Kerala High Court
Arvind Sadasivan vs Priyanka Pankaj on 9 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
MAT.APPEAL NO. 245 OF 2018
AGAINST THE JUDGMENT IN OP 756/2013 OF FAMILY
COURT,THIRUVANANTHAPURAM
APPELLANT/PETITIONER:
ARVIND SADASIVAN, S/O. SADASIVAN, AGED 29 YEARS,
RESIDING AT 17/1410,"SANGEETHA",POOJAPPURA P.O,
THIRUVANANTHAPURAM 695 012
BY ADVS.SMT.S.KARTHIKA
SMT.PREETHY KARUNAKARAN
RESPONDENT/COUNTER PETITIONER:
PRIYANKA PANKAJ
D/O.SULOCHANA PANKAJAKASHAN, AGED 26 YEARS,
RESIDING AT 2M, COTTON HILL HEIGHTS,
VAZHUTHACAUD,SASTHAMANGALAM P.O,
THIRUVANANTHAPURAM 695 010 *POWER OF ATTORNEY
HOLDER RECORDED.
THE MEMO TO RECEIVE THE POWER OF ATTORNEY
AUTHORIZING SRI.K.K.PANKAJAKSHAN, S/O.LATE.KUNJU
PANICKER, 2M, COTTON HILL HEIGHTS, VAZHUTHACAUD,
SASTHAMANGALAM, TRIVANDRUM AS THE POWER OF ATTORNEY
HOLDER FOR THE SOLE RESPONDENT IS RECORDED AS PER
ORDER DATED 27.8.2021, VIDE MEMO DATED 6.4.2018.
BY ADVS.SRI.PHILIP J.VETTICKATTU
SRI.VINEETH KURIAKOSE
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
27.08.2021, ALONG WITH Mat.Appeal.309/2018, 325/2018, THE
COURT ON 09.09.2021 DELIVERED THE FOLLOWING:
Mat.Appeal Nos. 245, 309 & 325/2018
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
MAT.APPEAL NO. 309 OF 2018
AGAINST THE JUDGMENT IN OP 897/2013 OF FAMILY COURT,
THIRUVANANTHAPURAM
APPELLANT/COUNTER PETITIONER:
ARVIND SADASIVAN
S/O.COL.A.SADASIVAN, AGED 30 YEARS, RESIDING AT
TC.17/1410, "SANGEETHA", POOJAPPURA P.O.,
THIRUVANANTHAPURAM DISTRICT-695012.
BY ADVS.SMT.S.KARTHIKA
SMT.PREETHY KARUNAKARAN
RESPONDENT/PETITIONER:
PRIYANKA PANKAJ
D/O.K.K.PANKAJAKSHAN, AGED 30 YEARS, RESIDING AT 2M,
COTTON HILL HEIGHTS, VAZHUTHACAUD,
THIRUVANANTHAPURAM DISTRICT-695010.
*POWER OF ATTORNEY HOLDER RECORDED.
THE MEMO TO RECEIVE THE POWER OF ATTORNEY
AUTHORIZING
SRI.K.K.PANKAJAKSHAN, S/O.LATE.KUNJU PANICKER, 2M,
COTTON HILL HEIGHTS, VAZHUTHACAUD, SASTHAMANGALAM,
TRIVANDRUM AS THE POWER OF ATTORNEY HOLDER FOR THE
SOLE RESPONDENT IS RECORDED AS PER ORDER DATED
26.6.2019, VIDE MEMO DATED 6.4.2018.
BY ADVS.SRI.PHILIP J.VETTICKATTU
SRI.VINEETH KURIAKOSE
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 27.08.2021, ALONG WITH Mat.Appeal.245/2018 AND CONNECTED
CASES, THE COURT ON 09.09.2021 DELIVERED THE FOLLOWING:
Mat.Appeal Nos. 245, 309 & 325/2018
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 9TH DAY OF SEPTEMBER 2021 / 18TH BHADRA, 1943
MAT.APPEAL NO. 325 OF 2018
AGAINST THE JUDGMENT IN OP 898/2013 OF FAMILY COURT,
THIRUVANANTHAPURAM
APPELLANT/RESPONDENT:
ARVIND SADASIVAN
S/O. COL. A. SADASIVAN, TC. 17/1410," SANGEETHA",
POOJAPPURA P.O, THIRUVANANTHAPURAM - 695 012.
BY ADVS.SMT.S.KARTHIKA
SMT.PREETHY KARUNAKARAN
RESPONDENT/PETITIONER:
PRIYANKA PANKAJ
D/O. K.K. PANKAJAKSHAN, 2M, COTTON HILL HEIGHTS,
VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 010.
*POWER OF ATTORNEY HOLDER RECORDED.
THE MEMO TO RECEIVE THE POWER OF ATTORNEY
AUTHORIZING
SRI.K.K.PANKAJAKSHAN, S/O.LATE.KUNJU PANICKER, 2M,
COTTON HILL HEIGHTS, VAZHUTHACAUD, SASTHAMANGALAM,
TRIVANDRUM AS THE POWER OF ATTORNEY HOLDER FOR THE
SOLE RESPONDENT IS RECORDED AS PER ORDER DATED
27.8.2021, VIDE MEMO DATED 6.4.2018.
BY ADVS.SRI.PHILIP J.VETTICKATTU
SRI.VINEETH KURIAKOSE
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 27.08.2021, ALONG WITH Mat.Appeal.245/2018 AND CONNECTED
CASES, THE COURT ON 09.09.2021 DELIVERED THE FOLLOWING:
Mat.Appeal Nos. 245, 309 & 325/2018
-:4:-
J U D G M E N T
Dated this the 9th day of September, 2021
Kauser Edappagath, J.
The husband who is the appellant in all the above appeals
challenges common judgment passed by the Family Court,
Thiruvananthapuram (for short "the court below") in OP
Nos.756/2013, 897/13 and 898/13 dated 26/5/2017.
2. The marriage between the appellant and the
respondent was solemnized on 1/6/2010 at Trivandrum Club,
Vazhuthacaud, Thiruvananthapuram in accordance with Hindu
customary rites. There is no issue in the wedlock. Admittedly the
appellant and the respondent lived together only till 24/1/2013.
The appellant was a businessman. The father of respondent was
also a businessman. The definite case of the respondent/wife is
that right from the inception of marriage, their marital life was
not cordial and happy. It was alleged that the appellant had no
interest in sex and failed to discharge his marital obligation as a
husband. In the bedroom he was more interested in seeing
Mat.Appeal Nos. 245, 309 & 325/2018
obscene pornographic videos, it was alleged. According to the
respondent, the appellant used to pick up quarrel with her for no
reason. It was further alleged that the appellant had always
entertained suspicion about the morality and chastity of the
respondent and on many occasions, he even asked her whether
she shared bed with her male friends. The respondent has also
highlighted instances where she was even physically assaulted by
the appellant. The respondent further projected a case that her
mother-in-law used to torture her. The respondent further
specifically alleged that the appellant was greedy for money and
always found one way or other to extract money from her father.
According to her, at the time of marriage, she was given with 200
sovereigns of gold ornaments and she further received 20
sovereigns of gold ornaments as gift from friends and relatives.
After the marriage, the appellant and his parents compelled her
to hand over all the gold ornaments to pledge the same in the
bank so as to utilize the amount for his business purpose. Thus,
the appellant took away 213 sovereigns of gold ornaments from
her and pledged the same in the bank for his business. It was
never returned. It was also alleged that the appellant insisted her
Mat.Appeal Nos. 245, 309 & 325/2018
to get money from her father to buy a property at Attipra Village
and due to repeated compulsion, she demanded money from her
father who gave `50,00,000/- to purchase the land in the joint
name of the appellant and the respondent, but, the appellant
clandestinely purchased the property in the joint name of himself
and his brother. Thereafter, the appellant again demanded
`50,00,000/- for his business purpose and her father arranged a
loan of `30,00,000/- by mortgaging his own property and paid to
him. Though he agreed to repay the same, it was not paid. The
respondent asserted that there were regular instances of outrage
and resentment by the appellant causing serious mental agony
and pain to her. It was in these circumstances, she preferred
original petition for dissolution of marriage on the ground of
cruelty as OP No.897/2013 and another original petition for return
of gold ornaments and money as OP No.898/2013.
3. The appellant specifically denied various instances of
cruelty allegedly exercised by him on the respondent and pleaded
in the original petition. According to him, it was the respondent
who often quarrelled with him and failed to discharge marital
obligations. The case of the respondent that she was given 200
Mat.Appeal Nos. 245, 309 & 325/2018
sovereigns of gold ornaments at the time of marriage by her
parents, that 20 sovereigns of gold ornaments were gifted by her
friends and relatives and those gold ornaments were handed over
to the appellant at his instance to pledge the same with the bank
and that later on, the father of the respondent paid to the
appellant `50,00,000/- to purchase the property and another
`30,00,000/- for his business purpose etc. are denied by the
appellant. It was contended that all the gold ornaments worn by
the respondent at the time of marriage were kept under her
custody and are in her possession. It was further contended that
the gold ornaments pledged by him for his business purpose were
his own gold ornaments. According to him, he was a loving and
dutiful husband and it was the respondent who left his company
unilaterally without any valid reason. All his attempts to take her
back to the matrimonial home failed due to the adamant attitude
of the respondent, it was contended. Hence, he instituted
original petition as OP No.756/2013 for restitution of conjugal
rights.
4. The court below tried all the original petitions together.
PWs1 to 11 were examined on the side of the respondent and
Mat.Appeal Nos. 245, 309 & 325/2018
Exts.A1 to A9(a) were marked. CPW1 and CPW2 were examined
on the side of the appellant and Exts.B1 to B16 were marked.
Exts.X1 to X24 were marked as court exhibits. After trial, the
court below dismissed OP No.756/2013 and allowed OP
Nos.897/13 and 898/2013. The marriage between the appellant
and the respondent was dissolved. The appellant was directed to
return 213 sovereigns of gold or `50,00,000/- as its value and
also to pay `80,00,000/- with interest to the respondent as per
the impugned judgment. Challenging the judgment in OP
No.756/2013, Mat.Appeal No.245/2018 has been preferred.
Challenging the judgment in OP No.897/2013, Mat.Appeal
No.309/2018 has been preferred. Challenging the judgment in OP
No.898/2013, Mat.Appeal No.325/2018 has been preferred. Since
all the appeals are interconnected, we dispose of the same by
this common judgment.
5. We have heard Smt.S.Karthika, the learned counsel for
the appellant and Sri.Philip J.Vettickattu, learned counsel for the
respondent.
6. We will first consider the claim of the respondent
regarding return of gold ornaments and money. In the original
Mat.Appeal Nos. 245, 309 & 325/2018
petition, the respondent has specifically pleaded that at the time
of marriage, she was given 200 sovereigns of gold ornaments by
her parents and in addition to that, she received 20 sovereigns of
gold ornaments as gift from her friends and relatives and that the
appellant and his parents compelled her to hand over all the gold
ornaments to pledge the same so as to utilize the amount
therefrom for the business of the appellant. It was further
pleaded that even though the respondent was not agreeable to
pledge all the gold ornaments, she had no alternative than to
obey the strict instruction of the appellant and his parents and
accordingly the appellant took 213 sovereigns of gold ornaments
from her and pledged the same in the bank for his business
purpose and those gold ornaments were never returned. The
respondent gave evidence as PW1 and her father gave evidence
as PW2. Both of them gave evidence in tune with the pleadings.
PW1 deposed that all of her gold ornaments except few used for
daily wear were kept in the bank locker and those gold ornaments
were taken by the appellant from the bank locker while she was
away at Chennai in connection with her studies and pledged with
the bank for raising funds for his business purpose. It has come
Mat.Appeal Nos. 245, 309 & 325/2018
out in evidence that PW2 was employed in Kuwait for more than
30 years. Thereafter he was running a business as Pankaj
Builders. The financial capacity of the respondent and her father
is not disputed. PW2 gave evidence that while he was in Gulf, he
brought more than 100 sovereigns of gold to India and the same
was used for making gold ornaments for the respondent at the
time of her marriage. Ext.A1 series are the marriage
photographs. It would show that the respondent was wearing
large quantity of gold ornaments on the wedding day. The court
below on analysis of the evidence found that the gold ornaments
shown in Ext.A1 series photographs almost tally with the gold
ornaments shown in the schedule of the petition. Exts.A2 and A3
are the bills issued from Kalyan Jewellers. Exts.A1 to A3 were not
disputed. Thus, the evidence of PW1 and PW2 coupled with
Exts.A1 to A3 series prove the case of the respondent that she
was given 220 sovereigns of gold ornaments as gift at the time of
her marriage by her parents, relatives and friends.
7. The respondent relied on the evidence of PWs1 to 4
and Exts.X1, X4(a) and X10 to X22 to prove the entrustment of
220 sovereigns of gold ornaments to the appellant and pledging
Mat.Appeal Nos. 245, 309 & 325/2018
of 213 sovereigns of gold ornaments out of it by him for his
business purpose. It is not in dispute that a bank locker was
opened in the joint name of the appellant and the respondent at
Dhanlaxmi Bank. PW1 specifically deposed that all of her gold
ornaments except few used for her daily wear were kept in the
bank locker and when she was studying in Chennai, the appellant
pledged her gold ornaments for raising funds for his business
purpose. PW3 is the Branch Manager of Dhanlaxmi Bank. Ext.X1
is the document showing the date of opening of the locker issued
by Dhanlaxmi Bank. The evidence of PW3 along with Ext.X1 also
would show that a safe deposit locker was opened by the
appellant and the respondent jointly as locker No.63. Ext.X1
would further show that the said locker was opened on
24/10/2011, 7/12/2011, 23/12/2011, 22/6/2012, 28/6/2012,
22/10/2012, 12/11/2012, 27/11/2012 and on 3/12/2012. It was
the appellant who opened the locker except on 12/11/2012 and
27/11/2012.
8. The appellant has admitted that he had pledged gold
ornaments at Catholic Syrian Bank, Thirumala Branch and availed
loan for his business purpose. But, according to him, those gold
Mat.Appeal Nos. 245, 309 & 325/2018
ornaments were obtained by him from his family and not given by
the respondent. PW4 is the Branch Manager of Catholic Syrian
Bank, Thirumala Branch. Exts.X4(a), X5 and X10 to X22 were
marked through him. Ext.X4(a) is the certified copy of the extract
of the SB account maintained by the appellant. Exts.X10 to X22
are gold loan opening forms in the name of the appellant. Ext.X5
gives the details of the gold loan taken and closed by the
appellant. PW1 in cross-examination had admitted that she had
opened the locker on 27/11/2012 and on that day, she had seen
her gold ornaments in the locker. Relying on the said admission,
the learned counsel for the appellant vehemently argued that the
said admission would prove that the gold ornaments pledged by
the appellant with the Catholic Syrian Bank were not of the
respondent. We cannot subscribe to the said argument. As stated
already, it has come out in evidence that on 3/12/2012, the
appellant has opened the locker as evident from Ext.X1. Ext.X21
would show that the appellant had pledged 1600.3 grams of gold
ornaments on 3/12/2012 itself for a sum of `36,34,000/- and he
closed the said loan transaction on 9/2/2013 as evident from
Ext.X22. 1600.3 grams is equivalent to 200 sovereigns of gold
Mat.Appeal Nos. 245, 309 & 325/2018
ornaments. The evidence of PW4 coupled with Ext.X22 would
show that the appellant had renewed another loan on 9/2/2013.
The case of the appellant is that the gold ornaments pledged by
him were his own gold ornaments. But, it is pertinent to note that
there is no such contention in the counter statement. In the
original petition, the respondent has clearly pleaded that 213
sovereigns of gold ornaments belonging to her were entrusted to
the appellant who pledged the same with the Bank to avail loan
for his business purposes. It has come out in evidence that the
appellant had pledged that much quantity of gold ornaments with
the Bank to avail loan for his business purposes. Thus, the
burden is on the appellant to plead and prove that those gold
ornaments were his own gold ornaments. But, there is no such
pleading much less proof. No evidence has been adduced to
show that those gold ornaments belonged to him. During cross-
examination the appellant had admitted that prior to his
marriage, he did not pledge any gold ornaments at all. All these
evidence clearly support the case of the respondent that she
entrusted 213 sovereigns of gold ornaments to the appellant who
pledged it with the Bank for his business purposes. There is no
Mat.Appeal Nos. 245, 309 & 325/2018
case for the appellant that he returned the gold ornaments to the
respondent. It is settled that once entrustment of the gold
ornaments by the wife to the husband is made, a trust gets
created and being a trustee, the husband is liable to return the
same. For all these reasons, we are of the view that the court
below was absolutely justified in granting a decree for the return
of 213 sovereigns of gold ornaments.
9. The next claim is regarding `50,00,000/-. Admittedly
on 9/7/2011, a property having an extent of 7.1 Ares comprised in
Re.Sy.No.133/18-3 of Attipra Village was purchased in the joint
name of the appellant and his brother from one Leela Zacharias
who was examined as PW10 as per deed No.110/12 of SRO,
Kazhakoottam. According to the respondent, as insisted by the
appellant, her father funded `50,00,000/- to the appellant to
purchase the said property. The said amount was arranged by
her father by availing a loan from HDFC Bank, it was contended.
On the other hand, the appellant contended that the property
was purchased for a consideration of `28,40,000/- and the entire
consideration was paid by him and his brother Arun Sadasivan.
10. PW2, the father of the respondent, gave evidence that
Mat.Appeal Nos. 245, 309 & 325/2018
a loan of `50,00,000/- was availed by him and his wife and the
said amount was directly transferred to the account of PW10 to
purchase the land in the name of the appellant and the
respondent. PW9 is the Manager (Legal) of HDFC Bank Ltd. His
evidence coupled with Ext.X9, the certificate and statement of
account from HDFC Bank Ltd., would show that PW2 and his wife
had taken a loan of `50,00,000/- in July, 2011 and PW2 was
repaying the loan amount. PW6 is the Chief Manager of Bank of
India, Thiruvananthapuram. Ext.X6 is the statement of account
of PW2 at Bank of India, Thiruvananthapuram. The evidence of
PW6 coupled with Ext.X6 would show that on 8/7/2011,
`50,00,000/- was deposited in the account of PW2 and on
9/7/2011, that amount was transferred by way of RTGS to the
account of PW10. PW11 is the husband of PW10. In evidence,
PW10 and PW11 admitted the receipt of `50,00,000/- from PW2.
They asserted that the said amount was transferred by PW2 in
connection with the purchase of the property by the appellant
from them. They also identified Ext.A8, the letter issued by them,
evidencing the receipt of `50,00,000/-. In Ext.A8 letter, PW10 and
PW11 have acknowledged the receipt of `50,00,000/- from PW2
Mat.Appeal Nos. 245, 309 & 325/2018
in connection with the sale of their property to the appellant. The
learned counsel for the appellant submitted that admittedly the
consideration shown in the document is only `28,40,000/- and it
is quite improbable to believe the case of the respondent that
`50,00,000/- was advanced by her father to the appellant to
purchase the property. True, the consideration shown is only
`28,40,000/-. But, the evidence discussed above would establish
that the appellant insisted for `50,00,000/- to purchase a
property from PW10 and on account of the repeated pressure
exercised by the appellant with the respondent, the father of the
respondent availed a loan of `50,00,000/- from HDFC Bank and
transferred the said amount directly to the account of PW10, who
admitted the receipt of the same as towards sale consideration.
The evidence tendered in this regard by PW10, PW11 and Bank
Managers need not be disbelieved. The undervaluation, if any,
shown in the document in a transaction between the appellant
and PW10 is not at all binding on the respondent or her father.
They can never be part of such undervaluation. There is nothing
on record to show that the consideration was paid by the
appellant or his brother. The definite case of the appellant is that
Mat.Appeal Nos. 245, 309 & 325/2018
while receiving the amount, the appellant promised to purchase
the property in the joint name of the appellant and the
respondent, but, he clandestinely purchased the property in the
joint name of himself and his brother. In these circumstances, the
respondent is entitled to get back the said amount of
`50,00,000/- from the appellant.
11. The next claim is for the recovery of `30,00,000/-.
According to the respondent, after receiving `50,00,000/-
mentioned above, the appellant again demanded another
`50,00,000/- for his business purposes. When the respondent
expressed her reluctance to give the said amount, the appellant
made a request with the father of the respondent to arrange a
loan of `50,00,000/- for him and promised to repay the same
within two months. Thus, PW2 again arranged a loan from HDFC
Bank and paid `30,00,000/- to the appellant. But, the appellant
did not repay the amount though he paid few instalments. The
appellant has admitted the receipt of `30,00,000/-. But, according
to him, the said amount was transferred to his account by PW2
for the development of his business. Admittedly, PW2 was
running a business under the name and style "Pankaj Builders".
Mat.Appeal Nos. 245, 309 & 325/2018
According to the appellant, PW2 invited him to join M/s Pankaj
Builders and appointed him as its Vice President and `30,00,000/-
was deposited in his account for the business purpose of M/s
Pankaj Builders and it was used by him for the development of
the business of M/s Pankaj Builders.
12. PW9 is the Manager (Legal) HDFC Ltd. Ext.A6 is the
letter issued by HDFC Bank stating that on 23/7/2012 PW2 and
his wife had availed a loan of `30,00,000/- from the Bank. Ext.A6
has been proved through PW9. Ext.X9 is a statement of account
issued by HDFC Bank. It has also been proved through PW9.
Ext.X9 would show that as per the request of PW2, `30,00,000/-
was transferred to the account of the appellant. PW8 is the
Manager, South Indian Bank, Chalai Branch. The appellant
maintained an account with the said Bank. Ext.X7 is the
statement of account of the appellant maintained at South Indian
Bank, Chalai Branch. The evidence of PW8 coupled with Ext.X7
statement of account would show that `30,00,000/- was
deposited in the account of the appellant as transferred from the
account of PW2. Thus, from the above evidence, it stands proved
that PW2 and his wife had availed a loan of `30,00,000/- and paid
Mat.Appeal Nos. 245, 309 & 325/2018
it to the appellant. As stated already, the case set up by the
appellant is that the said amount was deposited in his account for
the business development of M/s Pankaj Builders. If actually the
said amount was meant for the business development of M/s
Pankaj Builders, it ought not have been transferred to the
business account of the appellant which has no connection
whatsoever with M/s Pankaj Builders. The appellant has also
admitted that he had remitted interest for the said amount for a
period of 9 months from 1/8/2012 to 5/4/2013. If the amount was
actually paid for the upliftment of business of M/s Pankaj Builders,
there was absolutely no need for the appellant to pay interest out
of his profit. The statement of accounts produced would further
show that immediately after the credit of `30,00,000/- in his
account, the appellant paid `7,92,000/- to one Smt.Radha on
24/7/2012 and another sum of `9,50,056/- to one Smt.Sonia on
25/7/2012. The appellant has no case that those persons have
any connection with the business of M/s.Pankaj Builders. Though
the appellant has raised a contention that the above said amount
of `30,00,000/- was used for the development of the business of
M/s Pankaj Builders, no evidence has been adduced to
Mat.Appeal Nos. 245, 309 & 325/2018
substantiate the same. The learned counsel for the appellant
relying on Ext.B8 series, copies of the emails sent between PW2
and the appellant, submitted that those documents would show
that the appellant was actively involved in the business of M/s
Pankaj Builders whereas the respondent stated in evidence that
the appellant was not at all involved in the said business and
hence the evidence given by the respondent with regard to the
transaction relating to `30,00,000/- cannot be believed. It is true
that the evidence on record would show that the appellant was
involved in the business of Pankaj Builders. However, the
evidence on record clearly establish that `30,00,000/- was
collected by him from the father of the respondent not for the
business purpose of Pankaj Builders. The definite case of the
respondent is that her father paid `30,00,000/- to the appellant
to secure her life. Hence, as rightly held by the court below, the
respondent is entitled to get back the said amount as well.
13. On reappreciation of the entire evidence, we are of the
view that the court below was absolutely justified in granting a
decree for return of gold ornaments and money of `80,00,000/-
in OP No.898/2013. The said judgment is only to be confirmed.
Mat.Appeal Nos. 245, 309 & 325/2018
We do so.
14. The wife filed petition for dissolution of marriage on
the ground of cruelty and the husband filed petition for restitution
of conjugal rights. Normally, matrimonial cruelty takes place
within the four walls of matrimonial home and, therefore,
independent witness may not be available. Thus, the court can
act upon the sole testimony of the spouse if it is found convincing
and reliable. The court has to decide the case based on
preponderance of probabilities. We have already found that the
appellant has extracted 213 sovereigns of gold ornaments and
`80,00,000/- from the respondent and her father by exerting
pressure on her. It has come out in evidence that the appellant
was only interested in money and failed to discharge his marital
obligations. This act of the appellant alone is sufficient to
constitute mental cruelty. The demand for gold ornaments and
money has to be viewed in the background of the fact that the
appellant never cared to provide love and care to the respondent.
The respondent has given positive evidence that the constant
harassment on the part of the appellant demanding gold
ornaments and money has caused much mental agony and pain
Mat.Appeal Nos. 245, 309 & 325/2018
to her. The Division Bench of this Court recently in Xxx v. Xxx
(2021 (4) KHC 457) has held that insatiable urge for wealth and
sex of a spouse would amount to cruelty. The various acts of
cruelty, both physical and mental, as well as harassment meted
out by the respondent at the hands of the appellant have been
spoken to in detail by the respondent as well as her father. There
is nothing to disbelieve the said evidence. It has also come out in
evidence that the appellant has caused innumerable mental
stress and pain by constantly demanding dowry, sharing abusive
words and filthy language towards her and also casting
aspersions of inchastity. The respondent specifically deposed that
on many occasions, the appellant asked her whether she used to
share her bed with others. She has also deposed that the
appellant was not interested in sex and never wanted to be with
her. Constant picking up of quarrel by the mother of the appellant
was also spoken to by the respondent. She asserted that the
apathy and indifferent conduct of the appellant made her
completely distressed. It is settled that physical violence is not
absolutely essential to constitute cruelty. To constitute cruelty,
the conduct and behaviour of one spouse towards the other need
Mat.Appeal Nos. 245, 309 & 325/2018
only be of such a nature that it causes reasonable apprehension
in the mind of the latter that it is not safe for him/her to continue
the marital tie. From the kind of attitude, conduct and treatment
discussed above, it can readily be inferred that the respondent
had every reason to apprehend that it was not safe for her to
continue the marital relationship with the appellant. Hence, we
confirm the decree of dissolution of divorce granted by the court
below on the ground of cruelty in OP No.897/2013 and the
dismissal of petition for restitution of conjugal rights in OP
No.756/2013.
In the light of the above findings, we see no merit in the
appeals. Accordingly all the appeals are dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
Mat.Appeal Nos. 245, 309 & 325/2018
APPENDIX OF Mat.Appeal No.325/2018
APPELLANT'S EXHIBITS
ANNEXURE A1 TRUE COPY OF THE ORDER DATED 27/3/2018
PASSED BY THE HON'BLE HIGH COURT OF
KERALA IN I.A NO.1055/17 IN Mat.App
No.325/18.
ANNEXURE A2 TRUE COPY OF THE AFFIDAVIT DATED 9.4.18
FILED BY THE PETITIONER BEFORE FAMILY
COURT, THIRUVANANTHAPURAM.
ANNEXURE A3 TRUE COPY OF THE AFFIDAVIT DATED
3.10.2018 FILED BY THE PEITIONER BEFORE
FAMILY COURT, THIRUVANANTHAPURAM
ANNEXUE A4 TRUE COPY OF EA NO.65/19 IN EP NO.16/18
IN OP NO.898/13
ANNEXURE A5 TRUE COPY OF THE SCURITY BOND DATED
12.4.19 FILED BY THE PETITIONER BEFORE
FAMILY COURT, THIRUVANANTHAPURAM
