Partly allowed

C.D.Praseetha v. P.C.Kunjumon

Kerala HC17 Aug 2017Mat.Appeal/536/2007

Case brief

AI extract

What is this about?

In this matrimonial appeal, the High Court of Kerala partially allowed the appeal. The court confirmed the lower court's decree for the return of 98.09 grams of gold but allowed additional compensation of Rs. 30,000 for physical suffering and disability caused by the respondent's family.

What did the court decide?

Return of 98.09 grams of gold confirmed; compensation of Rs. 30,000 with interest awarded for physical suffering and disability.

C.D.Praseetha Vs P.C.Kunjumon — Maintenance and Alimony | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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& THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 17TH DAY OF AUGUST 2017/26TH SRAVANA, 1939

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Mat.Appeal.No. 536 of 2007

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AGAINST THE ORDER IN OP 310/2004 of FAMILY COURT,KOZHIKODE DATED 2411-2006

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APPELLANT/PETITIONER:

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C.D.PRASEETHA, AGED 26 YEARS, D/O DIVAKARAN, CHIRAKKAL HOUSE, P.O.THAMPALAMANNA, VIA)THIRUVAMPADI, KOZHIKODE DISTRICT.

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BY ADVS.SRI.M.P.MOHAMMED ASLAM

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SRI.P.K.YUSUFF ISSUDDIN

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RESPONDENT/RESPONDENT:

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P.C.KUNJUMON, AGED 36 YEARS, S/O DAMODARAN, PATHAYIL HOUSE, OLIKKAL P.O., VIA)PUNNAKKAL, THIRUVAMPADI, KOZHIKODE DISTRICT.

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BY ADV. SRI.JACOB ABRAHAM

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.

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= = = = = = = = = = = = = = = = = = = = Mat.Appeal No.536 of 2007

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= = = = = = = = = = = = = = = = = = = = Dated this the 17^th day of August, 2017

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JUDGMENT

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Anu Sivaraman, J.

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1.This appeal is preferred by the petitioner-wife against judgment dated 24.11.2006 of the Family Court, Kozhikode in O.P.No.310 of 2004. The original petition was preferred seeking return of 15 sovereigns of gold ornaments or its equivalent value as also claiming compensation of Rs.65,000/for damages sustained by her. The said original petition was jointly tried along with O.P.No.293/2004 for dissolution of marriage, MC 147 of 2004 for maintenance and O.P.418/2004 filed by respondent-husband for restitution of conjugal rights.

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2.The case of the appellant/petitioner in the original petition was as follows:-

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The parties were married on 24.04.2003 as per Hindu religious rites. This was preceded by an engagement on 09.02.2003. The petitioner in the original petition contended that she had

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M.A.No.536/07

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22 ½ sovereigns of gold at the time of marriage. 3 sovereigns of gold were given by her to the respondent on the wedding day. On the 4^th day of marriage, when the petitioner was about to leave to her house along with the respondent for the marriage reception, his mother and sister started to quarrel with him saying that he has to settle the debt incurred for the purchase of the thali chain. After her return from the parental home the respondent's mother ill treated her and used to abuse her without any valid reason. After a few days of the marriage, it was realised that the respondent was not having a job or 3 acres of land as claimed by him. Within a few days of the marriage, the respondent had taken her gold ornaments except 7 sovereigns and entrusted it to his mother. After the 20^th day of the wedding, he left for Delhi and returned after 4 months of stay there. During that period, she resided at his residence but she was subjected to cruelty by his mother and sisters. After his return from Delhi, the respondent joined his relatives in harassing her. The petitioner's father had entered into an agreement to sell 10 cents of her property to meet the expenses incurred for the marriage even before the marriage

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M.A.No.536/07

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with the respondent. In order to register the document, she was taken to her house on 28.11.2003 by her father. When she returned on 29.11.2003 after the registration, the husband and his family members created a scene demanding the money received at the registration and the respondent hit her in the presence of her brother and his friend and she had to return to her own house with them. Thereafter, on the intervention of mediators, she was taken back to his house but the respondent and his family members were abusing and ill treating her without even giving her food and she had even contemplated suicide. On 11.03.2004, the respondent required her to hand over her gold ornaments to his mother and when she resisted she was brutally assaulted and she became unconscious as a result of the attack. On being informed about this incident, the appellant's brother had come and taken her away and a crime was also registered. She was taken to a hospital at Mukkom and thereafter treated at the Medical College, Hospital, Kozhikode. She therefore sought a divorce on the ground of cruelty.

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M.A.No.536/07

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3.The respondent filed objections contending as follows:-

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The marriage was admitted, but the allegation that the wife had 22 ½ sovereigns of gold ornaments and all other material averments of entrustment of gold and money were denied. All allegations of matrimonial cruelty were also denied. It was stated that she was having 20 sovereigns of gold ornaments and that the said ornaments were in her custody and were being kept in her bed room. Allegations of cruelty were raised as against her. It is stated that she insisted on a separate residence for the spouses and refused to look after his mother and a mentally retarded sister. It is stated that though they started residing together after intervention of mediators in 2004, after 5 days, she demanded that the mother's property be assigned in the respondent's name and when that was not done, she left the matrimonial home on her own accord. It is stated that when she had returned on 07.3.2004 to the matrimonial home at the instance of relatives, the respondent's mother had given her all the gold ornaments except those that were already in her possession. Thereafter, on 11.03.2004, she had picked up a quarrel with the husband and had

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M.A.No.536/07

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assualted him and summoned relatives and gone away with them and filed a false case against him.

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4.The cases were tried together with O.P.No.418/2004 & M.C.No.147/2004 with O.P.No.293/2004 being treated as the lead case. PW1 to 3 were examined and Exhibits A1 to A5 were marked. The respondent examined herself as RW1. Exhibit X1 Marriage register of SNDP Shagha Yogam was produced and marked.

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5.The petitioner as PW1 deposed in tune with the pleadings. She relied on Exhibit A4 quotation issued from a jewellery to state that she had 22½ sovereigns of gold at the time of marriage. The entry in Exhibit X1 marriage register shows that the petitioner had 154.090 grams of gold which is equivalent to 19.6 sovereigns. She says that she had retained only 7 sovereigns of gold with her and that 15 sovereigns is still with the respondents. As PW1 the petitioner deposed that the 1^st respondent's mother had

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M.A.No.536/07

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shown her the said quantity of gold on 07.03.2004. PW2 also supported this version of PW1. However, taking note of the entries in Exhibit X1 and the deposition of petitioner as PW1 that she was in possession of 7 sovereigns of gold ornaments, the said 7 sovereigns was deducted from 19 sovereigns of gold ornaments as entered in Exhibit X1 and the petitioner was held entitled for return of 98.04 grams of gold ornaments, the value of which was calculated at the rate of Rs.483/- per gram. On the question of award of compensation of Rs.15,000 for expenses incurred in connection with marriage, the Family Court held that the wife had not produced evidence to show under what head the amount of Rs.15000/- was expended. Further, the claim of Rs.50,000/for disability was also disallowed on the ground that the petitioner had not produced any medical certificate to prove disability in the instant case.

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6.Heard the learned counsel for the appellant and the learned counsel for the respondent.

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M.A.No.536/07

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7.The learned counsel for the appellant contends that the appellant having adduced cogent evidence to show that she had 22 sovereigns of gold ornaments at the time of marriage the entire amount should have been allowed by the court below as claimed by her. Further, it is contended that having found that the petitioner had been subjected to physical cruelty and brutal assault by the respondent and his family members, the refusal on the part of the Family Court to grant the amount claimed as compensation for marriage expenses and on account of permanent disability was completely unjustified.

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8.The learned counsel appearing for the respondent would, on the other hand, contend that the entire amount of gold found to be in the respondent's possession has been directed to be returned. It is stated that on the pleadings and the evidence adduced in the instant case, the Family Court was perfectly justified in declining the reliefs for compensation sought for by the petitioner since no evidence was adduced on the said points by the petitioner.

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M.A.No.536/07

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We have considered the contentions advanced with reference to the pleadings and materials on record. It was the case of the appellant that she had 22½ sovereigns of gold in her possession at the time of her marriage. However, Exhibit X1 which has been proved by examining PW1 would show that weight of the gold ornaments recorded in the marriage register is only 154.090 grams. There was an allegation of giving of a thali chain by the respondent and a reciprocal gift of a chain weighing 3 sovereigns to the respondent. Though the entrustment of gold was initially denied by the respondent, it has come out in evidence that he had admitted that she possessed about 20 sovereigns of gold which was kept in her cupboard in the matrimonial home. Petitioner, as PW1 contends that the gold which was shown to her on 07.3.2004 was again entrusted with the mother on 11.3.2004., which incident resulted in the physical assault of the petitioner by the respondent. PW2 also states that the gold, apart from what she was wearing, was in the respondent's possession. Since it is admitted that the amount of gold, which is possessed by the petitioner at the time of marriage, was 19.26 sovereigns and it is also an admitted case that 7 sovereigns of

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gold were in the petitioner's possession, the finding of the court below that the respondent is liable to return 98.09 grams of gold is perfectly in order.

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10.With regard to the claim for compensation, we notice that cogent evidence had been produced to show that the appellant was brutally manhandled by the respondents. At least on one instance on 11.3.2004, there is documentary evidence to show that the petitioner had sustained grievous bodily injury which could be on account of a blow to an ear. She has specifically given evidence to the effect she had suffered loss of hearing on account of the said attack. In view of the provisions of Section14 of the Family Court Act, we are of the opinion that the wound certificate and medical records produced by the petitioner would entitle her for decree of compensation on account of the physical assault and the disability suffered by her. The strict rules of evidence with regard to the production of disability certificate by the Medical Board ought not to have been insisted upon by the Family Court in view of the case made out before it.

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M.A.No.536/07

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11.In the result, we are of the opinion that the decree of the Family Court is to be partially modified granting to the petitioner compensation to the tune of Rs.30,000/- for the physical suffering and the disability suffered by her. The appeal is partly allowed. The decree of the Family Court for return of 98.09 grams of gold or its equivalent value of Rs.47,377.47 with interest is confirmed. It is further decreed that an amount of Rs.30,000/- shall be paid by the respondent to the petitioner towards compensation. The amount shall carry interest at the rate of 6% per annum from the date of petition till realization.

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The appeal is accordingly allowed in part. The parties shall bear their respective costs.

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A.M.Shaffique, Judge

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Anu Sivaraman, Judge

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C.D.Praseetha v. P.C.Kunjumon

Case brief

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C.D.Praseetha v. P.C.Kunjumon

Case brief

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