Kerala High Court
Babuloius @ Donaldosn Louis vs Beatrice on 14 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
1
2025:KER:51404
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MAT.APPEAL NO. 864 OF 2015
AGAINST THE JUDGMENT DATED 24.12.2014 IN OP NO.1052 OF
2014 OF FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER:
BEATRICE
AGED 46 YEARS
W/O BABU LOUIS, TC 34/747,
TABOR VILLA, NEAR CHILDREN'S PARK,
SHANMUGHAM, BEACH POST,
KADAKAMPALLY VILLAGE,
THIRUVANANTHAPURAM,
PRESENTLY RESIDING AT WIND HAVEN RESORT,
RAMAKKAL MEDU,IDUKKI DISTRICT.
BY ADVS.
SRI.TOM JOSE
SMT.GEETHA JOB(OZHUKAYIL)
RESPONDENT/RESPONDENT:
BABU LOUIS @ DONALDSON LOUIS
AGED 54 YEARS
S/O.DAMIEN LOUIS,
SACRED HEART HOUSE,
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2
2025:KER:51404
CHOUVARA P.O.,
AMBALATHUMOOLA,
BALARAMAPURAM,
THIRUVANANTHAPURAM,695501.
BY ADVS.
SHRI.ARUN V.G. (K/795/2004)
SRI.R.RAM MOHAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
26.06.2025, ALONG WITH MAT.APPEAL.No.421/2015, 484/2015, THE
COURT ON 14.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
3
2025:KER:51404
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MAT.APPEAL NO. 421 OF 2015
AGAINST THE JUDGMENT DATED 24.12.2014 IN OP NO.1052 OF
2014 OF FAMILY COURT,ERNAKULAM
APPELLANT/RESPONDENT:
BABU LOIUS @ DONALDSON LOUIS
AGED 54 YEARS
S/O DAMIEN LOUIS, SACRED HEART HOUSE,
CHOUVARA P.O., AMBALATHUMOOLA,
THIRUVANANTHAPURAM
BY ADVS.
SRI.R.RAM MOHAN
SRI.ANOOP BHASKAR
RESPONDENT/PETITIONER:
BEATRICE
AGED 46 YEARS
W/O.BABU LOUIS, TABOR VILLA,
NEAR CHILDREN'S PARK,
SHANGUMUGHAM, BEACH POST,
KADAKAMPALLY VILLAGE,
THIRUVANANTHAPURAM,
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
4
2025:KER:51404
PRESENTLY RESIDING AT WIND HAVEN RESORT,
RAMAKKAL MEDU, IDUKKI DISTRICT.
BY ADVS.
SMT.GEETHA JOB(OZHUKAYIL)
SRI.TOM JOSE
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
26.06.2025, ALONG WITH MAT.APPEAL.NO.864/2015 AND 484/2015,
THE COURT ON 14.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
5
2025:KER:51404
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 14TH DAY OF JULY 2025 / 23RD ASHADHA, 1947
MAT.APPEAL NO. 484 OF 2015
AGAINST THE JUDGMENT DATED 24.12.2014 IN OP NO.1051 OF
2014 OF FAMILY COURT,ERNAKULAM
APPELLANT/RESPONDENT:
BABU LOUIS @ DONALDSON LOUIS
AGED 54 YEARS
S/O.DAMIEN LOUIS, SACRED HEARD HOUSE,
CHOUVARA PO,AMBALATHUMOOLA,
THIRUVANANTHAPURAM
BY ADVS.
SRI.R.RAM MOHAN
SRI.ANOOP BHASKAR
RESPONDENT/PETITIONER:
BEATRICE
AGED 46 YEARS
W/O BABULOUIS, TABOR VILLA,
NEAR CHILDREN'S PARK,
SHANGUMUGHAM,
BEACH POST, KADAKAMPALLY VILLAGE
THIRUVANANTHAPURAM,
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
6
2025:KER:51404
PRESENTLY RESIDING AT WIND HAVEN RESORT,
RAMAKKAL MEDU, IDUKKI DISTRICT.
BY ADVS.
SRI.TOM JOSE OZHUKAYIL
SMT.GEETHA JOB(OZHUKAYIL)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
26.06.2025, ALONG WITH MAT.APPEAL.864/2015 AND 421/2015, THE
COURT ON 14.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
7
2025:KER:51404
CR
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal No.864/2015, 421/2015 &
484/2015
= = = = = = = = = = = = = = = = = =
Dated this the 14th day of July, 2025
JUDGMENT
P.Krishna Kumar, J.
The wife filed a petition for recovery of money and
maintenance from the husband. She also filed an
application under Section 10(1)(x) of the Divorce Act for
a decree of dissolution of marriage. She also claimed
maintenance for herself and three minor children, under
Section 125 of the Code of Criminal Procedure, from the
husband. By the impugned common judgment, the trial court
partly allowed the petition for recovery of money, gold
ornaments and maintenance. A decree for divorce was also
granted on the ground of cruelty. The claim for
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
maintenance for the children was rejected, finding that
they were being looked after by him. The above appeals are
preferred by both sides, challenging the respective
adverse findings against them.
2. The factual contentions of the wife, which are
relevant in the appeals, can be summarised as follows: The
marriage was solemnised on 14th September 1993 as per
Christian rites and customs, and three children were born
to them in their wedlock. At the time of marriage, her
parents gave her 50 sovereigns of gold ornaments. Further,
Rs.2,00,000/- was given to the husband as pocket money by
her parents at the time of marriage. While they were
living together in the parental house of the husband, she
was subjected to physical and mental cruelty. The mother-
in-law also subjected her to severe harassment, demanding
more dowry. The husband and wife shifted their residence
to a rented house and continued there for 10 years. The
husband went on to torment her, and as a result, the wife
suffered immense mental agony and stress. She was
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
compelled to dispose of all her gold ornaments for the
husband. Using the amount received from the sale of gold
ornaments, together with the pocket money, a residential
building was purchased in the name of the respondent. Both
of them resided together in the said building after
purchasing it, but the husband kept ill-treating her. On
certain occasions, the wife was forced to take shelter in
the houses of her relatives, fearing harassment at the
hands of the husband. Pursuant to the intervention of her
brother, both of them reunited on 03/05/2006. But when the
brutal behaviour of the husband persisted, she was
compelled to resort to legal recourse. A criminal case was
registered at Valiyathura Police Station against the
husband and his mother under Section 498A read with
Section 34 of the Indian Penal Code.
3. The husband resisted the petition by contending
that the wife possessed only 35 sovereigns of gold
ornaments, and that he never took them from her. He
admitted of having received Rs.2,00,000/- at the time of
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
the marriage. He also denied the allegations regarding
ill-treatment and the related incidents. According to him,
he is employed as a worker in a ration shop run by his
father and brother, and earns only a meagre salary of
Rs.1,500/- per month. He further contended that the
property was purchased using his own hard-earned money.
The wife is employed in a resort run by her brother and
draws a salary of Rs.50,000/-, he urged.
4. We have heard Adv. Smt. Geetha Job, the learned
counsel appearing for the wife, and Adv. Sri. V.G. Arun,
the learned counsel appearing for the husband.
5. The learned counsel appearing for the wife
submitted that the Family Court erred in limiting the
wife's claim to Rs.7,00,000/-, as the present value of the
gold ornaments is much higher than the said amount. The
learned counsel further submitted that the husband has not
paid any amount towards past or future maintenance till
date, and therefore, his defence is liable to be struck
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
off. The learned counsel further placed reliance on the
following decisions to support her contentions: Rajnesh v.
Neha and Another (2020(6)KHC 1), Bani v. Parkash Singh (1996
KHC 2551), Santosh Sehgal v. Murari Lal Sehgal (2007 KHC
7147), Ghasiram Das v. Srimati Arundhati Das and Another
(1994 KHC 1956), Prema S. v. Sureshkumar P.
(MANU/KE/2533/2019).
6. Sri. V.G. Arun, the learned counsel appearing for
the husband, on the other hand, contended that the wife
has not maintained a consistent case regarding the gold
ornaments and the money allegedly given to the husband.
Referring to paragraph 5 of the petition and Exts. A4, A5,
B2 and B3, the learned counsel pointed out that the wife
had taken entirely inconsistent stands in those
proceedings, and hence, the Family Judge was not justified
in awarding any amount.
7. Referring to a previous proceeding instituted by
the wife, which was dismissed for default, it is contended
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
that the present proceeding is barred by the provisions of
Rule 9 of Order IX and Rule 2 of Order II of the Code of
Civil Procedure (C.P.C.). He also relied on Prema S. v. P.
Sureshkumar (2019 (3) KHC 17) to argue that, after the
dismissal of the earlier petition, the wife cannot re-
agitate the dispute based on the same cause of action.
Sri. V.G. Arun further argued that, although these
objections were specifically raised in the written
statement, the trial court failed to frame an issue on the
point and did not address it properly.
8. It is also submitted that, once the wife had filed
a petition alleging breach of trust, the limitation period
for the recovery of property vested in trust began to run
from that time, and therefore, if the subsequent
proceeding is instituted after 3 years therefrom, it would
be barred by limitation. In such a case, Section 10 of the
Limitation Act would not assist her, in view of the
provisions in Section 9 of the said Act, it is urged.
Referring to Mary v. Cherchi and Others (1980 KLT 353), the
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
learned counsel contended that the limitation period
applicable to cases concerning the recovery of gold
ornaments by the spouse is three years.
9. As contended by Smt.Geetha Job, referring to the
aforementioned precedents, the defence raised by the
husband can be struck off in certain cases where he fails
to pay any amount towards maintenance, contrary to the
directions of the court. However, given the nature of the
contentions raised in the present case, we deem it
appropriate to adjudicate the matter on merit rather than
resorting to the aforementioned option.
10. Let us first consider whether the petition is
barred by the provisions cited above. Relevant part of
Rule 9 of Order 9 C.P.C. reads as follows:
"9. Decree against plaintiff by default bars fresh
suit.
(1)Where a suit is wholly or partly dismissed
under Rule 8, the plaintiff shall be precluded from
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
bringing a fresh suit in respect of the same cause
of action.
xx xx xx xx
It is thus clear that what is precluded is bringing a
fresh proceeding in respect of the same cause of action.
Let us now consider whether the said provision has any
application in the factual situation of the case. It is
evident from Ext. B4 judgment dated 20.02.2007 of the
Family Court, Thiruvananthapuram, that the original
petition filed by the wife was dismissed due to her non-
appearance, though she contended that it was withdrawn.
However, the wife has a definite case that she did not
prosecute the earlier case because both parties had worked
out a solution in the best interest of their minor
children, and she resumed her residence with the husband
at their Shangumughom residence from 03.05.2006. In O.P
No.1052/2014, the wife pleaded in paragraph 13 as follows:
"The petitioner's brother, Capt.Noble Pereira who
works abroad came to Kerala in the meantime and
worked out a solution for the couple in the best
interest of the minor children who were the
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
innocent spectators and victims of the strained
relationship between the counter petitioner and
the petitioner. As per the agreement the
petition before the Honourable Family Court,
Thiruvananthapuram was withdrawn and the
petitioner and children returned to live in the
house at Shangumughom since 3 May 2006."
11. In the present original petition (O.P.
No.1052/2014), her cause of action includes not only the
events that occurred on the dates mentioned in the
previous petition, but also the subsequent events that
transpired including that on 15.01.2010, the date when she
was brutally manhandled and verbally abused by the
husband. She further clarified this while she was cross-
examined, as follows:
" എനന്നെയയും കുഞ്ഞുങ്ങനളെയയും നന്നെന്നായയി നനന്നാകയി നകന്നാളന്നായും എന്നെന്ന് എനന
ഭർതന്നാവന്ന് എനന്നെന്നാടന്ന് പറഞ്ഞനപന്നാൾ ഈ നകന്നാടതയിയയിൽ ഹന്നാജരന്നാകണ്ട എന്നെന്ന്
എനന വകക്കീലയും ഭർതന്നാവയും പറഞ്ഞു . കുഞ്ഞുങ്ങളുനട ഭന്നാവയികന്ന് നവണ്ടയി ഞന്നാൻ
ഒരുമയിചന്ന് നപന്നാകന്നാൻ തയന്നാറന്നായയി അതയിനന്നാൽ ഞന്നാൻ നകന്നാടതയിയയിൽ
ഹന്നാജരന്നായയില. "
Thus, it is evident that the present petition is based on
a fresh cause of action and hence it is not barred under
Rule 9 of Order IX.
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
12. Termination of a previous round of litigation by
non-prosecution cannot be set up as a bar under Rule 9 of
Order IX if the subsequent proceeding is based on a fresh
cause of action. While appreciating the question of 'cause
of action' for a subsequent matrimonial proceedings, the
court must give due consideration to reconciliation
efforts made during the litigation, including any
instances of reunion that failed to achieve a lasting
resolution, leading to the next round of litigation. Thus,
we are unable to accept the contention advanced by Sri.
V.G. Arun that the subsequent petition is barred under
Rule 9 of Order IX of the Code of Civil Procedure.
13. Similarly, we are not impressed by the contention
that the present petition is barred under the provisions
of Rule 2 of Order II C.P.C. Rule 2 reads as follows:
"2. Suit to include the whole claim - (1)Every suit
shall include the whole of the claim which the
plaintiff is entitled to make in respect of the
cause of action; but a plaintiff may relinquish any
portion of his claim in order to bring the suit
within the jurisdiction of any Court.
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
(2) Relinquishment of part of claim - Where a
plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his
claim, he shall not afterwards sue in respect of the
portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs - A
person entitled to more than one relief in respect
of the same cause of action may sue for all or any
of such reliefs; but if he omits, except with the
leave of the Court, to sue for all such reliefs, he
shall not afterwards sue for any relief so omitted."
Sub-rule (3) of Rule 2 states that a person entitled to
more than one relief in respect of the same cause of
action may sue for all or any of such reliefs, and that if
he omits any, he shall not subsequently sue for the relief
so omitted. The object of the above provision is to
safeguard the defendant/respondent from being vexed twice,
for the same cause of action. However, if the subsequent
proceeding is based on a different cause of action, the
bar under sub-rule (3) of Rule 2 is not attracted.
14. It is true that sub-rule (2) of Rule 2, Order II
bars a suit or other proceeding in respect of any portion
of a claim that was intentionally relinquished in earlier
litigation. Since the wife had expressly limited her claim
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
to Rs. 10 lakhs in her previous petition for recovery of
money and gold, thereby relinquishing Rs. 5 lakhs from the
total claim of Rs. 15 lakhs made in the present
proceeding, the argument of the learned counsel
Shri. V.G. Arun would have normally deserved
consideration. However, since the amount awarded by the
trial court is only Rs. 7,00,000/-, and for the reasons
stated below, we do not intend to enhance it, this aspect
presently holds no substantial relevance.
15. Although the trial court did not frame any
specific issue based on these contentions, this omission
did not cause any prejudice to the husband, as he had
produced all relevant materials to substantiate his case
during the trial. When the parties have actively
participated in the trial, fully aware of the disputed
material propositions and having had the opportunity to
adduce sufficient evidence to establish their case, the
non-framing of specific issues on such matters is
inconsequential.
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
16. Relying on the decision in Mary v. Cherchi
(supra), the learned counsel for the husband contended
that, in a suit for recovery of money or gold ornaments,
the limitation period should be reckoned as three years.
In that decision, the application of Section 10 of the
Limitation Act, 1963, was not considered. Further, what is
held in that decision was that the period of limitation
will start only from the date when the property was
demanded back and it was denied. Subsequently, a Full
Bench of this Court in Sheela K.K. v. Suresh N.G. (ILR 2020
(4) Ker 486) examined the applicability of Section 10 in
such matters. Affirming various earlier decisions of this
Court, which held that there is no limitation for
recovering valuables entrusted by one of the spouses to
the other as part of the marital relationship, the Full
Bench held as follows:
"6. It is settled law and as laid down in the
judgments aforesaid, when the wife entrusts with the
husband any property belonging to her, a trust is
created and the husband is bound to return the same to
his wife. If the same is not returned, the wife has a
right to demand the same by filing a suit or as in the
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
present case, file an application before the Family
Court or take other necessary steps under the relevant
statutes in force. When S. 10 of the Limitation Act
indicates that there is no limitation for initiating
any such action, in the absence of any other statute
providing for a limitation, the trustee cannot take a
contention that he shall not return the trust property
on account of any period of limitation. The question
posed is, when the relationship between the parties
gets deranged and results in divorce, whether the
trust gets extinguished and the divorced wife would be
entitled to invoke S. 10 of the Limitation Act and
file a suit at her will and pleasure at any point in
time. In such an event, the questions to be considered
are (i) whether a trust had been created at any point
of time, (ii) if a trust has been created and the
husband remains in the position of a trustee, whether
it gets extinguished on the dissolution of marriage or
under any other circumstances."
The Full Bench held that, even when the relationship
between the parties becomes estranged and results in
divorce, the trust does not get extinguished, unless one
of the conditions mentioned in Section 77 of the Indian
Trusts Act, 1882 is attracted. Paragraph 7 & 8 of the
judgment reads thus;
"7.Under S.77 of the Indian Trusts Act, 1882, a
trust gets extinguished only under certain
circumstances. S.77 reads as under:
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
"77. Trust how extinguished. -A trust is
extinguished -
(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
(c) when the fulfilment of its purpose becomes
impossible by destruction of the trust - property
or otherwise; or
(d) when the trust, being revocable, is expressly
revoked."
8. Therefore, unless any of the eventualities
as mentioned under S.77 takes place, which of course is
a question of fact to be decided on a case to case basis
and once a trust is created, it continues to operate,
even though there is a dissolution of marriage. However,
in an instance where there is an agreement between the
parties settling the obligations arising from the trust,
it gets fulfilled in terms of S.77(a). We do not think
that we should narrate various circumstances which may
come under S.77 of the Indian Trusts Act as it has to be
decided on a case to case basis. Therefore, a trust does
not get extinguished unless any such eventuality in
terms of S.77 arises."
(emphasis added)
In short, even when the marriage was dissolved by a decree
of divorce, it does not result in the extinguishment of
the trust. Hence, the contention that the present claim is
barred by limitation is also liable to be rejected.
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
17. We also find no merit in the argument that the
provisions contained in Section 9 of the Limitation Act
override the provisions of Section 10. Section 10 clearly
begins with a non-obstante clause and states that,
notwithstanding anything contained in the foregoing
provisions of the Act, no suit against a person in whom
property has become vested in trust for any specific
purpose shall be barred by any length of time, for the
purpose of following the trust property or its proceeds.
The overriding nature of the non-obstante clause in Section
10 clearly prevails over Section 9.
18. It is next contended by the learned counsel for
the appellant that, when going by the case of the wife,
the gold ornaments have been converted into immovable
property, her remedy is only to proceed against the
property so converted. We are unable to agree with the
contention. Section 63 of the Trust Act deals with,
tracing the trust property into which it has been
converted. As held by the Apex Court in L. Janakirama Iyer
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
v. P. M. Nilakanta Iyer (AIR 1962 SC 633, Section 63 is
not exhaustive. The Apex Court held :-
"S.63 no doubt provides for the two remedies which are
available to the beneficiary, but, in our opinion, S.63
cannot be treated as exhaustive on the subject and so it
cannot be urged that a claim for constructive possession
like the one made in the present suit is prohibited by
S.63. Prima facie S.10 of the Limitation Act seems to
contemplate an action by a beneficiary under a trust to
which S.10 applies and provides that in such an action
the beneficiary may follow the property and ask for a
proper order as to the delivery of the said property to
the new trustee. If that be so, the provisions of S.10
would suggest that the remedies prescribed by S.63 are
not exhaustive."
Section 23 of the Trust Act provides for liability for
breach of trust. In terms of the Section, in the case of
the breach of trust, the trustee is liable to make good
the loss sustained by the beneficiary unless the breach
was induced by the fraud of the beneficiary or if the
beneficiary had concurred in the breach without coercion
or undue influence upon him. It has to be borne in mind
that there would be instances where the converted property
is of lesser value. It cannot be said that the beneficiary
will have to be satisfied with the same. In the light of
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
the above, we negative the appellant's contention and hold
that the present claim is maintainable.
19. Let us now consider the factual contentions
advanced by both sides. To address the argument that the
wife has no consistent case concerning the gold ornaments
and the money allegedly given to the husband, we
meticulously examined the various statements made by the
wife in Exts. A4, A5, B2, and B3. A careful consideration
of all these pleadings compels us to conclude that there
is no significant incongruity in her case regarding the
gold ornaments allegedly misappropriated by the husband.
In essence, her statements across these proceedings are
the same. She maintains that she received 50 sovereigns of
gold ornaments at the time of marriage, and that the
husband caused her to sell them to purchase a residential
property in his name. It is the gravamen of the pleadings
in Exts. A4, A5, B2, and B3, though expressed in different
words.
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
20. Indeed, in one of her petitions (Ext. B3), she had
contended that the gold was pledged at a Co-operative
Bank, whereas in the other pleadings, she stated that it
was sold at the instance of the husband. However, she
clarified in her sworn deposition that:
"പണയ വ ച സ ർണങൾ എവ വ ണ എട പ ച എവ ഭർത
തവ അവതല റ ട ണ."
Thus, her case remains substantially the same across all
those proceedings.
21. It is true that in the present petition, she
stated that her parents gave Rs.2,00,000/- to the husband
at the time of marriage. However, in the FIR (Ext. A5) and
in the complaint submitted before the Women's Commission
(Ext. A4), she mentioned that by lending the said amount
of Rs.2,00,000/- on interest, she earned Rs.3.5 lakhs--
implying that the amount was at her own disposal. However,
the husband has admitted in his pleading that he received
the said amount at the time of marriage, through a crossed
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
cheque. He also pleaded that a part of it was returned to
the brother of the wife (Rs.50,000/-), but the same was
not accepted by the trial court for want of evidence. He
has no case that he returned Rs.2,00,000/- to the wife.
When the husband admits receipt of Rs.2,00,000/- and does
not raise a contention that it was returned to the wife,
we fail to understand the relevance of the previous
statement of the wife in that regard. Nevertheless, the
trial court has considered the above contention in detail.
The Family Court held:
"The petitioner and respondent were living together
from the very inception of their married life,
till they got separated after the alleged incident
on 23/02/2006. According to the version of Pw1,
during this entire period, she was subjected to
cruelty for one reason or other. Such being the
situation, there is no meaning in contending that
amount was utilized by Pw1 exclusively for doing
money lending business. The evidence and
circumstances brought out in the case reveal that
the respondent cannot be expected to be a person,
who will entrust the money with the petitioner
exclusively for dealing with the same. He might
have allowed the petitioner to do money lending
business under his supervision and management as
is spoken to by Pw1 before the court. Therefore
the inference that can be drawn is that amount
entrusted to him was retained by he himself."
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
When the trial court, having had the advantage of
observing the demeanour of the witnesses, arrived at such
a conclusion after analysing all the materials placed
before it, we are not persuaded to disbelieve the wife
solely on account of the perceived inconsistency.
22. Upon analysing the oral and documentary evidence
on record, we find no reason to interfere with the trial
court's finding that the wife is entitled to recover the
money claimed towards value of the gold ornaments. The
wife has consistently maintained that she was ill-treated
and compelled to part with her gold ornaments, and that he
sold them and used the proceeds to purchase their
residential building. We find no reason to disbelieve the
sworn testimony of the wife in this regard.
23. Though the husband contended that he purchased the
property for Rs.7,00,000/- using his hard-earned money, we
find no credibility in that claim. According to him, he
earns only a meagre income from working at a ration shop.
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
He has not produced any evidence to show how he arranged
the funds for the purchase. The property was acquired in
2002, that is, 9 years after the marriage. Thus, all
surrounding circumstances support the trial court's
conclusion that the husband utilised the proceeds from the
gold ornaments entrusted to him by the wife.
24. Although it was vehemently argued by the learned
counsel for the wife that the amount awarded by the trial
court towards recovery of the gold ornaments and money is
grossly inadequate taking into account the present market
value of the gold ornaments and also because it did not
allow to recover the amount given to the husband by her
father and brother, we find no reason to interfere with
the trial court's finding on those grounds. The learned
Family Judge has meticulously appreciated the evidence on
record and rightly concluded that the husband is liable to
pay only Rs. 7,00,000/- with interest at the rate of 6%
per annum from the date of the petition. The court found
that there is no evidence to accept the claim for the
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
additional amount allegedly given to the husband.
Significantly, the relief sought is one for recovery of
money. There is no prayer for recovery of gold or its
value (Relief A in the petition). She claimed Rs. 5 lakhs
as the value of the gold ornaments, and the same is
awarded by the Family Court. Considering the peculiar
facts and circumstances of this case, as discussed above,
we find no reason to enhance the awarded amount.
25. Regarding the decree of divorce granted in favour
of the wife, the evidence on record fully supports the
finding of the trial court. When the wife deposed as PW1,
she gave a clear and detailed account of the ill-treatment
she had endured. She was subjected to rigorous cross-
examination, yet her version concerning the cruelty
inflicted upon her by the husband remained unshaken. The
wife had also initiated a criminal case against the
husband, alleging matrimonial cruelty, as evidenced by
Ext. A5. Her contentions on this aspect are corroborated,
to some extent, by the testimony of PW2--her brother--as
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
well as other witnesses. Upon a thorough analysis of the
entire evidence, we are also of the considered view that
the wife is entitled to a decree of divorce on the ground
of cruelty. The contention that the trial court did not
consider whether the alleged acts of cruelty were condoned
by the wife, is also liable to be rejected, as the
evidence on record clearly establishes a pattern of
continuing harassment, even after the reunion.
26. Similarly, the evidence on record fully supports
the trial court's finding that the husband is liable to
pay maintenance--both past and future--as directed in the
impugned judgment. The quantum fixed by the trial court is
quite reasonable. Although the husband claimed that the
wife was employed as a Manager at a resort owned by her
brother, there is no credible evidence to substantiate
that assertion. On the other hand, the wife has
convincingly proved that she was neglected by the husband
and that he has sufficient income and capacity to maintain
them.
Mat.Appeal Nos.864/2015, 421/2015, 484/2015
2025:KER:51404
27. In view of the above discussion, we find no reason
to interfere with the impugned judgment.
Accordingly, the appeals are dismissed.
Sd/-
SATHISH NINAN, JUDGE
Sd/-
sv P. KRISHNA KUMAR, JUDGE
