Sureshkumar and Kamalamma v. Jyothi Lekshmi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **Mat.Appeal.No.437 OF 2012** **AGAINST THE JUDGMENT IN OP 664/2005 DATED 21-04-2012 OF FAMILY COURT,THIRUVANANTHAPURAM** ## **APPELLANTS:COUNTER PETITIONERS:** **1 SURESHKUMAR, S/O.KAMALAMMA, MSK BHAVAN, PLAMOODU, POTHENCODE P.O., THIRUVANANTHAPURAM. 2 KAMALAMMA, MSK BHAVAN, PLAMOODU, POTHENCODE P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.SUMAN CHAKRAVARTHY** ## **RESPONDENT:PETITIONER :-** **JYOTHI LEKSHMI, AGED 25 YEARS, D/O.LEELA KUMARY, INDU NIVAS, POWDIKONAM P.O., KERALADITHYAPURAM, THIRUVANANTHAPURAM.** **BY ADV. SRI.G.S.REGHUNATH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2019, ALONG WITH Mat.Appeal.474/2012, THE COURT ON 04-09-2019 DELIVERED THE FOLLOWING:** Mat.A.Nos.437 & 474 of 2012 :-2-: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **Mat.Appeal.No.474 OF 2012** **AGAINST THE JUDGMENT IN OP 663/2005 DATED 21-04-2012 OF FAMILY COURT, THIRUVANANTHAPURAM** ## **APPELLANT:COUNTER PETITIONER :-** **SURESHKUMAR, S/O.KAMALAMMA, MSK BHAVAN, PLAMOODU, POTHENCODE P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA** ## **RESPONDENT:PETITIONER :-** **JYOTHI LEKSHMI, AGED 25 YEARS, D/O.LEELA KUMARY, INDU NIVAS, POWDIKONAM P.O., KERALADITHYAPURAM, THIRUVANANTHAPURAM.** **BY ADV. SRI.G.S.REGHUNATH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2019, ALONG WITH Mat.Appeal.437/2012, THE COURT ON 04-09-2019 DELIVERED THE FOLLOWING:** Mat.A.Nos.437 & 474 of 2012 :-3-: ## **JUDGMENT** ## **[ Mat.Appeal.437/2012, Mat.Appeal.474/2012 ]** These are connected appeals between the same parties arising out of marital dispute between the husband and wife. Common questions of law and facts arise and, therefore, we think, it is appropriate to dispose of the appeals by way of a common judgment. 2. The appellants in Mat.A.No.437/2012, husband and mother-in-law, filed the above appeal challenging the judgment in O.P.No.664/2005 of the Family Court, Thiruvananthapuram. The petitioner-wife filed the above original petition for return of gold ornaments, pocket money and presentation articles. 3. The appellant in Mat.A.No.474/2012, the husband filed the above appeal challenging the judgment in O.P.No.663/2005 of the Family Court, Thiruvananthapuram. The Original Petition is filed by the wife seeking divorce on the ground of cruelty by the husband. The wife earlier filed a petition before the Family Court, Thiruvanathapuram as M.C.No.142/2005 claiming maintenance from the first respondent-husband. 4. The parties are hereinafter referred to as 'the petitioner' and 'the respondent' according to Mat.A.Nos.437 & 474 of 2012 :-4-: their status in O.P.No.664/2005 unless otherwise stated. 5. The short facts in OP.No.664/2005 are as follows:- The petitioner-wife and the first respondenthusband are Hindus and their marriage was solemnised on 29.12.2002 as per the Hindu religious rites and customs. At the time of marriage,50 sovereigns of gold ornaments, `50,000/- as pocket money and presentation articles worth `10,000/-were given to the first respondent by the parents of the petitioner. From the very beginning of their marriage, the respondents began to behave cruelly to the petitioner and the second respondent along with the first respondent took all the gold ornaments except the thali chain and sold the same. The parties have been residing separately since 20.08.2004. On 21.12.2003, the petitioner gave birth to a child. The first respondent refused to maintain the petitioner and her child. Hence, she filed M.C. before the Family Court seeking maintenance. All the gold ornaments are in the custody of the respondents. Hence, the petitioner seeks to recover 50 sovereigns of Mat.A.Nos.437 & 474 of 2012 :-5-: gold ornaments or its present market value along with `50,000/-, being the pocket money and `10,000/-, being the value of presentation articles with interest @ 12% per annum from the date of suit. 6. The petitioner-wife filed O.P.No.663/2005 before the Family Court, Thiruvananthapuram seeking divorce on the ground of cruelty. According to the petitioner, the first respondent-husband has been very cruel in every manner and the life of the petitioner has become miserable. Although troubles were centred around the dowry related issues and subsequently, the first respondent started abusing the petitioner for every matter, the husband, his mother and sister were cruel towards the petitioner-wife as they had mentally harassed the petitioner. The first respondent-husband became totally indifferent and he had hopelessly failed to perform his duty as a husband towards the petitioner and as a father towards the minor child. The first respondent never had been a dutiful husband and lovable father and he never cared to see his child. The marital tie has been irretrievably broken down and there is no chance of re-union. Mat.A.Nos.437 & 474 of 2012 :-6-: 7. On the other hand, the first respondenthusband contended that he had not subjected the petitioner either mental or physical cruelty as alleged. According to him, the petitioner had no valid reason to file a petition seeking divorce. The first respondent-husband admitted the marriage and paternity of the child. According to him, he had not made any demand for dowry, pocket money or gold ornaments as alleged in the original petition. It is further averred that the respondents 1 and 2 had not subjected the petitioner to cruelty. Further, it is stated that the first respondent has been paying Rs.1500/- for the maintenance of the child and he is ready and willing to pay reasonable amount of maintenance to the child as directed by the court below. 8. In O.P.No.664/2005, Pws.1 and 2 were examined on the petitioner-wife's side and marked Ext.A1. CPW1 was examined on the counter petitioners' side and marked Exts.B1 and B2. In O.P.No.663/2005, PWs.1 and 2 were examined on the petitioner-wife's side and marked Ext.A1. CPW1 was examined on the counter petitioner's side and marked Exts.B1 to B4. Mat.A.Nos.437 & 474 of 2012 :-7-: 9. The marriage between the parties and the paternity of minor child 'Swathi' is admitted. Indisputably, the petitioner and the first respondent has been residing separately since 20.8.2004 onwards and the minor child 'Swathi' has been residing with the petitioner. The first respondent was working as a Police Head Constable on the date of petition. According to PW1, 50 sovereigns of gold ornaments, Rs.50,000/- as pocket money and gift articles were given to the petitioner by her parents at the time of marriage. She testified that the respondents had misappropriated all those gold ornaments, gift articles and money. She further stated that the first respondent is a drunkard and after consuming liquor, he used to sexually assault the petitioner and made attempt to do away with her. She further stated that the first respondent, his mother and sister had physically assaulted her demanding more dowry. PW2, who is none other than the mother of PW1, had deposed in terms of the version of PW1 regarding the gold ornaments, pocket money and household articles. 10. According to the first respondent, the Mat.A.Nos.437 & 474 of 2012 :-8-: petitioner was wearing only 30 sovereigns of gold ornaments on the date of marriage. He had admitted in paragraphs 3 and 8 of the written statement that the petitioner was wearing certain gold ornaments and that she had received certain gift articles from her relatives in connection with the marriage. He stated that those gold ornaments and gift articles are even now in the custody and possession of the petitioner. 11. We have gone through the evidence of PWs.1 and 2 coupled with Ext.A1 series of photographs. On going through the evidence of PWs.1 and 2 and Ext.A1 series of photographs, it is clear that the petitioner was wearing 50 sovereigns of gold ornaments on the date of marriage and those gold ornaments were brought to the matrimonial home when the petitioner reached along with the first respondent immediately after the marriage. There is nothing on record to show that the petitioner had returned the gold ornaments to the petitioner before she left the matrimonial home. The respondents had no case that the petitioner had taken away gold ornaments when she was proceeding to her house on account of serious matrimonial issues. Mat.A.Nos.437 & 474 of 2012 :-9-: 12. Coming to recovery of Rs.50,000/- alleged to have entrusted as pocket money to the first respondent, no reliable evidence was adduced to substantiate the plea of entrustment. The source of money was not divulged. Similarly, no positive evidence was adduced to prove that the gift and household articles were brought to the matrimonial home as alleged by the petitioner. It is not correct to value the household articles and electronic goods as on the date of presentation and claim the entire money from the respondents as a result of matrimonial dispute. The value of electronic goods and house-hold articles diminishes depending on the user of the same. The petitioner has no case that she had not utilised the house-hold articles and electronic goods when she was living with the first respondent in her matrimonial home. Hence the claim made by the petitioner for recovery of pocket money and house-hold articles are not proved based on convincing evidence. We are of the view that the decree passed by the court below for return of pocket money and house-hold articles is liable to be set aside. Thus, the decree stands Mat.A.Nos.437 & 474 of 2012 :-10-: modified to the above extent. 13. Learned counsel for the first respondent contends that in Ext.B1 order passed in M.C.No.142/2005, there is a finding that the petitioner has been living separately without any sufficient reason and therefore, the claim of the petitioner in the O.P. that the petitioner has been living separately on account of the cruelty of the first respondent and his relatives is devoid of any merit. However, on a perusal of Ext.B1 order in M.C., it is evident that the petitioner has specifically pleaded the act of cruelty and the petitioner has tendered evidence to that effect. The M.C. proceedings are summary in nature. The findings thereon do not operate as res judicata in subsequent proceedings between the same parties for recovery of gold ornaments alleged to have been entrusted to the first respondent as a trustee. Whatever finding contained in Ext.B1 is only for the purpose of deciding as to whether the petitioner is entitled to get maintenance under Section 125 of the Cr.P.C. Nothing more and nothing less. 14. In this context, we have noticed the Mat.A.Nos.437 & 474 of 2012 :-11-: conduct of the respondents. The first and second respondents deposed before the court below in unmistakable terms in O.P.No.663/2005 that they are willing to agree for a divorce provided the petitioner is ready to give up her claim of return of gold ornaments and the amount claimed in the original petition. This is a clear indication that the first respondent is constrained to resist the claim for divorce with the mala fide intention of not returning the gold ornaments and money claimed by the petitioner. His conduct is reprehensible. 15. As stated supra, in the case on hand, the spouses were living separately for the last 15 years. The first respondent had not filed any petition for restitution of conjugal rights. Had he been really interested in joining with the petitioner and child, he could have filed the same. Therefore, the conduct of the first respondent for a long period would show that he is not interested in the matrimonial life and he had deserted the petitioner. Evidence adduced by PWs.1 and 2 also would show that the first respondent treated the petitioner and his child cruelly and he had Mat.A.Nos.437 & 474 of 2012 :-12-: deserted the petitioner and the child. We are also satisfied that since the parties are living separately for the last 15 years, the marriage between the petitioner and first respondent has irretrievably broken down. There is no chance whatsoever of their living together. When the marriage is practically dead, nothing is gained by trying to keep the parties tied forever to a marriage, which is ceased to exist. 16. Keeping in view of the above legal principle, the Supreme Court in **Samar Ghosh** v. **Jaya Ghosh** [(2007)4 SCC 511 (SC)] held as follows:- “95. Once the parties have separated and separation has continued for a sufficient length of time, and one of them had presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequence of preservation in law of the unworkable marriage which has long ceased to be effective and are bound to be source of greater misery for the parties.” 17. The marriage, which is dead for all practical purposes, cannot be revived by the order of court. There is no possibility or chance for the couple to reunite. Hence, the court below rightly granted divorce leaving the parties to decide their future in accordance with their wish. Mat.A.Nos.437 & 474 of 2012 **==> picture [24 x 8] intentionally omitted <==** In the result, Mat.A.No.437/2012 is allowed in part as hereinbelow. The decree passed by the court below directing the first respondent to return `50,000/and gift/household articles including fridge stands set aside. In all other respects, the judgment stands confirmed. Considering the facts and circumstances, there will be no order as to costs. The Mat.A.474/2012 stands dismissed. There will be no order as to costs. Sd/- ## **A.M.SHAFFIQUE, JUDGE** sd/- ## **N.ANIL KUMAR,** MBS/ **JUDGE**