Sujith Chandran and others v. Rajalakshmi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 Mat.Appeal.No. 1117 of 2014 AGAINST THE JUDGMENT DATED 18.09.2014 IN OP 1067/2012 of FAMILY COURT, KOTTAYAM ## APPELLANTS/RESPONDENTS: 1 SUJITH CHANDRAN, PUTHUKATTUCHIRA HOUSE, PAIPPADU P.O., CHANGANACHERRY TALUK, KOTTAYAM. - 2 CHANDRASHEKERAN NAIR, PUTHUKATTUCHIRA HOUSE, PAIPPADU P.O., CHANGANACHERRY TALUK, KOTTAYAM. 3 PRASANNA KUMARI, PUTHUKATTUCHIRA HOUSE, PAIPPADU P.O., CHANGANACHERRY TALUK, KOTTAYAM. BY ADVS. SRI.K.P.SUDHEER SRI.Y.JAFAR KHAN ## RESPONDENT/PETITIONER: RAJALAKSHMI SOPANAM HOUSE, PERUNNA, CHANGANACHERRY TALUK, KOTTAYAM-686 101. BY ADVS. SMT.A.PARVATHI MENON SRI.P.SANJAY THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH Mat.Appeal.501/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat. Appeal No. 1117/2014 & 501/2015 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 ## Mat.Appeal.No. 501 of 2015 AGAINST THE JUDGMENT IN OP 1252/2012 of FAMILY COURT, KOTTAYAM DATED 1809-2014 ## APPELLANT/RESPONDENT: SUJITH CHANDRAN, PUTHUKATTUCHIRA HOUSE, PAIPPADU P.O, CHANGANACHERRY TALUK,KOTTAYAM. BY ADVS. SRI.K.P.SUDHEER SRI.Y.JAFAR KHAN ## RESPONDENT/PETITIONER: RAJALAKSHMI, SOPANAM HOUSE, PERUNNA,CHANGACHERRY TALUK, KOTTAYAM 686 101. BY ADVS. SRI.K.P.ABDUL RASSAK SMT.A.PARVATHI MENON SMT.BINI SARAMMA SRI.P.SANJAY SRI.SUSEEL M.MENON THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, ALONG WITH Mat.Appeal.1117/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mat. Appeal No. 1117/2014 & 501/2015 -3- ## **JUDGMENT** ## Annie John,J. Mat. Appeal No. 501 of 2015 has been filed against the judgment and decree dated 18.09.2014 in O.P. No. 1252 of 2012 of Family Court, Kottayam at Ettumanoor. 2. The appellant is the respondent in the Original Petition filed by the respondent herein for dissolution of marriage on the ground of cruelty. The marriage between the appellant and the respondent was solemnized on 09.11.2003 and no issues were born out of their wedlock and now they are living separately. 3. The case of the respondent is that even in the early days of marriage, the appellant/husband was found to be introvert and was keeping an indifferent attitude towards her relatives. She has further alleged that the appellant/husband was not ready for infertility treatment by saying that it is expensive, and that she was treated like a salesgirl in the shop and a maid in the house. She has filed another Original Petition seeking realisation of money and gold ornaments and for granting maintenance. 4. The evidence consists of oral testimony of PWs 1 to 5 and RWs 1 and 2. Exts.A1 to A9 and B1 to B6 were marked on the side of the petitioner and respondent respectively. After evaluating the entire entire evidence, the court below has allowed the petitions. Highly aggrieved by Mat. Appeal No. 1117/2014 & 501/2015 -4- the same, the appellant/husband has approached this Court. 5. The learned counsel for the appellant contended that the court below ought to have considered the unproved cruel allegations raised by the respondent/wife against the appellant. The court below has believed the evidence of the respondent/wife and ultimately held that she was subjected to cruelty by the appellant. He has further contended that the cruelty alleged against the appellant is incorrect and the appellant/husband is ready to live with the respondent/wife by withdrawing all the allegations, if the respondent is ready for the same. 6. Challenging the judgment and decree passed in O.P. No. 1067 of 2012 filed by the respondent/wife, for recovery of patrimony, Mat. Appeal No. 1117 of 2014 has been filed by the appellant/husband. 7. The Family Court, as per common judgment dated 18.09.2014, ordered dissolution of the marriage between the appellant and the respondent and the appellant was also directed to return 28 sovereigns of gold ornaments or its equivalent value of Rs.5,76,800/- to the respondent/wife. The appellant was also directed to pay monthly maintenance at the rate of Rs.1000/- to the respondent/wife. 8. The case of the respondent/wife was that at the time of marriage, 3.5 sovereigns of gold ornaments were given. The first appellant was given 2.5 sovereigns of gold ornaments and the respondent was given 3.5 sovereigns of gold ornaments by the first Mat. Appeal No. 1117/2014 & 501/2015 -5- appellant at the time of marriage. After the marriage, the first appellant pledged 28 sovereigns of gold ornaments for taking stock in the textile shop run by him. The respondent/wife also claimed an amount of Rs.3.5 lakhs from the appellant. The appellant denied the allegation of payment of 35 sovereigns of gold ornaments and Rs.3.5 lakhs. According to the appellant/husband, he has not received any amount from the respondent and absolutely no evidence was adduced on the part of the respondent/wife to prove that she has brought 35 sovereigns of gold ornaments. 9. The learned counsel for the appellant has strenuously argued that there was no ground to prove that the respondent was subjected to cruelty by the appellant and that she has raised false allegations against him and she was unable to prove the same also. 10. When the respondent was examined as PW1, she has categorically deposed that her marital life was miserable and the respondent was never a loving or caring husband for her. She has also deposed that the appellant was an introvert and he shouted at her even for silly reasons. She has further deposed that she did not conceive even after two years of marriage and eventhough she requested him to consult a doctor, he was reluctant to do the same stating that the treatment was expensive. In addition to that, he has misappropriated all her gold ornaments for his business purpose. Further, she was Mat. Appeal No. 1117/2014 & 501/2015 -6- compelled to bring more money from her family for renovating the shop building of the appellant. Accordingly, her brother had given 3.5 lakhs in two instalments. Further, the appellant was not ready for a separate residence and she was taken to her brother's house to stay there. She was treated there like a maid servant in the house and like a sales girl in the shop. Further, she was abused and insulted in front of the staff of the shop. He was refused sexual relationship with her and he was sleeping in a separate room. Thereafter, she had deposed that on 26.10.2011, he fell down in the bathroom and when the petitioner rushed to help him, she was abused and assaulted and he declared that he did not want her as his wife. Immediately, she has gone to her paternal house. Eventhough several reconciliation attempts were made, the appellant was adamant and he was not ready to take her back to the matrimonial residence. According to PW1, their relationship is irretrievably broken down and there is no chance for reunion. From 26.10.2011 onwards, they are living separately . PW2 is the brother of PW1. He has also given evidence in accordance with the evidence given by PW1. He has also reiterated the fact that the appellant is not a loving husband and he always used to ill-treat and humiliate the respondent. PW3, a cousin brother of the respondent, also deposed that the appellant is a cruel husband to the petitioner. PW4 was the Secretary of NSS, Perunna during the period of marriage of the respondent and he was Mat. Appeal No. 1117/2014 & 501/2015 -7- deputed to discuss their issues. He deposed that a petition was received from the part of the respondent stating her family disputes and sought for redressal of her grievances. Eventhough he advised them to go for a counselling, the appellant was not ready for that and there was suggestion on the part of the NSS that the appellant should take a house on rent. But he has not acceded for the same. PW5 is the present Secretary of the NSS Karayogam and Ext.A3 certificate was issued stating that on 30.01.2012 a petition was received before the karayogam regarding the family disputes between the petitioner and the respondent and that the issue was discussed before the Administrative Committee and they decided to send the appellant and the respondent for a counseling; but the appellant has not co-operated with that and he has disinterest to continue their conjugal relationship. Further, during examination, PW1 has stated that the appellant reached her house, abused and threatened her father asking him to withdraw the case. Thereafter, her father filed a complaint before the Circle Inspector of Police, Changanacherry and Ext.A2 is the receipt issued from the Circle Office, Changanacherry. RW1 admitted that a complaint was lodged by the respondent's father before the Changanacherry Police Station. The appellant, while he was in the box, elucidated several instances in order to tantamount that the respondent has caused much cruelty on her. PW1 also reiterated that the respondent was reluctant to go for infertility Mat. Appeal No. 1117/2014 & 501/2015 -8- treatment. But, the respondent herself has admitted that she conceived twice and was aborted. She has also reiterated that she was abused and assaulted by the appellant on 26.11.2010, when he had a fall inside the bathroom. He had told her that only to save the wages of a housemaid and salesgirl, she was permitting to continue in his house and he did not want her any more. Therefore, she has left the matrimonial home and started residing separately. She has also deposed that even after several attempts on the part of the NSS Autorities, the matter was not reconciled. According to her, she had gone back to his parental home due to the ill-treatment and humiliations on the part of the appellant. 11. _Per contra_ , the appellant has raised serious allegations against the respondent. He has stated in his objection that the respondent was leading an immoral life and she was roaming around with her sister's husband and they were keeping an unholy alliance. He had also happened to hear their obscene conversation. He has also stated that she has found condoms inside the bag of the appellant. He has further stated that he was depicting her as a prostitute or as a lady of loose moral who was ready to have sexual relationship with anybody at anywhere and at any time. In the objection filed in O.P. No. 1067 of 2012, he has narrated about the immoral life of the respondent. He has also stated that he was suffering much due to the disobedient and wayward life of the respondent. It is interesting to note that at the time Mat. Appeal No. 1117/2014 & 501/2015 -9- of giving deposition, the appellant has deposed that he is ready to accept his wife and willing to have their reunion. The respondent's counsel has pointed out that during cross examination of RW1, he has stated that the respondent is having a good character, and while they were living together, they were having a very good husband and wife. The appellants' counsel has pointed out that RW1 has deposed that he had found condoms in her purse and she was touring with her sister's husband. That indicates that the appellant/husband has no consistent case and his evidence cannot be relied on. His definite case is that if the respondent was leading a wayward life, in the normal course, he may not be ready to accept her back to his life. The respondent's counsel has pointed out that the appellant/husband is having such a character and he used to make false and malicious allegations against the innocent wife, and that is more than sufficient to consider it as a mental cruelty which forbids her from continuing her conjugal relationship with him. 12. Let us examine the facts and evidence adduced by the parties before the court below. It is an admitted fact that the appellant and the respondent got legally married and it was proved on production of Ext.A1 marriage certificate. It is also admitted fact that they were living together as husband and wife and no issues were born out of their wedlock. 13. The learned counsel for the appellants has relied on the Mat. Appeal No. 1117/2014 & 501/2015 -10- decision in _**Gangadharan v. Thankam**_ [1988 KHC 183], in which it is held that the cruelty should be of such a nature as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent and it would be impossible for them to live together without mental agony, torture or distress to entitle the party to secure divorce. As per the amended provision, the courts have to interpret and analyse and define what would constitute cruelty depending upon many factors such as social status of parties, their education, physical and mental conditions, customs and traditions and come to its own conclusion that acts proved would amount to cruelty in a given case. 14. In _**Samar Ghosh v. Jaya Gosh**_ [2007 (2) KHC 231], the Apex Court has enumerated some instances of human behaviour which may be relevant while dealing with the cases of 'mental cruelty' and it reads thus: “(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. Mat. Appeal No. 1117/2014 & 501/2015 -11- (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that Mat. Appeal No. 1117/2014 & 501/2015 -12- tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.” 15. The learned counsel for the respondent has also placed reliance on _**William David @ Bijo and others v. Linu Mary George**_ [2010(4) KHC 748], in which it is held that in a matter of return of gold ornaments and money handed over during marriage, if evidence available are not conclusive, it would be ordinarily unreasonable for anyone to look for documentary evidence or totally independent oral evidence to show quantity of gold ornaments and cash that changed hands at the time of marriage. It would be irrational for a Court to throw up its hands up and say, it cannot decide the issue on the basis of available evidence. Standard of a prudent person have to be imported by court while evaluating the evidence available. The Court has to bank on its reserves of knowledge of men, matters and circumstances to resolve the dispute. 16. Here the decree would show that the Family Court below has granted a decree for realisation of 28 sovereigns of gold ornaments or its equivalent value. The learned counsel for the respondent has argued that the court below has not ordered recovery of equivalent value of the gold ornaments and it is injustice to the parties. But, no appeal has been filed challenging that portion of the findings. Since the appellant has failed to establish the grounds as stated in the appeal, he is not entitled to get any relief. Mat. Appeal No. 1117/2014 & 501/2015 -13- 17. PW1 has also deposed that the appellant has come to her residence for the purpose of threatening her and her father to withdraw the case. He has no case that he had gone to her house for a settlement talk or to take his wife back to his house. It was alleged by the respondent that she left the matrimonial residence due to mental trauma suffered at the hands of the appellant. Eventhough the respondent has left the matrimonial residence, the appellant/husband has not taken any steps to take her back to the matrimonial home. The respondent has also admitted that there was a suggestion to execute a document giving her half right over his property and she was ready for a reunion as the appellant and his father assured her that she would not be ill-treated. Further, at the time of argument, the learned counsel for the appellants has submitted that there was no such cruelty on the part of the appellants, that it was only mere allegations, and that will not be sufficient enough to find out that the respondent was subjected to cruelty on the part of the appellants. It is very important to note that during evidence, PW1 has deposed that the appellant/husband had made false, scandalous, malicious and baseless and unproved allegations against her. RW1 stated in her objection that the respondent is a lady of loose moral and she is ready to have sexual intercourse with anybody at any time. On the other hand, he has deposed that she is a good wife having a good character. It is well settled fact that making false, Mat. Appeal No. 1117/2014 & 501/2015 -14- scandalous, malicious, baseless and unproved allegation by one spouse whether by letters or written statement or by any other mode amounts to cruelty. The same view has been reiterated in _**Ganghadharan v. T.T Thankan**_ [AIR 1988 Kerala 244]. The other allegations regarding nonco-operation of treatment and pledging of gold ornaments etc. is not a ground to grant decree for dissolution of marriage. But, the allegations against the respondent that she is having of character of loose morals is more than sufficient to prove the mental cruelty on the side of the appellant/husband. It has also come out in evidence that the relationship between the appellant/husband and the respondent is irretrievably broken down and there is no chance for re-union. Even during evidence, the appellant is not ready to withdraw the allegations made against the respondent and he is not ready to take her home also. At the time of argument, the learned counsel for the appellant has submitted that the appellant is ready to take her back to the matrimonial residence, for which the respondent is not ready. Accordingly, the allegation that the respondent is having loose morals will be sufficient enough to show that she was subjected to cruelty by the appellant. Under these circumstances, the respondent is not ready to go back along with the appellant. The available facts and circumstances of this case are sufficient enough to establish that the allegations of wayward life levelled against the respondent is false as the respondent herself is of Mat. Appeal No. 1117/2014 & 501/2015 -15- good character and conduct. The court below has considered all these aspects and ultimately held that the allegations against the respondent amounts to matrimonial cruelty against the respondent and she is not expected to live along with the appellant without much pain and agony. Accordingly, the court below held that the grounds as mentioned to establish the cruelty against the appellant/husband is established. Accordingly, the court below has granted a decree of divorce as prayed for. We do not find any ground to interfere with the judgment and decree of the court below and it is only to be upheld. 18. Now the question is whether the finding entered in O.P. No. 1067 of 2012 that the appellant is entitled to give back the gold ornaments to the respondent is to be interfered with. The definite case of the respondent is that at the time of marriage, 35 sovereigns of gold ornaments had been given at the time of her marriage. At the same time, the appellant has given a chain weighing 2.5 sovereigns of gold ornaments and the respondent was given a chain weighing 3.5 sovereigns at the time of her marriage. The definite case of the respondent is that after the marriage, 28 sovereigns of gold ornaments were utilised by the appellant for taking stock in his textile shop and pledged the same. Eventhough notice was received from the Bank, the appellant was not ready to take the same and give her back. According to her, now she has only 7 sovereigns of gold ornaments with her. Mat. Appeal No. 1117/2014 & 501/2015 -16- 19. The learned counsel for the appellant has pointed out that the allegations raised by the respondent is not correct and Ext.A4 photographs produced by the respondent is not sufficient enough to come to the conclusion that she was having 35 sovereigns of gold ornaments at the time of marriage. Ext.A4 is the photograph alleged to have taken at the time of her marriage. The definite case of the respondent is that she was having 35 sovereigns of gold ornaments at the time of her marriage. The appellant has also produced Ext.B3 photograph which also would show that the very same ornaments were worn by the respondent at the time of marriage. According to the respondent, the appellant has taken 28 sovereigns of gold ornaments for the purpose of taking textiles in his shop. _Per contra,_ the appellant has taken a contention that he had pledged the gold ornaments belonged to his brother's wife. In the objection filed in O.P. No. 1067 of 2012, the appellant has stated that he was compelled by the respondent to pledge her 66 grams of gold ornaments and the loan amount was given to her sister-in-law. It is very interesting to note that he has further deposed that he never pledged any of her gold ornaments. Ext.A8 is the document produced by the respondent to establish that the appellant has pledged all her gold ornaments before the Paippad Central Cooperative Bank Ltd. during the period 2006-2013. The appellants have also produced Ext.B6 document to establish that he had pledged gold Mat. Appeal No. 1117/2014 & 501/2015 -17- ornaments in Paippad Central Co-operative Bank Ltd. even in the year 2000 i.e., prior to his marriage. From Ext.B6, it is turned out that the ornaments pledged prior to 2003 were only a chain and ring. But it is important to note that after 2003, he had pledged gold ornaments including bangles, ear-rings and lockets. It would indicate that he had pledged all the gold ornaments belongs to the ladies. In this connection, it is important to note that she got married in the year 2003. So, the case advanced by the respondent that her entire gold ornaments were pledged by the appellant is established. The learned counsel for the appellant has pointed out that Ext.B8 document does not contain the name of the person who pledged it. But, on admission of the appellant/husband that he has pledged the ornaments of the respondent, the contention raised by him that the respondent was not having gold ornaments at the time of marriage is found to be incorrect. The version of the appellant that he has pledged the gold ornaments of his brother's wife also cannot be believed. Importantly, the photographs as well as the oral testimony of PW1 and the production of Ext.A8 document are sufficient enough to prove that her ornaments were with the appellant and he has pledged the same with Paippad Service Co-operative Bank. Eventhough it was stated that she was having 35 sovereigns of gold ornaments at the time of marriage, she has sought for getting back only 28 sovereigns of gold ornaments. Going through Ext.A4, A8 and oral Mat. Appeal No. 1117/2014 & 501/2015 **==> picture [23 x 9] intentionally omitted <==** testimony of PW1, we do not have any difference of opinion other than what was taken by the courts below. Therefore, we have no hesitation to hold that the findings entered by the court below is correct and no interference is warranted. Accordingly, the appeals are dismissed. sd/- **K. HARILAL, JUDGE.** **-** sd/ **ANNIE JOHN, JUDGE.** _Rv_