Ranjith Krishna Pai and Vasundara Krishna v. Reshma Swaminathan and Devika Ranjith Pai and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 CRL.REV.PET NO. 1742 OF 2014** **AGAINST THE JUDGMENT IN CRA 481/2013 OF ADDITIONAL DISTRICT** **& SESSIONS COURT-IV,EKM MC 3/2011 OF ADDL.CHIEF JUDL.MAGISTRATE, ERNAKULAM** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** 1 DR.RANJITH KRISHNA PAI AGED 36 YEARS S/O.R.KRISHNA PAI, R/AT 154 KUPPATTU HOUSE, RAMANKULANGARA KOLLAM, 2 VASUNDARA KRISHNA AGED 65 YEARS W/O.R.KRISHNA PAI, R/AT 154 KUPPATTU HOUSE, RAMANKULANGARA KOLLAM, BY ADVS. SURESH KUMAR M.T. SREELAKSHMI SABU(K/000200/2020) MANJUSHA K(K/000191/2018) ## **RESPONDENTS/RESPONDENTS/COMPLAINANTS:** 1 RESHMA SWAMINATHAN AGED 32 YEARS D/O.C.B.SWAMINATHAN, R/AT SAUPARNIKA CHOICE VILLAGE, THRIPUNITHURA KOCHI 2 DEVIKA RANJITH PAI, AGED 7 YEARS, D/O.RANJITH KRISHNA PAI, R/AT SAUPARNIKA CHOICE VILLAGE, THRIPUNITHURA KOCHI REPRESENTED BY HER MOTHER RESHMA SWAMINATHAN 1ST RESPONDENT. Crl.R.P.No.1742/2014 -:2:- 3 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. ANOOP KRISHNA V.A.PRADEEP KUMAR(P-273) JENNY THANKAM(J-541) VINEETH KUMAR E.V(K/478/2020) YAYATHI VIJAYAN(K/2386/2019) SMT M K PUSHPALATHA -SR PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON 14.03.2022 DELIVERED THE FOLLOWING: Crl.R.P.No.1742/2014 ## -:3:- O R D E R Dated this the 14[th ] day of March, 2022 This revision petition has been filed challenging the judgment dated 3[rd] June, 2014 in Crl.Appeal No.481/2013 passed by the Additional Sessions Court-IV, Ernakulam (for short 'the appellate court') and the order dated 9[th] September, 2013 in MC No.3/2011 passed by the Additional Chief Judicial Magistrate Court, Ernakulam (for short, 'the trial court'). 2. The first revision petitioner is the husband of the first respondent herein. The second revision petitioner is the mother of the first revision petitioner. The second respondent is the daughter of the first revision petitioner and the first respondent. In this order, I refer the status of the parties as they are referred to in the order of the trial Court i.e., the petitioners and the respondents. 3. The petitioners preferred MC No.3/2011 against the respondents claiming various reliefs u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the DV Act'). Crl.R.P.No.1742/2014 -:4:- The marital status between the first petitioner and the first respondent is not in dispute. Their marriage was solemnized on 26/12/2005. In the wedlock, the second petitioner was born. The definite case of the petitioners is that at the time of marriage, 250 sovereigns of gold ornaments were given by her parents to her and she further received 40 sovereigns of gold as gift. It is further alleged that the father of the first petitioner gave as gift 13 sovereigns of gold ornaments and 3 diamond rings to the first respondent at the time of marriage. According to the petitioners, the first respondent demanded the gold of the first petitioner on the second day of marriage itself and later on he took most of the gold ornaments for his personal use and misappropriated it. It is further alleged that the father of the first petitioner gave `10,00,000/- to the first respondent for the welfare of the first petitioner, and the first respondent used it for his personal needs. 4. The first respondent is a scientist. He was working as scientist at U.S. Later on he moved to Chile, South America and then to Sweden. Admittedly the first petitioner and the first respondent resided together at Sweden. According to the first petitioner, while they were residing together, the first respondent Crl.R.P.No.1742/2014 -:5:- subjected her to torture and harassment throughout. Various instances of domestic violence allegedly exercised by the first respondent have been detailed in the petition. She highlighted an instance where on a night, the first respondent brutally manhandled her and even attempted to stab her with a knife. The matter was reported to the police. The police came and arrested the first respondent and kept him in custody for three days. The matter was then reported to the Indian Embassy and with their help, she was brought back to the native place. It is further alleged that the first respondent in spite of sufficient means failed to maintain the petitioners. It is also alleged that articles worth `7,32,300/- mentioned in the B schedule item of property belonging to the first petitioner are in the custody of the respondents. The petition was filed for return of the gold ornaments weighing 250 sovereigns, `10,00,000/- allegedly given by the father of the first petitioner to the first respondent, B schedule articles, `25,00,000/- as compensation for the physical and mental injury sustained by the first petitioner on account of the domestic violence exercised by the respondents on her and also claiming maintenance @`1,00,000/- each to the petitioners. Crl.R.P.No.1742/2014 -:6:- 5. The respondents filed counter statement at the Court below. The relationship between the parties and the marital status between the first respondent and the first petitioner are admitted. The case set up by the petitioners that the respondents used to harass the first petitioner and the various instances of domestic violence pleaded in the petition have been denied by the respondents. The allegations that the first petitioner had 250 sovereigns of gold ornaments with her at the time of marriage and they were handed over to the first respondent who misappropriated it are also denied. The further allegation that `10,00,000/- was given by the father of the first petitioner to the first respondent at the time of marriage is also denied. According to the respondents, the petitioners are not entitled to maintenance or the compensation. They sought for a dismissal of the petition. 6. At the trial Court, the first petitioner gave evidence as PW1. Exts.P1 to P11 were marked on her side. The second respondent gave evidence as RW1. Exts.D1 to D15 were marked on her side. After trial, the trial Court allowed the petition in part and the following reliefs are granted to the petitioners; Crl.R.P.No.1742/2014 ## -:7:- _“1. The 1[st] respondent is directed to return 150 sovereigns of gold ornaments which he had taken from the 1[st] petitioner. In case the said gold ornaments are not available with the respondent, the petitioner is entitled to recover the value of 150 sovereigns of gold ornaments from the respondent calculated at the time of enforcing the order._ _2. The 1[st] respondent is directed to pay an amount of Rs.15,000/- each per month (totalling Rs.30,000/- each per month per both) as maintenance to the petitioner and her child from the date of petition._ _3. The 1[st] respondent is directed to pay an amount of Rs.10 lakhs to the petitioner._ _4. The 1[st] respondent is directed to pay an amount of Rs.3 lakhs as compensation for the mental and physical cruelty suffered by the petitioner._ _5. The 1[st] respondent is ordered to deliver the items scheduled in B schedule to the 1[st] petitioner or in the alternative to give the petitioner a sum of Rs.3,50,000/- as value of the above said articles._ _6. The respondents are also restrained from committing any domestic violence against the petitioners.”_ 7. Challenging the order of the trial Court, the respondents preferred appeal. The appellate Court set aside the relief granted by the trial Court so far as the delivery of B Crl.R.P.No.1742/2014 -:8:- schedule items is concerned. The rest of the reliefs granted by the trial Court were confirmed. The respondents preferred this revision petition aggrieved by the order and the judgment of both the courts below. 8. I have heard Smt.Manjusha K., the learned counsel for the revision petitioners, Sri.V.A.Pradeep Kumar, the learned counsel for the respondent Nos.1 and 2 and Smt.Pushpalatha, the learned Senior Public Prosecutor for the respondent No.3. 9. The learned Counsel for the revision petitioners/respondents assailed the impugned judgment on the ground that the Courts below were unreasonable and unrealistic in the appreciation of oral evidence. The Counsel submitted that inasmuch as the petitioner was claiming a decree for return of gold ornaments, return of cash and compensation, the burden rests squarely on her to prove the claim satisfactorily and the petitioners miserably failed to discharge the said burden. The Counsel also submitted that the finding of the Court below that 150 sovereigns of gold ornaments were taken over and misappropriated by the respondents was based on guess work which is impermissible. Crl.R.P.No.1742/2014 -:9:- 10. On the other hand, the learned counsel for the respondents 1 and 2/petitioners submitted that oral as well as documentary evidence let in by the petitioners would prove the entrustment of gold ornaments, cash as well as its misappropriation and the Courts below rightly allowed the petition. The Counsel submitted that quantum of compensation and maintenance awarded by the Courts below is absolutely reasonable. 11. The term 'Domestic Violence' has been defined u/s 3 of the DV Act. It includes physical abuse as well as verbal and emotional abuse and economic abuse. The specific instances of various domestic violence on the part of the first respondent have been clearly pleaded in the petition. PW1 also deposed about the specific instances of domestic violence. There was no successful cross-examination on those aspects. That apart, the first respondent did not mount the box to deny the same. To prove the physical as well as mental cruelty exercised by the first respondent, the petitioners have produced documentary evidence as well. Ext.P3, the translated copy of the report of the Swedish Police, would clearly show that on 13/1/2008, the first Crl.R.P.No.1742/2014 -:10:- respondent physically assaulted the first petitioner and even attempted to stab her with a knife. Ext.P4 series contain the report of the Embassy of India approving the case of the first petitioner about the harassment exercised by the first respondent on her at Sweden. Ext.P4 series also contain the medical report given by the Doctor at Stockholm, Sweden on examining the first petitioner wherein it was stated that the first petitioner appeared to be shattered and shaken, both physical and mental. The Doctor noted signs of violence all over body. The face appeared as swollen with tenderness, there were bruises on the left side of the jaw, and black eye was visible on the left eye. Thus, Exts.P3 and P4 fully support the oral evidence given by the first petitioner about the physical abuse inflicted on her by the first respondent. 12. It has come out in evidence that the first respondent has misappropriated the gold ornaments belonging to the first petitioner. It has also come out in evidence that in spite of affluent means, the first respondent failed to maintain the petitioners. The term 'domestic violence' as defined u/s 3 of the DV Act does not mean any physical harassment alone. As already stated, it includes emotional or economic abuse as well. The term Crl.R.P.No.1742/2014 -:11:- 'economic abuse' has been defined u/s 3(iv) of the DV Act. It includes deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance. Thus, the misappropriation of gold ornaments and non payment of maintenance will definitely constitute economic abuse. For these reasons, the finding of both the Courts below that the petitioners were subjected to domestic violence by the first respondent does not warrant any interference. 13. As per S.20 of the DV Act, the Magistrate is empowered to grant monetary relief to the aggrieved person which includes the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person and the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an Crl.R.P.No.1742/2014 -:12:- order of maintenance u/s 125 of Cr.P.C. or any other law for the time being in force. The petitioners have claimed return of gold ornaments, return of cash of `10,00,000/- and also maintenance under this section. 14. The case of the petitioners in the pleadings is that at the time of marriage, the first petitioner's parents gave her 250 sovereigns of gold ornaments and she received 40 sovereigns of gold ornaments as gifts. Further, the father of the first petitioner gave 13 sovereigns of gold ornaments and 3 diamond rings to the first respondent at the time of marriage. The definite case of the petitioners is that the first respondent took all the gold ornaments and misappropriated the same. The petition was amended later on to the effect that 253 sovereigns of gold ornaments were misappropriated by the respondents out of which 240 sovereigns belonged to the first petitioner and 13 sovereigns of gold and 3 diamonds were adorned on the first respondent by the father of the first petitioner at the time of marriage. In order to prove it, the petitioners relied on the oral testimony of PW1 and Ext.P2 series bills. The first petitioner gave oral evidence as PW1. She has clearly stated that gold ornaments given to her by her Crl.R.P.No.1742/2014 -:13:- parents and gifted to her at the time of marriage were misappropriated by the first respondent. It has come out in evidence that a locker was opened in the joint name of the first petitioner and the first respondent and the gold ornaments were kept there. Ext.P2 series bills were produced to prove the purchase of gold ornaments. The total gold ornaments purchased under these various bills will come to more than 250 sovereigns of gold ornaments. These bills are for the period from 1982 to 1997. The learned counsel for the revision petitioners submitted that those bills pertain to the period much prior to the marriage and further there is nothing to show that the gold ornaments covered by those bills were purchased for the first petitioner and, hence, no reliance can be placed on those documents. I cannot subscribe to the said submission. Indian parents start making jewellery for their daughters since their birth to make sure that they have enough gold jewellery for their marriage. It is customary practice in our country, particularly in our State, among all the communities, that parents would gift gold ornaments to their daughters at the time of marriage as a token of love. There is nothing to disbelieve the evidence of PW1 that Crl.R.P.No.1742/2014 -:14:- her parents purchased gold ornaments as per Ext.P2 series bills and those were given to her at the time of marriage. The Division Bench of this Court in _**Rajesh v. Deepthi**_ (2021 (4) KLT 455) has recently held that the Court can act upon oral evidence to prove possession of gold ornaments at the time of marriage as well as its entrustment to the husband after the marriage. It is pertinent to note that the first respondent has not come forward to deny the positive evidence given by the first petitioner. That apart, Ext.P1 series photographs and various photos contained in Ext.P6 marriage album would show that the first petitioner was wearing substantial quantity of gold ornaments at the time of marriage. 15. The learned counsel for the revision petitioners submitted that the first petitioner has no consistent case as to the quantity of gold ornaments possessed by her and allegedly misappropriated by the first respondent. The counsel further submitted that without any evidence, the courts below inferred by guess work that at the time of marriage, the father of the first petitioner would have given at least 150 sovereigns of gold ornaments. I see no illegality or impropriety in the finding of both the courts below that in all probability the first petitioner at least Crl.R.P.No.1742/2014 -:15:- would have been given 150 sovereigns of gold ornaments by her father which includes the gold ornaments given to the first respondent. Both the courts below concurrently found that the gold ornaments were taken away by the first respondent and misappropriated it. There is no illegality or impropriety in the said finding as well. 16. In so far as the claim regarding return of `10,00,000/is concerned, the pleading as well as the evidence of PW1 would show that at the time of marriage, as demanded by the first respondent, the father of the first petitioner gave `10,00,000/- to the first respondent. Ext.P5, the extract of the passbook belonging to the late father of the first petitioner, would show that in January and February, 2006, the father of the first petitioner withdrew `9,00,000/-. The learned counsel for the revision petitioners submitted that there is no evidence to show why the said amount was withdrawn. PW1 categorically deposed that the amount so withdrawn was given to the first respondent. There is nothing to disbelieve the said version. The father of the first petitioner was not alive to give evidence. That apart, in Ext.P11 letter, the first respondent has admitted that he got Crl.R.P.No.1742/2014 -:16:- some financial help from the father of the first petitioner. This letter would show that the first respondent received money from the father of the first petitioner. The evidence of PW1 coupled with Exts.P5 and P11 establishes the case of the petitioners regarding entrustment of `10,00,000/- by her father to the first respondent at the time of marriage. There is no contra evidence on the side of the respondents. The definite case of the first petitioner is that it was given for her welfare, but the first respondent used it for his personal use. No doubt, once entrustment is made, a trust gets created and being a trustee, the husband is liable to return the same. 17. The first respondent being the husband of the first petitioner and the father of the second petitioner is legally and morally bound to maintain the petitioners. The petitioners claimed maintenance @`1,00,000/- each per month. The Court below allowed maintenance @ `15,000/- each per month. It has come out in evidence that the first respondent is a highly qualified person and was employed at various foreign countries. At the time of filing the petition, he was employed at U.S. Exts.D14 and D15 produced by the first respondent would show Crl.R.P.No.1742/2014 -:17:- that he was working in International Iberian Nanotechnology Laboratory and was getting monthly salary of 2250 Euros. Even though the first respondent contended that the first petitioner was employed at SIDCO, it has come out in evidence that it was not a permanent assignment. Considering the financial status of the first respondent and the requirement of the petitioners, `15,000/- each per month as monthly maintenance awarded by the Courts below appears to be reasonable, if not, inadequate. 18. S.22 of the DV Act gives power to the Magistrate to pay compensation for the injuries including mental torture and emotional distress caused by the acts of domestic violence and committed by the respondent. The petitioners claimed `25,00,000/- on this count. Both the courts below found that there was evidence of physical as well as mental torture and harassment by the first respondent. It has come out in evidence that even the first petitioner was manhandled by the first respondent and she sustained injuries on various parts of her body. I have also found that the said finding of the courts below is based on relevant materials. Considering the extent of damage sustained by the first petitioner on account of the Crl.R.P.No.1742/2014 -:18:- domestic violence exercised by the first respondent, I am of the view that compensation of `3,00,000/- granted by the courts below is absolutely reasonable. 19. Both the courts below have appreciated the evidence correctly and granted reliefs to the petitioners. There is absolutely no illegality or impropriety in the orders passed by the courts below. The findings of facts arrived at by the courts below cannot be interfered with under the exercise of the revisionary jurisdiction vested this Court u/s 397 r/w 401 of Cr.P.C. The revision fails, and it is only to be dismissed. In the result, the revision petition is dismissed. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp**