KIACHAPARAMBIL KANAKAVALLI Vs. MELEKOLLANKANDY KRISHNANKUTTY

JUDGEMENT

(1.) This appeal is preferred against the judgment dated 25.10.2007 in O.P.No.557 of 2005 of the Family Court Kozhikode. The original petition was filed by the respondent herein seeking dissolution of marriage under Section 13(1)(1a) of the Hindu Marriage Act, 1955. The parties were married on 16th Chingam, 1991. They lived at the house of the petitioner and two girl children were born in the wed-lock. The respondent and the children used to go to her own house frequently. One day, when the respondent returned, 17 sovereigns of gold ornaments belonging to her was found missing. She informed the petitioner that the ornaments were entrusted to her own brother and would be returned soon. Thereafter, 36 cents of property belonging to the respondent, her brother, sister and mother was sold without the consent or knowledge of the petitioner. It is stated that the petitioner advised the respondent to approach her family and get the share of gold ornaments and property sold by her brother, since they had two girl children. The respondent agreed and went home in 1997. But, she refused to come back even though the petitioner went and attempted to bring her back. It is stated that a lawyer's notice was issued demanding restitution of conjugal rights but no reply was received. While so, the respondent and children came with her relatives and started living in the petitioner's house. It is stated that on 22.11.2005, the respondent assaulted him with a coconut scraper. It is therefore stated that the petitioner husband was entitled to a decree of divorce on the ground of cruelty.

(2.) The respondent wife filed a counter statement admitting the marriage and paternity of the children. The allegation of entrustment of gold ornaments to the brother and sale of the property without consent and knowledge of the petitioner was emphatically denied. It was stated that the property was sold due to persistent demand of the petitioner and the sale consideration had been received by him on behalf the respondent wife and spent lavishly. The allegation that she went home with the children in 1997 and did not return were denied. Though the receipt of the lawyer notice was admitted, the contents thereof were denied. It is contended that the wife had been subjected to matrimonial cruelty including demands for more dowry and ill treatment and that her gold ornaments had been appropriated and sold by the petitioner. It is stated that from 24.6.2005, the respondent and the children had been living in the house of the petitioner and that he had never maintained her and was sleeping in some other house.

(3.) PW1 was examined on behalf of the petitioner husband and Exhibits A1 and A2 were marked. The respondent wife was examined as RW1. After examining the pleadings and the evidence on record, the Family Court held that the parties had been staying separately since 1997. Exhibits A1 and A2 were relied upon to hold that the joint property of the respondent and her siblings was sold and another property was purchased in 1999. The said property was also sold in 1999. Considering the oral evidence, the court below held that the version of RW1 did not inspire confidence and that her behaviour and conduct amounts to cruelty. The case of PW1 was accepted as the more probable one and a decree of divorce was granted as prayed for.