Vidhu Mohan v. Manoj K. Raveendran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/31ST ASHADHA, 1938** **Mat.Appeal.No. 498 of 2012 () ------------------------------** **AGAINST THE ORDER/JUDGMENT IN OP 1144/2008 of FAMILY COURT, ALAPPUZHA DATED 31-03-2012** **APPELLANT(S):** **------------** **VIDHU MOHAN D/O.CHANDRAMOHAN CHANDRAKANTHA PAZHAVEEDU P.O ALAPPUZHA 688009** **BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** **RESPONDENT(S):** **--------------** **MANOJ K.RAVEENDRAN S/O.LATE RAVEENDRAN NRI KOCHUPARAMBIL PADAHARAM THAKAZHY P.O ALAPPUZHA 688562** **R1 BY ADV. MANOJ K.RAVEENDRAN (PARTY-IN-PERSON)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16-12-2016, ALONG WITH MA. 507/2012, R.P.NO.841/2016 & R.P.NO.842/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **kkj** ## **K.SURENDRA MOHAN, J.& ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = ## **Mat Appeal Nos.498 & 507 of 2012** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 22nd day of July, 2016 ## JUDGMENT ## **Anu Sivaraman,J.** 1.These appeals arise from a common judgment dated 31.03.2002 in OP.Nos.1144 and 1145 of 2008 of the Family Court, Alappuzha. O.P.No.1144 of 2008 was for return of gold ornaments while O.P.No.1145 of 2008 was for divorce on the ground of cruelty. The wife was the petitioner in both these original petitions. The marriage between the parties took place on 12.11.2005 at the Pazhaveedu Devi Temple in Alappuzha. After the marriage, it is alleged in the petition that the parties had resided together in the house of the respondent husband in Thakazhi along with his mother and brother. The respondent was employed in Libya at the time of marriage as a Foreman and he had returned to Libya on 05.12.2005. He came back in July, 2006 and the petitioner conceived their only child. It is stated that she had been sent to her own house by the end of 2006 and a boy child was born on 20.05.2007 to them. It is alleged that the respondent, his Mat Appeal Nos.498 & 507/12 **2** mother and brother had treated the petitioner with utmost cruelty and had not cared to look after her or the child after her delivery. 2. In O.P.No.1144 of 2008 it was contended that the petitioner and the respondent had jointly rented a bank locker where the 101 sovereigns of gold given to the petitioner by her father at the time of the marriage had been kept for safe custody. The key of the locker was in the possession of the respondent and he had opened the same and appropriated the entire gold, it is stated. Therefore, the claim is made for return of the 101 soverigns of gold belonging to the petitioner which was allegedly appropriated by the respondent. Both the original petitions were tried together. The petitioner examined herself as PW1. Two other witnesses were also examined and Exhibits A1 to A3 documents were marked. The respondent examined himself as RW1 and the Secretary of the SNDP Sakha Yogam as RW2. A commission was taken out for the purpose of ascertaining matters relating to operation of the locker and Mat Appeal Nos.498 & 507/12 **3** Exhibit C1 report of the Commissioner and Exhibit C2 mahazar were marked as court exhibits. Exhibits X1 and X2 copies of safe deposit locker receipts and Exhibit X3 copy of marriage register of SNDP, Thiruvambadi were also produced and marked as court exhibits. 3. After considering the oral and documentary evidence adduced, as well as the report of the Commissioner and third party exhibits at considerable length, the Family Court came to the conclusion that the petitioner had been unsuccessful in proving her contention of cruelty. The petition for dissolution of marriage was therefore dismissed. As regards O.P.No. 1144 of 2008 for return of gold ornaments, on examining the entire pleading and materials on record, the Family Court found that the petitioner could not prove that the gold ornaments allegedly given to her at the time of her marriage were retained by the respondent. On appreciation of the evidence, it entered a finding that the entire gold ornaments were in the petitioner's custody. The respondent had admitted that a chain weighing 4½ sovereigns of gold which had been gifted to him by the petitioner at the time of the marriage was in his custody. In the above circumstances, Mat Appeal Nos.498 & 507/12 **4** O.P.No.1144 of 2008 was ordered directing the return of 4½ sovereigns of gold. The common judgment is under challenge at the instance of the petitioner wife in the matrimonial appeal. 4. It is contended on behalf of the appellant that the cruelty meted out to her had been proved by her testimony which was amply supported by the testimony of PW3, who is her aunt. Further, Annexures A2 letter and A3 photograph would clearly show that the respondent husband was lodging feelings of distrust and animosity towards the petitioner and that he had expressed unwillingness to even see the petitioner's face in a photograph. Apart from the above, since the marriage is irretrievably broken down and since the parties to the marriage are living separately from November 2006, no meaningful purpose will be served by continuing the marital relationship. It is further stated that the willful refusal of the respondent to look after her and the child had caused the unhappy situation. The counsel for the appellant relies on the decisions of this Court reported in **Preetha K v. N.Bhaskaran** [2010(4) ILT 297] and **Ashok Govindram v. Rupa Ashok** [1996(2) KLJ SN 77] as well as of the Apex Court in **Romesh Chander v. Savitri** [(1995) 2 SCC 7]. She, therefore, seeks a decree of dissolution of marriage. Mat Appeal Nos.498 & 507/12 **5** 5. With regard to Mat Appeals, it is contended that the fact that the appellant had been gifted 101 sovereigns of gold at the time of her marriage was not in dispute. However, in the objection filed in O.P.No.1144 of 2008, the respondent had contended that out of the said 101 sovereigns, apart from the chain weighing 4 ½ sovereigns of gold, nothing had been taken by him and the said gold was always in the possession of the appellant and most of it was utilised by the appellant's father for the construction of a house for her. Relying heavily on Exts.C1 Commission report and C2 mahazar, the learned counsel for the appellant would submit that the locker was taken out in the joint names of the parties on 01.12.2005 On that day, the husband and wife had signed the register. Thereafter, the locker was opened 22.01.2007, 31.01.2007, 30.06.2007 and 07.07.2008. It is stated in Exhibit C1 that on all these days only the respondent husband had signed in the register. It is, therefore, the contention of the learned counsel for the appellant that it is to be presumed that the gold which had been placed in the locker was taken out by the respondent and had been sold or appropriated by him. The learned counsel relies on decisions of this Court in **William** Mat Appeal Nos.498 & 507/12 **6** **David @ Bijo and others v. Linu Mary George** [2010 (4) KLT 691] and **Bexy Michael v. A. Michael** [2010 (4) KHC 376] in support of her contention that it would be unreasonable to look for documentary evidence or totally independent oral evidence to show the quantity of gold ornaments or cash which had changed hands at the time of marriage. 6. The respondent, who appeared in person, would, on the other hand, submit that though the gold which was in the appellant's possession had been initially kept in the locker, it was later taken out and was in the full custody and possession of the appellant. She had made no claims regarding the return of the gold ornaments during the conciliatory talks and had raised the same only as an after thought at the time of filing of the original petitions with an intention to harass him. It is specifically contended that a major share of the gold in her possession had been utilised by her father for construction of a house close to her father's residence. 7. We have considered the contentions advanced on either side in detail and have gone through the pleadings and materials on Mat Appeal Nos.498 & 507/12 **7** record. As regards the allegations of cruelty made against the respondent, the Family Court, on an anxious consideration of the evidence and materials before it, had come to the conclusion that sufficient evidence to substantiate such cruelty as is required for the grant of a decree of divorce had not been let in by the petitioner. Apart from allegations made in the pleadings, we also find that no single instance of cruelty could be proved by the petitioner with cogent evidence. In such circumstances, the refusal of the court below to grant decree of dissolution of marriage on the ground of cruelty cannot be found fault with. 8. As regards the petition for return of gold ornaments, though substantial amount of evidence was let in by the appellant before the court below, the crucial aspect of entrustment of the gold to the respondent or his access and possession of the same could not, according to the Family Court, be successfully proved. The fact that the appellant had 101 sovereigns of gold at the time of marriage is not seriously disputed by the respondent also. That a locker had been rented out in their joint names on 01.12.2005 and the gold kept there also seems to be admitted. Though the appellant heavily relies on the fact that after the initial opening Mat Appeal Nos.498 & 507/12 **8** of the locker by both parties, the register was signed only by the respondent on all later occasions to contend that the gold would have been taken out by him, the court below on an appreciation of the oral and documentary evidence came to the conclusion that no such inference could be drawn. The court below also found substance in the contention that the said allegation as to appropriation of the gold was only an afterthought and had not been raised in any of the conciliation attempts. The reliance which was sought to be placed on Exhibit A2 letter and Exhibit A3 photograph was also declined, since the respondent had disputed that he had written such a letter and had voluntarily offered a specimen of his handwriting for examination by the Court and had also sought the comparison of the handwriting in the letter with the admitted writing by an expert. This interlocutory application was resisted by the appellant in the court below and it was dismissed on the ground that nothing turned on Exhibit A2. In the above circumstances, we are of the considered opinion that the contents of Exhibit A2 cannot be relied upon by the appellant to substantiate the contention that the gold was in respondent's possession. The appellant had failed in establishing with the aid of reliable evidence that the gold Mat Appeal Nos.498 & 507/12 **9** ornaments given to her at the time of her marriage, apart from a chain which he admitted being in possession of, had been entrusted with the respondent. The Family Court had considered the contentions raised by the parties and the evidence adduced in detail. 9. Having considered the pleadings and evidence, we find no material to hold that the conclusions arrived at by the court below were illegal or unsupported. We find no material irregularity or illegality in the judgment of the Family Court which warrants inference in these appeals. These Mat Appeals are accordingly dismissed. There will be no order as to costs. sd/- ## **K.Surendra Mohan, Judge** sd/- **Anu Sivaraman, Judge** sj /True Copy/ P.A. to Judge **10** Mat Appeal Nos.498 & 507/12 The common judgment dated 22/07/2016 in Mat.Appeal Nos.498/2012 and 507/2012 is recalled vide order dated 16/12/2016 in RP No.841/2016 in Mat.Appeal No.498/2012 and RP No.842/2016 in Mat.Appeal No.507/2012 respectively.