P.P.Rajesh vs Deepthi P.R
2021 Latest Caselaw 14975 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                 MAT.APPEAL NO. 632 OF 2018
        AGAINST THE JUDGMENT IN OP 683/2012 OF FAMILY
              COURT,ERNAKULAM DATED 15.10.2016
APPELLANTS/RESPONDENTS:

    1     P.P.RAJESH
          AGED 38 YEARS
          S/O. LATE PURUSHOTHAMAN, PERINGOTTUKARAN HOUSE,
          CHIRANGARA, KORATTY P.O.,
          THRISSUR DISTRICT - 680 308.
    2     PONAMMA PURUSHOTHAMAN
          AGED 58 YEARS
          W/O. LATE PURUSHOTHAMAN, PERINGOTTUKARAN HOUSE,
          CHIRANGARA, KORATTY P.O.,
          THRISSUR DISTRICT - 680 308.
          BY ADV SRI.MAHESH V.MENON


RESPONDENT/PETITIONER:

          DEEPTHI P.R
          D/O. P.K. RAMANAN, PALAPILLIL HOUSE, NEDUMBASSERY,
          ATHANI P.O., ERNAKULAM DISTRICT - 680 005.
          BY ADVS.
          SRI.P.V.MOHANAN
          SRI.BIJU.P.N.

     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
08.07.2021, THE COURT ON 16.07.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal No.632/2018

                              -:2:-

                                                            "C.R."


                         J U D G M E N T

           Dated this the 16th day of      July, 2021


Dr.Kauser Edappagath, J.

This is an appeal filed under Section 19 of the Family Courts

Act, 1984 (for short, "the Act") against the judgment of the Family

Court, Ernakulam in O.P.No.683 of 2012 dated 15.10.2016.

2. The first appellant and the respondent are divorced

spouses. Their marriage took place on 26.01.2014 as per the

Hindu rites. Two children were born out of the wedlock. The

respondent instituted O.P.No.2425 of 2011 before the court below

against the first appellant and obtained a decree of dissolution of

marriage which has become final. The second appellant is the

mother of the first appellant. The original petition (O.P.No.683 of

2012) was instituted by the respondent against the appellants for

return of gold ornaments, household articles, cash as well as for

damages. It is the case of the respondent that at the time of

marriage her parents had given her 75 sovereigns of gold

ornaments and `3,00,000/- in cash which was later on taken away

and misappropriated by the appellants. It is further alleged that Mat.Appeal No.632/2018

immediately after the marriage, the respondent had brought

furniture and household articles worth `60,000/- from her house

to the house of the appellants and in the year 2007, the father of

the respondent had given furniture and household articles worth

`40,000/- to the first appellant when they shifted to a rented

house. According to the respondent, even after divorce, those

furniture and household articles worth `1,00,000/- were with the

appellants. It is also alleged that in view of the cruel conduct and

harassment by the appellants, the respondent was put to much

physical harm, mental pain and sufferings. The original petition

has been filed for return of gold ornaments, household articles

and money mentioned above as well as for damages. The total

claim made was for `25,96,730/-.

3. In the objection statement filed by the appellants, they

denied the case set up by the respondent that gold ornaments,

furniture and household articles and cash were entrusted to them

and they misappropriated it. It is contended that only 30

sovereigns of gold ornaments were given to the respondent at

the time of marriage and those were kept by the respondent

herself in safe custody at her house. The allegation in the original

petition that the respondent is entitled to damages for the Mat.Appeal No.632/2018

alleged cruelty meted out to her by the appellants has also been

denied. The appellants sought for the dismissal of the original

petition.

4. The respondent had preferred O.P.No.2425 of 2011

against the first appellant for dissolution of marriage on the

ground of cruelty. The said original petition was tried along with

O.P.No.683 of 2012. PWs 1 to 5 were examined on the side of the

respondent and Exts.A1 to A20 were marked. RW1 was examined

on the side of the appellants. Ext.X1 was marked as Court exhibit.

After trial, the court below allowed both the original petitions. A

decree of dissolution of marriage was granted in

O.P.No.2425/2011. A decree for `25,00,000/- was granted in

O.P.No.683/2012. No appeal has been preferred against the

decree in O.P.No.2425/2011 and, thus, it has become final. The

decree and judgment in O.P.No.683/2012 is under challenge in

this appeal.

5. We have heard Shri Mahesh V. Menon, the learned

counsel for the appellants and Sri Biju P.N., the learned counsel

for the respondent.

6. The claims of the respondent are under the following

four heads: (i) Claim for return of gold ornaments or its value, (ii) Mat.Appeal No.632/2018

Claim for return of money with interest, (iii) Claim for return of

furniture and household articles or its value, (iv) Claim for

damages. We will discuss each claim one by one.

7. Claim (i): The definite case of the respondent in the

pleadings is that at the time of marriage, her parents and family

members gave her 75 sovereigns of gold ornaments, that after

four days of marriage when she went to the matrimonial home

she carried with her those gold ornaments and on the fifth day,

the second appellant with the concurrence of the first appellant

took the entire gold ornaments from her. It is further alleged that

those gold ornaments were subsequently sold by the appellants

within one year of marriage and sale proceeds were appropriated

by them. To prove this, the respondent relied on her own oral

testimony, the oral evidence of her father and aunt who were

examined as PWs 2 and 4. The respondent also relied on Exts.A1

to A5 and A15 to A17.

8. The respondent gave oral evidence as PW1 in tune

with the pleadings. In paragraph 51 of the chief affidavit, she has

clearly narrated who all gifted her 75 sovereigns of gold

ornaments. In paragraph 47, she has given details of the gold

ornaments with its description and weight. In paragraph 49, she Mat.Appeal No.632/2018

has stated that she had taken all the gold ornaments to the

matrimonial home when she went there on the fourth day of

marriage and all those gold ornaments were appropriated by the

appellants. This positive evidence was not successfully

challenged in cross examination.

9. PW2 is the father of PW1. He gave evidence to

corroborate the evidence given by PW1. He also gave positive

evidence regarding the gold ornaments possessed by PW1 at the

time of marriage, its entrustment and misappropriation by the

appellants. PW4 is the aunt of PW1. She deposed that she had

attended the wedding and was also a party to the discussion and

decision prior to the marriage. She clearly gave evidence that at

the time of marriage, the parents of PW1 had gifted her 75

sovereigns of gold ornaments. She specifically stated that out of

such gold ornaments, she had given a bangle weighing 3

sovereigns, her sister Ambika gifted a bangle weighing 3

sovereigns, her mother gifted a chain weighing 4 sovereigns, her

brother Sugathan gifted a bangle weighing 4 sovereigns and her

another brother Mohanan gifted a necklace weighing 5

sovereigns. She added that it was taking all such gold ornaments,

the parents gifted 75 sovereigns of gold ornaments to PW1 at the Mat.Appeal No.632/2018

time of marriage. This evidence given by PW4 is in tune with the

evidence given by PWs 1 and 2. Even though Pws1, 2 and 4 were

cross examined in length, nothing tangible could be brought out

in cross examination to discredit their testimony.

10. It is a 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. Indian parents start making jewellery for their

daughters since their birth to make sure that they have enough

golden jewellery for their marriage. Thus, it would be unrealistic

for a Court to insist for documentary evidence regarding

ornaments that had changed hands at the time of marriage. The

Court can, certainly, act upon oral evidence if it is found credible

and trustworthy. It is also quite common that when the bride

moves to the house of the groom after the marriage, she takes all

her ornaments and entrust the same, except few required for

daily wear, to her husband or in-laws for safe custody. Such

entrustment also could be established by the sole testimony of

the wife since, normally, no independent witness would be

available to witness the same. Once such entrustment is made, a

trust gets created. Being a trustee, the husband or his parents, as Mat.Appeal No.632/2018

the case may be, is liable to return the same. In Leelamma N.P.

v. M.A.Moni (2017 (3) KHC 340), the Division Bench of this Court

held that once it is proved that gold ornaments were entrusted by

the wife to the husband, the burden is on the husband to prove

as to what happened to the gold ornaments. It is further held that

if it was taken by the wife when she left the matrimonial home,

the same has to be proved by the husband.

11. The learned counsel for the appellants argued that

there is vital contradiction in the evidence of PWs 1, 2 and 4

regarding purchase of gold ornaments and that PW1 failed to

depose about the model of gold ornaments and price, etc. and as

such, they cannot be relied on. The learned counsel brought our

attention to the evidence of PW1, 2 and 4 in this regard. PW1

stated that 45 sovereigns of gold ornaments were purchased

from the jewellery whereas PW2 deposed that 48 sovereigns of

gold ornaments were with him and the balance were purchased

from jewellery. PW4 deposed that all the gold ornaments

including the presented items were purchased from the jewellery.

This has been highlighted as vital contradictions. When the

witnesses give evidence after lapse of so many years, marginal

variations and discrepancies are bound to occur. On an over all Mat.Appeal No.632/2018

appreciation of oral evidence of PWs 1, 2 and 4, we do not find

that those discrepancies are significant so as to doubt their

veracity. The detailed description of the gold ornaments were

given in a schedule in the chief affidavit. That apart, the

appellants admitted in their objection statement that the

respondent had with her 30 sovereigns of gold ornaments at the

time of marriage. When the respondent was examined as PW1,

the counsel for the appellants also put a suggestion that she was

wearing 30 sovereigns of gold ornaments at the time of marriage.

For all these reasons, we are of the view that the oral evidence of

PWs 1, 2 and 4 could safely be relied on.

12. To corroborate the oral evidence, the respondent relies

on the documentary evidence such as Exts.A1 to A5 and Exts.A15

to A17. Exts.A1 to A4 are wedding photographs. It has been

produced to prove that the respondent was wearing gold

ornaments on the wedding day. Ext.A5 and Ext.X1 are one and

the same. It is the copy of the marriage register issued by SNDP

Sakha Yogam, Athani. It has been produced to prove the entry

therein that the respondent was wearing 75 sovereigns of gold

ornaments at the time of marriage. Ext.A16 is the estimate of

gold ornaments issued by the jewellery from where gold Mat.Appeal No.632/2018

ornaments were purchased. Exts.A15 and A17 have been

produced to prove the source of PW2 to purchase the gold

ornaments. Ext.A15 is a promissory note dated 12.12.2003 given

by PW2 to one Sivan stating that he has borrowed `4,00,000/-.

Ext.A17 is a certificate issued by the Ernakulam District Posts,

Telecom and BSNL Employees' Co-operative Society Ltd. stating

that PW2 had availed a cash loan of `82,500/- on 12.01.2004 for

the marriage of his daughter.

13. The learned counsel for the appellants submitted that

the above documentary evidence could not have been even

admitted in view of the provisions of Sections 61 to 65 of the

Evidence Act. We are unable to agree with the learned counsel

for the reason that, in our view, the technicalities of the Evidence

Act cannot be imported to a proceedings before the Family Court.

S.14 of the Act provides for exception to the general rule of

evidence regarding admissibility of statements and documents. It

is clear from the section itself that the technicalities of Indian

Evidence Act regarding the admissibility or relevancy of evidence

are not strictly applicable to the proceedings under the Family

Court. In the matrimonial disputes before the Family Court, a

discretion has been given to the Court to rely on documents Mat.Appeal No.632/2018

produced if the Court is satisfied that it is required to assist the

Court to effectively deal with the dispute, whether or not the

same would be otherwise relevant or admissible under the Indian

Evidence Act. The rigor of the Indian Evidence Act, therefore, is

not to be applied in a proceeding before the Family Court

constituted under the Act.

14. Exts.A1 to A4 photographs would show that the

respondent was wearing large number of gold ornaments on the

wedding day. The learned counsel for the appellants submitted

that the respondent did not produce the negatives of the

photographs nor did she examine the photographer to prove the

photographs. The counsel also relied on the decision of the

Division Bench of this Court in Mohammed Ali v. Raihanath

and another (2015 KHC 820). It was held that the practice of

passing orders for returning gold ornaments merely by looking at

photographs without considering the question whether claim is

plausible is not permissible. It is not a case where the respondent

is relying on Exts.A1 to A4 alone. There are oral evidence as well

as other documentary evidence. That apart, there was no much

challenge to Exts.A1 to A4 at the court below. The next important

piece of documentary evidence relied on by the respondent is Mat.Appeal No.632/2018

Ext.A5. The learned counsel submitted that it is only a photocopy

and the person who issued it was not examined. The counsel

further submitted that by mere production of the said document,

the contents of the same would not stand proved. The counsel

relied on the decision of the Division Bench of this Court in

Pramod E.K. v. Louna V.C. (2019 (1) KHC 292) in support of his

argument. It was held that a document merely marked with or

without the consent of opposite party in a proceeding before the

Family Court is no proof unless contents thereof are either

admitted by adverse party or proved through persons who can

vouch for the truth of the facts. Ext.A5 is the photocopy of the

extract of the marriage register issued by SNDP Sakha Yogam,

Athani unit. It was let in evidence through PW1. Since the

appellants disputed the said document, the respondent filed a

petition as I.A.No.931/2016 at the court below to issue summons

to the Secretary, SNDP Sakha Yogam, Athani to produce the

certified extract of Ext.A5. The said petition was allowed and the

certified extract of Ext.A5 was produced and marked as Ext.X1. In

Ext.X1/A5 it is clearly stated that the respondent had worn 75

sovereigns of gold ornaments on the wedding day. PW1 was cross

examined by the appellants on Ext.A5. The trend of cross Mat.Appeal No.632/2018

examination would show that the appellants did not challenge the

genuineness of Ext.A5 or the contents in it. The suggestion put

forward to PW1 was that the entry in Ext.A5 that she was wearing

75 sovereigns of gold ornaments on the wedding day was made

at her instance. In these circumstances, we are of the view that

the dictum laid down in the above decision cannot be applied to

the facts of the case and Ext.A5/X1 could be relied on to

corroborate the oral testimony of PWs 1, 2 and 4. The appellants

also challenged the source of PW2 to purchase the gold

ornaments. As stated already, the definite case of the respondent

is that some of the gold ornaments were gifted by her relatives,

some were already with her parents and few were purchased. To

prove the source, the respondent relied on Exts.A15 and A17.

Ext.A15 would show that PW2 had borrowed a sum of `4,00,000/-

on 12.12.2003 by executing a promissory note from one Sivan.

Ext.A17 would show that PW2 had availed cash loan of `82,500/-

on 12.01.2004 for the marriage of PW1. The marriage was on

26.01.2004. Exts.A15 and A17 were also not seriously challenged

at the court. Exts.A1 to A5, A16 and A17 could be admitted in

evidence and relied on with the aid of Section 14 of the Act.

15. PW1 gave evidence that she went to matrimonial Mat.Appeal No.632/2018

home on the fourth day of marriage and she has taken with her

the entire gold ornaments. She further deposed that on that night

itself, the second appellant at the instance of the first appellant,

collected entire gold ornaments from her under the pretext of

safe custody and kept with her. She added that she was only

given thali and two bangles for daily wear. She also gave

evidence that later all her gold ornaments were sold by the

appellants and the amounts were appropriated by them. In this

regard, it is necessary to refer to certain contentions in the

objection statement filed by the appellants. It is stated that, on

the fourth day after marriage, the first appellant and respondent

came to the matrimonial home and after two days they returned

to the parental home of the respondent. On that day, the

respondent entrusted her mother all the gold ornaments to keep

in the bank locker and she returned to matrimonial home without

any gold ornaments except few required for daily wear. Thus, the

appellant admitted that respondent had carried all the gold

ornaments when the couple reached matrimonial home on the

fourth day. But, when PW1 was cross examined, the suggestion

put forward was that when the respondent went to matrimonial

home, she did not take any gold ornaments and it was kept with Mat.Appeal No.632/2018

PW2. This is mutually contradictory stand. The appellants have

also a contention that these gold ornaments were utilized by PW2

for the construction of his house. Ext. A18 building construction

contract coupled with oral evidence of PW2 would show that the

renovation and additional construction of the house took place

only in 2009-2010.

16. The evidence discussed above would clearly establish

that 75 sovereigns gold ornaments gifted to the respondent at

the time of her marriage were entrusted to the appellants. The

burden is upon the appellants to prove what happened to those

gold ornaments. The appellants miserably failed to prove this.

The oral evidence given by PW1 that the appellants sold the

same and misappropriated the money is only to be believed.

Hence, no interference is called for on the finding of the Court

below that the appellants are bound to pay to the respondents

the value of the gold ornaments.

17. Claim (ii): The respondent claimed under this head

`3,00,000/- allegedly given to her by her parents and

appropriated by the first appellant soon after the marriage. She

also claimed interest to the tune of `1,96,730/- calculated at the

rate of 8% per annum on `3,00,000/- from 26.01.2004. To prove Mat.Appeal No.632/2018

this claim, the respondent relied on the oral evidence of PWs 1, 2

and 4 alone.

18. The case of the respondent in the original petition as

well as in chief affidavit of PW1 is that her parents gave her

`3,00,000/- at the time of marriage and was appropriated by the

first appellant later. In chief examination, in paragraph 15, the

date of handing over of cash by her parents to PW1 was

specifically spoken to by her as 26.01.2004, the date of marriage.

But, in cross examination, she had a totally different story to tell.

She deposed that the said amount was handed over on the date

of engagement, i.e on 14.12.2003, that too, by PW2 to the uncle

of the first appellant namely Rajan. When PW2 was examined, he

had yet another version. He stated in chief examination that the

said amount was given on the date of engagement by the uncle

of PW1 namely Gopalakrishnan to the uncle of the first appellant

namely Rajan. PW4 deposed that the said amount was given by

PW1 to the uncle of the first appellant namely Rajan on

14.12.2003. Thus, the evidence in this regard is mutually

contradictory and not convincing. Neither Gopalakrishnan nor

Rajan mentioned above were examined. There is no other piece

of evidence as well. Hence, we are of the view that the court Mat.Appeal No.632/2018

below went wrong in allowing the said claim. We set aside the

said finding.

19. Claim (iii): The respondent claimed under this head the

value of the furniture and household articles worth `1,00,000/-

allegedly given to the first appellant on two occasions. It is

alleged that the furniture and household articles worth `.60,000/-

were brought from the house of the respondent to the house of

the appellants immediately after marriage in January, 2004. It is

further alleged that thereafter when the respondent and first

appellant shifted to the rented house in April, 2007, PW2 gave

furniture and household items worth `40,000/- to the said house.

It is also alleged that all the above items were retained by the

appellants without allowing the respondent to take it back. PW1

and PW2 gave evidence to prove this aspect. It is pertinent to

note that they were not cross examined on the said aspect. The

evidence of PW5 would corroborate the evidence of Pws 1 and 2.

PW5 is a driver of a tempo van who transported the furniture and

household articles on the first occasion in January, 2004 to the

house of the appellants and on the second occasion in April 2007

to the rented house. There is nothing to disbelieve his testimony.

Hence, we confirm the finding on this claim.

Mat.Appeal No.632/2018

20. Claim (iv): The respondent claimed under this head,

`5,00,000/- as damages for the physical harm, mental pain and

agony suffered by her by the cruel conduct and harassment of

the appellants.

21. A contention has been raised by the learned counsel

for the appellants that the Family Court lacks jurisdiction to

adjudicate the claim for damages on account of matrimonial

cruelty. According to the learned counsel, such a claim for

damages will not be covered by Explanation (c) or (d) to Section 7

(1) of the Act.

22. The claim for damages for the physical harm and

emotional distress endured by the respondent at the hands of the

appellant is a tortious action. 'Tort' is a broad legal term meaning

an accidental or intentional wrongful act that injures another

person. There are a few torts that relate specifically to marriage,

such as fraudulent inducement to marry or dissipation of marital

assets. There are other torts that are not specific to marriage, but

frequently arise within the context of a marital relationship. These

types of torts that happen during the marriage are categorised as

'Marital torts' and are actionable. 'Marital torts' are any tort

inflicted by one spouse upon the other during marriage. One Mat.Appeal No.632/2018

spouse can sue the other for tortious actions before the civil

Court in the same way they can sue a stranger for his/her

wrongful conduct like physical or mental abuse. On the above

legal position, it is clear that the respondent has a cause of action

to sue for damages. But, the question posed is, can such claim for

damages be maintained before the Family Court?

23. A reading of Section 7 of the Act shows that it provides

for jurisdiction of Family court to entertain certain class of suits

and proceedings. As per the said section, a Family Court shall

have, and exercise all the jurisdiction exercisable by any District

Court or any subordinate Civil Court under any law for the time

being in force in respect of suits and proceedings of the nature

referred to in the Explanation. Explanation (c) refers to a suit or

other proceeding between the parties to marriage with respect to

their properties or of either of them whereas Explanation (d)

refers to a suit or proceeding for an order of injunction in the

circumstances arising out of the marital relationship. No doubt,

the claim for damages for the cruelty endured by the respondent

at the hands of the appellants is not one with respect to the

property of the parties to the marriage or either of them. Hence,

Explanation (c) is not attracted.

Mat.Appeal No.632/2018

24. Explanation (d) provides that a Family Court has

jurisdiction to entertain "a suit or proceeding for an order or

injunction in circumstances arising out of a marital relationship".

The emphasis under clause (d) is on the fact that the suit or

proceedings must stem from circumstances arising out of a

marital relationship. Thus, a suit or proceeding seeking an order

for whatever relief including compensation or damages will be

within the jurisdiction of the Family Court, if it emerged in

circumstances arising out of the marital relationship. The Family

Courts Act, 1984 was enacted to have a mechanism for

settlement of family disputes without formal trappings and with

the intention to advance the cause of matrimonial happiness and

harmony. Such generous objects behind the enactment can be

achieved only by a liberal interpretation of the relevant

expressions in the provisions of the Act, understanding real

import of the social legislation. It is trite that the jurisdiction of a

court created specially for resolution of disputes of certain kinds

should be construed liberally. The restricted meaning if ascribed

to Explanation (d) of S.7 would frustrate the very object of the

Act. The Division Bench of this Court in Leby Issac v. Leena. M.

Ninan and Others (2005 (9) KHC 960) took the view that the Mat.Appeal No.632/2018

Family Court has jurisdiction to entertain a suit filed by the

husband for damages against his wife and father in law for the

pain and sufferings suffered by him on account of the adulterous

act of the wife. It was held that such a suit would be covered by

Explanation (d) to S.7(1) of the Family Courts Act. For all these

reasons, we hold that an action for marital tort by one spouse

against other squarely falls within the jurisdictional competence

of the Family Court. Such a claim can be made either along with

the action for divorce or independently by way of a separate suit.

Hence, the respondent's claim for damages is perfectly

maintainable.

25. No wrongs should remain unredressed. All persons

committing wrongs are liable in an action for damages. As stated

already, the original petition for dissolution of marriage was tried

along with this original petition. The dissolution of marriage was

sought on the ground of cruelty. The definite case of the

respondent was that, over the course of marriage, the appellants

exercised cruelty, both physical and mental, on her. The case of

cruelty set up by the respondent was satisfactorily proved and

divorce was granted. Since the respondent sustained physical as

well as mental injury as a result of the conduct of the appellants, Mat.Appeal No.632/2018

she is entitled for damages. Hence, the appellants are liable to

pay damages to the respondents.

26. The next question is about the quantum of damages

entitled to the respondent. The Law of Tort is founded on the

principle that every injury must have a remedy. One of the

remedy available for the victim for the injury sustained by

him/her on account of the wrongful act on the part of the

tortfeasor is damages. It is settled that in the matter of assessing

damages and determining the quantum of compensation, the

court has to depend largely on peculiar features of the case

bordering conjectures or surmises. Section 12 of the Indian

Evidence Act lays down that in suits in which damages are

claimed, any fact which will enable the court to determine the

amount of damages which ought to be awarded is relevant.

27. There is no formulated rule or guideline to measure

damages in the case of wrongs arising from marital tort.

Damages for any tort, much less marital tort, are, or ought to be,

fixed at a sum, which will compensate the victim, so far as money

can do it, for all the injury he/she suffered. The victim is entitled

to general damages for the injury sustained by him/her. General

damages being those, which the law will presume to be natural Mat.Appeal No.632/2018

and probable consequences of the wrongful act as soon as it is

established that the tortfeasor is guilty of the wrongful act

complained of, it will be presumed that the victim has sustained

some damage and the amount he will be entitled is purely in the

discretion of the court. Where the injury is material, specific and

has been ascertained, it is generally possible to assess damages

with some precision. But, that is not so, where the injury

complained of is emotional distress or wounded feelings or

mental pain and suffering, as in the most of the cases of marital

tort. Not only it is impossible to ascertain, it is almost impossible

to equate the damages to a sum of money. In cases where there

is proof of outrageous tortious conduct, like deliberate and

wanton physical assault, high handed mental torture or

intentional infliction of emotional distress, by one spouse against

the other, the Court is not powerless to grant even exemplary

damages. One cannot measure in terms of money the injury

sustained by wounded feelings.

28. Coming to the merits, the various acts of cruelty, both

physical and mental, as well as harassment, meted out by the

respondent at the hands of the appellants have been spoken to in

detail by her in evidence. She deposed that she was abused Mat.Appeal No.632/2018

physically, emotionally and sexually by the appellants. The Court

below believed the said evidence and entered into a specific

finding that the respondent had suffered lot of mental, emotional

and physical harassment at the hands of the appellants. The said

finding has become final. Taking into consideration these aspects

of the case, the damages awarded by the court below cannot be

said to be excessive.

The court below allowed the claims under all the four heads

and a decree for `25,00,000/- (Rupees Twenty five lakhs only)

was granted in favour of the respondent as per the impugned

judgment. We have found that the relief under the head No (ii) for

return of money of `4,96,730/- granted by the court below cannot

be sustained. Hence, the decree amount is reduced to

`20,03,270/- [`25,00,000 - `4,96,730] (Rupees Twenty lakhs three

thousand two hundred and seventy only) with interest @ 6% per

annum from the date of the original petition till realisation. The

appeal is allowed in part to that extent without costs.

Sd/-

A. MUHAMED MUSTAQUE, JUDGE

Sd/-

DR. KAUSER EDAPPAGATH, JUDGE

Rp