Dismissed

Giji Kuriakose @ Scaria v. Lijimon Mathew @ Kochuthresia

Kerala HC19 Feb 2018Mat.Appeal/556/2009

Case brief

AI extract

What is this about?

The High Court dismissed appeals against a Family Court decree granting restitution of conjugal rights and recovery of dowry (money and gold ornaments). The Court held the respondent-wife was justified in living separately due to in-laws' cruelty and that the returned dowry constituted a liability under the Dowry Prohibition Act.

What did the court decide?

Appeals dismissed; decisions of Family Court allowing restitution of conjugal rights and recovery of dowry with interest upheld.

Giji Kuriakose @ Scaria Vs Lijimon Mathew @… — Matrimonial and Divorce | Kerala HC (2018)

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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 K.HARILAL THE HONOURABLE MR. JUSTICE A.M.BABU

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MONDAY, THE 19TH DAY OF FEBRUARY 2018 / 30TH MAGHA, 1939

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Mat.Appeal.No. 556 of 2009

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AGAINST THE ORDER DATED 30-04-2009 IN OP NO.456/2008 of FAMILY COURT, KOTTAYAM

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APPELLANT/RESPONDENT:

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GIJI KURIAKOSE, @ SCARIA S/O. KURIAKOSE KURIATH HOUSE, EDANAD.P.O., EDANAD, PALA- KOTTAYAM.

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BY ADV.SRI.S.PRASANTH

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RESPONDENT/PETITIONER:

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LIJIMOL MATHEW @ KOCHUTHRESIA, D/O. ANNAMMA, PORKATTIL HOUSE, POOVATHODU.P.O., BHARANANGANAM, KOTTAYAM DIST.

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BY ADV. SRI.BIJU GOPAL BY ADV. SRI.M.R.SARIN PANICKER

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-02-2018, ALONG WITH Mat.Appeal.No. 557 of 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL & A.M. BABU,JJ. = = = = = = = = = = = = = = = = = Mat. Appeal Nos.556 & 557 of 2009

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- - - - - - -- - - - - - - - - - - - - - Dated this the 19^th day of February, 2018

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J U D G M E N T

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K. Harilal, J.

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The appellant is the husband of the respondent

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and these appeals are directed against a common judgment passed in Original Petition No.456 of 2008 and Original Petition No.1187 of 2008 filed by the respondent herein.

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Original Petition No.456 of 2008 was a petition for restitution of conjugal rights filed under Section 32 of the Indian Divorce Act, 1869 and Original Petition No.1187 of 2008 was a petition for return of money and gold ornaments. After considering the objection filed by the appellant herein and the evidence on record, the Family Court allowed both the petitions filed by the respondent

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Mat. Appeal Nos.556 & 557 of 2009

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-: 2 :-

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herein.

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Mat.Appeal No.556 of 2009 was filed

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against the judgment passed in Original Petition

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No.456 of 2008 and Mat.Appeal No.557 of 2009 was filed against the judgment and decree passed in Original Petition No.1187 of 2008.

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Brief facts of the case can be summarised

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as follows:

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Original Petition No.456 of 2008: According to the petitioner, the marriage between the petitioner and the 1^st respondent was solemnized on 29.06.2006 and a child was born in the said wedlock. After the marriage, they lived together in the matrimonial home and during that period, the 1^st respondent and his family members behaved cruelly towards the petitioner. At the time of marriage, the 1^st respondent was conducting a small hotel cum provision shop. The 1^st respondent's sister Suma quarrelled with the petitioner stating that she is not doing any domestic work and due to the instigation of

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Mat. Appeal Nos.556 & 557 of 2009

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said Suma, the 1^st respondent also started to behave cruelly towards the petitioner. The petitioner was man-handled by the said Suma. An amount of `60,000/- and 20 sovereigns of gold ornaments were entrusted with the 1^st respondent and his parents, as her parental share and they have appropriated the same to meet their personal needs. When the misbehaviour from the part of the 1^st respondent and his sister became intolerable, she was constrained to live in her parental house. The petitioner and her parents requested the 1^st respondent to settle the problems and take back the petitioner to her matrimonial home; but the 1^st respondent was not willing to do so. The 1^st respondent and his siblings have not participated in the baptism ceremony of the child. The 1^st respondent wilfully neglected her and the child and refused to pay maintenance allowance to them. He failed to discharge his marital obligation as a husband. But, the petitioner is willing to resume cohabitation with the 1^st respondent and she is desirous of the same. Hence, she is entitled

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Mat. Appeal Nos.556 & 557 of 2009

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to get a decree for restitution of conjugal rights.

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The respondent filed objection, admitting

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the marital status and the parentage of the child.

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But, contended that she is residing separately, without reasonable cause. He denied the

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allegations of matrimonial cruelty alleged against him. According to him, all sisters are living separately, except Suma, who was divorced by her husband. He denied the allegation that his sister Suma behaved cruelly to the petitioner. He also denied the allegation that he and his parents appropriated the money and gold ornaments, which were given to the petitioner at the time of marriage.

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Further, it is contended that on

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13.09.2006, the petitioner's brother and two other goondas man-handled the respondent's father and

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Mat. Appeal Nos.556 & 557 of 2009

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taken away the petitioner and the child with them. He never withdrew from the marital relationship, as alleged by the petitioner. The marital life has been broken because of the cruel attitude of the petitioner towards the respondent. The petitioner was not willing to perform her obligation as his wife. So, the petitioner is not entitled to get any decree for restitution of conjugal rights.

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Original Petition No.1187 of 2009: The petitioner filed the above Original Petition, seeking a decree to recover 60,000/- and 20 sovereigns of gold ornaments from the respondents. The 1<sup>st</sup> respondent is the husband of the petitioner and respondent Nos.2 and 3 are his father and mother. According to the petitioner, at the time of marriage, an amount of 50,000/- and 20 sovereigns of gold ornaments were given to her, as her share. The said amount and gold ornaments were entrusted with the respondents and they have appropriated the same to meet

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Mat. Appeal Nos.556 & 557 of 2009

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their personal needs. Thereafter, the respondents have demanded more amount towards dowry and behaved cruelly. When the cruelty and harassment have become intolerable, the petitioner's parents have entrusted 10,000/more with the respondents. The petitioner is residing separately from 13.09.2006 onwards, due to the cruelty and wilful withdrawal of the 1<sup>st</sup> respondent. So, the petitioner is entitled to get a decree to realise 60,000/- and 20 sovereigns of gold ornaments.

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The respondents filed objections, denying

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the entrustment of money and gold ornaments as alleged by the petitioner. According to them, the averment that the petitioner was wearing 20 sovereigns of gold ornaments and they were given `60,000/- in connection with the marriage, as dowry is not true and correct. The petitioner had only a few gold ornaments and the same had been taken back by her on 13.09.2006, when she left the matrimonial

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Mat. Appeal Nos.556 & 557 of 2009

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home. They were not entrusted with money or

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ornaments in connection with the marriage. The gold ornaments, which were worn by the petitioner at the time of marriage are with the petitioner and they are not liable to return money or gold ornaments, as claimed by the petitioner. There was no occasion to

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demand any amount or gold ornaments from the petitioner's parents in connection with the marriage. Hence, they prayed for dismissal of the Original Petitions.

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On the rival contentions in both cases, the joint trial has been allowed and evidence has been recorded in Original Petition No.456 of 2008. The evidence consists of the oral testimony of PWs.1 and 2, RWs.1 to 3 and Exts.A1, A2, and B1 to B4. After considering the aforesaid evidence, the Family Court passed a decree for restitution of conjugal rights against the respondents and allowed the

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Mat. Appeal Nos.556 & 557 of 2009

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petitioner to realise `50,000/- and 17 sovereigns of

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gold ornaments or its present approximate value of `1,75,000/- with 9% interest from respondents 1 to 3. The legality and correctness of the findings, whereby the Family Court passed the aforesaid decrees in favour of the petitioner are sought to be re- appreciated in this appeal.

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The points to be considered in this appeal are (1) whether the Family Court is justified in passing a decree for restitution of conjugal rights against the 1^st respondent? (2) whether the Family

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court is justified in passing a decree for recovering 17 sovereigns of gold ornaments or its value of 1,75,000/- with interest and 50,000/with interest from the respondents?

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Coming to the first point, it is the

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specific case of the petitioner that the respondent withdrew from cohabitation with her from

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Mat. Appeal Nos.556 & 557 of 2009

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13.09.2006 and thereafter, she has been residing separately with her parents in the parental home. When the harassment and cruelty from the part of the

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husband, his parents and siblings have become intolerable, she was constrained to leave the matrimonial home. Thereafter, even though the petitioner and her parents made requests at several times to resolve the problems with the petitioner and resume cohabitation, the respondent or his parents have not taken any steps to resume cohabitation between the petitioner and the respondent. The respondent wilfully neglected her at the instance of his parents and siblings. According to her, his divorced sister Suma was a quarrelsome lady and she used to pick up quarrel with the petitioner. She filed Ext.B1 complaint before the Dy.S.P., Pala on 14.09.2006, immediately after the departure from the matrimonial home and

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Mat. Appeal Nos.556 & 557 of 2009

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the police called the respondent and his parents, discussed the issues and it was agreed by both the parties to reside in the petitioner's house till the marriage of the 1^st respondent's sister and after the marriage, the petitioner will return to the house of the respondent and continue the family life. But, the respondent has not taken any steps to materialise the terms of agreement, despite the long lapse of time, after the settlement. Actually, the petitioner had no complaint about her husband. Her only complaint is against the sisters-in-law. The petitioner has testified in terms of the aforesaid averments in the petition and she has narrated the manner in which she was harassed both physically and mentally by the sisters of the respondent.

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More clearly, according to her, while she

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was in the matrimonial home, her husband was dancing at the tune of his sisters and his sisters treated

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Mat. Appeal Nos.556 & 557 of 2009

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her with cruelty. The divorced sister-in-law by

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name Suma frequently picked up quarrels with her and the respondent could not control her. Even though,

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she was cross-examined in detail at length, nothing has been brought out to discredit her evidence and she stood by the harassment and cruelty from the part of the respondent's sisters towards her. We are of the view that it was duty of the husband to resolve the dispute between his wife and his sisters and make a peaceful atmosphere in the house, so as to live harmoniously in the marital home.

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In order to corroborate the evidence of

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PW.1, her mother was examined as PW.2 and she has sworn proof-affidavit, in support of the averments

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in the petition. Though, she was also crossexamined, nothing has been brought out to discredit

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her evidence also. Thus, PWs.1 and 2 have stood by the allegations of cruelty alleged against sisters

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Mat. Appeal Nos.556 & 557 of 2009

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of the respondent.

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It is not disputed that the petitioner has been residing her parental house from 14.09.2006 and the Original Petition was filed in the year 2008. RW.1 also admitted that there was no quarrel between himself and his wife. He also admitted that the Dy.S.P., Pala intervened on Ext.B1 complaint and formulated a settlement. But, nothing has been adduced to prove that he has taken earnest efforts to settle the quarrel between his wife and his sisters. Merely on the pretext that his wife has no quarrel with him, he cannot escape from his obligation to make a comfortable atmosphere in his house, so as to live his wife peacefully in the matrimonial home.

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Going by the evidence of RWs.1 and 2, they have also admitted that there were frequent quarrels between the petitioner and his sister in the

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Mat. Appeal Nos.556 & 557 of 2009

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matrimonial home. On an analysis of the evidence of

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PWs.1 and 2, we find that the petitioner has reasonable excuse to live in her parental home as the respondent has not taken any effective steps to curb the act of cruelty from the part of his family members. In other words, he failed to discharge his obligation as a dutiful husband. On the other hand, it has come out in evidence that the petitioner is desirous of resuming the cohabitation with the respondent. Therefore, the Family Court is justified in passing a decree for restitution of conjugal rights against the 1^st respondent.

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Coming to the second point, it is the specific case of the petitioner that she was given an amount of `50,000/- and 20 sovereigns of gold ornaments at the time of her marriage and the same

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was entrusted with the respondents 1 to 3. Subsequently, she has entrusted the gold ornaments

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Mat. Appeal Nos.556 & 557 of 2009

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with the respondents 1 to 3. But, they have

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appropriated the said amount and gold ornaments to meet their personal needs. In order to prove the aforesaid averment, the petitioner was examined as PW.1 and her mother was examined as PW.2 and Exts. A1 and A2 were marked.

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PWs.1 and 2 have given evidence, in their

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chief-examination in terms with the averments in the petition with respect to the granting of money and gold ornaments in connection with the marriage to the petitioner and subsequent entrustment of the same with the respondents jointly. Ext.A1 is the marriage certificate issued from the church and Exts.A2 is the extract of the savings deposit. Ext.A2 shows that on 17.06.2009 an amount of `48,854/- had been withdrawn. After analysing the evidence of PWs.1 and 2, the Family Court found that the evidence of PWs.1 and 2 is sufficient to prove

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Mat. Appeal Nos.556 & 557 of 2009

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granting of `50,000/- and 20 sovereigns of gold

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ornaments to the petitioner, as her share. The source of money, for payment of share amount, has

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been stated unambiguously by PW.2, the mother of the petitioner. The respondents themselves admitted in their objection that they have entrusted with 50,000/- at the time of marriage to meet the marriage expense. We are of the opinion that the entrustment of money by the parents of the bride with the bridegroom or his parents to meet the expenses of the marriage also would form a part of the dowry and the same is also returnable to the bride under Section 6 of the Dowry Prohibition Act, 1961. Therefore, the respondents cannot escape from the liability to return 50,000/- to the petitioner on the allegation that the said amount was given to them to meet the marriage expense. Therefore, the Family Court is justified in granting a decree to

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Mat. Appeal Nos.556 & 557 of 2009

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realise `50,000/- with interest from the

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respondents.

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Coming to gold ornaments, PW.2 has stated

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that the petitioner had five sovereigns of gold ornaments originally and 12 sovereigns of gold ornaments had been given to her by her sister. The respondent has admitted at the time of his evidence that the wife was wearing gold ornaments at the time of marriage. It is his case that the petitioner has taken away gold ornaments also at the time, when she left the matrimonial home on 14.09.2006. In order to substantiate the said contention, RW.1 has relied on Ext.B1 complaint. According to him, in Ext.B1 complaint, the petitioner has no case that her gold ornaments or money were appropriated by the respondents. It is true that in Ext.B1 complaint, there is no mention about the payment of amount and gold ornaments. We also do not find any substance

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Mat. Appeal Nos.556 & 557 of 2009

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in the contention that the absence of any allegation

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in the complaint, alleging appropriation of gold ornaments, would give rise an inference that the gold ornaments were with the petitioner, because Ext.B1 complaint was filed with an intention to retrieve her husband from the influence of his sisters and family members. It is her specific allegation in the said complaint that her husband is being clutched by his sisters and family members. Money or gold ornaments were not a matter in issue in that complaint, as she was desirous of resuming cohabitation only. As rightly noted by the Family Court, even the admitted payment of `50,000/- was not mentioned in Ext.B1. It shows that Ext.B1 complaint was filed to take necessary action against the misconduct from the part of the sisters of the respondent. Therefore, as rightly held by the Family Court, merely on the reason that the

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Mat. Appeal Nos.556 & 557 of 2009

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appropriation of money or gold ornaments were not alleged in Ext.B1 complaint, it cannot be held that the petitioner had no complaint against the appropriation of the same by the respondents or the gold ornaments were with the petitioner at the time, when she left the matrimonial home.

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It is pertinent to note that the

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respondent has no case that the petitioner was not wearing any gold ornaments at the time of marriage. The oral evidence of PWs.1 and 2 is more than sufficient to arrive at a conclusion that the gold ornaments were entrusted with the respondents and

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they have appropriated the same to meet their personal needs. The evidence of PW.2, the mother of the petitioner would prove the sources of gold ornaments and the respondents failed to discredit the evidence of PW.2 in this respect.

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In short, as rightly found by the Family

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Mat. Appeal Nos.556 & 557 of 2009

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Court, the petitioner has succeeded in proving that she was given 17 sovereigns of gold ornaments and same was appropriated by the respondents. We do not

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find any reason to interfere with the findings of the Family Court that the respondents are liable to return 50,000/- with 9% interest from the date of petition and 17 sovereigns of gold ornaments or its value 1,75,000/- with 9% interest from the date of trial court decree.

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These appeals are devoid of merits and dismissed accordingly. All pending Interlocutory Applications will stand closed.

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K. HARILAL, JUDGE

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Sd/- A.M. BABU, JUDGE

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DST

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//True copy//

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P.A. To Judge

Giji Kuriakose @ Scaria v. Lijimon Mathew @ Kochuthresia

Case brief

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Giji Kuriakose @ Scaria v. Lijimon Mathew @ Kochuthresia

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