CIVIL APPEAL 750 of 2012 on 27 September 1981

JUDGMENT

[ Mat.Appeal 750/2012, Mat.Appeal.167/2013,Mat.Appeal.751/2012 and Mat.Appeal.752/2012 ]Shafque, J.

These appeals arise out of a matrimonial issue between theappellant and respondent, parties to the lis. They got married on27.09.1981 and have two children. The first son is alreadymarried and settled at Europe. The second daughter is aged 26years and is residing with the wife. After the marriage of the son,the husband issued notice to wife seeking divorce alleging cruelty,which kick started the litigation between the couple.

2. Wife filed O.P. 898/2010 seeking the recovery of herparental share, gold ornaments and the money she alleges tohave paid to her husband. The said O.P. was partly decreed,against which the husband had filed Mat. Appeal No. 752/2012.

3. The husband had filed O.P. No. 1279/2010 seekingdivorce on the ground of cruelty. He alleged that his wife hadmade several attempts of suicide. She was under psychiatrictreatment. He was physically assaulted on several occasions.

She was making allegations of adultery against him. The FamilyCourt dismissed the said petition, against which husband filed Mat.Appeal No. 751/2012.

4. Husband also filed O.P. No. 1527/2010 seeking for adeclaration that he is the absolute owner in respect of 8 cents ofproperty purchased by him in the name of the wife. He alsoclaimed recovery of gold ornaments valuing `13,15,000/-, whichhe had handed over to his wife over a period of time. The FamilyCourt decreed the said O.P. in part granting a declaration that thehusband is the absolute owner in respect of the petition Aschedule property, namely 8 cents of land aforesaid. The claim inrespect of `13,15,000/- was allowed in part and a decree is passedin favour of the husband for recovery of `2,67,970/-. Challengingthe aforesaid decree and judgment, husband filed Mat. Appeal No.750/2012 and the wife filed Mat. Appeal No.167/2013.

5. First we shall consider sustainability of decree granted inO.P. No.898/2010 leading to Mat. Appeal No. 752/2012. It is thecase of the wife that at the time of marriage her parents had givenher `1,00,000/- as parental share, which was entrusted to thehusband. She was adorned with 50 sovereigns of goldornaments. That apart, when the partition had taken place, certain extent of land was allotted to her and an amount of`10,00,000/- given in this behalf was also handed over to herhusband. The husband denied all these allegations. He deniedhaving received any amount or having appropriated any of thegold ornaments.

6. Common evidence was taken in all the petitions. PW1 toPW8 were examined on behalf of the husband. RW1 and RW2were examined on behalf of the wife. Exts. A1 to A28, B1 to B6and X1 to X3 were the documents relied upon. In order to provethe claim for recovery of money and gold ornaments, Family Courtrelied on the oral testimony of PW1 and PW2. Wife was examinedas RW1. RW2 is the brother of RW1 and another brother of RW1was examined as PW7. All these witnesses have clearly spokenabout the entrustment of `1,00,000/- and `10,00,000/- to thehusband. That apart, they have given evidence that their sisterwas given 50 sovereigns of gold ornaments at the time ofmarriage. According to the wife, the gold ornaments wereentrusted for safe keeping to her husband and it was not returned.Though this fact is denied, it is in evidence that after the marriage,parties had gone abroad and was living at Qattar for quite sometime. Thereafter, the wife had to return back and she was living at their native place.

7. The wife had a case that her share in the familypartition was given in the form of cash with which 1.80 acres ofland was purchased in her name in the year 1993 adjoining theproperty of the husband at Kanjirapally. PW1, the husbandadmitted that his wife was having 1.80 acres of land atKanjirapally. He also admitted that she sold the property andreceived the amount. The husband was having an extent of 3.45acres and the wife 1.75 acres. Ext.B3 is the sale deed whichwould prove that the couple sold their property on 10/12/2002 bya common sale deed. Wife's contention is that the totalconsideration received for sale of property as evident from Ext.B4agreement is `21 lakhs though the document value in Ext.B3 wasshown only as `4 lakhs. Husband admitted that he sold theproperty for `4 lakhs per acre. It is in the said circumstances thatthe Court below arrived at a conclusion that the total value of theproperty was `21 lakhs and her claim for `10 lakhs was justified.Further, husband admitted that he purchased 12 cents of propertyand a house in his own name. According to the wife, the saidproperty was purchased by selling her gold ornaments weighing50 sovereigns and her patrimony on the assurance that the property will be purchased in their joint names. But the husbandpurchased the property in his own name. Without claiming anyproprietary right over the property, she had limited her claim tothe amount given for purchasing the said property. This fact isproved by Ext.A15 letter written by PW7 to the husband on22/2/1993. Family Court found that the claim for `10 lakhs isjustifiable and reasonable. Regarding patrimony also, the FamilyCourt had directed payment of `1 lakh and return of 50 sovereignsof gold ornaments based on the oral testimony of PW7 and RW2,who are none other than the brothers of the wife. It is in evidencethat the ornaments were sold away by the husband to purchasethe property in the name of the husband.

8. When there is evidence of entrustment of goldornaments and parental share to the husband, the Family Courtwas justified in granting a decree for the same. Though it iscontended by the learned counsel for the husband that there isabsolutely no evidence to prove entrustment of the money or goldornaments, when the Family Court had relied on sufficientmaterials and it is found that the version of the wife is believable,to that extent, we do not think that we will be justified ininterfering with the said finding.

9. Now coming to Original Petition No. 1279/2010 relating todivorce, wife in her objection had denied all the allegations.Husband had relied on the oral testimony of PW2, PW4 and PW6 tosubstantiate his contentions. Evidence of PW2 Psychiatrist wouldindicate that the wife had consulted him and it was found that shewas having mood disorder. However he stated that if propertreatment is given she can lead a married life. PW4 is the MedicalSuperintendent of Pushpagiri Hospital. She proved Ext.A9 andExt.X1. The issue projected by the petitioner is that his wife wastaken to Pushpagiri Hospital since she attempted to commitsuicide. Exts. A9 and X1 would show that she was referred fromChethipuzha hospital. There is also an entry in Ext.X1 to the effectthat after reference to the Psychiatrist, the diagnosis was that shewas having paranoid psychosis. Wife has a case that she neverattempted to commit suicide. Some medicines were given by herhusband and when she consumed those medicines, she becameunconscious. Therefore, the allegation that she attempted tocommit suicide is absolutely baseless.

10. Yet another contention urged by the husband is that wifewas making scandalous allegations against him. This fact isproved by the evidence of PW6. PW6 is a friend and relative of the husband. He is also a rubber tapper who is engaged intapping of rubber in the property of the husband. He deposed thaton several occasions, he heard 'wife' alleging that the husbandwas having extra marital relationship with another lady at Qatar.Apparently, in O.P. No. 898/2010 itself the wife had made aspecific allegation that her husband was having extra maritalrelationship with another lady. Of course in evidence she tried toexplain the same, and stated that she had not made any suchallegations and she has no such case against the husband. Shedeposed that she had made such allegations in O.P. No. 898 of2010, since she got an anonymous letter stating that her husbandwas living with another lady at Qatar. Later it was found that thesaid allegation was totally incorrect and an application itself isfiled before the Court in O.P. No. 898/2010 to withdraw suchallegations. But the said application was dismissed by the Court.It is pointed out by the counsel for the wife that in Ext.B2 lawyer'snotice, husband did not make any averment that his wife madesuch allegations of unchastity against him.

11. On an over all consideration of the pleadings and factsof this case, it is clear that the parties were not having a propermarried life. They were living separately since 2010 and so far, there is no chance for any reunion as such. That apart, there is

evidence to prove that wife was having some sort of mentaldisorder, which by itself may not be a reason to grant divorce. Asrightly pointed out by the counsel for the wife, in order to claimdivorce under Section 10 (1) (iii) of the Divorce Act 1869,unsoundness of mind should be incurable and should be for acontinuous period of not less than two years immediatelypreceding the presentation of petition. Apparently, no suchcontention had been taken and the evidence does not disclosethat she was having mental disorder of incurable nature. Butthe petitioner sought for divorce under Section 10 (1) (x) of theDivorce Act, 1969 which reads as follows :

10. Grounds for dissolution of marriage (1) Any marriagesolemnized, whether before or after the commencement of theIndian Divorce (Amendment) Act, 2001, may on a petitionpresented to the District Court either by the husband or thewife, be dissolved on the ground that since the solemnizationof the marriage, the respondent - ******

(x) has treated the petitioner with such cruelty as to cause areasonable apprehension in the mind of the petitioner that itwould be harmful or injuries for the petitioner to live with therespondent.”

12. As far as the allegations of cruelty is concerned, when the husband submits that there had been suicide attempts, psychiatric problems, physical assault and unsubstantiatedallegations of adultery and he had deposed to these facts while heis examined as PW1 and it is supported by the evidence of Pws.2,4 and 6, it would reveal the mental agony suffered by anindividual. When such repeated instances occur in life, it amountsto mental cruelty. On account of either mood disorder or thealleged paranoid psychosis, there were instances of husbandhaving been subjected to cruelty at the hands of wife and she maynot even know about it on account of disease of mood disorder orpsychosis.

13. The learned counsel for the wife however submits thatthe husband had deliberately shifted the wife to the Pushpagirihospital with an intention to make proof to indicate that she wassuffering from psychiatric problems. It is also pointed out that thepsychiatrist, who examined the wife at Pushpagiri hospital, has notbeen examined. Of course, in order to prove that wife was havingmental disorder which is not curable there requires necessarymedical evidence to prove the said fact. We are considering thefact that whether the allegations of cruelty is proved or not. PW1complains of cruelty at the hands of his wife, though they havebeen living together for quite some time. There is also supporting evidence to indicate her mental problems in the form of evidenceof PW2 and PW4. That apart, there is also evidence to prove thatshe was making scandalous allegations against her husband,though she had withdrawn it at a later point of time. Therefore,there is ample evidence to indicate that the husband was sufferingcruelty at the hands of his wife. In the said circumstances, theFamily Court committed error in rejecting the prayer for dissolutionof marriage. The Family Court had not considered the evidence inthe proper perspective and had arrived at a decision which isperverse and therefore, we are of the view that the husband isentitled for divorce.

14. Now we shall deal with appeal against O.P. 1527/2010. Aschedule property was purchased in the name of the wife. Thehusband claims that the amount required for purchasing saidproperty was transferred by him in the name of his wife and theproperty was purchased in the name of the wife for and on behalfof the family. There is evidence in the case to show that theamount had been transferred from the husband's NRI account tothe account of his wife. The date on which the said amount hadbeen withdrawn by the wife from her account is also in evidence.PW3 is the Bank Manager who proved the said transaction and PW8 is the person who sold the property. They have clearly statedthat the consideration was paid by the husband. From theaforesaid finding, it is rather clear that the amount utilized forpurchasing the property was the money earned by the husband.Though it is contended by the learned counsel for the wife that thesaid money belongs to her, no evidence was adduced to prove thesame.

15. Yet another contention urged by the counsel for the wifeis that when the property is purchased in the name of the wife forthe benefit of his family, the husband cannot claim it successfully.He refers to Section 3 of the Benami Transactions [Prohibition] Act,1988 [hereinafter referred as the Act]. Section 3 (2), at the timewhen the property was purchased i.e. on 10.10.2008, indicatedthat sub section (1) shall not apply to purchase of property by anyperson in the name of his wife or married daughter, unless thecontrary is proved, that the said property had been purchased forthe benefit of the wife or the married daughter. Of course, thesaid contention could have been raised by the wife. But the wifehad taken a different contention. Primary contention taken by thewife is that the property was purchased by utilizing her own funds.When the benefit of Section 3 (2) is claimed, the wife has to admit the fact that the property was purchased by her husband with hismoney, and for her benefit. In which event alone the presumptionunder Section 3(2) would become applicable. Once it is found thatthe amount for purchasing property was spent by the husband andwife's contention that she had spent the money is negatived,definitely there is no reason why other contention should beconsidered at all. Even otherwise the transaction is saved bySection 4(3)(b) of the Act. That apart, it is pointed out that afterthe period of limitation, for filing the appeal, husband hadassigned the property in favour of a third party. In the saidcircumstances as well, we do not think it proper for us to interferewith the decree as aforesaid.

16. Husband claimed recovery of `13,15,000/- spent by himfor the purchase of gold ornaments from his wife. In fact, theCourt below partly allowed the said claim. He had produced billsfor purchase of gold ornaments amounting to `2,67,970/-. In sofar as the Court below relied upon sufficient materials to grant adecree for the part of the claim, we do not think that, in theabsence of any other materials to prove acquisition of such goldornaments, especially, when wife had disputed the said fact, itwould be proper for us to interfere with the said decree in appeal.

kmd

Mat. Appeal No. 750/2012 and connectedcases

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17. In the light of the aforesaid facts, Mat. Appeal

Nos.750/2012, 752/2012 and 163/2013 are dismissed. Theamount already deposited by the respondent in O.P.No.898/2010including accrued interest shall be adjusted as payment towardsthe decree.

Mat. Appeal No. 751/2012 is allowed. Judgment in O.P. No.1279/2010 is set aside and the Original Petition is allowed asunder:- The marriage between petitioner and respondent shall standdissolved by a decree of divorce.

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A.M.SHAFFIQUEJUDGE

Sd/-N.ANIL KUMARJUDGE

Mat. Appeal No. 163/2013 mentioned in the 2[nd] line of paragraph 17 of the common judgment in Mat. Appeal Nos. 750, 751,752/2012 & 167/2013 dated 05.08.2019, will suo motu standcorrected as 167/2013, as per order dated 06.08.2020 in Mat.Appeal Nos. 750, 751, 752/2012 and 167/2013.

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DEPUTY REGISTRAR