remaining 35 sovereigns were purchased in connection with her marriage. Ext.A1 are two estimates of the purchase of ornaments. As per Ext.A1, the total sovereigns purchased would come to 40.062 sovereigns. All these evidence clearly prove that the petitioner was having 50 sovereigns of gold ornaments at the time of marriage. It has come out in evidence that immediately after the marriage, the petitioner along with the counter petitioner went to Rajasthan, at the work place of the counter petitioner. According to the counter petitioner, when they left to Rajasthan, the petitioner kept the gold ornaments at her parental house with her parents. It is hardly difficult to believe Mat.Appeal No.156/2014 -:9:- the said version. The Division Bench of this Court in _**Pankajakshan Nair v. Shylaja and Another**_ [2017 (1) KHC 620] has held that it is quite natural that once the marriage is over and the bride has come to the house of in-laws, there is possibility of ornaments being entrusted to the elders as a trustee for keeping the articles during the subsistence of marriage. It was further held that there is a duty cast on the husband to prove the fact that it was taken by the wife at the time when she left the house. This Court again in _**Sheela K.K. v. N.G.Suresh**_ (2020 (5) KHC 455) has held that if the ornaments owned by a wife do not form part of dowry and if there is an entrustment of gold ornaments by wife to the husband or his parents, a trust gets created in which event trust or trustee, as the case may be, are liable to return the same. The counter petitioner has failed to prove that the petitioner left the ornaments at her house when she left to Rajasthan. For these reasons, we hold that the case set up by the petitioner that the ornaments were entrusted with the counter petitioner is probable. Being trustee, the counter petitioner is liable to return the same. Hence, the Court below was absolutely justified in granting a Mat.Appeal No.156/2014 -:10:- decree for return of gold ornaments as well. 9. On an anxious consideration of the entire evidence on record and pleading, we are of the view that the Court below has analysed the evidence and pleading in the correct perspective. On re-appreciation of evidence, we find no reason to interfere with any of the findings of the Court below. The appeal fails and is only to be dismissed. In the result, the appeal is dismissed. No costs. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** Rp True Copy PS to Judge **Dr.KAUSER EDAPPAGATH JUDGE**