Nandakumar v. Bini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 MAT.APPEAL NO. 1038 OF 2014 AGAINST THE ORDER/JUDGMENT IN OP 518/2012 OF FAMILY COURT,** ## **THRISSUR** ## **APPELLANT/PETITIONER:** NANDAKUMAR AGED 44 YEARS S/O.THUPRATH VEETTIL VELU, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, REP. BY POWER OF ATTORNEY HOLDER ANILKUMAR, S/O.VELU, THUPRATH VEETTIL, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK THRISSUR DISTRICT. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA SRI.K.D.SREEVISAKH ## **RESPONDENT/RESPONDENT:** BINI W/O.THUPRATH VEETTIL NANDAKUMAR, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 680 306. BY ADV SMT.P.SAREENA GEORGE THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2022, ALONG WITH Mat.Appeal.1041/2014, THE COURT ON 16.02.2022 DELIVERED THE FOLLOWING: Mat.Appeal Nos.1038 & 1041 of 2014 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 MAT.APPEAL NO. 1041 OF 2014** **AGAINST THE ORDER/JUDGMENT IN OP 1211/2009 OF FAMILY** **COURT,THRISSUR** ## **APPELLANT/PETITIONER:** NANDAKUMAR S/O.THUPRATH VEETTIL VELU, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. REPRESENTED BY POWER OF ATTORNEY HOLDER ANILKUMAR, AGED 44 YEARS, S/O.VELU, THUPRATH VEETTIL, KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA SRI.K.D.SREEVISAKH ## **RESPONDENTS/RESPONDENTS:** 1 BINI, AGED 38 YEARS, W/O.THUPRATH VEETTIL NANDAKUMAR,D/O.ENAMAVU MALAYAN KUTTAN KONATHUKUNNU DESOM, THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT,PIN - 680 306. 2 KUTTAN AGED 74 YEARS S/O.ENAMAVU MALAYAN RAMAN, MARATHAKKARA DESOM & VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680 306. BY ADV SMT.P.SAREENA GEORGE THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2022, ALONG WITH Mat.Appeal.1038/2014, THE COURT ON 16.02.2022 DELIVERED THE FOLLOWING: Mat.Appeal Nos.1038 & 1041 of 2014 3 ## **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** --------------------------------------------- Mat. Appeal Nos.1038 & 1041 of 2014 ---------------------------------------------Dated this the 16[th] day of February, 2022 ## **J U D G M E N T** ## **Sophy Thomas, J.** These appeals arise out of the common judgment in O.P No.518 of 2012 and O.P No.1211 of 2009 on the files of Family Court, Thrissur. The husband is the appellant in both the appeals and he was the petitioner in the O.Ps also. He filed O.P No.518 of 2012 for divorce against his wife, and O.P. No.1211 of 2009 for recovery of gold ornaments against his wife and father-in-law. Both the O.Ps were dismissed by the Family Court and the impugned order is under challenge. 2. The necessary facts in brief could be stated as follows: The marriage between the appellant and the respondent was solemnised on 26.01.1997 as per Hindu religious rites and custom, and two children were born in their wedlock. The appellant was employed in Gulf prior to the marriage and even thereafter. The respondent was always insisting to stay with her parents at her Mat.Appeal Nos.1038 & 1041 of 2014 4 paternal house. Whenever she resided at her matrimonial home, she ill-treated the appellant and his mother. She was never an obedient wife and she did not perform her matrimonial obligations. In August 1998, when the appellant came back from Gulf countries, she picked up quarrel with him and returned to her house. On the next day, her brothers and their associates came to the house of the appellant and misbehaved with him. The respondent threatened the appellant with suicide, insisting him to take her to Gulf countries. She wanted to stay separately to avoid his mother. In March 2004, when the appellant came down from Gulf countries, the respondent was staying with her parents at her house. Though he tried to bring her back, her father and brothers insulted him, and even tried to assault him. After a settlement talk, she was brought back to his house, but, there was no change in her attitude. During that period, she became pregnant for the second time. Before he went back to Gulf, her brothers and their goondas threatened him that, if the respondent was not permitted to stay at her paternal house, they will not allow him to go back to Gulf. He was expending money for her treatment, and the money sent by him was misused and misappropriated by her. On 24.08.2004, she left her matrimonial home along with the children, taking away all her Mat.Appeal Nos.1038 & 1041 of 2014 5 belongings including the gold ornaments. He had entrusted gold ornaments such as bangles, rings, bracelet, thali chain etc. with the respondent, and two gold biscuits weighing 233.280 gms with her father which he brought from Gulf. She took those ornaments also with her, when she left her matrimonial home. As it was not possible for him to continue his marital life with the respondent due to her cruel nature, he filed O.P No.518 of 2012 for divorce and O.P No.1211 of 2009 for getting back the gold ornaments or its market value. 3. The respondent/wife opposed the petitions denying all the allegations levelled against her and her family members. In fact, she was ill-treated by the appellant and his family members. After marriage, they stayed together till the appellant went back to Gulf countries. At that time, she became pregnant. She had some gynecological problems and she was asked to take bed rest. But, she was not permitted to take rest at her matrimonial home and so her first pregnancy got aborted. In August 1998, the appellant came back from Gulf and they stayed together for about four months. She became pregnant and the appellant went back in December 1998. She gave birth to her first child on 21.04.1999. The appellant did not come to see the child and his family members Mat.Appeal Nos.1038 & 1041 of 2014 6 also ignored the respondent and her child. He came back only in April 2004, and then she was taken to her matrimonial home and they stayed together. Then also she became pregnant. He went back in July 2004. While staying at her matrimonial home, in August 2004, she suffered bleeding, and as requested by her, her father took her to hospital. On discharge, her father took her to her matrimonial home, but, her in-laws did not permit her to stay there. So her father took her back to her paternal house. She gave birth to her second child on 10.12.2004. The appellant never enquired about the respondent or her children. In the year 2008, he filed Divorce O.P against her, alleging desertion. In the year 2011, she filed complaint against her husband and in-laws under Section 498A and 406 of IPC. Thereafter, in the year 2012 the Divorce O.P filed by the appellant on the ground of desertion was withdrawn, and he filed another O.P for divorce as O.P No.518 of 2012 alleging cruelties against his wife. No gold ornaments were entrusted with her or with her father to be kept in trust for the appellant. So, according to her, his cases are liable to be dismissed. 4. The Family Court formulated necessary issues, and both cases were tried together treating O.P No.518 of 2012 as the leading case. PWs 1 to 3 were examined and Exts.A1 to A19 were Mat.Appeal Nos.1038 & 1041 of 2014 7 marked from the side of appellant-husband. RW1 was examined and Exts.B1 to B8 were marked from the side of the respondentwife. 5. After analysing the facts and evidence, the Family Court found that the appellant-husband could not prove his case for divorce as well as return of gold ornaments, and so, both the O.Ps were dismissed without costs. 6. Let us go through the facts and evidence, bearing in mind the grounds of challenge, to see whether any interference is called for in the findings of the Family Court. 7. Two points to be answered are: - i) Whether the respondent treated the appellant with cruelty so as to dissolve their marriage? - ii) Whether any gold ornaments were entrusted in trust for - the appellant, with the respondent and her father, and if so, are they liable to return the same or its market value? 8. Heard learned counsel for the appellant as well as the respondent. 9. After marriage on 26.01.1997, the appellant and respondent were staying together at his house. He was a goldsmith Mat.Appeal Nos.1038 & 1041 of 2014 8 working in Gulf, and he came down for the marriage, and after some days, he went back to Gulf. The respondent became pregnant and due to some gynec problems, her first pregnancy got aborted. Thereafter, the appellant came back on 01.08.1998 and he returned in December 1998. During that period she became pregnant and after the appellant returned to Gulf, due to bleeding, she was taken to her paternal house. She gave birth to her first child on 21.04.1999. The appellant came back in March 2004 and the respondent was taken back to his house. In July 2004, he returned to Gulf countries. During that period also, she became pregnant and when she suffered bleeding, her father took her to hospital, and when she was taken back to her matrimonial home, she was not permitted to continue there, by her in-laws, and so, she went back along with her father on 24.08.2004. She gave birth to her second child on 10.12.2004. After 24.08.2004, the appellant never enquired about her or her children and still she is living at her paternal house along with her children. 10. In the year 2008, the appellant filed Ext.B2 Divorce O.P (O.P No.1439 of 2008) against the respondent, claiming divorce on the ground of desertion. The allegation in that petition is to the effect that, till 2004, they were residing together as husband and Mat.Appeal Nos.1038 & 1041 of 2014 9 wife, and in the year 2004, the respondent deserted him, and all the efforts to bring her back failed and hence, the petition. 11. The respondent would say that, she was expecting a reunion and so, in spite of all the cruelties suffered by her at the hands of her husband and in-laws, she did not file any complaint against them, but after filing the Divorce O.P against her, she filed Ext.B6 complaint on 11.08.2011 against the appellant, his mother and sister under Section 498A and 406 of IPC. Thereafter, the appellant withdrew Ext.B2 Divorce O.P and filed O.P No.518 of 2012, for divorce on the ground of cruelty. 12. In Ext.B2 Divorce O.P filed in the year 2008, the only ground alleged was desertion. But in O.P No.518 of 2012, the appellant has narrated incidents of cruelty against his wife from day one of their marriage, till the date of their separation, and even thereafter. If the appellant or his mother were subjected to any kind of physical or mental cruelty by the respondent, definitely, that might have been stated in the first Divorce O.P itself which was filed after four years of their separation. The explanation given by the appellant is that, he had narrated the incidents of cruelty to his counsel, and he has nothing to say if it is not there in the pleadings. 13. The main allegation of cruelty levelled against the Mat.Appeal Nos.1038 & 1041 of 2014 10 respondent is that, she always insisted to stay at her paternal house, and she was not ready to live at her matrimonial home. He deposed that her brothers and their associates threatened and even attempted to assault him for permitting the respondent to stay at her paternal home. 14. The testimony of PW1 and RW1 would show that after the marriage, the respondent was staying at her matrimonial home, even after her husband returned to Gulf. Admittedly his mother, his brother's wife and children, his sister and children and a disabled brother were there at his house, at that time. The respondent was pregnant and subsequently, she suffered an abortion due to some gynecological problems. The appellant came back in August 1998 i.e. after 1½ years of his marriage, and then also the respondent was staying with him at his house. He returned in December 1998 and the respondent was pregnant at that time. She gave birth to her first child in April 1999. There is nothing to show that the appellant or his family members tried to bring back the respondent and child to his house. He came back from Gulf only in March 2004, when the child was 5 years old. The appellant admitted that he was having 15 days of leave every year. But even to see his first child, he did not come back. Thereafter the appellant came back in Mat.Appeal Nos.1038 & 1041 of 2014 11 the year 2004. Then the respondent and her child stayed at his house and then also, she became pregnant. He returned in July 2004 and the second child was born in December 2004. To see that child also, he did not come back. The appellant is admitting that, after he returned to Gulf in July 2004, there was no connection between himself and the respondent. After four years, he filed Ext.B2 Divorce O.P against the respondent through his brother, on the strength of a power of attorney. The appellant could not offer any justification for not enquiring his wife and children for such a long period. 15. Another incident of cruelty projected by the appellant is that, the brother of the respondent assaulted his brother, when he reached the Family Court to conduct the divorce case of his brother. The respondent deposed that, she was not present before court on that day, and so, she is not aware of that incident. Ext.A3 is the FIR registered on 15.12.2009 regarding that incident. Brother of the respondent was acquitted in that case, but in appeal he was convicted, as seen from Annexure B admitted in appeal as per order in I.A No.1 of 2021. 16. The available facts and evidence will show that, the appellant was not a caring husband for the respondent, and after Mat.Appeal Nos.1038 & 1041 of 2014 12 marriage, he came on leave only twice in a gap of seven years. On those two occasions, the respondent stayed with him and she became pregnant. Though his first child was born in the year 1999, he came back only in the year 2004, and he is not offering any explanation for the same. 17. According to the respondent, during pregnancy, her uterus was sutured as it was weak, and she was asked to take rest. She was not getting sufficient rest at her matrimonial home, and so, she often suffered bleeding. Whenever she suffered bleeding, she called her family members and they took her to hospital. In the absence of husband, she was taken care of by her father and brothers. The irritation if at all shown by the father and brothers of the respondent might have been on seeing the sad plight of the respondent and her innocent children, as they were not taken care of by the appellant. 18. The appellant contended that, when he came on leave in the year 2004, brothers of the respondent and their political goondas reached his house and threatened him that, if he will not allow the respondent to live at her paternal house, they won't allow him to go back to Gulf. He admitted that, he returned to Gulf in July 2004, and at that time, the respondent was pregnant. He is Mat.Appeal Nos.1038 & 1041 of 2014 13 also admitting that the respondent left her matrimonial home only on 24.08.2004. So, obviously, she did not go back to her paternal house before he returned to Gulf or immediately thereafter. So the case put forward by the appellant is not inspiring confidence of this Court. 19. The appellant also is admitting that the respondent was having some gynecological problem. RW1, the respondent, deposed that, she suffered bleeding while she was at her matrimonial home after the appellant returned to Gulf in July 2004, and nobody was there to attend her medical needs. She called her father and her father took her to hospital. After treatment, she was taken back to her matrimonial home. But, the mother and brothers of the appellant did not permit her to continue there. PWs 1 and 3, the appellant and his brother, are admitting that the respondent left her matrimonial home on 24.08.2004. They pleaded ignorance about her bleeding and hospitalisation, but they are not denying the same. The testimony of PW3 is to the effect that, he does not know what happened when the respondent reached her matrimonial home on 24.08.2004, after discharge from hospital. They have no case that the respondent was not taken to hospital by her father in August 2004. Mat.Appeal Nos.1038 & 1041 of 2014 14 20. The appellant is admitting that, after 24.08.2004, there is no relationship whatsoever between himself and the respondent. Though he reached his native in the year 2006 and 2008, he did not go to the house of the respondent even to see his little children. PW2 was examined by the appellant to say that she had reached the house of the respondent for a mediation and then the respondent told her that she was not ready to come back. It has come out in evidence that the appellant and PW2 are close neighbours with same political affiliation, and she came to court as requested by the appellant. When the husband was very much there, he was the proper person to invite his wife and children to reside with him at his house. Going by the factual scenario, the testimony of PW2 has no significance. 21. The appellant is admitting that, he saw his second child when he was brought to court at the time of mediation. As already stated, the appellant saw his first child after the child attained 5 years. Though he was having 15 days leave every year, he did not come to see his first child, and no reason whatsoever is stated by him for not coming to native for about six years together. PW3, his brother is admitting that in the year 2014, the appellant reached home twice. But, it was for the cases filed by him. So, evidently, he Mat.Appeal Nos.1038 & 1041 of 2014 15 was giving more importance to the cases filed by him rather than to his wife and children. 22. The appellant deposed that the respondent was insisting him to take her to Gulf. As a wife that was quite natural, and she cannot be blamed for that. Since the appellant was not coming home for years together, and there was nobody at her matrimonial home to attend her affairs including her medical needs, if she was interested to stay at her paternal house, we cannot find fault with her. When the husband is abroad or at far off place, not paying any attention to his wife and children and simply ignoring them, he cannot compel her to stay at his house, as a care taker of his house and age old parents if any. In such a situation, if the wife is constrained to stay at her paternal house, it cannot be termed as cruelty or desertion from her part. There is ample evidence to show that, whenever the appellant reached his native, the respondent stayed with him, and every time they had intimate relationship, proved by her pregnancy each time. 23. After four years of separation, when the appellant filed the Divorce O.P, no incidents of cruelties were alleged against his wife. If the respondent was cruel to him and his mother, definitely, that might have been stated in his first divorce petition itself. The Mat.Appeal Nos.1038 & 1041 of 2014 16 mother of the appellant was not examined to prove the cruel nature of the respondent, as she was the person staying with the respondent whenever she was at her matrimonial home. Only after the respondent filed the complaint under Section 498A of IPC, the appellant filed a fresh divorce O.P against her withdrawing the earlier one, alleging all sorts of cruelties. It is true that Annexure A admitted in appeal shows acquittal of the accused in that case. We are not on the merit of that acquittal, but the fact remains that only after that complaint, the appellant withdrew his earlier Divorce O.P. 24. From the available facts and circumstances, we are of the view that the appellant could not prove any cruel behaviour from the part of the respondent so as to dissolve their marriage. In fact, the appellant was ignoring his wife and children. But he was compelling her to stay at his house, may be to attend the affairs of his house and his mother. The respondent would say that, even her medical needs were attended by her father, and the husband or his family members never cared her needs. 25. The appellant is of the view that, their marital relationship is irretrievably broken and there is no chance for a reunion. They have no relationship whatsoever from 24.08.2004 onwards. But, there is evidence to show that the appellant was avoiding the Mat.Appeal Nos.1038 & 1041 of 2014 17 respondent and her children, and he never tried to take back his wife and children after 2004. In the year 2008, he filed Divorce O.P against her and that O.P was withdrawn and a fresh Divorce O.P was filed in the year 2012. The wife is still ready for a reunion. 26. A Division Bench of this Court in _**Dr.Uthara** vs._ _**Dr.Sivapriyan**_ (2022 Live Law (ker) 75) held that the period of non- cohabitation however long it may be, if it was due to deliberate avoidance or due to pendency of cases filed by one party, the other party cannot be found fault with, when that party is still ready to continue his/her matrimonial life, and no grounds recognised by law are established against that party to break their nuptial tie. So legally, one party cannot unilaterally decide to walk out of a marriage, when sufficient grounds are not there justifying a divorce, under the law which governs them, saying that due to non-co-habitation for a considerable long period, their marriage is dead practically and emotionally. No one can be permitted to take an incentive out of his own faulty actions or inactions. 27. The cruelty alleged against the respondent could not be proved by the appellant. He avoided the respondent for years together and later filed divorce case against her in the year 2008, which went upto this day. Still she is ready to live with her Mat.Appeal Nos.1038 & 1041 of 2014 18 husband. Since the appellant could not establish sufficient grounds for divorce, he is not entitled for a decree of divorce, though they are living separate from 2004 onwards. So, the finding of the Family Court in O.P No.518 of 2012 is only to be confirmed. 28. Regarding the claim of gold, there is no evidence to show that the appellant had entrusted gold ornaments with the respondent or with her father except the six bangles seen in Ext.A10 photographs and the thali chain seen in Ext.A19 photograph. 29. According to the appellant, he brought two gold biscuits weighing 233.280 gms from Gulf on remittance of customs duty and Ext.A9 was produced by him to prove that fact. He married the respondent on 26.01.1997. The gold biscuits were brought on 15.12.1996. There is nothing to show when or where or under what circumstance he entrusted the gold biscuits with the father of the respondent. Both PWs 1 and 3 admitted that, they are goldsmiths making gold ornaments, and giving it to various shops. So, the gold biscuits might have been used by them to make gold ornaments, to be supplied in shops. In the absence of any cogent evidence, father of the respondent cannot be held liable for the gold biscuits brought by the appellant, even prior to the marriage. Mat.Appeal Nos.1038 & 1041 of 2014 19 30. The appellant deposed that the gold ornaments gifted to the respondent were all made by him using the gold brought from Gulf, for the purpose of giving it to shops and customers. In normal course, for engagement ceremony, the bride may be gifted with one bangle or so, from the family of the bridegroom. But, in this case, the bride was gifted with six bangles as seen from Ext.A10 photographs. So, it appears that six bangles were given to the bride only as a show off, and as admitted by the appellant, he wanted to sell it away to different customers. If so, we cannot believe that the appellant permitted the respondent to keep those bangles with her to be taken away, when she left her matrimonial home. The respondent categorically stated before court that those ornaments were received back by the appellant and this Court finds no reason to disbelieve her. 31. Regarding the thali chain, the respondent is admitting that a thali chain weighing 10 sovereigns was given to her. But, according to her, the appellant received it back and a small chain weighing 2.5 sovereigns was given to her and still she is possessing the same. Ext.A19 photograph shows the thali chain of the respondent which may be having a weight of 10 sovereigns. There is nothing to show that the appellant received it back and gave Mat.Appeal Nos.1038 & 1041 of 2014 20 another chain weighing 2.5 sovereign. So, the thali chain given by the appellant as seen in Ext.A19 photograph might have been still possessed by the respondent. But, since their marriage is still subsisting, this Court is not inclined to direct the respondent to return the thali chain to the appellant. So, regarding the finding of the Family Court in O.P.No.1211 of 2009 also, no interference is called for. In the result, both the appeals are dismissed upholding the impugned judgment and decree without any order as to costs. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp Mat.Appeal Nos.1038 & 1041 of 2014 21 **A P P E N D I X** ## **APPELLANT'S ANNEXURES IN MAT.APPEAL 1038/14** **ANNEXURE -A: CERTIFIED COPY OF JUDGMENT IN C.C.6288/11 DTD.12/8/16 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA ANNEXURE-B: CERTIFIED COPY OF JUDGMENT IN CRL.APPEAL No.485/12 ON THE FILE OF 3RD ADDITIONAL SESSIONS COURT, THRISSUR.** ## **RESPONDENT'S ANNEXURES: NIL.** **True Copy** **P.S to Judge** **smp**