S. Vijayan v. M. Vijayakumari

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 15TH DAY OF JULY, 2019/24TH ASHADHA, 1941** **Mat.Appeal.No.457 of 2011** **[AGAINST THE COMMON JUDGMENT DATED 30.04.2011 IN OP 1561/2005 of FAMILY COURT, NEDUMANGAD]** ## **APPELLANT/PETITIONER:** **S.VIJAYAN AGED 47 YEARS S/O. SEETHAMMA, BHAGAVATHY VILASAM, MULLAMCODE, MANAMBOOR, OTTOOR VILLAGE,, CHIRAYINKEEZHU TALUK.** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENT/RESPONDENT:** **M.VIJAYAKUMARI AGED 47 YEARS D/O MURUKAN, KOLLANTAZHIKATHU VEEDU, MAYYANADU DESOM AND VILLAGE, MAYYANADU.P.O., KOLLAM TALUK-691 303.** **BY ADV. SRI.G.VENUGOPAL** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **01.07.2019, ALONG WITH MAT.APPEAL NO.460/2011, THE COURT ON 15.07.2019 DELIVERED THE FOLLOWING:** Mat.A.Nos.457 & 460 of 2011 :-2-: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 15TH DAY OF JULY, 2019/24TH ASHADHA, 1941** **Mat.Appeal.No.460 of 2011** **[AGAINST THE COMMON JUDGMENT DATED 30-04-2011 IN OP 1323/2005 of FAMILY COURT, NEDUMANGAD]** ## **APPELLANT/PETITIONER:** **S.VIJAYAN, AGED 47 YEARS, S/O. SEETHAMMA, BHAGAVATHY VILASAM, MULLAMCODE, MUNAMBOOR, OTTOOR VILLAGE, CHIRAYINKEEZHU TALUK. BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENTS/RESPONDENTS:** |**1**|**M.VIJAYAKUMARI,**| |---|---| ||**AGED 47 YEARS,**| ||**D/O MURUKAN, KOLLANTAZHIKATHU VEEDU,**| ||**MAYYANADU DESOM AND VILLAGE,**| ||**MAYYANADU.P.O., KOLLAM TALUK-691303.**| |**2**|**HARI, MANAMBOOR, OTTOOR VILLAGE,**| ||**CHIRAYINKEEZHU TALUK, HARI,**| ||**OWNER OF HARI FLOUR MILL, MANAMBOOR (PO),**| ||**TRIVANDRUM-695009.**| ||**BY ADV. SRI.G.VENUGOPAL**| **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **01.07.2019, ALONG WITH MAT.APPEAL.457/2011, THE COURT ON 15.07.2019 DELIVERED THE FOLLOWING:** Mat.A.Nos.457 & 460 of 2011 :-3-: ## **JUDGMENT** ## **[ Mat.Appeal 457/2011 & Mat.Appeal.460/2011 ]** ## **N.Anil Kumar, J:** Both Matrimonial appeals are filed by the appellant who is the petitioner -husband on the files of the Family Court, Nedumangad. Respondent is the wife. 2. Admittedly, the petitioner and the respondent married each other on 12.9.1990 and they are having two children, both of them are teenage boys. The wife left the matrimonial home on 17.6.2004 and the couple has been living separate from each other with their children left in the custody of the husband. The petitioner filed OP No.1323/2005 on the file of the Family Court, Nedumangad seeking dissolution of marriage between the petitioner and the respondent/his wife on the grounds of adultery and mental cruelty alleging that the respondent developed illegal intimacy with one Hari, the second respondent in the above original petition. Simultaneously, the husband as petitioner in OP No.1561/2005 on the file of the Family Court, Nedumangad filed the original petition for a decree of declaration of petitioner's title and possession over the petition schedule property. Parties and proceedings are Mat.A.Nos.457 & 460 of 2011 :-4-: hereinafter referred to as 'the petitioner' and 'the respondent' according to their status in O.P.No.1323/2005 unless otherwise stated. 3. The petition schedule property is described as 4 Ares and 5 Sq.metres comprised in Re-Sy.No.338/10-4 (Old Sy.No.2024/6) and 5 Ares 95 sq.meteres in Re-Sy.No.338/2010 of Varkala Village lying together having a total extent of 10 acres. The petitioner was employed in the Indian Army at the time of marriage and hence he left for his place of employment after few days of his marriage. At that time, the first respondent was taken to her parents' house and she was living there. From June, 1999, the first respondent had started living in the house of the petitioner permanently. According to the petitioner, after the first respondent started the residence in the house of the petitioner permanently, the first respondent was having illicit relationship with the second respondent. The petition schedule property was purchased in her name with the money sent by the petitioner from the place of employment in the Army. After the property was purchased, an amount of `60,000/- was taken as loan on 19.6.2002 by the first respondent by pledging the petition schedule property. The said loan amount was paid back Mat.A.Nos.457 & 460 of 2011 :-5-: by the petitioner with the money he received from the army when he retired. Petitioner constructed a small house in the petition schedule property with the service benefits obtained by the petitioner from the Indian Army. In the said circumstances, the petitioner filed OPNo. 1561/2005 seeking declaration of his rights of title and possession over his property and the said building. On 16.6.2004, the petitioner came to know about the adulterous life of the first respondent and thereafter the first respondent left the house of the petitioner. The petitioner has been living in the said house with his minor children. In the said circumstances, the petitioner filed O.P.No.1323/2005 seeking divorce. 4. In the objection to the original petition, the first respondent- wife contended that after the marriage, the petitioner and the first respondent were living in the house of the petitioner along with his mother and brother. On the very first night of the marriage, the first respondent was treated with cruelty on the ground that she was not having sufficient gold and her parents did not pay sufficient dowry. In 1991, the petitioner left for Punjab. So she was constrained to live in her house. It is Mat.A.Nos.457 & 460 of 2011 :-6-: further contended that after marriage, the petitioner misappropriated 16½ sovereigns of gold belonging to the first respondent. She was also forced to sell 4½ cents of property and purchased 26 cents in Ottoor Village in her name. In the said property, a house was constructed by the first respondent. The loan amount of `60,000/- was discharged by the first respondent. Allegation of adultery is a cock-and-bull story invented for the purpose of this case. No incident had taken place on 16.6.2004. On 17.5.2004, the first respondent was brutally manhandled by the petitioner and was made to sign certain documents by force. The petition for divorce was filed as a counter blast to OP No.1636/2005 and CMP No.2796/2004, on the file of Judicial First Class Magistrate, Varkala against the petitioner. 5. Evidence in this case consists of oral evidence of PWs.1 and 2 and Exts.A1 to A8 on petitioner's side. On the side of the respondent, DW1 was examined and marked Exts.B1 to B5. 6. On a consideration of the entire evidence, the court below has formed an opinion that no married woman in convention-bound Indian Society would choose her matrimonial house filled with so many members of her husband's family and her two minor male children to be a point of rendezvous, or Mat.A.Nos.457 & 460 of 2011 :-7-: union between her and her paramour. In other words, the court below has formed an opinion that no married lady would commit an offence of adultery and dismissed the petition for divorce. Similarly, the court below is of the view that the difference of opinion between the parties has arisen only due to the dispute regarding the property scheduled in the petition. 7. Learned counsel for the appellant Sri.G.S.Raghunath contends that the court below on assumptions and presumptions, not connected with the case, has passed a most confused judgment to the detriment of the appellant. According to the learned counsel, the court below arbitrarily believed the false case projected by the first respondent and illegally rejected the evidence of PWs.1 and 2 discarding the evidence tendered by PW2, who is none other than their son. The learned counsel submits that normally no son, who has attained the age of physical and psychological development, will speak against the mother touching her chastity. The learned counsel further submits that Exts.A1 to A3 and the evidence of DW1 would establish that the petition schedule property was purchased with the funds of the petitioner in the name of the first respondent when their relationships were cordial on the understanding that Mat.A.Nos.457 & 460 of 2011 :-8-: the first respondent would be faithful to the petitioner and the children. Hence, it is argued that the first respondent has cheated the petitioner and committed breach of trust by living in adultery. Thus, she is liable to return whatever benefits accrued from her husband on account of her fiduciary relationship with her husband. 8. When it comes to declaration of title and possession over the petition scheduled property, the point arising for consideration is as to whether the petition schedule building was purchased with the funds of the petitioner and the building therein was constructed with the money of the petitioner. 9. It is clear from Ext.A4 that the sale deed was obtained on 20.5.2002. The total consideration shown therein is `60,000/-. Ext.A1 is the passbook of account No.410786 in the joint name of the petitioner and the first respondent. It is evident from Ext.A1 that an amount of `50,000/- was deposited in the said account on 7.2.2002 and the entire amount was withdrawn by the first respondent on 28.3.2002 and 7.5.2002 presumably for the purpose of purchasing the property on 20.5.2002. Ext.A2 passbook is an indication that amounts were deposited in the joint names of the petitioner and the first Mat.A.Nos.457 & 460 of 2011 :-9-: respondent when they were living cordially. Ext.A3 is yet another passbook in the Ottoor Service Co-operative Bank in the name of the first respondent which would show that the amounts are deposited in their account. Ext.A5 Security (mortgage) agreement would show that it was executed by the mother of the petitioner and the first respondent and the loan was taken through the mother and the first respondent signed the document offering petition schedule property as security. Admittedly, petitioner was employed in military service. The petitioner as PW1 adduced evidence to show that loan amount was discharged from the service benefits obtained by him. Although the first respondent has taken up a contention that the petition schedule property was purchased by selling her property, no evidence was adduced to prove the same. The first respondent has no case that she has any other independent income. In view of the evidence tendered by PW1, it is clear that the property was purchased in the name of his wife with his funds on the genuine belief that the first respondent would be a trustee for the rest of his life time. 10. In this case, as we have already narrated, we have no hesitation to hold that the first respondent/wife had purchased Mat.A.Nos.457 & 460 of 2011 :-10-: the property in her name on behalf of her husband and was holding it for the benefit of her husband in trust, in a fiduciary character. When the petitioner was employed in military service, he was sending all his money to his wife under the bona fide impression that his wife will take care of all such matters on his behalf. The first respondent failed to prove that the property was purchased utilising her money. In fact, the petitioner's evidence that the property was purchased with his funds has not been controverted in evidence. In the Division Bench decision of this Court in **Pushpy @ Kochuthressia and others** v. **Antony and others** [2019 (1) KHC 85] wherein one of us is a party (A.M.Shaffique,J), it was held that unless the husband is able to prove that the property is held by his wife as a trustee, he cannot seek for recovery of the property. On identical facts, it was held that the original petition for declaration of title cannot be thrown out on the ground that further relief had not been sought for as the relief sought for by the petitioner is sufficient to grant a decree. The Division Bench further held that the presumption under Section 3(2) of the Prohibition of Benami Property Transactions Act,1988 (for short 'the Benami Act') is a rebuttable presumption. We are of the view that the dictum laid down in Mat.A.Nos.457 & 460 of 2011 :-11-: the decision cited supra is equally applicable to this case as well. 11. The petitioner adduced evidence to show that on 21.1.2004, he had gone to the house of a near relative at Kollam. However, she became ill and he returned to the house late in the night. When he knocked at the door, he had occasion to see the second respondent running away from the house through the back door. But again on 16.6.2004, the petitioner happened to see the same thing and caught hold of the second respondent redhanded. Left with no other alternative, according to PW1, the first respondent was constrained to admit her relationship with the second respondent for the last 2½ years and gave it in writing as demanded by the petitioner in Ext.A8. Therefore, the petitioner called one of the relatives and demanded to take the first respondent to her parents' house. In view of the conduct of the first respondent, the petitioner is unable to live with the first respondent as husband. Thus, she committed extraneous cruelty to him and the relationship has irretrievably broken down. 12. One of the contentions taken by the first respondent is that on 16.6.2004 while the first respondent was sitting in a chair, the petitioner appeared suddenly before her and forced her to admit her relationship with the second respondent. It is Mat.A.Nos.457 & 460 of 2011 :-12-: her case that the petitioner had further shown a knife on the neck of the first respondent and thereby coerced and caused her to write a letter in favour of him stating that she is in love with the second respondent. Thus, it is submitted that the writing in the said letter was pre-planned by the petitioner to invent reasons from knocking out the first respondent from home forever. The contention raised by the first respondent is serious in nature. However, there is nothing on record to show that she filed a written complaint before the local Police Station against her husband for the offences committed by him. The contention of the first respondent is that she filed a complaint before the local Police, but due to the influence of the petitioner they have shown no response. Even if no response was shown, nothing prevented the first respondent from filing a private complaint before the jurisdictional Magistrate complaining of the illegal action committed by the petitioner. 13. PW2, who is the son of the first respondent, adduced evidence to show that the first respondent, who is none other than her mother was living in adultery. The refusal to accept the evidence of PW2 is certainly improper. The fact that the first respondent has admitted the execution of Ext.A8 mentioned by Mat.A.Nos.457 & 460 of 2011 :-13-: the petitioner and that the first respondent has not filed complaint against the petitioner regarding the criminal offences committed by the petitioner are circumstances against the first respondent. Since execution of Ext.A8 is admitted by the first respondent, burden is on the first respondent to prove that Ext.A8 was executed out of coercion as contended by her. The burden of proof regarding Ext.A8 is not properly discharged. Although Ext.B3 Accident Register-cum- Wound Certificate and Ext.B4 petition filed before the C.I. of Police were produced, those documents were not proved in accordance with law and hence Exts.B3 and B4 have no evidentiary value at all. Going by the impugned judgment, it is clear that reasons stated by the trial court for rejecting Ext.A8 and evidence of PW2 are perverse. The court below blindly believed the case projected by DW1 and illegally rejected the evidence of PWs.1 and 2. In view of the evidence let in by PW2 and the facts and circumstances involved in the case, we have no hesitation to hold that the first respondent was living in adultery and thus the first respondent has treated the petitioner with cruelty. A complete analysis of the evidence of PW1 and DW1 would irresistibly lead to the inference that the marriage between the petitioner and the first respondent has irretrievably broken down and the marriage is Mat.A.Nos.457 & 460 of 2011 :-14-: liable to be dissolved. 14. Judged by the above standards, we are of the view that the common judgment in O.P.Nos.1323/2005 and 1561/2005 are liable to be set aside. OP No.1323/2005 is decreed dissolving the marriage of the petitioner and respondent by a decree of divorce. O.P.No.1561/2005 is decreed declaring the petitioner's title and possession over the petition schedule property. The Matrimonial Appeals are allowed. Considering the facts and circumstances, there will be no order as to costs. Sd/- **A.M.SHAFFIQUE** **JUDGE** Sd/- **N.ANIL KUMAR** **JUDGE** MBS/