Megha v. V.G. Rajesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 MAT.APPEAL NO. 292 OF 2019** **AGAINST THE DECREE AND JUDGMENT IN OP 923/2014 OF FAMILY COURT, IRINJALAKUDA** ## **APPELLANT/PETITIONER:** MEGHA, AGED 32 YEARS, D/O.PACHERI CHANDRAN, MANAVALASSERI VILLAGE, KOMBARA DESOM, MUKUNDAPURAM TALUK, REP. BY POWER OF ATTORNEY HOLDER CHANDRAN.P.K, AGED 68 YEARS, S/O.KUTTAPPAN, PACHERY HOUSE, P.O.EAST KOMBARA, THRISSUR DISTRICT. BY ADVS. M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN SMT.RANJANA V. ## **RESPONDENT/RESPONDENT:** V.G.RAJESH, AGED 46 YEARS, S/O.VAKKAYIL GANGADHARAN, KARALAM VILLAGE AND P.O., PULLATHARA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT680711. BY ADV SRI.RAJESH CHAKYAT THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2021, ALONG WITH Mat.Appeal.659/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal Nos.292 & 659 of 2019 -:2:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 MAT.APPEAL NO. 659 OF 2019 AGAINST THE ORDER IN OP 513/2013 OF FAMILY COURT, IRINJALAKUDA, DATED 19.9.2018** ## **APPELLANT/RESPONDENT:** V.G.RAJESH, AGED 46 YEARS S/O.VAKKAYIL GANGADHARAN, KARLAM VILLAGE AND P.O., PULLATHARA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680711. BY ADV RAJESH CHAKYAT ## **RESPONDENT/PETITIONER:** MEGHA, AGED 32 YEARS, D/O.PACHERI CHANDRAN, MANAVALASSERI VILLAGE, KOMBARA DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680121. BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2021, ALONG WITH Mat.Appeal.292/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal Nos.292 & 659 of 2019 ## -:3:- ## J U D G M E N T Dated this the 29th day of September, 2021 ## _**Kauser Edappagath, J.**_ These appeals arise from common judgment passed by the Family Court, Irinjalakuda (for short “the court below”) in OP Nos.513/2013 and 923/2014 dated 19[th] September, 2018. 2. For brevity, we refer the status of the parties as 'husband' and 'wife'. 3. The wife filed OP No.923/2014 for dissolution of marriage on the ground of cruelty and desertion. She has also filed OP No.513/2013 for return of gold ornaments and household articles. Both the original petitions were tried along with another petition filed for the permanent custody of the minor child as GO(P) No.1013/2014. As per the impugned judgment, OP No.513/2013 was allowed and OP No.923/2014 was dismissed. Challenging the decree and judgment in OP No.923/2014, the wife filed Mat.Appeal No.292/2019, and Mat.Appeal Nos.292 & 659 of 2019 **==> picture [37 x 9] intentionally omitted <==** challenging the decree and judgment in OP No.513/2013, the husband filed Mat.Appeal No.659/2019. 4. The parties are Hindus. Their marriage was solemnized on 28/4/2008. A child was born in the wedlock. According to the wife, at the time of marriage, she was given 40 sovereigns of gold ornaments, one steel almirah and other household articles by her parents. It is alleged that the gold ornaments were entrusted by her to the husband as demanded by him and later on the husband pledged those gold ornaments with the Bank and those were never returned. It is further alleged that steel almirah and household utensils were taken to the marital home and kept there. According to the wife, the husband being a trustee of those gold ornaments and household articles are liable to return the same. 5. The wife further alleged that right form the inception of marriage, their relationship was not at all cordial. On the other hand, it was strained. The various instances of cruelty and harassment allegedly meted out by her at the hands of the husband have been specifically pleaded in paragraphs 5, 8, 9 and Mat.Appeal Nos.292 & 659 of 2019 -:5:- 10 of the Original Petition. Since the impugned judgment contains detailed pleadings, we are not reiterating the same here. It was specifically alleged that the husband was always demanding gold and cash from the wife and from her family demanding more dowry and he also appropriated the gold ornaments belonging to her under the pretext that the same was required for starting a real estate business. It is further alleged that he did not perform his marital obligations. He did not go for any job or even maintain the wife or child. Ultimately, she was compelled to go for job at IDBI, but she lost the job on account of daily enquiries by the husband to her higher officials. She has also highlighted instances where she was even physically assaulted by the husband. She asserted that the marital relationship was so miserable which gave rise to apprehension in her mind that her life would not be safe at the hands of the husband. 6. The husband in the objection statement filed by him denied the allegation that gold ornaments as well as household articles were entrusted to him and he misappropriated the same. Mat.Appeal Nos.292 & 659 of 2019 -:6:- He also disputed various instances of cruelty as pleaded in the original petition. According to him, he never treated the wife with cruelty. On the other hand, it was the wife who failed to discharge her marital obligation. The wife has also set up a case that the husband has deserted her without assigning relevant reason. To counter the same, the husband contended that it was the wife who deserted him without any valid reason. 7. The parties went on trial. The wife was examined as PW1 and on her side, six other witnesses were examined as PW2 to PW7. Exts. A1 to A8 series were marked on her side. The husband was examined as RW1 and a witness was examined as RW2 on his side. Exts. X1 to X8 series were summoned and marked as Court exhibits. After trial, the court below found that the wife had succeeded in proving that 26 sovereigns of gold ornaments were entrusted to the husband and he has misappropriated the same. Accordingly, the decree for realistion of 26 sovereigns of gold ornaments or its equivalent value of Rs.5,72,000/- with interest at the rate of 6% per annum was granted in O.P.No.513/2013. The court below further found that Mat.Appeal Nos.292 & 659 of 2019 **==> picture [37 x 9] intentionally omitted <==** the wife has failed to establish the cruelty as well as desertion alleged and accordingly the original petition for dissolution of marriage was dismissed. 8. We have heard Smt. Dhanya P. Ashokan, learned counsel appearing for the wife and Sri. Rajesh Chakyat, learned counsel appearing for the husband. 9. We shall first consider the claim regarding return of gold ornaments. As stated already, according to the wife, she was provided with 40 sovereigns of gold ornaments at the time of marriage and all those gold ornaments were entrusted to the husband who misappropriated the same. The court below found that there is evidence to show entrustment and misappropriation of 26 sovereigns of gold ornaments. The evidence let in by the wife to prove possession, entrustment and misappropriation of gold ornaments consists of the oral evidence of PW1 to PW6, Exts.A6, A7, A8 series and Exts.X1 to X8 series. PW1 is the wife and PW2 is her father. Both of them gave evidence in tune with the pleadings. Both of them gave evidence that the wife was given 40 sovereigns of gold ornaments at the time of marriage. Mat.Appeal Nos.292 & 659 of 2019 -:8:- Ext.A8 series were also marked through PW2. Ext.A8 series relate to the purchase of 25 sovereigns of gold ornaments from Lakshmi Jewellery, Kodungalloor. PW2 gave evidence that he purchased 25 sovereigns of gold ornaments as per Ext.A8 series. Ext.A6 is the photocopy of the marriage register of SNDP Sakha Yogam, Combara. PW3, the Secretary of the SNDP Branch, was examined to prove the same. He deposed that the marriage between the husband and the wife was intimated to the SNDP branch and entered in the marriage register which is marked as Ext.A6. Perusal of the said document would show that the wife was having about 25 sovereigns of gold ornaments with her at the time of marriage. That apart, the husband has admitted in cross-examination that the wife was having 28 sovereigns of gold ornaments at the time of marriage. Thus, it is satisfactorily proved that the wife was having 28 sovereigns of gold ornaments at the time of marriage. 10. PW1 as well as PW2 gave positive evidence that the gold ornaments were entrusted with the husband on three occasions who in turn pledged the same at Banks. The Mat.Appeal Nos.292 & 659 of 2019 -:9:- respective Managers of the Banks with whom the gold ornaments were pledged were examined as PW4 to PW6. Exts.X1 series to X7 series were also marked. Those documents are extracts of the gold loan registers. PW6 deposed that 121 grams of gold ornaments were pledged by the husband with Thrissur District Co-operative Bank. Even though there is no evidence regarding the weight of the gold ornaments pledged with other two banks, evidence given by PW1 coupled with the evidence of PW4 to PW6 would show that the gold ornaments belonged to the wife and entrusted with the husband were pledged by the husband with those banks. The husband also admitted pledging of gold ornaments belonged to the wife. However, his contention is that thereafter he took back the gold ornaments from the banks and returned to the wife. When the husband admits that the gold ornaments belonged to the wife came to his hands and he pledged the same to the bank for his personal purpose, took it back and thereafter returned to the wife, it is upon him to prove that the ornaments were actually returned. Apart from the interested testimony of RW1, as also RW2, there is nothing to Mat.Appeal Nos.292 & 659 of 2019 **==> picture [44 x 10] intentionally omitted <==** substantiate the said version. The entire evidence on record would clearly prove that 26 sovereigns of gold ornaments entrusted to the husband and pledged with the Bank were not returned to the wife. 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. Hence, we are of the view that the court below was absolutely justified in granting a decree for return of gold ornaments. 11. The next is the claim regarding dissolution of marriage by the wife. The dissolution of marriage has been sought on the ground of desertion and cruelty. The learned counsel for the wife submitted that the she does not press the ground of desertion. What survives is the ground of cruelty. 12. No doubt, the burden to prove the accusation of cruelty is on the part of the person alleging it and, in the present case, is upon the appellant. The evidence consists of the oral testimony of the wife and her father. Normally, the matrimonial cruelty – be it physical or mental – takes place within the four Mat.Appeal Nos.292 & 659 of 2019 **==> picture [44 x 9] intentionally omitted <==** walls of the matrimonial home and, hence, independent witnesses may not be available. Thus, the court can act upon the sole testimony of the spouse if it is found convincing and reliable. 13. The specific instances of cruelty allegedly meted out by the wife at the hands of the husband have been specifically pleaded in paragraphs 5, 8, 9 and 10 of the original petition. PW1 in the box has also spoken those instances. There is nothing to disbelieve the said instance. According to the wife, right from the inception of marriage, she was subjected to various acts of cruelty and harassment by the husband. She specifically deposed that immediately after the marriage, the husband started to harass her by demanding more dowry. According to her, the husband used to tell her that the gold ornaments given to her by her parents was so meager and asked her to bring more gold ornaments from her home. It has come out in evidence that 26 sovereigns of gold ornaments which the wife was having were misappropriated by the husband. We have already found so. The wife specifically gave evidence that, on two occasions, when she failed to accede to the demand of the husband to give gold Mat.Appeal Nos.292 & 659 of 2019 -:12:- ornaments, she was physically abused by him. The wife also gave evidence that after the marriage, the husband gave up his job and wanted the wife to hand over all her gold ornaments to start a real estate business. Our finding that the gold ornaments entrusted by the wife to the husband were pledged with the bank and not returned to the wife fortifies this allegation of the wife. This act of the husband alone is sufficient to constitute cruelty. The wife has given positive evidence that constant harassment on the part of the husband demanding gold ornaments has caused much mental agony and pain to her. The wife has also deposed that since the husband did not go for work, she as well as her child were not even provided with maintenance and they were put to starvation. The wife further deposed that thereafter to pull on the family, she was compelled to go for a job at IDBI, Thrissur, but due to the daily unwanted enquiries by the husband with his employer, she lost the job. 14. It is settled that physical violence is not absolutely essential to constitute cruelty. It is equally settled that mere bickering, coldness, austerity of temper, petulance of manners, Mat.Appeal Nos.292 & 659 of 2019 -:13:- rudeness of language, lack of affection, trivial irritations, quarrels, or normal wear and tear of the married life which happens in day to day life cannot amount to cruelty. At the same time, to constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make cohabitation virtually unendurable or of such character as to cause danger to life, limb or health. It must be something more serious than "ordinary wear and tear of the married life". It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie. The feeling of deep anguish, disappointment, frustration and embarrassment in one spouse caused by the sustained course of abusive and humiliating conduct of other may sometimes lead to mental cruelty. 15. The Apex Court in _**Dr. N. G. Dastane v. Mrs. S. Dastane**_ (AIR 1995 SC 1534) has held, the standard of proof in matrimonial cases would be same as in civil cases, that is, the Court has to decide the cases based on preponderance of Mat.Appeal Nos.292 & 659 of 2019 **==> picture [44 x 9] intentionally omitted <==** probabilities. Therefore, the Court has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other and inference can be drawn from the attending facts and circumstances taken cumulatively. From the kind of attitude, conduct and treatment discussed in the preceding paragraphs, it can readily be inferred that the wife has every reason to apprehend that it is not safe for her to continue the matrimonial relationship with the husband. 16. At any rate, it is an admitted fact that from 2012 onwards, the parties are living separately. The attitude of both parties would show that there is no possibility for any reunion. The wife is at present working at Dubai and the husband is here at his native place. From the entire evidence on record, we are satisfied that the wife has made out a case for dissolution of marriage on the ground of cruelty. Hence, we hold that the court Mat.Appeal Nos.292 & 659 of 2019 -:15:- below went wrong in dismissing the original petition for dissolution of marriage. In the light of the above findings, we allow Mat.Appeal No.292/2019 and dismiss Mat.Appeal No.659/2019. O.P.No.923/2014 stands allowed. The marriage between the husband and wife solemnized on 28.4.2008 at S.N. Hall, Irinjalakuda stands dissolved. Parties shall bear their respective costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** ## **JUDGE** Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **kp True copy** P.A. To Judge