BENCY Vs. PRINCE AND OTHERS

JUDGEMENT

(1.) The appellant is the plaintiff in O.S.No.153 of 2005 and the respondents are the defendants therein. The first respondent is the husband of the appellant and the second respondent is the mother of the first respondent. The aforesaid original suit was filed for recovery of money, gold ornaments and for maintenance allowance from the respondents. The defendants opposed the said claim and after considering the evidence on record, the Family Court dismissed the claim for money and gold ornaments on a finding that the plaintiff failed to prove the claim and allowed the future maintenance @ Rs. 800/- per month and past maintenance totalling Rs. 28,800/- as arrears maintenance for three years from the first defendant. This appeal has been filed assailing the findings whereby the Family Court rejected the claim for money and gold ornaments. The brief facts of the case can be summarised as follows:

(2.) According to the plaintiff, her marriage with the first defendant was solemnised on 21.8.1997. At the time of marriage, she had worn 101 sovereigns of gold ornaments and on 'Nallavathal day' her father had entrusted Rs. 50,000/- with the first defendant for her welfare. A few days after the marriage, a lady, by name Priya, called her over telephone stating that she had been living with the first defendant for several years as husband and wife and made a request to go to her parental home leaving behind the first defendant at the earliest. On several occasions that lady called the plaintiff with the same demand. When the plaintiff informed the said fact to the first defendant, he confessed that he was having illicit relationship with the said Priya prior to the marriage and he married the plaintiff after giving an assurance to the said Priya that he would look after her and she gave consent for his marriage on that assurance. Otherwise, the said Priya would not have given her consent and the marriage between the plaintiff and the first defendant could not have been solemnised. On the third day of the marriage, the first defendant made her to believe that it is not safe to keep the gold ornaments in the house and if they pledge the said ornaments in bank, they would get a substantial amount and that amount can be used for lending money to others on interest. On the basis of the above assurance, the defendants had obtained her 85 sovereigns of gold ornaments, pledged it and the amount was used for lending money, for interest. Thereafter he began to treat the petitioner with cruelty alleging that her parents cheated him by giving gold ornaments of poor quality and he then demanded her to bring more ornaments from her parents and he used to assault her and when the physical and mental cruelty became intolerable, he himself took her to her house on 14.10.1997 and left there. Thereafter, he sent a lawyer's notice calling upon her to continue habitation with him on the allegation that the plaintiff has withdrawn from the society of the first defendant and thereafter the first defendant filed O.P. (H.M.A.)No.256 of 1998 under section 9 of the Hindu Marriage Act seeking restitution of conjugal rights and during the counselling of the said O.P.(H.M.A.) the plaintiff has expressed her willingness to reside with the first defendant and he refused to accept her. Thereafter he has withdrawn that O.P.(H.M.A.) and filed O.P.No.268 of 1999 seeking a decree for dissolution of marriage. Thus he totally abandoned the plaintiff. She has entrusted the gold ornaments with the first defendant as a trustee and he received an amount of Rs. 50,000/- in connection with the marriage. Therefore she is entitled to get back the said money and the gold ornaments as prayed for. The original suit was filed with a prayer to pass a decree to realise 85 sovereigns of gold ornaments or its value and Rs. 50,000/-.

(3.) The defendants filed a written statement denying the allegation that the first defendant had obtained 85 sovereigns of gold ornaments and that the plaintiff's father had given Rs. 50,000/- to him. The said allegation is absolutely false. According to him, he does not know the exact quantity of the gold ornaments which were worn by the plaintiff at the time of marriage as he has not weighed the said gold ornaments. Further, the averment that the father of the plaintiff has given Rs. 50,000/- to him is also not correct. He denied the allegations in paragraph No.3. The averment that he has obtained the gold ornaments for pledging the same in bank to obtain money and lending money using the said amount is not correct. He did not demand any more gold ornaments or money after the marriage and the averment that he treated her with cruelty both physically and mentally on demand of money and gold ornaments is not correct. He further denied the averment that he has taken the plaintiff to her parental house on 14.10.1997 and left there. According to him, the plaintiff was very adamant and due to difference of opinion she was quarreling with the first defendant and kept aloof without talking with him. Sometimes she had developed some mental disorder and attempted to commit suicide by jumping into the well. On 28.9.1997 while the first defendant was not in his house, the plaintiff called her parents and brother over telephone and brought them to the defendants' house and in their presence, several allegations were levelled against the defendants and thereafter the plaintiff along with her brother and parents left his home, after taking all her belongings. So he had filed O.S.No.256 of 1998 seeking restitution of conjugal rights and after sometime he has withdrawn the same so as to file O.P.(H.M.A.) for dissolution of marriage. He denied the entitlement of maintenance allowance, past and future. According to him, the plaintiff is not entitled to get future and past maintenance allowance from him as she was residing separately without any reasonable excuse. He further denied the allegation that he is getting huge income per month from the landed property and his other business. In short, according to him, the plaintiff is not entitled to get any relief as prayed for.