In an appeal against a family court order that disallowed divorce but granted return of dowry, the court held that the respondent's assault and dowry demands constituted cruelty, allowing the divorce and confirming the return decree.
Divorce decree granted dissolving the marriage; return of 25 sovereigns of gold and Rs.25,000 confirmed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934
Mat.Appeal.No. 367 of 2008 ( )
OP.203/2007 of FAMILY COURT, KASARAGOD
APPELLANT/PETITIONER.:
PATHIBHA L.UCHIL, AGED 35 YEARS, D/O. LATE LAKSHMANA K.UCHIL PRATHIBHA NIVAS, OPP. RAILWAY STATION, UPPALA P.O. MANGALPADY VILLAGE, KASARAGOD DISTRICT.
BY ADVS.SRI.M.SASINDRAN
SRI.M.V.BIPIN
RESPONDENT/RESPONDENT.:
MANOJ R.KUMBLE, AGED 39 YEARS, B/4 NEELKANT PREM HOUSING SOCIETY, TAKURWADI PADIT DEEN DAYAL ROAD, DOMBIVILI (WEST) MAHARASTRA - 421 202.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2012, THE COURT ON 06.07.2012 DELIVERED THE FOLLOWING:
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
Mat. Appeal No.367 of 2008 ----------------------------------------------Dated 6th July, 2012.
J U D G M E N T
Joseph Francis, J.
This appeal is filed by the petitioner/wife in O.P.No.203 of 2007 on the file of the Family Court, Kasaragod. The respondent/husband herein was the respondent in that Original Petition, which was filed by the wife for divorce under Section 13(1)(ia) of the Hindu Marriage Act and for return of gold ornaments and money.
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petitioner, demanding more dowry. On 12.2.2005, the petitioner was brutally assaulted by the respondent, demanding a sum of Rs.50,000/- as dowry. On 20.4.2006, the respondent took the petitioner to her parental house at Uppala and left her there, saying that the respondent would not take her back if she did not satisfy his illegal demand for more dowry. After one month, the relatives of the petitioner went to the matrimonial house at Mumbai and gave Rs.25,000/- to the respondent to settle the dispute. The respondent and his parents agreed to take her back. The petitioner and the respondent stayed together for about two months without any trouble and on 23.7.2006, the respondent went back without informing the petitioner and he never turned up even after repeated attempts made by the petitioner to settle the disputes. The respondent has taken 25 sovereigns of gold ornaments, which was presented to the petitioner at the time of wedding and also misappropriated Rs.25,000/- which was given after the marriage. Due to the desertion and cruelty towards the
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petitioner, she was constrained to file the petition seeking divorce and for return of gold ornaments and money. Before the Family Court, the respondent remained ex parte. The petitioner was examined as PW1. The Family Court considered the evidence of PW1, but disbelieved her case regarding cruelty and disallowed the prayer for divorce. The prayer for return of 25 sovereigns of gold ornaments and Rs.25,000/- was allowed and the petition was partly allowed to that extent. Against the judgment and decree disallowing divorce, the petitioner/wife filed this appeal.
not appear. The learned counsel for the appellant submitted that the court below went wrong in holding that there are no sufficient evidence to prove cruelty even though the respondent remained ex parte. The learned counsel for the appellant submitted that a perusal of the pleadings and evidence would prove that the appellant had been subjected to mental and physical cruelty. The learned counsel for the
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appellant further submitted that the court below failed to consider the material evidence adduced by the appellant.
before the Family Court. PW1 deposed that at the time of marriage, she was given 25 sovereigns of gold ornaments and after the marriage, Rs.25,000/- was given to the respondent by her relatives and the respondent misappropriated the gold ornaments and money. The Family Court believed the testimony of PW1 with regard to this aspect and granted decree for return of 25 sovereigns of gold ornaments and Rs.25,000/-. The respondent has not challenged that portion of the decree and judgment.
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cruelty, demanding more dowry and used to assault her. PW1 also deposed that on 12.2.2005, the respondent assaulted her demanding money as dowry. Since the respondent remained ex parte, PW1 was not cross-examined. Thus, the testimony of PW1 regarding cruelty remains unchallenged. Since the respondent used to assault the petitioner demanding more dowry, he is guilty of physical and mental cruelty. Therefore, the Family Court was not justified in disallowing the prayer for divorce on the ground of cruelty. Therefore, we are of the view that the appellant/petitioner is entitled to get a decree for divorce, in addition to the decree for return of gold ornaments and money granted by the Family Court.
Accordingly, this appeal is allowed. The judgment and decree in O.P.No.203 of 2007 on the file of the Family Court, Kasaragod, disallowing the prayer for dissolution of marriage is set aside and that petition is fully allowed and the marriage between the petitioner and the respondent is dissolved by a decree of divorce with effect from this day. The
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judgment and decree regarding return of 25 sovereigns of gold ornaments and Rs.25,000/- is confirmed. The appellant shall suffer her costs in this Appeal.
Sd/-
K.T.SANKARAN, JUDGE.
Sd/-
M.L.JOSEPH FRANCIS, JUDGE.
tgs
(true copy)
2 issues framed by the court
Whether the husband's assault and demand for dowry constitute sufficient cruelty to grant a decree of divorce.
Whether the family court erred in disallowing the prayer for dissolution of marriage due to insufficient evidence of cruelty.
1 provisions across 1 enactments
PATHIBHA L.UCHIL
MANOJ R.KUMBLE
K.T.SANKARAN
M.L.JOSEPH FRANCIS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
