JIBU MATHEW THARAKAN AND OTHERS Vs. RENILA NINAN

JUDGEMENT

(1.) Mat. Appeal No.568/2009 was filed by the respondents in O.P. 202/2007 on the file of the Family Court, Kottayam at Ettumanoor, while Mat. Appeal No.603/2009 was filed by the petitioner in the same case. For convenient sake the relationship of the parties is referred to in this judgment as referred to in the court below.

(2.) The case of the petitioner in the court below was that, the marriage between the petitioner and first respondent was solemnised on 04.01.2004 as per Christian rites. The petitioner is an Engineer and MBA graduate and first respondent is a qualified M.Tech Structural Engineer, who was working at Ernakulam at the time of marriage. Respondents two and three are the parents of the first respondent. At the time of the marriage proposal, petitioners parents agreed to give Rs. 15,00,000/- and 125 sovereigns of gold ornaments towards the share of the petitioner. The betrothal ceremony was conducted on 29.12.2003 and on that day, out of Rs. 15,00,000/- agreed to be given, Rs. 7,00,000/- was entrusted to the respondents by petitioner's father. At the time of marriage, 125 sovereigns of gold ornaments were given to the petitioner. They lived for 19 days together in the house of the petitioner and also in the house of the first respondent. After two weeks of the marriage, as directed by the first respondent, 84.5 sovereigns of gold ornaments were entrusted to the third respondent as trustee in the presence of respondents one and two. Petitioner was born and brought up at Dubai and she went to Dubai on 23.01.2004. Parents of the petitioner arranged a visa for the first respondent and he also came to Dubai during 3rd week of February 2004. He got an employment at Dubai at the instance of the petitioner's parents and they resided together at Dubai till the end of February 2006. Petitioner's father entrusted the balance amount of Rs. 8,00,000/- to the first respondent on 17.11.2004 by way of two cheques which the first respondent had deposited in the joint names of the petitioner and the first respondent at State Bank of Travancore, Kundara Branch. The entire salary of the petitioner was also deposited in the joint account of the petitioner and first respondent from 17.11.2004 to 31.12.2006, which will come to 86,476 dirhams = Rs. 9,83,232/- which was appropriated by the respondents. House hold articles worth Rs. 94,788/- were also entrusted to the respondents. The gold ornaments entrusted to the respondents is scheduled as item No.1 and house hold articles were scheduled as item No.2 to the petition. The respondent was an impotent person, incapable of procreating children and respondents were treating the petitioner cruelly which made her living with the first respondent impossible. They were living separately from 08.01.2007 onwards. Since item Nos.1 and 2 to the petition are entrusted with the respondents as trustees and they are liable to return the same or its value. The petitioner is also entitled to realise the amount of Rs. 9,83,232/- being the amount misappropriated being the salary of the petitioner which was credited in the joint account of the petitioner and first respondent as directed by the first respondent. Petitioner claimed Rs. 15,00,000/- being the amount given as patrimony and Rs. 9,83,232/- which was the amount deposited in Federal Bank, Kundara Branch which was withdrawn by respondents 2 and 3 with the connivance of the first respondent and Rs. 5,91,500/- and Rs. 94,788/- being the value of the gold ornaments and house hold articles in the event of non-return of the same by the respondents totalling an amount of Rs. 24,83,232/- together with interest at 12% per annum. Petitioner also filed OP 203/2007 for dissolution of marriage.

(3.) The respondents originally filed counter statement admitting the marriage, but denied that an amount of Rs. 7,00,000/- was paid at the time of betrothal. According to the respondents, the respondents 2 and 3 were working as employees of BSNL and teacher in High School respectively and there was no necessity for receiving any amount from the petitioner and appropriating the same. They denied the allegation that an amount of Rs. 8,00,000/- was given towards the balance patrimony on 17.11.2004. In fact a cheque for Rs. 2,90,000/- with No.124025 and another cheque for Rs. 5,10,000/- with No.256231 both dated 04.12.2004 drawn on State Bank of Travancore, Pariyaram Branch of Kottayam District were given and those cheques were deposited in the joint account of the petitioner and the first respondent in State Bank of Travancore, Kundara Branch. They had admitted that at the time of marriage, the petitioner's mother had given a bracelet to the first respondent and the mother of the first respondent had given an chain to her. Further a thali chain of 5 sovereigns and marriage ring of two sovereigns were given to the first respondent. He was not aware of the fact that 125 sovereigns of gold ornaments were given to the petitioner by her parents at the time of marriage and they did not enquiry about the same as well. Since they belong to Jacobaya community, there was no custom of giving 'sreedhanam' or gold ornaments. Further the gold ornaments worn by the petitioner were entrusted to her parents before she went to Dubai and they were deposited in the locker operated by her father in State Bank of Travancore, Pariyaram Branch of Kottayam District. They denied the allegation of entrustment of gold ornaments with the third respondent as directed by the first respondent. According to them, no gold ornaments were entrusted to them and it was deposited in the locker of her father. He admitted that he went to Dubai on 03.02.2004 on visiting visa, and he admitted that the amount of Rs. 8,00,000/- given by way of two cheques were deposited in the joint account of the petitioner and first respondent in State Bank of Travancore, Kundara Branch. They denied the allegation that the salary of the petitioner from 17.11.20004 to 31.12.2006 was entrusted to the first respondent and it was appropriated by respondents and they are liable to return the same. In fact, she was using the amount for her expenses. In fact the salary for the month of August 2006, of the first respondent namely 6,000 dirhams was taken by the petitioner's father and it was not returned. Further a loan of 1,00,000 dirhams was taken from Dubai National Bank for the purpose of purchasing a car in the name of the petitioner and a car with Reg. No.C-437626 (New Reg. No.G-9826) of 2004 model Jeep Cherokki was purchased and he had paid 75,603.50 dirhams for discharging the loan and after discharging the loan, the car was sold by the petitioner without his consent and he is entitled to get the entire amount from the petitioner and her parents. Further he had met the entire treatment expenses for removing the utress of petitioner's mother done from Medical Trust Hospital, Ernakulam and also spent an amount of Rs. 2,50,000/- for meeting the ayurvedic treatment given for the back pain of the petitioner. Since the respondents were against the immoral life lead by the petitioner, she deserted the first respondent on 08.01.2007 and residing with her parents. He denied the allegation of entrustment of house hold articles and misappropriation of the same. According to him, one siemans food processor, samsung mobile phone and some saries were left in the house of the respondents and she is at liberty to take those articles. They denied the allegation of impotency and non-consummation of marriage by the first respondent. While they were residing together, during October 2005, he had purchased a necklace and one ring and on 21.07.2006, he purchased five bangles worth 5,000 dirhams and one chain of 2,800 dirhams and presented the same to the petitioner and she is in possession of the same. They further contended that the first respondent had also spent more than rupees four lakhs for the treatment of the petitioner as no child was born to them in that wedlock. According to the respondents, items 1, 4, 7 and 8 of item 2 schedule are in the house of the respondents and she is liberty to take the same at any time. They prayed for dismissal of the petitions.