Partly allowed

V.K.Rakesh v. T.P.Deepthi

Kerala HC5 Dec 2023RPFC/52/2020

Case brief

AI extract

What is this about?

Appeals by wife against annulment of marriage, dismissal of claim for return of gold ornaments, and challenge to maintenance order. High Court upheld annulment based on suppression of epilepsy/mental illness, set aside maintenance as marriage was annulled, and dismissed gold ornaments claim for lack of proof of entrustment.

What did the court decide?

Maintenance order set aside; annulment of marriage and dismissal of gold ornaments claim upheld.

V.K.Rakesh Vs T.P.Deepthi — Maintenance and Alimony | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶3

THE HONOURABLE MRS. JUSTICE C.S. SUDHA

¶4

TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA, 1945
MAT.APPEAL NO. 194 OF 2023

¶5

AGAINST THE JUDGMENT DATED 26.10.2022 IN OP NO.314/2018 OF FAMILY
COURT, KANNUR

¶6

APPELLANT/PETITIONER:

¶7

DEEPTHI JANARDHANAN
AGED 32 YEARS
D/O. M.V. JANARDHANAN, T.P HOUSE, THALIYIL,
ANTHOOR VILLAGE, KALLIASSERY P.O, KANNUR DISTRICT.,
PIN – 670562

¶8

BY ADVS.
O.V.MANIPRASAD
JOSE ANTONY
HARIKRISHNAN P.

¶9

RESPONDENTS/RESPONDENTS:

¶10

1V. K RAKESH
AGED 36 YEARS
S/O. V.K GEETHA, VAYANKARA KUNNATH HOUSE,
CHEMMANCHERRY, KARAMEL, ANNUR P.O, PAYYANNUR,
KANNUR DISTRICT, PIN – 670307

¶11

2V. K GEETHA
AGED 62 YEARS
W/O HAREENDRANATH, VAYANKARA KUNNATH HOUSE,
CHEMMANCHERRY, KARAMEL, ANNUR P.O, PAYYANNUR,
KANNUR DISTRICT, PIN – 670307

¶12

BY ADVS.
MURALIKRISHNAN C
ABRAHAM GEORGE JACOB(K/003159/1999)
P.I.RAHEENA(K/283/2015)

¶13

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.12.2023, ALONG WITH Mat.Appeal.140/2020, RP(FC) 52/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶15

-2-

¶16

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶17

PRESENT

¶18

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶19

¶20

THE HONOURABLE MRS. JUSTICE C.S. SUDHA

¶21

TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,

¶22

¶23

MAT.APPEAL NO. 140 OF 2020

¶24

AGAINST THE JUDGMENT AND DECREE DATED 22.11.2019 IN OP

¶25

NO.529/2016 OF FAMILY COURT, KANNUR

¶26

APPELLANTS/RESPONDENTS:

¶27

1T.P.DEEPTHI @ DEEPTHI JANARDHANAN
AGED 28 YEARS
D/O. M.V JANARDHANAN, T.P HOUSE, (PO)
KALLIASSERRY,. AANTHOOR, THALIYIL DHARMASHALA,
KANNUR DISTRICT.

¶28

2M.V JANARDHANAN,
AGED 60 YEARS
T.P HOUSE, (PO) KALLIASSERRY,. AANTHOOR,
THALIYIL DHARMASHALA, KANNUR DISTRICT.

¶29

3T.P RENUKA,
AGED 54 YEARS
W/O. M.V JANARDHANAN, T.P HOUSE, (PO)
KALLIASSERRY,. AANTHOOR, THALIYIL DHARMASHALA,
KANNUR DISTRICT.

¶30

BY ADVS.
K.P.DANDAPANI (SR.)
SRI.MILLU DANDAPANI

¶31

RESPONDENT/PETITIONER:

¶32

V.K.RAKESH
AGED 32 YEARS

¶33

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶34

-3-

¶35

S/O. C.M HAREENDRANATH, VAYANKARA KUNNATH,
CHAMMANCHERI, KARAMEL, ANNUR, PAYYANNUR,
KANNUR DISTRICT 670 307

¶36

BY ADVS.

¶37

SRI.C.MURALIKRISHNAN (PAYYANUR)
SRI.ABRAHAM GEORGE JACOB

¶38

RAHEENA P I

¶39

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 05.12.2023, ALONG WITH Mat.Appeal.194/2023 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE

¶40

FOLLOWING:

¶41

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶42

-4-

¶43

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶44

PRESENT

¶45

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶46

¶47

THE HONOURABLE MRS. JUSTICE C.S. SUDHA

¶48

TUESDAY, THE 5TH DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,

¶49

¶50

RPFC NO. 52 OF 2020

¶51

AGAINST THE ORDER DATED 22.11.2019 IN MC NO.497/2016 OF

¶52

FAMILY COURT, KANNUR

¶53

REVISION PETITIONER/COUNTER PETITIONER:

¶54

V.K.RAKESH
AGED 35 YEARS
SON OF C.M.HAREENDRANANTH, VAYANKARA KUNNATH
HOUSE, CHAMMANCHERI, KARAMEL, ANNUR, PAYYANNUR,
KANNUR DISTRICT-670 307.

¶55

BY ADVS.
C.MURALIKRISHNAN (PAYYANUR)
SRI.ABRAHAM GEORGE JACOB
RAHEENA P I

¶56

RESPONDENT/PETITIONER:

¶57

T.P.DEEPTHI
AGED 31 YEARS
DAUGHTER OF M.V.JANARDHANAN, T.P.HOUSE, (PO)
KALLIASSERRY, ANANTHOOR, THALIYIL DHARMASHALA,
KANNUR DISTRICT-670 562.

¶58

BY ADV
SRI.MILLU DANDAPANI

¶59

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶60

-5-

¶61

THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY
HEARD ON 05.12.2023, ALONG WITH Mat.Appeal.194/2023 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶62

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶63

-6-

¶64

JUDGMENT

¶65

[Mat.Appeal Nos.194/2023, 140/2020, 52/2020]

¶66

This order shall dispose off two matrimonial

¶67

appeals and one RPFC; Mat.A.140 of 2020 arising out of the decision rendered in O.P.No.529 of 2016 whereby the marriage solemnized between the parties on 22.04.2016 has been annulled; Mat.A.No.194 of 2023 by the wife against the dismissal of O.P.No. 314 of 2018 filed for return of gold ornaments and RPFC No.52 of 2020 challenging the decision dated 22.11.2019 in M.C.No.497 of 2016 granting maintenance to the wife at the rate of 5,000/- (Rupees five thousand only) with effect from 18.11.2016.

¶68

Succinctly the facts in brief for adjudication of all the three matters arising out of the marriage performed on 22.04.2016 are same and therefore the facts have been taken from Mat.Appeal No.140 of 2020 arising from O.P.No.529 of 2016.

¶69

The marriage between the husband and wife was

¶70

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶71

-7-

¶72

performed on 22.04.2016. Before the marriage husband was working in gulf. He arrived at his native place fifteen(15) days prior to the marriage and attempted to meet the wife personally and interact with her. He could not meet her nor any steps were taken for meeting. In other words, there was no courtship.

¶73

After two months of the marriage husband instituted the petition and claimed annulment of the marriage on the ground that wife prior to the marriage was suffering from epilepsy and had also been on certain psychotropic drugs meant for treating the depression. Certain incidents after performance of the reception were also narrated, i.e., regarding her conduct and behaviour when the wife was under the attack of epilepsy. In response to the aforementioned notice, wife denied allegations and stated that there was no fraud administered on the husband nor any misrepresentation or suppression of material of facts but did not deny the fact that she was under the treatment of epilepsy.

¶74

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶75

-8-

¶76

Factum of epilepsy was disclosed and with all eyes open, husband performed the marriage. At the time of the marriage thirty(30) sovereigns of the gold ornaments were given which have been misappropriated not by the husband but by the family members of the respondent husband and also sought a claim for return of the same.

¶77

MC was also filed for claiming the maintenance keeping in view the status of the family. Wife alleged that after the marriage husband ill-treated her and rather claimed that they were required to be given one hundred and fifty(150) sovereigns of gold ornaments owing to the fact that she was suffering from epilepsy.

¶78

Family Court framed the following points for determination:

¶79

“1. Whether the petitioner/husband in OP 529/16 is entitled to get a decree to declare the marriage as null and void?

¶80

Whether the petitioner/wife in MC 497/16 is entitled to get maintenance from the respondent?

¶81

If yes, the quantum?

¶82

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶83

-9-

¶84

Relief and cost?”

¶85

In support of the case husband examined himself as PW1 and also examined one doctor Mr.Jithesh Shivashankaran as PW2. Placed on record Compact Disc as Ext.A1, medical prescription in the name of the wife issued from A.K.G. Memorial Co-operative hospital dated 08.08.2015 as Ext.A2 and similar prescription Ext.A2(a) dated 09.04.2016, Ext.A2(b) dated 13.11.2015, Ext.A3 Photocopy of marriage proposal form issued from Saubhagya Marriage Bureau, Ext.A4 residency permit issued from Ministry of Interior State of Qatar dated 02.03.2017 and copy of the payment receipt issued from the State of Qatar A4(a). Trial court clubbed the two matters and allowed the annulment of marriage and maintenance at the rate of Rs.5000/- (Rupees Five thousand only) as per the decree and judgment dated 22.11.2019.

¶86

Few months before the adjudication of the petition seeking annulment of the marriage and

¶87

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶88

-10-

¶89

maintenance wife instituted OP No. 314 of 2018 claiming return of the gold ornaments. It was also contested by the husband. Though Family Court noticed that wife placed on record the sale bills of the jewellers, entrustment of gold was not proved, resulted into dismissal. It is in this circumstances two appeals and one RPFC have been filed before this Court.

¶90

Learned counsel appearing on behalf of the wife in support of the memorandum of appeal taken in Mat.A.No.140 of 2020 submitted that non appearance of the wife in the petition seeking annulment of marriage cannot be a ground for drawing adverse inference. Factum of epilepsy was disclosed. Doctor though did not state in the cross examination with regard to the drugs given for depression but had only vouched the certificate issued by the hospital regarding the treatment of epilepsy before the date of marriage which shows that the wife was suffering from epilepsy, thus there is no misrepresentation of fraud at the instance of the family

¶91

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶92

-11-

¶93

members or of the wife. Family Court ought to have found that the husband had not taken any pain to examine any psychiatrist while she was alleged to have been suffering from mental illness. PW2 was only a neurologist and only prescribed the medicine for epilepsy.

¶94

The alleged videographs placed on record, to show the conduct of the wife, cannot be led into evidence in the absence of permission under Section 65B of the Indian Evidence Act. Husband failed to discharge the burden as enshrined by law and therefore no positive finding in the absence of fulfilment of ingredients of fraud and misrepresentation. Doctor in the cross examination admitted that a patient who is taking medicine for epilepsy would have a side effect of irritation but these symptoms would not result into the behaviour and the conduct as attempted to be demonstrated by the husband. All these factors if examined in a correct perspective the petition for

¶95

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶96

-12-

¶97

annulment of marriage would have been dismissed.

¶98

Family Court in OP No.314 of 2018 declined to accept the plea of return of the gold ornaments though umpteen number of documentary evidence besides testimony of five witnesses have been placed on record, i.e., PW1 M.V. Janardhanan, PW2 Deepthi Janardhanan, PW3 A.K. Sajith, PW4 Jojo K.J. and PW5 M. Karunakaran and series of documents marked as Exts.A1 to A4(a) sales bill of Kalyan Jewellers, A5 Photo, A6 pen drive and A6 Certificate. Respondents marked exhibits B1 to B3(d) and third party exhibits as Exts.X1 to X1(d). Wife discharged the onus with regard to the recovery of the gold ornaments whereas the husband failed to rebut the same. In the absence of any uncontroverted evidence the petition was liable to be allowed in favour of the wife. Husband failed to place on record any evidence that the gold entrusted at the time of marriage was taken back by the wife when parties started living separately.

¶99

On the other hand, learned counsel appearing

¶100

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶101

-13-

¶102

on behalf of the husband supported the impugned judgment dated 26.10.2022 in O.P.No.314 of 2018 by submitting that onus as per Section 101 of the Indian Evidence Act was not discharged, therefore, the question of rebuttal did not arise. No witness from the jeweller in support the bills referred above have been examined. Thus the documents have not been proved in accordance with law. There were stark contradiction in the testimony of all the witnesses.

¶103

In support of the RPFC it was contended that once the wife was suffering from epilepsy and husband had preferred a petition for annulment after two months of marriage there was no occasion for the husband to maintain the wife as per the order dated 22.11.2019 ordering maintenance at the rate of Rs.5,000/- (Rupees Five thousand only) with effect from 18.11.2016.

¶104

On the other hand, learned counsel for the wife supported the order and stated that so long as the status of the wife continue husband is enjoyed upon obligation

¶105

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶106

-14-

¶107

to maintain the wife.

¶108

We have heard learned counsel for the parties and appraised the paper books.

¶109

In the petition bearing No.529 of 2016 wife did not appear in the witness box to controvert the direct and cogent evidence brought on record by the husband. In other words the evidence remained unrebutted. It is settled law that the onus to discharge the burden is on the person who asserts it. Husband in support of the allegations made in the petition besides examining himself as PW1 also examined PW2-Doctor. The testimony of PW2 a Doctor-Neurologist revealed that the wife was suffering from epilepsy much before the marriage. It would be appropriate for us to examine the findings recorded by the trial Court regarding testimony of Doctor. The same reads as follows:

¶110

“….16. I shall examine the evidence of PW2/doctor in the light of the above backdrops. Admittedly, Dr.Jithesh of A.K.G Hospital treated R1 for epilepsy even prior to the marriage. The marriage of the parties was held on 22.04.2016.

¶111

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶112

-15-

¶113

PW2 had seen R1 on 08.08.2015, 13.11.2015 and 09.04.2016. In Ext.A2 (b), which is the prescription dated 13.11.2015, it is recorded that the patient was on anti-psychotic medicine namely Risperiodone which is a medicine normally prescribed to the patients who are suffering from schizophrenia or bipolar disorder. Of course, PW2 is not the Doctor who prescribed this medicine. But at the time of cross-examination, PW2 has categorically stated that he know that the patient was taking psychiatric medicine as he himself noted the said fact in his prescription. The respondents have no case that PW2/doctor has some reason to record something false in the prescriptions. The other prescriptions makes it clear that Ri was taking tablet “nexito” which is normally prescribed to those persons who were not getting adequate sleep. Of course PW2/doctor has admitted that he has been treating R1 only for epilepsy and main tablet which is being prescribed by him is levepsy which got some side effect such as mood fluctuations. But even if R1 had mood fluctuations as a side effect of tablet levepsy she need not consume a psychiatric drug like Risperidone. So, the evidence of PW2 coupled with the facts discussed above clearly indicate that the petitioner is having some psychiatric problem and it was there to her even prior to the

¶114

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶115

-16-

¶116

marriage. The respondents have no case that they disclosed the mental illness of R1 to the petitioner or his relatives prior to the marriage. Admittedly, the mental illness of respondent is a material fact concerning her and she and her relatives ought have disclosed it to the petitioner prior to the marriage. So, it has to be held that the respondents have suppressed material fact relating to R1 to the petitioner prior to the marriage. I find no reason to disbelieve the evidence of petitioner that had he knew about the mental illness of R1 prior to the marriage he would not have consented for the marriage. So, consent of the petitioner for the marriage was obtained by suppression of material facts which amounts to fraud. So, the marriage is definitely voidable at the option of the petitioner. Therefore the marriage is liable to be declared as null and void. Hence, I find this point accordingly in favour of the petitioner.”

¶117

Section 114(g) of the Indian Evidence Act envisage that a person who do not rebut the evidence nor appear in the evidence much less do not rebut the evidence through oral or documentary evidence, court is liable to draw adverse inference. No explanation much

¶118

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶119

-17-

¶120

less cogent or reasonable has come forward for nonexamination. Perhaps the wife was afraid that had she been subjected to cross examination, the truth would have spilled. We cannot ignore that husband was not vigilant and diligent in not availing the remedy as per the provisions of law for, annulment was sought immediately after two months of the marriage as prescribed under Section 12 of the Hindu Marriage Act, 1955. Section 12 of the Indian Evidence Act reads as under:

¶121

“12 Voidable marriages .�

¶122

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:�

¶123

12[(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

¶124

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

¶125

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under section 5 as it stood immediately before the commencement

¶126

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶127

-18-

¶128

of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

¶129

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

¶130

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage�

¶131

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if�

¶132

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

¶133

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

¶134

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied�

¶135

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

¶136

(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

¶137

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶138

-19-

¶139

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of [the said ground].

¶140

(i) Non-disclosure of age and factum of having major children by husband at the time of marriage amounts to fraud and suppression of material facts having bearing on marriage. Marriage founded on fraud from very inception is a nullity; Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.

¶141

(ii) Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented for the marriage believing the statement to be true. It was held that the consent was vitiated by fraud; Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.”

¶142

Legislature has also provided a ground for

¶143

divorce under Section 13(1)(iii) of the Hindu Marriage Act, 1955 which has been read with explanation (a) and (b) whereby the expression 'psychopathic or mental disorder' would mean mental illness, incomplete development of mind, disability including schizophrenia disability of mind including sub-normality of intelligence which results in abnormally aggressive or seriously irresponsible conduct on the part of other party and

¶144

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶145

-20-

¶146

whether or not requires or is susceptible to medical treatment. The medical record placed on record and medical prescription have gone unrebutted. In view of the aforesaid observations, we do not find any illegality and perversity in the judgment and decree dated 22.11.2019 rendered in O.P.No.529 of 2016. Accordingly Mat. Appeal No.140 of 2020 preferred by the wife stands dismissed.

¶147

As the family court has already annulled the marriage, in our view the Court ought not to have allowed the maintenance at the rate of Rs.10,000/(Rupees Ten thousand only) in MC No.497 of 2016 decided along with O.P.No.529 of 2016 vide common judgment. Accordingly the findings rendered in MC No.497 of 2016 granting maintenance of Rs.5,000/(Rupees Five thousand only) with effect from 18.11.2016 is set aside. RPFC No.52 of 2020 stands allowed.

¶148

As far as the claim of the wife with regard to dismissal of OP No.314 of 2018, we have examined the

¶149

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶150

-21-

¶151

judgment and noticed that no doubt the wife had attempted to place on record umpteen number of documents A1 to A4 sale bills of Kalyan Jewellers whereas the husband had placed on record the certified copy of the judgment rendered in O.P.No.529 of 2016. In support of the claim wife appeared as PW1. She stated that on 24.04.2016 respondents had forcibly taken the possession of thirty(30) sovereigns of gold. Manager of Kalyan Jewellers, Kannur was examined as PW4. He stated that on 11.04.2016 one Sajith A.K. had purchased gold ornaments worth Rs.2,10,342/- (Rupees Two lakh ten thousand three hundred and forty two only). In the testimony it was also stated that one M.V. Janardhanan had purchased the gold ornaments as per Ext.A2 and A4 and caused the production of copies of bills and marked as X1 series. Photographer was also examined as PW5 pertaining to the videos which reflect that the jewelry was worn at the time of the marriage.

¶152

On the other hand husband examined himself

¶153

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶154

-22-

¶155

as RW1 and disputed the allegations raised in the petition regarding the entrustment of gold ornaments rather came out with the same stand as taken in O.P.No.529 of 2016 with regard to concealment of mental illness and fraud perpetuated in the marriage. Trial court noticed the silence of the wife for almost two years for setting up the claim for return of the gold ornaments and on realizing that the decree of annulment marriage has been passed, made the claim. It was also noticed that the wife failed to prove on record any entrustment of gold ornaments alleged to have been purchased by the persons referred to above and rather noticed that RW2 examined on behalf of the husband was one of the mediators who had taken part in the discussion and stated that there was no talks of exchange of gold ornaments or entrustment.

¶156

In the cross examination PW2 deposed that the photographs taken on the marriage reception would clearly show that she was wearing thirty(30) sovereigns

¶157

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶158

-23-

¶159

of gold and those photographs and CD were entrusted with her lawyer but such piece of evidence was not produced before the court. No explanation has come forth in not examining the said witnesses. Purchase of gold ornaments and wearing them at the time of the marriage would not result into a presumption that they were entrusted and remained in the custody of parents of the husband or the husband. There has to be categorical and specific assertion to that effect. In the schedule attached to A1 series, three necklaces and three chains are seen to have been purchased whereas Ext.A5 the photographs of PW2 taken on the marriage show the presence of only four chains. No explanation has come forth from the side of the wife regarding such discrepancy.

¶160

Trial Court has noticed all these facts threadbare while coming to the findings in Paragraph No.28 in OP No.314 of 2018. The same reads as follows:

¶161

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶162

-24-

¶163

“28. The contention raised by the petitioner at a later stage is that the first amendment was necessitated since bills pertaining to the gold ornaments were recovered after filing the petition and on the basis of those bills the amendment became necessary. In the schedule attached at the initial stage there were 23 items of gold ornaments including one Arapatta weighing 44 gm. The total weight of gold ornaments is 30 sovereigns in that schedule. Coming to the second schedule incorporated by the way of amendment, 22 items are seen introduced and “Arapatta” deleted and the, total weight of ornaments is almost 30 sovereigns. As per the schedule originally filed there are 3 necklaces and 2 chains but in the second schedule 3 necklaces and 3 chain are incorporated. PW2 had given evidence that she had only 3 chains and no separate necklaces. In such a situation the bills have to be scrutinized. Ext.A1 series is the first bill pertaining to the purchase made by PW3. In the schedule attached to the petition 3 necklaces and 3 chains are seen claimed. Ext.A5 is the photograph of PW2 taken or the date of marriage. This photograph show the presence of only 4 chains/necklaces. There is no explanation forthcoming from the side of the petitioner regarding this discrepancy. In Ext.A1 series 5 items are seen purchased. But the first item is

¶164

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶165

-25-

¶166

seen scored off and the dealer had put a mark “SR” which indicates sales return. So it could be seen that as per Ext.A3, 3 necklaces and one ring alone were purchased. But the bangle scored off in that bill is seen included in the amended schedule. Ext.A2 is the bill bearing No.KNRGKC000340 dated 11.04.2016. As per this bill 9 items of gold ornaments have been purchased. But it could be seen that item Nos.4 to 8 (bangles) are scored off as “SR” which are returned on 13.04.2016 by way of sales return. These bangles are included in the schedule as items No.13 to 16 and item No.15 in the bill is again added as item No.17 in the schedule. The sales return in this regard does find a place Ext X1 series bearing No Kin Ext.X1 series bearing No.KNRGK000026 dated 13.04.2016 (second page of Ext.A3). As per this document it could be seen that 4 bangles were returned and the weight of the returned bangles tally with those scored off in Bill No.KNRGKC000340 dated 11.04.2016. Ext.A4 would show the purchase of 2 bangles. So after deducting the returned bangles the total number of bangles purchased as per Exts.A1 to A4 is “7”. But in the schedule 13 bangles are seen incorporated which includes the purchase as well as the sales return. Likewise out of the 8 items in BillNo.KNRGKC000340 dated 11.04.2016, a chain weighing 20.250 gms was returned as

¶167

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶168

-26-

¶169

“SR” in the Bill and Bill No.KNRGK000042 dated 18.04.2016 raised for sales return (2nd page of Ext.A4 (a). This chain is shown as item No. 9 and 21 in the schedule. So it could be seen that a false schedule was incorporated in the petition by adding gold ornaments returned by showing the same as purchase and again adding them when returned. Though the jewellery manager was examined no question is seen put to the manager of the jewellery to elicit these facts. Even in the absence of any oral evidence let in by the jewellery manager the entries contained in the bills go to prove that returned items of gold are incorporated in the petition twice as per the purchase bill and also on basis of the bill in respect of sales return and this raised an exorbitant claim. PW3 had given evidence that the gold purchased by him were gifted to the petitioner and there was omission on the part of the petitioner to incorporate the said items in the original schedule. This version does not appear to be correct on the reason that the purchase of necklace made by PW1 as per Ext.A1 series was in the original schedule incorporated in the petition since no other necklaces are seen purchased in the other bills. So the over all evidence on record would convincingly prove that the petitioner has raised claims incorporating the returned gold items as purchase and added them again on the basis of

¶170

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶171

-27-

¶172

the return invoice. In this connection the delay in seeking a prayer for return of gold ornaments also assumes significance. The learned counsel for the petitioner tried to explain the reason for the delay by stating that the respondents had disputed the possession of gold in answer to the counter statement filed in the maintenance application and only at that stage the petitioner became aware regarding the intention of the respondents not to return the gold ornaments. This argument does not appear to be convincing. The specific case set up by the petitioner at the beginning itself is that the respondents had raised a demand for 150 sovereigns of gold ornaments to continue the marital relationship and they stated that the gold ornaments will be returned only if the petitioner is ready to subscribe her signature in a joint application for divorce. So the petitioner was aware regarding the alleged intention of the respondents not to return the gold ornaments even at the time of mediation. So what prevented the petitioner from seeking a decree for return of gold ornaments during the first round of litigation is not explained. The learned counsel for the petitioner would submit that his party had raised an allegation in the counter filed in the earlier application regarding the possession of gold ornaments with the respondents. Mere allegation contained in the

¶173

MAT.APPEAL NO. 194 OF 2023 & con.cases

¶174

-28-

¶175

counter statement filed in the earlier litigation cannot be taken as a circumstance to jump into a conclusion that the respondents had retained the gold ornaments as alleged in the petition.”

¶176