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2017 Supreme(Ker) 852
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE, ANU SIVARAMAN, JJ.
Viji - Appellant
Versus
Sureshkumar - Respondent
Mat. Appeal. No. 772 of 2011 (C)
Decided On : 31-07-2017
For the Appellant :V. Jayapradeep, V.V. Risani, Saneesh Kunjukunju, Advocates.
For the Respondent:M.N. Anitha, (EKM), M.N. Rasheed C. Nooranad, M.D. Suni, Advocates.
The judgment emphasizes the importance of substantiated evidence in matrimonial cases and the significance of mediation in resolving disputes. It also highlights the grounds for divorce under the Hindu Marriage Act, 1955 and the burden of proof in claiming the return of assets.
Headnote:
Divorce - Matrimonial Cruelty - Desertion - Return of Gold and Money - Hindu Marriage Act, 1955 - Section 13(1)(i-a) - Section 13(1)(i-b) - Section 27 - Section 28 - Section 29 - Section 23 - Section 25 - Section 26 - Section 13(1)(i-a) - Section 13(1)(i-b) - Section 27 - Section 28 - Section 29 - Section 23 - Section 25 - Section 26
Fact of the Case:
The appellant/wife sought a decree of dissolution of marriage and the return of gold ornaments and money from the respondent/husband, alleging physical and mental cruelty and desertion.
Finding of the Court:
The Family Court granted a decree of divorce on the ground of desertion, finding insufficient evidence of matrimonial cruelty. The claim for the return of gold and money was dismissed based on evidence of mediation and lack of substantiation.
Issues: 1. Matrimonial cruelty 2. Desertion 3. Return of gold and money
Ratio Decidendi: The court found that the evidence of matrimonial cruelty was not convincing, but granted divorce on the ground of desertion. The return of gold and money was dismissed due to evidence of mediation and lack of substantiation.
Final Decision: The appeal was dismissed, and no costs were awarded.
Anu Sivaraman, J.
1. This appeal is preferred against the judgment dated 28th April, 2011 of the Family Court, Alappuzha in O.P (HMA) No. 179 of 2008. The O.P was preferred by the appellant/petitioner/wife seeking a decree of dissolution of marriage and the return of Rs.2,70,000/- being the value of 20 sovereigns of gold ornaments and an amount of Rs.1,00,000/- which was entrusted in cash with the respondent at the time of the marriage.
2. The averments in the OP were as follows:- The parties were married on 06.06.2004 according to Hindu Religious Rites. At the time of marriage, the petitioner had 20 sovereigns of gold ornaments and her parents had given her Rs.1,50,000/- as patrimony. The respondent is a rubber tapper. After the marriage, the parties resided at the house of the respondent where the petitioner was treated with utmost physical and mental cruelty. She was not permitted by the respondent's mother to have any cohabitation with the respondent and was even denied food and water. It is stated that due to the extreme cruelty, the petitioner was unable to live at the respondent's house and from 02.09.2004 onwards, the spouses resided at the petitioner's house till 02.11.2004. However, the respondent had gone back to his own house thereafter. When the petitioner went to the respondent's house on 22.02.2004, his mother had brutally manhandled her and had driven her out from the house asking her to come back only if she can bring money for the construction a house in his property.
3. The respondent/ husband filed objections admitting the marriage and the fact that there where no issues in the marriage. The entrustment of 20 sovereigns of gold ornaments and the amount of Rs.1,50,000/- as patrimony were completely denied by the husband. So also, the allegations of matrimonial cruelty were denied. It was stated that the marriage had been consummated and that there was no incident of driving the petitioner out from the house as alleged. It was further stated that, all the gold ornaments of the petitioner were returned to her in the presence of both family members and members of NSS Karayogam concerned.
4. On these pleadings, the Family Court raised the following issues.
1. Whether respondent/husband treated petitioner with cruelty?
2. Whether respondent deserted her permanently?
3. Whether she is entitled to decree of dissolution of marriage
4. Is she entitled to recover Rs.2,70,000/- being the value of 20 sovereigns from respondent
5. Is she entitled to recover Rs.1,50,000/- from respondent?
5. The petitioner wife was examined as PW1 and Ext.A1 was marked. The respondent examined RW1 to RW3 and marked Ext.B1 document. Considering the oral and documentary evidence adduced, the Family Court came to the conclusion that the evidence adduced in support of the ground of cruelty setup by the petitioner is not convincing. However, it was found that the parties were living separately since November 2004 and no steps have been taken by either of the parties to get the cohabitation resumed. Therefore, on the ground of continuous desertion, a decree of divorce was granted.
6. The question of return of Rs.1,50,000/- which was handed over as patrimony and the value of 20 sovereigns of gold ornaments was also separately considered by the Family Court. Ext. B1 receipt had been produced by the respondent in support of his contention that the gold ornaments belonging to the petitioner had been returned to her in a mediation conducted in the presence of members of both the families and also the NSS Karayogam. The respondent examined the petitioner's uncle one Ravindran Nair as also the Secretary of the NSS Karayogam. They gave evidence supporting the respondent to the effect that settlement talks had been held in the house of RW3, Secretary of the NSS Karayogam on 17.11.2004. It is stated that the petitioner and her father and other relatives had attended the mediation and petitioner had received all the ornaments which were in the possession o
