Kerala High Court

N.P.Leelamma vs M.A.Moni on 29 September, 2007

IN THE HIGH COURT OF KERALA AT ERNAKULAM
"CR"
PRESENT:

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE K.RAMAKRISHNAN

THURSDAY, THE 6TH DAY OF APRIL 2017/16TH CHAITHRA, 1939

Mat.Appeal.No.681 of 2007 (A)
-------------------------------
(AGAINST THE JUDGMENT IN OP 613/2003
of FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 29.9.2007)

APPELLANT/RESPONDENT:
---------------------

N.P.LEELAMMA, AGED 52 YEARS,
D/O.PADMANABHAN, KAILASAMANDIRAM,
MADUMOOLA BHAGAM,
VAZHAPPALLY KARA,
VAZHAPPALLY VILLAGE, CHANGANACHERRY.

BY ADVS.SRI.K.GOPALAKRISHNA KURUP
SRI.S.MANU

RESPONDENT/PETITIONER:
---------------------

M.A.MONI, MANIMANDIRAM HOUSE,
ERICAD KARA, PUTHUPPALLY VILLAGE,
KOTTAYAM TALUK.

BY ADV. SRI.C.VARGHESE KURIAKOSE

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03-02-2017,

ALONG WITH MA.653/2007, MA.682/2007, THE COURT ON 06.04.2017 DELIVERED

THE FOLLOWING:

ss

A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.
.......................................
Mat.A.No.681,682&653 of 2007
........................................
Dated this the 6th day of April, 2017.
"CR"
JUDGMENT

K. Ramakrishnan, J:

The respondent wife in OP.No.613/2003 on the file of the

Family Court, Kottayam at Ettumannor is the appellant in Mat.A.No.

681/2007. The petitioner/wife in OP.No.455/2004 on the file of the

same court is the appellant in Mat.A.No.682/2007 and

respondent/husband in the same case is the appellant in Mat.A.No.

653/2007.

2. OP.No.613/2003 on the file of the Family Court, Kottayam

at Ettumannor was filed by the husband for dissolution of marriage

under Section 13(1)(ia) and (ib) of
Hindu Marriage Act
(hereinafter

called the Act) on the ground of cruelty and desertion. It is alleged

in the petition that the marriage between the petitioner and the

respondent was solemnized on 8.11.1977 as per Hindu custom and

they lived together as man and wife till 12.4.1982. Two children

were born to them in that wedlock, one of whom was a boy and the

other is a girl. While the respondent was residing with the

petitioner, she was not obeying him and not loyal to him. She had

removed 15 sovereigns of gold ornaments from his custody without

his knowledge and consent. She was always in the habit of picking

up quarrel with him for even silly matters. On 12.4.1982, without

any reasonable cause, she withdrew from the company of the

Mat.A.No.681,682&653 of 2007 2

husband along with the children who are aged 3 = years and two

years respectively. Though he made all attempts for a reunion, she

was not amenable for the same. She started residing in her parental

house. She had denied all his marital rights. While so, petitioner

sent a notice to the respondent asking her to resume cohabitation

for which she sent a reply expressing her unwillingness to join him.

So petitioner filed OP(HMA)No. 53/82 before the Sub Court,

Kottayam for restitution of conjugal rights
u/s 9
of the Act. Though

an attempt was made of settling the issues between them, and to

restart their life together with the children, that failed due the

adamant attitude of the respondent. Respondent contested the

case and after evidence, the Sub Court, Kottayam granted a decree

for restitution of conjugal rights holding that the respondent was

residing separately without any reasonable cause. The respondent

filed appeal before this court as MFA.No. 348/84 and by judgment

dated 16.3.1987, this court has set aside the decree passed by the

Sub Court and dismissed the petition. The petitioner was a graduate

working in the Dairy Department of Government of Kerala as a

senior Gazetted Officer. The respondent was working as Secretary

in Govt. Employees Co-operative Bank, Kottayam and getting good

income. He was also backed by a good fortune as inherited by his

father. After dismissal of the petition for restitution of conjugal

rights, though he made attempts to have a reunion considering the

Mat.A.No.681,682&653 of 2007 3

welfare of the children through mediators including the office

bearers of the SNDP sakha of the area, but it failed. The attitude of

the respondent wife amounts to cruelty and desertion and so he had

no other option except to file the petition for divorce on the above

grounds as there was no possibility of reunion and the marriage tie

between them had been irrecoverably broken down. Hence the

petition.

3. He amended the petition as per order in IA 1498/2005

wherein he had alleged that the respondent used to behave very

cruelly both physically and mentally towards the petitioner from

12.04.82 onwards. She was living separately from the petitioner.

She was making baseless and false accusation against the petitioner

with malicious intention to defame him before the public and

relatives. She was accusing him as a womanizer and a drunkard.

She without any basis accusing him that he was having illegal

relationship even with his close relatives and several women.

Making such false and baseless accusation caused great anguish

and mental torture to the petitioner. She was sending false and

frivolous complaints to the higher authorities. Even after lapse of 21

years from the date of separation, she filed false complaints against

him before the DYSP kottayam and a case was registered under

section 498A
of the Indian Penal Code and the same was charge

sheeted and he was arrested on 11.11.2003 and later he was

Mat.A.No.681,682&653 of 2007 4

released on bail on 12.11.2003. She made complaints to his higher

authorities so as to see that his employment is lost to him. On

11.10.04 at about 4 P.m at the instance of the respondent, nine

persons armed with weapons attacked him from the courtyard of his

house with an intention to kill him and he escaped from them. On

several occasions, respondent through her henchmen attempted to

attack his sisters, Ammini and Janaki. A vigilance enquiry was

initiated at the instance of the respondent and memo has been

issued to him on 23.12.2003. She tried to prevent his family

pension being disbursed. Petitioner filed WP(C).No.33813/2004

before this court and obtained police protection. So the act of the

respondent amounts to cruelty.

4. Respondent earlier filed counter admitting the marriage and

birth of the children but denying the allegations of cruelty and

desertion alleged in the petition. She denied that she was cruel to

him while they were living together and she was picking up quarrel

with him for silly things. In fact he was torturing her demanding

more dowry and picking up quarrel with her for flimsy and silly

matters. In fact he deserted her and the children and he is residing

with another woman. He had extorted the entire assets of the

respondent. She has already filed a petition for getting back her

assets. In fact respondent never withdrew from the company and

cohabitation of the petitioner. In fact it was he who had deserted

Mat.A.No.681,682&653 of 2007 5

her. She admitted the filing of OP (HMA)No.52/82 by the petitioner

and the same was being allowed by the Sub Court, later she filed

appeal which has been allowed. The high court while allowing the

appeal filed by her categorically held that she was living separately

with reasonable cause. She was only opposing the prayer for

divorce on the ground that her children became major and their

marriage has to be solemnized in a decent manner and she did not

want to be titled as a divorcee. She never expects any benefits and

grace from the petitioner. She is looking after herself and children

from 1982 onwards. Son was studying for MBBS course and

daughter is studying for MCA. She never approached the petitioner

for any help or assistance. She is not intended to cohabitate with

the petitioner since he is having another wife and child. But she is

not interested in divorcing the petitioner. There is no cause of action

for the petitioner to file the petition for divorce. So she prayed for

dismissal of the petition.

5. After amendment, she filed additional written statement

reiterating all her contentions in the earlier statement. According to

her, they are residing separately from 1982 onwards. Petitioner

and others attempted to assassinate her and so she had to escape

from the matrimonial home due to fear of death. According to her,

even prior to the marriage, the petitioner had a female child

Mat.A.No.681,682&653 of 2007 6

through a relative which has become a talk among the family

members. The residential building and property purchased by the

father was sold by the petitioner. Anticipating some risk in

continuing the relationship, on 11.4.1982, the petitioner and the

lady attempted to kill her and so she had to leave the matrimonial

home with children. Thereafter, he never cared to look after her.

On 9.2.1989, the petitioner married another lady and a female child

was born to them in that relationship and she was a Plus One

student then. The petitioner's family consist of more than 12

members and all of them were residing separately, even without

caring their parents and they are in enemical terms with each other.

Such an unpleasant situation and surroundings of the petitioner's

family is the root cause for his misbehaviour and bad character.

During 1981, the brother of the petitioner deserted his wife

complaining that the petitioner was having sexual relationship with

her. Due to the cruelty of the petitioner, his sister Janaki and her

husband committed suicide after consuming poison at the residence

of the petitioner. He had quarrelled with his younger brother by

name Ponnappan who was murdered by his elder brother Gopi. The

daughter of his elder sister Santhama, committed suicide by

hanging on account of the harassment met at the hands of the

petitioner and his sister Janaki. Such a person is now making

allegations of cruelty against the respondent. When she arranged

Mat.A.No.681,682&653 of 2007 7

the marriage of their daughter, apprehending that the respondent is

likely to approach him, he had transferred his properties in the

name of his second wife and published seveal scandalous news

against her and her daughter, and on account of such attitude and

act, several proposals were dropped by the groom's party and the

marriage of her daughter was delayed. The second wife of the

petitioner and his sister Janaki abused her with obscene language

over phone. On 21.4.2004 at about 9.45 a.m, Mini and Janaki wth

the petitioner attempted to beat the respondent using slippers in

front of her office and due to the intervention of an autorickshaw

driver, she was saved from that attack. A complaint was filed

before the Chief Judicial Magistrate court. Even prior to that, she

was threatened by the petitioner, his second wife and sister on

several occasions. On 8.12.2003, there was an attempt of attack

in conspiracy with the petitioner with his friend who was a defaulter

of a bank, in which, the respondent was working, as she had taken

steps to recover the dues from him. Frivolous complaint filed by the

petitioner before the Sub Inspector of Kottayam East police station

was later dismissed. So, there was no merit in the petition and she

prayed for dismissal of the same.

6. The respondent in the above case, the wife, filed

O.P.No.455/04 claiming certain amounts from the

respondent/husband originally. Thereafter, additional second

Mat.A.No.681,682&653 of 2007 8

respondent was impleaded with the following allegations: The

marriage between the petitioner and respondent was solemnized on

8.11.1977 and two children were born to them in their wedlock and

she was deserted by the 1st respondent and she is now residing

along with her children in her parental house and later shifted to her

self acquired residential building. On 11.4.1982, he had brutally

manhandled her and attempted to kill her and so, out of fear of

death, she had to leave the matrimonial home with the children. He

filed HMA (OP)No.553/82 before Sub Court, Kottayam for restitution

of conjugal rights and the same was allowed and she filed MFA

No.348/84 before this Court and the same was allowed by this

Court by judgment dated 16.3.1987 setting aside the order passed

by the Sub Court, Kottayam. Thereafter, no steps were taken by the

1st respondent against that judgment. The elder son was doing his

House Surgency at Bulgaria and her daughter was expecting

admission for M.Tech course. The 1st respondent filed

O.P.No.613/03 for divorce. Even before filing of the petition, the

respondent married another woman by name Mini, Thinavitha

Chathil, Karinkulam on 9.2.1989. On the basis of the complaint

given by the petitioner, a case was registered as Crime no.481/03

under
Section 498A
of IPC against him. A female child by name

Pournami was born to them in that wedlock. From 11.4.1982

onwards, the husband was not looking after the affairs of the wife

Mat.A.No.681,682&653 of 2007 9

and children.

7. At the time of marriage, 292 gms. of gold ornaments and

Rs.5,000/- was given towards the share of the petitioner in her

family and the gold ornaments and the amounts have been

misappropriated by him without her knowledge. Since he insisted

for more and more amounts, the father of petitioner purchased 5.5

cents of property with a residential building in Kottayam, as per sale

deed no.1873/79 in the joint names of the petitioner and the 1st

respondent, out of which, 2 cents was purchased in the name of her

father. The entire amount for purchase of the property was paid by

her father and the respondent did not contribute any amount for the

same. Later, on 22.6.1979, the 2 cents of property purchased by

her father was gifted in her favour in full and final settlement of her

claims over the family property due to the coercion exerted by the

1st respondent. During June 1980, petitioner went to her parental

home and at that time, the respondent had taken all the household

articles in the residential building and the same was rented out to a

third party. On 11.6.1981, he sold that property vide sale deed

nos.2006/81 and 2007/81 for a total consideration of Rs.25 lakhs

which was in his custody. Later utilising a portion of the amount, he

purchased 13 cents of property near railway station at Kottayam,

out of which, 6.5 cents was purchased in the name of the

petitioner and the remaining 6.5 cents was purchased in the name

Mat.A.No.681,682&653 of 2007 10

of respondent for a consideration of Rs.20 lakhs and the balance

amount of Rs.5 lakhs was misappropriated by him. Thereafter, he

sold his portion by sale deed no.1338/83 and purchased another

property at Kadamuri using that amount vide sale deed No.601/92

and he is residing in that house. So she is entitled to get Rs.15

lakhs from the respondent being the balance sale consideration

obtained by sale of 5.5 cents property near Parthas textiles, as he

was only a trustee for that property for and on behalf of the

petitioner and he is liable to return the same.

8. She had suffered severe mental and physical cruelty and

she has been denied all the benefits of a family life and since the

marital rights had not been dissolved, he had committed breach of

contract of not looking after the wife and children and she is entitled

to get compensation for the same from him. The petition schedule

property was purchased by the 1st respondent by utilising the

sources obtained from her father and using that amount by virtue of

Sale Deed No.601/92 and the same is liable to be set aside, as he

had no right over the same and the entire propety belongs to her

and she is entitled to get vacant possession from the possession of

the 1st respondent as he is in possession of the property as a

trustee and she is also entitled to get injunction restraining him

from selling the property or trespassing into the property. The

property was entrusted with the 1st respondent as a trustee which

Mat.A.No.681,682&653 of 2007 11

was created by her father making her as beneficiary. This Court

while disposing the appeal filed by her against the decree of

restitution of conjugal rights granted by the Sub court, found that

she was residing separately with reasonable cause. He is now

trying to sell the property to the second wife with an intention to

deny enjoyment of the property by the petitioner and children and

he is trying to get a decree for divorce against her as well. The

property obtained in the name of the first respondent is a binami

transaction as the entire fund was utilised by selling the property of

the petitioner which was given to her towards her share in the

family property. He had got 53 cents of land from his family

property which he had sold to the second wife vide sale deed No.

1197/03. So she prayed for return of the gold ornaments or its

value and damages and also for return of the balance sale

consideration which she quantified the amount as Rs.36,55,000/-

with 18% interest and for a declaration that the petition schedule

property belongs to her and her children, and direct the respondent

to entrust vacant possession of the same after cancelling sale deed

No.601/92 and for permanent prohibitory injunction restraining him

and his men from committing any act of waste in the property and

alienating the same to any third party and inducting strangers in the

property or creating any encumbrance.

9. The original respondent filed counter contending as follows:

Mat.A.No.681,682&653 of 2007 12

The suit is not maintainable. The present suit has been filed as a

counter blast to O.P.No.613/03 filed by him for divorce. The

allegation that he married a lady by name Mini and a chlid was born

to them in that wedlock is not correct. Due to the influence of the

petitioner, Kottayam East police registered a case against him and

he challenged the same before this Court by filing

Crl.M.C.No.1457/04 and further proceedings in the crime were

stayed by this Court. The allegation that the property covered by

document no.1817/1979 having an extent of 5.5 cents was

purchased by utilising the funds of her father is not correct and

hence denied. In fact, the entire consideration was paid by him out

of his funds. The property having an extent of 3 cents with a

building therein was purchased for a total consideration of

Rs.30,000/- in the joint names of himself and the petitioner, and

the western 2 cents of property was purchased in the name of the

father of the petitioner for a consideration of Rs.15,000/-. Since

the respondent was not in station at the time when the document

was registered, her father's name was also included without his

consent. When this was challenged, the father of the petitioner had

gifted his right in the property in favour of the petitioner. So it is

clear from this that the entire amount was paid by the respondent

and no amount was paid by her father. It is admitted that he had

sold the property as per Document Nos.2006 and 2007 of 1981

Mat.A.No.681,682&653 of 2007 13

dated 11.6.1981. But the allegation that it was sold for Rs.25 lakhs

is not correct. In fact, the property covered by document

no.2006/81 was sold for a consideration of Rs.50,000/- and the

property covered by document no.2007/81 in the name of the

petitioner was sold for a consideration of Rs.30,000/- and that

amount has been entrusted to her. Utilising Rs.50,000, they had

purchased 13 cents of land in the joint names of the petitioner and

the respondent showing the extent of the property as 6.5 cents

each for a total consideration of Rs.13,000/- and the balance

amount was used for discharging the liabilities. The property in the

name of the petitioner was sold by her while she was residing

separately. The allegation that he had purchased the property at

Kadamuri using the funds obtained by sale of the property is not

correct. That property was purchased in the joint names of himself

and his elder sister Janaki for an amount of Rs.25,000/-. He

purchased the present property by using a fund obtained by taking

loan of Rs.64,000/- from his department and the petitioner has no

right over the same. The petitioner is not entitled to get any amount

being the balance consideration obtained by sale of 5.5 cents

obtained earlier. She is not entitled to get any compensation for

breach of contract said to have been committed by respondent. In

fact she is residing separately and she had no intention to come and

reside with him. In fact he is entitled to get compensation from the

Mat.A.No.681,682&653 of 2007 14

petitioner for not discharging her obligation as a dutiful wife. The

petitioner is not entitled to get any declaration in respect of

Document No.601/92 and she is not entitled to get any injunction or

possession as claimed. There was no trust created as claimed. So

he prayed for dismissal of the petition.

10. Subsequently the 2nd defendant was impleaded in the

case as per the order in IA.No.1909/2005 on the allegation that

the original respondent had sold the property to the additional

second respondent with a view to defeat the right of the

petitioner.

11. The 2nd respondent entered appearance and filed counter

to the original petition contending as follows:

The application is not maintainable. She came to know that

the petitioner is the wife of the 1st respondent and she had

deserted him long back and she was not aware of the other

allegations in the petition. The allegation that she married the first

respondent 9.2.1989 is false. It is true that a case has been

registered as Crime No.481/2003 by Kottayam East Police Station

against the first respondent alleging that he had committed the

offence punishable under
Section 498 A
of the Indian Penal Code

on the basis of false allegations made by her. Subsequently, she

was also added as additional second accused. The allegation that

a child was born to the relationship between herself and the first

Mat.A.No.681,682&653 of 2007 15

respondent is not correct. Though she is having a child, it was not

born in the relationship with the first respondent.

12. She filed Crl.MC.No.935/2004 before this Court and

the further proceedings in C.C.No.203/2004 of Chief Judicial

Magistrate Court, Kottayam was stayed. Later the case against

her was quashed. She purchased 10 cents of land with an

incomplete building therein as per document No.979/2003 dated

11.6.2003 of Puthupally Sub Registrar's Office and she has been in

possession and enjoyment of the same. The petitioner is not

entitled to get any declaration or injunction in respect of that

property. She had spent huge amount for completing the

building and making improvements in the property. She purchased

the property 14 months prior to the date of institution of the

petition. The first respondent has no right or title over the above

10 cents and that is separated by well defined boundaries. She

purchased the property for valuable consideration. When she

purchased the property, the sister of the first respondent, Smt.

K.A. Gouri and brother K.A. Krishnan and Kunhumon called her

over phone and told her that it was intended to be conveyed in

their favour by the first respondent and purchase of 10 cents out

of the same is ill motivated and they will teach a lesson to her.

They were enmical terms towards the first respondent. She had no

intention to purchase any more portion of the respondents'

Mat.A.No.681,682&653 of 2007 16

property. The second respondent also purchased some more

property from the first respondent as per document

No.1197/2003. The petitioner is not entitled to get any relief

against this respondent and she prayed for dismissal of the

petition.

13. Both these cases were tried jointly and evidence was

recorded in OP.No.613/2003 treating that case as a leading case.

The petitioner in OP.No.613/2003 was examined as PW1 and his

sister was examined as PW2 and Exts.A1 to A40 were marked on

his side. The respondent in that case was examined as RW10. Her

son was examined as RW11. Power of attorney holder of the

second respondent in OP.No.455/2004 was examined as RW12

and other witnesses were examined as RWs1 to 9 on the side of the

respondent in that case and Exts.B1 to B26 and Ext.X1 were

marked on the side of the respondent in that case. After

considering the evidence on record, the Court below came to the

conclusion that the petitioner in OP.No.613/2003 has proved

cruelty and desertion and allowed the application and granted a

decree for divorce dissolving the marriage between the petitioner

and the respondent in that case. Aggrieved by the same, the

respondent in OP.No.613/2003 has filed Mat.A.No.681/2007.

14. The Court below allowed OP.No.455/2004 in part and

rejected the prayer for declaration of title and possession over

Mat.A.No.681,682&653 of 2007 17

the property claimed in the petition and also rejected the claim for

return of balance sale consideration said to have been in the

possession of the first respondent in that case and damages

claimed for breach of contract said to have been committed by him

in denying the marital obligation to be performed by him to her, but

allowed the application directing the first respondent to return 30

sovereigns of gold ornaments and Rs.5001/- entrusted at the time

of marriage and also directed him to pay a sum of Rs.3,00,000/-

towards educational expenses of the daughter and in the alternate

of return of gold ornaments directed him to pay a sum of Rs.

1,80,000/- with 6% interest and educational expenses of the

children quantified as Rs.3 lakhs together with 6% interest from

the date of the order. There was interest ordered at the same rate

for return of gold ornaments and money obtained at the time of

marriage was directed to be paid from the date of petition namely

6.8.2004. Dissatisfied with the quantum of amount ordered and

rejection of the other claims, the petitioner in that case filed

Mat.A.No.682/2007 and aggrieved by the order to return the gold

ornaments or its value and Rs.5001/- and the educational

expenses to the tune of Rs. 3 lakhs, the first respondent filed

Mat.A.No.653/2007. Since both these appeals arose out of a

common order on the basis of common evidence, this Court is

also disposing of all these appeals by a common judgment. For

Mat.A.No.681,682&653 of 2007 18

convenience sake, we are referring to the status of the parties as

mentioned in OP.No.455/2004 before the Court below as all the

parties are party to that proceedings alone.

15. Heard Sri. K.Gopalakrishna Kurup, learned senior

counsel appearing for the appellant in Mat.A.No.681/2007,

Mat.A.No.682/2007 and the first respondent in

Mat.A.No.653/2007, Sri. Varghese C. Kuriakose, learned counsel

appearing for the respondent in Mat.A.No.681/2007, the first

respondent in Mat.A.No.682/2007 and the appellant in

Mat.A.No.653/2007.

16. The senior learned counsel for the petitioner argued that

the Court below was not justified in granting a decree for divorce on

the ground of cruelty and desertion. In fact, the petition filed by

the 1st respondent for restitution of conjugal rights as OP(HMA).

No.53/1982 on the file of the Sub Court, Kottayam though decreed

by that court, was later set aside by this Court as per judgment in

MFA.No.348/1984 dated 16.3.1987 and that will go to show that

she is residing separately from the first respondent and her

separation is justified by reasonable cause and due to cruelty

alleged by her against the first respondent and as such the

husband is not entitled to get a decree for restitution of conjugal

rights and allowed the appeal and dismissed the petition filed by

him for that ground. So he cannot tack on that period for desertion

Mat.A.No.681,682&653 of 2007 19

or cruelty so as to claim divorce on that ground and that will

operate as resjudicata between the parties. There was no cruelty

or desertion thereafter occurred and as such, the first

respondent is not entitled to get divorce and the Court below is not

justified in granting a decree for divorce on the ground of cruelty

and desertion. She had relied on the decision reported in an

unreported decision of the Delhi High Court in Mat.A.(FC)

No.82/2014 dated 6.1.2017 between Mrs. Nisha Rani v.

Sri.Sohan Singh Nehra.

17. As regards the dismissal of the claims in

OP.No.455/2004 is concerned, according to the learned senior

counsel, the Court below had not properly appreciated the

evidence and in fact, the evidence will go to show that the

property was purchased by her father and by sale of those

properties, the subsequent properties were obtained and he had

sold the property without her consent and appropriated the

amount and as such, he is liable to return the amount and the

petitioner is entitled to get declaration and injunction as prayed

for. He had also argued that on account of the wrongful act of

the first respondent, she was denied the matrimonial status and

the benefit of co-habitation with the first respondent and thereby

he had committed breach of contract of promise of not fulfilling

his marital obligation towards the petitioner. Further having

Mat.A.No.681,682&653 of 2007 20

admitted that the first respondent has not paid any amount for

the maintenance of the children and educational expenses etc

and he had not discharged the obligation of the father to give in

marriage of her daughter born to them in that wedlock, the

Court below ought to have believed the evidence of RWs10 and

11 and granted the entire amount claimed under that head.

18. On the other hand, the learned counsel for the first

respondent argued that though this Court has set aside the

petition for restitution of conjugal rights filed by him, even

thereafter the cohabitation did not resume and she was filing

false complaints one after the other before the police and also to

the higher authorities of his department with false allegations so

as to cause mental stress for him and that will amount to mental

cruelty. Further she was trying to project him as a womanizer

and a drunkard which she knew is false and such false allegations

have been raised by her in all her statements filed before the

Court below in different proceedings knowing that those

allegations are false and intended only to bring down his

reputation in the society and that will amount to cruelty. Further

her evidence will go to show that he had no intention to come

back and revive cohabitation with him and she had even denied

the access of children with him and there is no possibility of

reunion and their marriage relationship has been irretrievably

Mat.A.No.681,682&653 of 2007 21

broken down and they are residing separately since 11.4.1982

onwards. So there is no animus on the part of the petitioner to

come and join the first respondent and as such, the Court below

was perfectly justified in granting the relief of divorce on the

ground of cruelty and desertion and those findings do not call for

any interference. He had relied on the decisions reported in

Praksh Chandra Kapoor v. Ritu Kapoor (2015 KHC 2020),

Monika @ Mona v. Chandra Prakash (2015 KHC 3189), Rashmi

Porwal v. Vivek Porwal (2015 KHC 1384), Kamal Singh Sisodia

v. Rama Sisodia (2015 KHC 2303), Rajesh Shivhare v.

Archana Shivhare (2015 KHC 1340), Vinita Sixena v. Pankaj

Pandit (2006 KHC 479), Supratim Datta v. Moutushi Sen

(2015 KHC 5333), Sheelu v. Amar Singh and Another (2016

KHC 2786), Rohin Kumar v. Silvia (2015 KHC 2930), Imlesh v.

Amit (2014 KHC 3107) Jayachandra v. Aneel Kaur (2005 KHC

7), Jyotsna Sharma v. Gaurav Sharma (2015 KHC 2653),

David M.D v. K.G. Mercy (2013 (3) KHC 739), Jagbir Singh V.

Nisha (2015 KHC 3455), Srinivas K. v. K. Sunitha (2014 KHC

4728), Geeta Sharma v. Anil Kumar Sharma (2015 KHC 1067),

Beena S.S. v. Sundaresan and others (
2016 (1) KHC 355),

Naveen Kohli v. Neelu Kohli
(2006 KHC 621) and Suman v.

Gajender (2015 KHC 3201) in support of his case.

19. As regards the claim of the wife in OP.No.455/2007 is

Mat.A.No.681,682&653 of 2007 22

concerned, the learned counsel has argued that since the right in

the property of the petitioner was sold by her after the

relationship strained, it cannot be said that he is in custody of those

amount. Further, not claiming the return of gold ornaments till

2004 and claiming the same after lapse of 22 years of their

relationship strained, the malafides on the part of the petitioner has

to be presumed and except the interested testimony of RW10,

there is no evidence to prove this fact. So the Court below was not

justified in ordering return of gold ornaments or its value and

Rs.5001/- said to have been given at the time of marriage. Once

she had a case that it was he who had deserted her in 1982, the

right to claim those articles arose for her and as such, the Court

below should not have granted the relief in her favour. He had

also argued that the right to claim maintenance and marriage

expenses or educational expenses is given to the daughter under

Section 20 of the Hindu Adoption and Maintenance Act and the

mother is not entitled to claim that amount as daughter alone is

entitled to claim that amount as such right has given only to the

daughter. Further the daughter ought to have filed the suit for that

amount within 3 years of attaining majority and failure to claim

that amount will amount to forfeiture of right which cannot be

substituted through her mother. So the Court below should not

have granted a relief of Rs.3 lakhs in favour of the petitioner

Mat.A.No.681,682&653 of 2007 23

towards educational expenses of the daughter. He had relied on

the decisions reported in Ashwani Kumar v. State of

Uttranchal and others (
2005 KHC 1547) Roopa J.M v. Jallur

Musturappa and Others
(2006 KHC 3719), Viswambharan v.

Dhnaya (2005 KHC 119), Jagdish Jugtawat v. Manju Lata

(2002 KHC 1275), Binulal K. V. Roopa R.S. (2011 (3) KHC 738)

and Commissioner of Gift Tax v. Indira Devi (1998 KHC 403)

in support of his case.

20. Before going to the facts of the case, we shall consider the

precedents and the legal aspects arising in the case on the basis of

facts.

21. In the decision reported in Jayachandra v. Anil Kower

(2005 KHC 7), the apex court has held that:

"Cruelty which is a ground for dissolution of marriage may

be defined as willful unjustifiable conduct of such character as to

cause danger to life, limb or health, bodily or mental or/as give

rise to a reasonable apprehension of such danger".

22. It is further observed in the same decision that:

"To constitute cruelty, the conduct complained should be

grave and weighty so as to come to the conclusion that the

petitioner spouse cannot be reasonably expected to live with the

other spouse. It must be something more than serious than ordinary

wear and tear of married life. The conduct taking into consideration

of the circumstances and the background has to be examined to

reach the conclusion whether the conduct complained of amounts to

Mat.A.No.681,682&653 of 2007 24

cruelty in matrimonial law. Conduct has to be considered as noted

above in the background several factors such as social status of

parties their education, physical and mental condition, custom and

tradition. It is difficult to lay down a presice definition or to give

exhaustive description of the circumstances which would constitute

cruelty. It must be of the type as to satisfy the conscience of the

court. That the relationship between the parties had deteriorated to

such an extent due to the conduct of the other spouse that it would

be impossible for them to live together without mental agony,

torture or distress to entitle the complaining spouse to secure

divorce. Physical violence is not absolutely essential to constitute

cruelty and a consistent course of conduct inflicting immeasurable

mental agony and the torture may well constitute cruelty within the

meaning of
Section 10
of the Act. Mental cruelty may consists of

verbal abuses and insults by using filthy and abusive languages

leading to constant disturbance of mental peace of other party"

23. In the decision reported in Srinivas K.v. K.Sunitha

(2014 KHC 4728), it has been held that:

"Filing false complaint against husband and his family

members u/s.498A and
Section 307
of Indian Penal Code will

amount to matrimonial cruelty defined
u/s.13(1)(ia)
of Hindu

Marriage Act".

24. It is further held in the same decision that:

"Though irretrievable break down of marriage though

not a ground of divorce as yet, but Supreme Court in exercise

of its plenary powers under
Article 142
has power to pass such

decree or make such order as is necessary for doing complete

justice in any case or order pending before it. It is also held in

Mat.A.No.681,682&653 of 2007 25

the same decision that, criminal complaint was filed by the wife

subsequent to filing of husband's divorce petition and being the

subsequent event could have been looked into by court."

25.
In the decision reported in
Naveen Kohli v. Neelu Kohli

( 2006 KHC 621), it has been held that:

"The conduct of one of the spouse is such that,it is

impossible for other spouse to live together and making false

complaints before the police and authorities causing innumerable

mental stress and making false and defamatory allegations will

amount to mental cruelty".

26. The same view has been reiterated in the decision

reported in
Vinita Saxena v. Pankaj Pandit
(2006 KHC 749).

27. In the decision reported in Geetha Sharma v. Anil

kumar Sharma (2015 KHC 1067), the Punjab and Haryana High

Court held that:

"A launching false criminal case against the husband and

family members at the behest of the wife, which ended in acquittal

will amount to cruelty. In the same decision it has been held that,

if the spouse is not joining the husband for a long period in spite of

attempts made for that purpose will amount to desertion."

28. In the decision reported in Jagvir Singh v. Nisha (2015

KHC 3455), the Punjab and Haryana High Court has held that:

"False allegation by the wife against the husband that

subject to cruelty with alleged demand of dowry will amount to

mental cruelty. Further publication in newspaper of alleged

Mat.A.No.681,682&653 of 2007 26

cruelty committed in connection with alleged demand of dowry

bringing disrepute to family and husband will amount to mental

cruelty and husband is entitled to get divorce on that ground."

29. The same view has been reiterated in the decision

reported in Rohin Kumar v. Silvia (2015 KHC 2930), Imlesh v.

Amit (2014 KLT 3107), Jyotsna Sharma v. Gaurav Sharma

(2015 KHC 2653).

30. In the decision reported in Suman v. Gajender (2015

KHC 3201) it has been held that:

"Making false allegation of illicit relation of husband made

by wife will amount to mental cruelty."

31.
In the decision reported in
Beena S.S. v. Sundaresand

and Other
(2016(1) KLT 355) a Division Bench of this court has

held that:

"In order to establish grounds for mental cruelty, there

should be sufficient pleadings and evidence which is substantial

and material in nature to the extent of creating a permanent

mental distress and ever lasting disturbance in the mind of a

person alleging cruelty. Bond created by marriage cannot be

dissolved by relying of flimsy, shallow and baseless allegations."

32. It is further held in the decision that:

"Stray and inconsequential allegation made even if proved

will not by itself contribute to the factum of cruelty."

33. In the decision reported in David M.D. v. Mercy K.G.

(2013 (3) KHC 739), it has been held that:

Mat.A.No.681,682&653 of 2007 27

"Making false allegations against the husband and child

and making false complaints to the authority by the wife will

amount to cruelty."

34. The same view has been reiterated in the decision

reported in Sheelu v. Amar Singh and another (2016 KHC

2786), Supratim Datta v. Moutushisen (2015 KHC 5333), and

Mangesh Balkrushna Bhoir v. Sauleena Mangesh Bhoir (2016

KHC 3057).

35. In the unreported decision of the Delhi High Court bin M.F.

(F.C.) 82/2014, between Mrs. Nishrani v. Sri.Sohan Singh

Nehra, dated 6.1.2017, it has been held that, mere wear and tear

in the family life will not amount to cruelty, relying on the decision

in Ravikumar V. Julmidevi (2010 (4) SCC 476), where Supreme

Court has observed that, it may be noted only after the amendment

of the said Act by amending Act 68 of 1976, desertion became a

ground for divorce. On the question of desertion the High Court

held that in order to prove a case of desertion, the party alleging

desertion must not only prove that the other spouse was living

separately but also must prove that there is an animus desarandi on

the part of the wife and the husband must prove that he has not

conducted himself in a way which furnishes reasonable cause for the

wife to stay away from the matrimonial home.

36. In the decision reported in Rajesh Shivhare v. Archa

Mat.A.No.681,682&653 of 2007 28

Shivhare (2015 KHC 1340), it has been held that:

"Husband and wife living separately for 11 years and love

was lost and emotions had dried up and efforts failed, then it will

amount to desertion."

37. The same view has been reiterated in the decision

reported in Kamal Singh Sisodia v. Rama Sisodia (2015 KHC

2303), Rashmi Borwal v. Vivek Borwal (2015 KHC 1384),

Monica @ Mona v. Chandraprakesh (2015 KHC 3189), Prakash

Chandra Kapour v. Ritu Kapour (2015 KHC 2020).

38. It is clear from the above dictums that, if the conduct and

behavior of the wife is of such a nature that it causes mental agony

and stress making it impossible for the husband to live together or

continue the marital tie, not possible will amount to mental cruelty.

Further filing false complaints against the husband and his family

members alleging offences
u/s.498A
and
of Indian Penal Code

and making false allegations of illicit relationship with other woman

or leading immoral life and spreading such allegations among the

public on the part of the wife will amount to mental cruelty. If there

is long separation making the reunion impossible and there is

drained marital relationship between the parties and all attempts

made on the part of the husband for a reunion failed, then it will

amount to desertion on the part of the wife. With this principles in

mind, the case in O.P.No. 613/2003 against which

Mat.A.No.681,682&653 of 2007 29

Mat.A.No.681/2007 filed has to be considered.

39. The above petition was filed by the husband for divorce on

the ground of desertion and cruelty on the part of the wife. The fact

that the marriage between them was solemnised on 8.11.1977 and

two children, a male and a female were born to them in that

wedlock and they were residing separately from 12.04.82 is not in

dispute. It is also not in dispute that husband filed O.P.(HMA)No.

53/82 before Sub Court, Kottayam for restitution of conjugal rights,

which was allowed originally but later set aside by this court by

Ext.B17 judgment in MFA.No.348/84 dated 16.03.1987. It is also

not in dispute that finding of this court for allowing the appeal was

that there was an incident occurred on 12.04.1982, which is

sufficient cause for the wife to live separately and as such the

husband is not entitled to get the relief of restitution of conjugal

right as the wife is justified for her separate residence. So till that

date, the allegations are not sufficient to come to the conclusion

that there was desertion on the part of the wife.

40. But it is also an admitted fact that even thereafter the

attitude of the wife of causing mental stress to the husband

continued and there was no attempt on the part of the wife to join

the husband. It is an admitted fact that on the basis of the

complaint filed by the wife before the Dy.S.P., Kottayam evidenced

by Ext.A19(b) dated 28.10.2003 which resulted in registering of the

Mat.A.No.681,682&653 of 2007 30

crime Ext.A14 against the husband and the 2nd respondent one Mini

alleging offences
u/s.498A
and
of Indian Penal Code and after

investigation, it resulted in filing a final report before Chief Judicial

Magistrate Court, Kottayam, where it was taken on file as

C.C.203/2004. It is also an admitted fact that he was arrested on

11.11.2003 in connection with the above crime as Crime

No.481/2003 of Kottaym East Police Station and he was released on

bail by the magistrate on the next day. It is also an admitted fact

that, the husband and the said Mini who were accused in the above

case filed Crl.M.C.9358/2004, and Crl.M.C.1457/2004 before this

court and this court by Ext.A24 judgment dated 21.06.2006

quashed the proceedings in C.C.203/2004 of Chief Judicial

Magistrate Court, Kottayam holding that, there was no prima face

evidence to prove the subsequent marriage and the allegation of

demand for dowry so as to attract the offence u/s.498A of Indial

Penal Code, alleged after nearly 21 years of separation causes

doubt regarding the allegation and it was made only to enable the

police to register a case and harass the accused persons. The fact

that the case itself was filed after 21 years of separation by the wife

will go to show that it was made only for the purpose of harassing

and causing mental stress to the husband as a vindictive method on

the part of the wife.

41. It is also seen from the counter statement filed by her in

Mat.A.No.681,682&653 of 2007 31

O.P. 53/1982 and the counter statement filed by her in the present

proceedings that, she had made allegations against the husband

projecting him a person having immoral character having illicit

relationship with several women including his brothers wife and his

niece without any basis and made to examine RW9 one

Santhamma, the wife of one of the brothers of her husband to

prove these allegations and reading of her deposition will go to

show that, she is having enmity with the petitioner herein. All

theses things will go to show that her attempt was to bring loss of

reputation for her husband before the public. Though she had

produced Exts.B1 to B8, B16 and examined Rws 1 to 9 to prove that

the husband is having illicit connection with a lady by name Mini,

whom he married on 09.05.1989 and having a female child and he

is residing with her, the evidence of those witnesses are not helpful

to prove these facts. Further it is also seen from the documents

produced by the petitioner namely Ext.A13 dated 12.12.97, an

order of suspension issued on him by the department on the basis

of the complaint given by the wife and later it was revoked. It is

also seen from the documents produced namely Exts.A19(a),

Ext.A20 and subsequent documents produced before this court and

received as per order in I.A.1942/2014 and marked as Ext.A41 to

A49 will go to show that even now she was filing complaints before

the authorities on the basis of which inquiries have been initiated by

Mat.A.No.681,682&653 of 2007 32

the department preventing him to get his terminal benefits. Further

it is also seen from Ext.A45 that a case registered at the instance of

the father of the wife as Crime No.550/2006 of Ettumanoor police

station which was tried as C.C.74/2007 u/s. 341, 506(1) and 294(b)

read with
Section 34
of Indian Penal Code by Judicial First Class

Magistrate-I, Ettumanoor was ended in acquittal.

42. Further the evidence of RW10, the wife also will go to

show that, she had no intention to join her husband, but she wanted

to retain the label of his wife and she does not want to be known as

a divorcee. So all these things will go to show that even after her

leaving of the matrimonial home on 12.04.1982, the wife was filing

complaints against the husband before the police and also before

the authorities after lapse of 21 years of their separation which later

ended in acquittal of the husband and other persons against whom

the cases have been registered. It is also seen from the documents

produced before the Court below and this Court that on account of

the act of the wife, petitioner has to face several enquiries

departmentally and he was put under suspension for sometime and

thereafter he was reinstated as per the orders of this court. It is

also seen from the evidence available on record that even at the fag

end of his service, he has to face certain enquiries which resulted in

withholding of disbursal of his pensionary benefits as well. Further

she is also making allegations against the husband that he is having

Mat.A.No.681,682&653 of 2007 33

illicit connection with several women and having children in those

relationship as well which has not been proved by producing proper

evidence. The persons examined and the documents produced for

this purpose on the side of the wife is not sufficient to prove those

aspects as the persons examined have no direct knowledge about

the contents of the documents produced or the identity of the

persons mentioned in those documents. A cumulative effect of all

these acts of the wife will go to show that her intention is to harass

the husband making his matrimonial life impossible with her and

these things were done with an intention to vindicate her personal

vendata against him giving him unnecessary mental stress and

agony and loss of reputation in the society and that will amount to

mental cruelty entitles the husband to get a divorce on the ground

of cruelty
u/s.13(1) (ia)
of Hindu Marriage Act.

43. As regards the desertion aspect is concerned, the attitude

of the wife will go to show that she had no intention to join the

husband. Even after the dismissal of the application for restitution

of conjugal right, there was no attempt on the part of the wife to

have reunion with her husband taking into account the welfare of

the children. On the other hand even thereafter she was residing

separately without having any communication with the husband and

not even allowing the children to meet their father. So under such

circumstances, the attitude of the wife living separately for nearly

Mat.A.No.681,682&653 of 2007 34

25 years even now without any intention to rejoin and making the

relationship more worse by filing complaint after complaint against

him will go to show that she had permanently gone out of the

matrimonial home with an intention not to return making the

relationship irretrievably broken down and unrepairable so as to

infer animus deserdanti on her part. So the court below was

perfectly justified in coming to the conclusion that the husband had

proved desertion on the part of the wife and he is entitled to get

divorce on that ground as well and rightly granted the relief of

divorce both on the grounds cruelty and desertion and we do not

find any reason to interfere with the same. So the Mat.A.No.

681/2007 fails and the same is hereby dismissed.

44. As regards Mat.A.No.682/2007 and Mat.A.No.653/2007

are concerned, the case of the petitioner in the court below was that

at the time of marriage 295 grams of gold ornaments and cash of

Rs.5,001/- was entrusted to the husband. Further as insisted by

the husband, her father had purchased 5.5 cents of land and

building near Parthas Textiles in Kottayam as per sale deed

No.1817/79 evidenced by Ext.B10 dated 29.05.79. Out of 5.5 cents

father of the petitioner had purchased 2 cents with building therein

as per the same document, later he had gifted that right in favour of

the petitioner as per Ext.B11 Gift Deed No.21040/79 dated

22.06.79. According to the petitioner, later this property was sold

Mat.A.No.681,682&653 of 2007 35

as per Ext.B12 Sale Deed No.2006/81 dated 11.06.1981 and

Ext.B22 Document No.2007/81 of the same date, according to the

petitioner, for a total consideration of Rs.25 lakhs, out of which by

utilizing Rs.20 lakhs, he had purchased 13 cents of property of 6.5

cents each in favour of the petitioner and first respondent and sold

his right in that property as per Ext.B13 document No.1338/83.

Thereafter he had purchased the petition schedule property as per

sale deed No.601/92 evidenced by Ext.B14 dated 30.04.92. So

according to the petitioner, he is in possession of Rs.5 lakhs, the

balance consideration obtained by the sale of property covered by

Ext.B10 and B11. She had also claimed Rs.15 lakhs being the value

of the share of the petitioner in the property. She had also claimed

that she is entitled to get compensation for breach of contract

committed on the side of the husband and also for education and

marriage expenses of the children to the tune of Rs.10 lakhs each

and she had claimed a total amount of Rs.36,55,000/- as follows:

i The amount entrusted at the time of marriage Rs.5,000

ii. Market value of 30 sovereigns of

gold ornaments Rs. 1,50,000/-

iii. Remaining sale consideration while selling the

property at Kottayam near Parthas Textiles

excluding the utilized amount for purchasing

the schedule property Rs.15,00,000/-

iv. Damages for the petitioner for spoiling her life

Mat.A.No.681,682&653 of 2007 36

and sufferings caused to her by the respondent Rs. 5,00,000/-

v. Damage towards breach of contract by

conducting second marriage without dissolving

the marriage of the petitioner Rs. 5,00,000/-

vi. Expenses for higher studies and marriage of the

daughter Rs. 10,00,000/-

-------------------

Total Rs.36,55,000/-

45. She had also claimed declaration of title over the

plaint schedule property and also for injunction restraining him

from alienating the property. The 2nd respondent was later

impleaded as purchaser of a portion of the property from the 1st

respondent.

46. The first respondent filed objection denying the claims

made. According to him, the properties were purchased with his

funds and there is no amount available with him as claimed as

excess consideration and she is not entitled to get any damages. It

is on account of act of the petitioner that the marriage relationship

has been ruined and he had also stated that there is bar of

limitation for claiming the reliefs regarding the property. He had

not mentioned anything about his liability to pay maintenance to

the child daughter or marriage expenses. He prayed for dismissal

of the petition.

Mat.A.No.681,682&653 of 2007 37

47. The additional second respondent filed written statement

denying the allegations and also stating that she had purchased a

portion of the property for valuable consideration and the petitioner

is not entitled to get any relief in respect of the same.

48. The fact that the petitioner and the first respondent

were wife and husband and a property having an extent of 5.5

cents was purchased in the names of the petitioner, the first

respondent and the father of the petitioner as per Ext.B10 Sale

Deed No.1817/79 is not in dispute. It is also an admitted fact that

two cents of property was purchased as per Ext.B10 by the father

of the petitioner was later gifted to her as per Ext.B11 Gift Deed

No.21040/79 dated 22.6.1979. It was admitted by RW10 in her

evidence that at the time when this property was purchased, the

first respondent was not in station and when he came to know

that a portion of the property was purchased in the name of her

father, he questioned the same and it was thereafter that the

father had executed Ext.B11 gift deed. It was also admitted by

RW10 that the property covered by Exts.B10 and B11 were later

sold by her and the first respondent as per Sale Deed No.2006/81

and 2007/81 for the sale consideration mentioned in the

document. She had no case that the sale consideration

mentioned in those documents is less than the actual consideration

received. It was also admitted by her that a property having an

Mat.A.No.681,682&653 of 2007 38

extent of 13 cents was purchased in the joint names of the

petitioner and the 1st respondent by using that amount with 6.5

cents each and later they have sold the same separately.

Admittedly, sale of this property was after their separation on

12.4.1982. There is no evidence adduced on the side of the

petitioner to prove that the property covered by Exts.B10 and B11

were sold for a total consideration of Rs.25 lakhs and only Rs.20

lakhs was used for purchasing 13 cents of land in the joint

names of the petitioner and the first respondent of 6.5 cents

each and the balance amount of Rs.5 lakhs was with the first

respondent. So under such circumstances, the Court below was

perfectly justified in coming to the conclusion that the first

respondent was not in possession of the balance consideration of

Rs.5 lakhs and he is not liable to account to the petitioner and

rightly rejected that claim.

49. As regards the declaration of right over the petition

schedule property which was obtained as per Document No.601/92

evidenced by Ext.B14 dated 30.4.1992, it cannot be said that

any amount was contributed by the petitioner for purchase of that

property. In fact, she had admitted that she had sold 6.5 cents of

land obtained in her favour and she had utilized that amount

for herself. The father of the petitioner was not examined to prove

that the entire consideration was paid by him for purchasing the

Mat.A.No.681,682&653 of 2007 39

property covered by Ext.B10. Further, the evidence of PW1 and the

documents produced by him evidenced by Ext.A35 and Ext.A13

will go to show that he had taken loan from the Department.

Further Ext.B5 coupled with the evidence of RW5 will go to show

that building regularization application was filed by the first

respondent. Further all these things have transpired after they

were living separately and Exts.A25 to A28 ration cards will go to

show that the first respondent was residing alone in the house

after the petitioner had left the matrimonial home. So under such

circumstances, the Court below was perfectly justified in coming to

the conclusion that she is not entitled to declaration or injunction

as prayed for as she has no right over the property covered by

DocumentNo.601/92 and rightly rejected those claims and we do

not find any reason to interfere with that finding.

50. As regards compensation claimed from the first

respondent for breach of contract of marriage and contracting

second marriage, it is seen from the evidence adduced that the

petitioner is also responsible for the ruining of the relationship

between them and even after the disposal of the appeal filed by

her against OP(HMA)No.53/1982 of Sub Court, Kottayam, she did

not take any steps for reunion and the attempts made by the first

respondent for reunion was not accepted by her as well. On the

other hand, she was filing complaints after complaints before the

Mat.A.No.681,682&653 of 2007 40

police and the departmental authorities of the first respondent

causing hardship to him making the relationship more worse than

ever. So under such circumstances, the Court below was perfectly

justified in rejecting the claim for compensation of Rs.10 lakhs

and we do not find any reason to interfere with the same.

51. As regards the claim for educational expenses and future

marriage expenses of their unmarried daughter, in fact there was

nothing mentioned in the counter statement regarding the same.

Section 20 of the Hindu Adoption and Maintenance Act gives

right for the unmarried daughter to claim maintenance from her

father or mother till the date of marriage if she is not having

sufficient income to maintain herself. Admittedly at the time when

the original petition was filed by the mother, the daughter was not

married and she was a student. So there is no possibility of any

income for her.

52.
In the decision reported in
Roopa J.M v. Jallur

Musturappa and Others
(2006 KHC 3719), it has been held

that there is a duty cast on the father to maintain the minor

daughter till her marriage and meet her marriage expenses. At

the time when the daughter was not married, when the petition

was filed and she had married subsequent to the institution of the

suit or during the pendency of the suit, it was for the father to

meet the marriage expenses irrespective of the fact that the

Mat.A.No.681,682&653 of 2007 41

marriage was conducted by the mother by taking loan.

53. In the decision reported in Viswambharan v. Dhnaya

(2005 KHC 119), it has been held that a Hindu unmarried

daughter on attaining majority is entitled to continue her claim for

maintenance from the father until marriage if she is unable to

maintain herself out of her own earnings or property. The same

view has been reiterated by the Apex Court in the decision

reported in Jagdish Jugtawat v. Manju Lata (2002 KHC 1275).

In that decision it has been held that though
Section 125
of the

Code of Criminal Procedure entitle the daughter to claim

maintenance from her father but a combined reading of
section
Cr.PC and Section 20(3) of Hindu Adoption and

Maintenance Act makes it clear that she is entitled to get

maintenance till marriage and that can be awarded under

Section 125
Cr.PC in order to avoid multiplicity of proceedings.

54. In the decision reported in Binulal K. V. Roopa R.S.

(2011 (3) KHC 738), a Division Bench of this Court has held that

in a proceedings under
Guardians and Wards Act
seeking

custody by the husband, there is no provision for payment of

litigation expenses invoking
Section 24
of the Hindu Marriage Act

and awarding litigation expenses under that Act is without

jurisdiction and
Section 7(1)(f)
of the Family Court Act cannot be

invoked for that purpose as what is contained in
Section 7
is

Mat.A.No.681,682&653 of 2007 42

substantive law conferring right to sue on specific grounds. That

dictum is not applicable to the facts of this case.

55.
In the decision reported in
Commissioner of Gift Tax v.

Indira Devi
(1998 KHC 403), this Court had considered the

question as to whether any gift given post marriage to secure

her marriage will be liable to be exempted from Gift Tax and it is

held that it does not come within the purview of Section 20

Hindu Adoption and Maintenance Act and as such the person

who gifted cannot claim exemption from payment of Gift Tax as

there is no legal obligation to pay any amount to the daughter after

the marriage. That dictum is also not applicable to the facts of this

case.

56. In the decision reported in Vijaykumar Jagdishrai

Chawla, Indian Inhabitant v. Reeta Vijayakumar Chawla,

Indian Inhabitant (2011 (108) AIC

356=MANU/MH/1079/2011=III(2011 DMC 687), the question

arose as to whether the wife can seek relief of maintenance for

and on behalf of her major daughter and the Bombay High Court

has held that subsection (3) of
Section 20
is exception which

provides for the obligation of a person to maintain his or her

daughter who is unmarried and is unable to maintain herself out of

her own earnings or other property and
Section 21
of the Act

defines the term dependents. Clause 5 of
Section 21

Mat.A.No.681,682&653 of 2007 43

encompasses unmarried daughter as a dependant. Having regard

to the relevant provisions therefore there can be no doubt that the

unmarried daughter is entitled to receive maintenance amount

from her father or mother as the case may be and so long as

she is unable to maintain herself out of her own earnings and other

property and if he is being looked after by the mother, then the

father is also liable to share the liability of providing maintenance

to his daughter and mother is entitled to recover the amount on

behalf of the daughter.

57.
In the decision reported in
Smt. Sneh Prabha v.

Ravinder Kumar
(AIR 1995 SC 2170), it has been held that

daughters who are grown up living with mother and maintained

by mother and she is earning handsome salary however in view

of Section 20 of Hindu Adoption and Maintenance Act considering

the burden to pay towards education and other expenses and give

daughter for marriage, husband was ordered to pay certain

amount to daughters till their marriage or they earn their

livelihood and reserved the right of the daughters to get more

financial assistance at the time of their marriage. That was a case

which arose out of the proceedings under the
Hindu Marriage Act

and not under Hindu Adoption and Maintenance Act. At the time

when divorce was granted, this aspect was also considered by the

Apex Court and granted the relief to the daughter who was not

Mat.A.No.681,682&653 of 2007 44

even a party to that proceedings at the instance of the mother.

58.
In the decision reported in
Kirtikant D. Vadodaria v.

State of Gujarat and another
(1996(4) SCC 479), it has been

held that according to the law of the land with regard to

maintenance, there is an obligation on the husband to maintain

his wife which does arise by reason of any contract express or

implied, but out of jural relationship of wife and husband

consequent to the performance of marriage. Such an obligation of

the husband to maintain his wife arises irrespective of the fact

whether he has or has no property as it is considered an

imperative duty and solemn obligation of husband to maintain his

wife. The husband cannot be heard to say that he is unable to

maintain due to financial constrains so long as he is capable of

earning. Similarly it is obligation on the part of a son to maintain

his aged father and mother by reason of personal obligation. But

under old Hindu Law, the obligation was imposed on the son

alone But now the present day Hindu Law extends this obligation

both on sons and daughters. Further Section 18 of the Hindu

Adoption and Maintenance Act gives a right to the wife to claim

maintenance from her husband during her life time and by virtue

of the above said Act, both son and daughter are liable to

maintain aged or infirmed parents including childless stepmother

when the latter is unable to maintain herself. It is well settled that

Mat.A.No.681,682&653 of 2007 45

a son has to maintain his mother irrespective of the fact whether

he inherits any property or not from his mother as on the basis of

the relationship alone he owes a duty and obligation, legal and

moral to maintain his mother who has given birth to him. Further

according to
Section 20
of the Hindu Adoption and Maintenance

Act, 1956 a Hindu is under legal obligation to maintain his wife,

minor son, unmarried daughters and aged or infirmed parents.

59.
In the decision reported in
Mohinder Singh v. Ravneet

Kaur
(AIR 2007 Punjab and Haryana 49), it has been held that

the minor children are entitled to claim maintenance from both

father and mother if both are capable to maintain the child, liability

can be fixed on both.

60. In the decision reported in Thadisina Chinna Babu Rao, S/o.

late Ankkayya v. Kum. Thadisina Sarala Kumari D/o. Chinna Babu

Rao (AIR 2010 NOC 330 (AP)=II(2010 DMC 806)

=Manu/AP/0480/2009, it has been held that unmarried daughter

who claimed maintenance from her parents irrespective of the

religion which he belongs even after attaining majority and can

maintain a suit in the Family Court under
section 7
of the

Family Courts Act and this can be claimed irrespective of

religion to which she belongs.

61.
Section 3(b)
of Hindu Adoption and Maintenance Act,

1956 defines maintenance as follows:

Mat.A.No.681,682&653 of 2007 46

"Maintenance includes"

(i) in all cases, provision for food, clothing, residence, education

and medical attendance and treatment;

(ii) in the case of an unmarried daughter, also the reasonable

expenses of and incident to her marriage;

62.
Section 20
of the above said Act deals with maintenance

of children and aged parents which reads as follows:

"20. Maintenance of children and aged parents:-

(1) Subject to the provisions of this Section a Hindu is

bound, during his or her lifetime, to maintain his or her

legitimate or illegitimate children and his or her aged or

infirm parents.

(2) A legitimate or illegitimate child may claim

maintenance from his or her father or mother so long as the

child is a minor.

(3) The obligation of a person to maintain his or her

aged or infirm parent or a daughter who is unmarried

extends insofar as the parent or the unmarried daughter,

as the case may be, is unable to maintain himself or

herself out of his or her own earnings or other property.

Explanation:- In this section "parent" includes a

childless stepmother."

63. It is an undisputed fact that under the old Hindu Law the

liability to maintain the minor children was on the father and the

right of the unmarried daughter to claim maintenance from the

Mat.A.No.681,682&653 of 2007 47

father extended upto her marriage or till she is capable of

maintaining herself. But by virtue of subsequent development of

law that obligation has been cast on both the parents if both are

earning members and having sufficient means to meet the

maintenance of the children and the liability to maintain parents

cast on both the son and the daughter by virtue of Section 20 of

the Hindu Adoption and Maintenance Act. It is also settled law

that by virtue of the obligations deriving from tradition that such an

obligation to maintain the wife and the children on the

husband/father is personal and both moral and legal and that

arises not on account of any contract, but due to the relationship

created by virtue of the marriage which creates a bond between

the parties making him responsible to look after the wife and the

children and in the case of unmarried daughters to maintain them

till their marriage if they are unable to maintain themselves. By

virtue of the development of law, maintenance to the children has

now been a joint responsibility of of both the parents if both are

earning. Even in a case where the unmarried daughter is living

with the mother, who is getting some income and being looked

after by her, she is entitled to claim maintenance from the father

also which includes the educational expenses and marriage

expenses. Merely because the mother is looking after the affairs of

the unmarried daughter including performance of marriage, it will

Mat.A.No.681,682&653 of 2007 48

not exonerate the legal and personal obligation of the father to

contribute his share for that purpose. Since it is a joint

responsibility of both earning parents to perform the obligation of

maintaining unmarried daughters and giving them in marriage,

then the spouse who is spending the amount is entitled to get

due contribution from the other spouse who is not looking after

them and other spouse is not entitled to take advantage of the fact

that the unmarried daughter is being maintained by the mother

who is also an earning member. So an obligation to get

contribution from the husband by the mother has to be extended

so as to strengthen the liability of the father to pay his due

contribution for the maintenance and welfare of his unmarried

daughter and he should not be left free of such liability.

64. As far as Hindu Marriage is concerned, it is not a

contract but a sacrament. At the time of marriage, both man and

woman take an oath before the Goddess of Fire that they will

mutually understand each other and share the happiness and

sorrow equally and try to make each other happy and shower

love on each of them. They will share the burden of running the

family institution taking into the concept of family a basic unit and

necessity of the existence of that unit for the welfare of the

society. The solemn oath taken by them creates a responsibility

on the husband to look after the wife and children both male and

Mat.A.No.681,682&653 of 2007 49

female till they attain majority and in the case of female takes up

the responsibility of looking after her till her marriage. Under the

Pristine Hindu Law, there is a responsibility on the father to give

daughter in marriage as in olden days, men alone are expected

to work and earn money and it is the responsibility of the women

to manage the household effectively which includes her

responsibility to look after the children and husband. But as the

time passes, women also started earning and shared the burden of

running the family along with the husband and that was the reason

why when the law was codified on the aspect of maintenance the

burden of providing maintenance has been cast on the mother as

well. Since the responsibility of the father and mother to look

after the children has become mutual and joint as far as the

children are concerned by virtue of the law and an option has

been given to the children to proceed against either of them and

by virtue of the precedents that liability has become joint, they are

liable to share the responsibility in pro-rata to their income.

That be the case merely because the mother is earning and

looking after the daughter and taking the responsibility of giving

her in marriage by burdening herself by taking loan will not

absolve the liability of the father to make his contribution for this

purpose and the wife is entitled to enforce the liability of the father

to provide his contribution if he has not contributed anything and

Mat.A.No.681,682&653 of 2007 50

the entire burden has been taken by her for this purpose by

virtue of his obligation and oath taken at the time of marriage and

become a liability on him by virtue of the law made by the

legislature and judge made precedents. Since it is a liability

arising out of a marriage relationship which wife is entitled to claim

by virtue of the above principle, then the claim for that purpose

by the mother will be maintainable before the Family Court by

virtue of
Section 7
Explanations (c) & (d) of the said Act. So the

contention of the counsel for the first respondent that he is not

liable to pay the marriage expenses or educational expenses of

an unmarried daughter and such a claim by the mother will not be

maintainable before the Family Court is unsustainable in law.

65. In this case, the marriage between the petitioner and

the first respondent and the birth of the children are not in dispute.

The first respondent had no case that after 12.4.1982, when the

petitioner left the matrimonial home with the children, he had

provided any maintenance or looked after the affairs of the

children. It is also brought out in the evidence of RWs10 and 11,

the wife and the son of the first respondent that the mother is

looking after the children and taking care of their education as

well. At the time when the above petition was filed in 2004, the

daughter was unmarried and she was a student and under the

protection of the mother. It is brought out in the evidence of Rws

Mat.A.No.681,682&653 of 2007 51

10 and 11 that the marriage of the daughter was solemnized

during the pendency of the proceedings and in spite of invitation

given to the first respondent, he did not attend the marriage. He

had no claim that he had contributed anything for the same as

well. It is seen from Ext.B25 certificate issued by the employer of

the petitioner that she was getting a gross salary of Rs.26,910/-

and after deduction, she was getting only Rs.1509.80Ps as take

home salary. Further Ext.B26 the certificate issued by Manager

State Bank of Travancore, Changanassery dated 20.2.2007

gives the details of the loans availed by the petitioner which

includes two education loans of Rs.4 lakhs and 3 lakhs, out of

which an amount of Rs.4,13,262/- and Rs.2,51,484/- were due as

outstanding and in one of the loans it appears that no payment has

been made as on the date of certificate, the outstanding was

shown Rs.4,83,914/- which appears to be the education loan

taken on behalf of the daughter as the date of payment would not

have been started. So under such circumstances, the first

respondent is also liable to contribute towards the education

expenses and marriage expenses of the unmarried daughter.

There is no evidence adduced on the side of petitioner to prove the

actual expenses incurred for the marriage of the daughter.

However considering the burden cast on the wife to discharge the

liabilities of the unmarried daughter and expenses incurred for

Mat.A.No.681,682&653 of 2007 52

conducting the marriage especially when there is no evidence to

show that at the date of marriage, the daughter was employed

and getting an income, the amount of Rs.3 lakhs fixed by the

Court below as share payable by the first respondent towards that

account appears to be reasonable and we do not find any reason

to interfere with the same.

66. As regards the gold ornaments and amount paid at the

time of marriage of the petitioner is concerned, she had adduced

evidence as RW10 and produced Ext.B8 marriage register which

was proved through RW8, the Secretary of Anandashramam SNDP

Sakha Yogam. It is seen from Ext.B8, 292 grams of gold ornaments

with its details and Rs.5001 was given by the parents of RW10 at

the time of her marriage. This was proved through RW8. He was not

cross examined at all. So the genuineness of the document and its

contents thereof were not disputed. Further RW10 had categorically

stated that out of these gold ornaments, 30 sovereigns of gold

ornaments and Rs.5001/- were taken by her husband and the same

was not returned. This aspect has not been challenged in the cross

examination as well. PW1 had no case that these gold ornaments

were taken back by the wife when she left the house. Further it will

be seen from the evidence of RW10 that on 12.4.82, there was an

incident occurred in which she was manhandled and she had to

leave the matrimonial home with the children. Neither PW1 nor

Mat.A.No.681,682&653 of 2007 53

RW10 had a case that thereafter there was any possisblity for RW10

coming to the matrimonial home and taking the gold ornaments.

PW1 also had no case that till 2004, she had made any claim for the

same. PW1 also had no case that the gold ornaments and the

amount were used for any common purpose for the benefit of either

RW10 or their children. When gold ornaments and the amount

given to the wife in connection with the marriage were entrusted to

the husband, then it will be in the nature of a trust and so long as

the marital relationship continues, the trust created also will

continue till the dissolution of marriage. Further when there is a

trust created, by virtue of Section 10 of the Trust Act, there is no

limitation so long as the trust continues. So under such

circumstances, once it is proved that gold ornaments and amount

was entrusted by the wife to the husband, then the burden is on the

husband to prove as to what happened to the gold ornaments and if

it is taken by the wife when she left the matrimonial home, the

same has to be proved by the husband. No such evidence was

adduced in this case by PW1. So under such circumstances, the

court below was perfectly justified in holding that the wife is entitled

to get return of either 30 sovereigns of gold ornaments or its value

at the rate of Rs.6,000/- per sovereign totaling Rs.1,80,000/- and

also Rs.5001 with interest at the rate of 6% per annum from the

date suit namely 9.8.2004. But the court below was not justified in

Mat.A.No.681,682&653 of 2007 54

restricting the interest for the educational and marriage expenses

from the date of order. She is entitled to get interest for that

amount also from the date of suit namely 9.8.2004. To that extent

the order passed by the court below has to be modified and on all

other aspects the same has to be confirmed.

So Mat.A.No.682/2007 is allowed in part granting interest on

Rs.3,00,000/- the amount payable towards educational and

marriage expenses from the date of petition namely 4.8.2004 till

payment at the rate of 6% per annum instead of interest granted by

the court below from the date of order and on all other aspects the

order passed by the court below is hereby confirmed.

Mat.A.No.653/2007 filed by the husband against the order in

O.P.No.555/2004 of Family Court Kottayam at Ettumanoor is

dismissed. Mat.A.No.681/2007 filed by the wife against the order of

divorce passed in OP.No.613/2003 of Family Court, Kottayam is

dismissed and the decree dissolving the marriage passed by the

court below is hereby confirmed. Considering the circumstances

parties are directed to bear their respective costs in all the appeals.

Sd/-

A.M. SHAFFIQUE, JUDGE.

Sd/-

K. RAMAKRISHNAN, JUDGE.

ss/amp/cl
/true copy/
P.S to Judge