IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, DR. JUSTICE KAUSER EDAPPAGATH, JJ.
Mat. Appeal No. 316 Of 2013 Mat.appeal No. 316 Of 2013; 28 July 2021
Against The Judgment In Op 578/2007 of Family Court, Ernakulam Dated 28/2/2013
Dr. Jeffrin Scaria George
Mini Jacob @ Mini Jeffrin George
Appellants / Eespondents in Op: By Advs. Santhosh Mathew, Arun Thomas, Jennis Stephen, Vijay V. Paul;
Respondent/petitioner in Op: By Advs. Alex George, George Zachariah Eruthickel.
J U D G M E N T
Dr. Kauser Edappagath, J.
Both these appeals arise from the judgment and decree in OP No.578/2007 dated 28th February, 2013 on the file of the Family Court, Ernakulam (for short “the court below”).
2. The parties are referred to as shown in the Original Petition unless otherwise stated. The Original Petition was instituted for recovery of money allegedly due to the petitioner from the respondents.
3. The petitioner and the 1st respondent are the divorced spouses. Their marriage was solemnized on 15/3/2003 at Thrissur Sub Registry Office under the provisions of the Special Marriage Act, 1954. The 2nd and 3rd respondents are the parents of the 1st respondent. At the time of marriage, the petitioner was employed at U.S.A. The father of the petitioner was also employed at U.S.A. After one and a half months of marriage, the petitioner returned to U.S.A to resume her job. Thereafter, on 12/8/2003, the 1st respondent also left to U.S.A and joined the petitioner and her parents. During their stay at U.S.A., marital discord developed between them. The 1st respondent returned to Kerala on 8/7/2004 and thereafter he went to Australia. The 1st respondent filed divorce petition before the Family Court of Western Australia and obtained divorce dissolving the marriage between him and the petitioner. It has become final.
4. It is the case of the petitioner that immediately after the marriage, the respondents collected ₹5,00,000/- from her for renovating their residential house. It was alleged that the respondents took away 50 sovereigns of gold ornaments (worth ₹3,50,000/-) belonging to her before she returned to U.S.A. after the marriage. It was further alleged that the entire travelling expenditure for the 1st respondent’s journey to U.S.A and back to India was met by her. It was also alleged that during the period the 1st respondent stayed with the petitioner and her father at U.S.A., she and her father spent money for his personal needs under different heads. The Original Petition has been filed for recovery of these amounts. It was specifically pleaded that these amounts given or spent by the petitioner or her father are to be treated as trust amount entrusted for the welfare of the petitioner. The total claim made was ₹38,18,640/- (Originally the claim was for ₹91,88,150/-, subsequently the Original petition was amended and claim was reduced to ₹38,18,640/-).
5. In the objection statement filed by the respondents, they denied the case set up by the petitioner that the gold ornaments and cash of ₹5,00,000/- were given by the petitioner to the respondents. The other monetary claims made by the petitioner under various heads were also specifically denied in the objection statement. According to them, the petitioner is not entitled to the reliefs claimed in the Original Petition.
6. The parties went on trial. The petitioner herself gave evidence as PW1 and Exts. A1 to A15 were marked on her side. The 2nd and 3rd respondents were examined as RW1 and RW2 respectively and Exts. B1 to B25 were marked on the side of the respondents. After trial, the court below allowed the claims in part and a decree for a sum of ₹19,59,346/- with interest @12% per annum from the date of Original Petition till realisation was granted in favour of the petitioner as per the impugned decree and judgment. Aggrieved by the said decree and judgment, the respondents preferred Mat. Appeal No.316/2013. Dissatisfied with the rejection of certain claims in the Original Petition, the petitioner preferred Mat. Appeal No.637/2014. Since both appeals are connected and arise from the very same judgment, we are disposing it by common judgment.
7. We have heard Sri. Santhosh Mathew, the learned counsel appearing for the appellants in Mat.Appeal No.316/2013 and the respondents in Mat.Appeal No.637/2014 and Sri.George Zacharia Eruthickal, the learned counsel appearing for the appellant in Mat.Appeal No.637/2014 and the respondent in Mat.Appeal No.316/2013.
8. The claims of the petitioner are under the following ten heads:-
(i) The amount collected by the respondents from the petitioner immediately after the marriage for renovating their residential building. ₹5,00,000/-
(ii) Cost of 50 sovereigns of gold ornaments collected by the respondents from the petitioner, having the value of Rs.7,000/- per sovereign. ₹3,50,000/-
(iii) The amount collected by the 1st respondent from the petitioner ₹2,00,000/- for his journey arrangements to reach U.S.A On 12.8.2003.
(iv) The amount collected/the value of the benefits derived by the 1st respondent by using the Credit Card of the petitioner’s father to the tune of 8000 US Dollars (calculated at the Exchange rate, as on the date of OP, of RS.42/- per Dollar). ₹3,36,000/-
(v) The cost of the Honda Accord car purchased by the 1st respondent using the credit facility of the petitioner for US Dollars 22000 (Calculated at the Exchange rate of RS.42/- per Dollar.) ₹9,24,000/-
(vi) The amount collected by the 1st respondent towards his preparations and expenditure for USMLE examination to the tune of 4500 US Dollars (calculated at the Exchange rate of Rs.42/- per Dollar) ₹1,89,000/-
(vii) The amount sent by the petitioner to the respondents 2 and 3 at the direction of the 1st respondent every month from December 2003 to June 2004 at the rate of US Dollars 225 – Total – 1575 US Dollars (Calculated at the exchange rate of Rs.42/- per Dollar) ₹66,150/-
(viii) The amount collected by the respondents during July 2004 in connection with the 1st respondent’s travel back to India from U.S.A, 1500 US Dollars ₹63,000/- (Calculated at the Exchange rate of Rs.42/- per Dollar).
(ix) The amount spent by the 1st respondent by way of one month’s rent of $678, deposit amount and penalty amount $2712 (Calculated at the Exchange rate of Rs.42/- per Dollar) ₹1,83,120/- (x) The expenses borne by the petitioner for the 1st respondent’s stay in U.S.A from 12.8.2003 to 8.7.2004 $65 per day which includes food, accommodation, transportation utilities, clothing, phone (land cell), miscellaneous (computer, internet calling cards and medical) 69 days x 65 = $23985) (Calculated at the Exchange rate of Rs.42/- per Dollar). ₹10,07,370/-
9. Now, we will discuss each claim one by one.
10. Claim No.(i): The definite case of the petitioner is that immediately after the marriage, the respondent together collected ₹5,00,000/- from the petitioner for renovating their residential house. In order to prove the said claim, the petitioner relies on her own oral testimony and the oral testimony of a witness, who was examined as PW2, as well as Exts. A2 to A4. The court below did not believe the evidence of PW1 and PW2 and accordingly disallowed the said claim.
11. PW1 gave evidence in tune with the pleadings. She clearly deposed that immediately after the marriage, as insisted by the respondents, she gave ₹5,00,000/- to them for the purpose of renovating their house. She specifically deposed that she borrowed the cash for the said purpose from one Mr. Sincy Jacob whose wife’s brother was her neighbour at U.S.A. Mr. Sincy Jacob was examined as PW2. PW1 further deposed that the amount so borrowed was repaid by her as per three cheques which were marked as Exts. A2 to A4. PW2 gave evidence to corroborate the evidence given by PW1. He specifically deposed that he lent money to PW1 at the time of her marriage with the 1st respondent and it was repaid as per Exts. A2 to A4 cheques. The evidence given by PW1 and PW2 in this regard is quite convincing. Their oral testimony gets corroboration from Exts. A2 to A4. We see no reason to disbelieve it. That apart, the 1st respondent did not mount the box to deny the positive evidence given by PW1 and PW2 that ₹5,00,000/- was given by PW1 to the respondents. For these reasons, we hold that the court below went wrong in disallowing the claim under this head. We allow the said claim.
12. Claim No.(ii): This claim is regarding gold ornaments. The pleading regarding this claim is very cryptic. It is pleaded that at the instance of the respondents, the petitioner’s jewellery weighing 50 sovereigns was taken away by the respondents before the petitioner returning to U.S.A after the marriage. The very same pleading was reproduced in the chief affidavit in the form of evidence. There are no further details, like the description of gold ornaments, when was it given, to whom it was entrusted etc. Apart from the interested testimony of PW1, there is absolutely nothing on record to show that the petitioner was in possession of 50 sovereigns of gold ornaments at the time of marriage and it was entrusted to the respondent before she returned to U.S.A. Ext. B2 series are the photographs taken at the time of marriage. It would show that the petitioner was wearing a single necklace, ear studs and one or two bangles. The marriage was on 15th March, 2003. According to PW1, she came to her native place in the end of January. She has no case that when she came from U.S.A., she carried those 50 sovereigns of gold ornaments with her. In the cross-examination she admitted that except gold ornaments she was wearing, she did not bring any valuable articles from U.S.A. If that be so, there would be definitely documentary evidence for the purchase of 50 sovereigns of gold ornaments from Kerala. But, no such documentary evidence has been produced. There is no independent evidence to prove the entrustment also. RW1 to whom the gold ornaments were allegedly entrusted entered the box and denied the entrustment. In the absence of convincing evidence to prove the possession and entrustment of gold ornaments, we are of the view that the court below was justified in rejecting the claim under this head.
13. Claim No.(iii): Admittedly on 12/8/2003, the 1st respondent left to U.S.A. The definite case of the petitioner is that the entire travelling expenditure for the journey of the 1st respondent to U.S.A. amounting to ₹2,00,000/- was met by her. This claim is made for the return of the said amount of ₹2,00,000/-. The respondents have admitted that the 1st respondent went to U.S.A under the sponsorship of the petitioner. Definitely, the petitioner might have sustained expenditure for the same. Hence, we see no reason to disbelieve the evidence of PW1 that she spent ₹2,00,000/- to take the 1st respondent to U.S.A. The 1st respondent did not mount the box to deny the claim. Hence, we confirm the claim allowed by the court below under this head.
14. Claim No.(iv): According to the petitioner, after reaching U.S.A., the 1st respondent used the credit card of her father and spent about $8000 equivalent to ₹3,36,000/- for his personal needs. The petitioner claims the said amount under this head. In the objection statement, in paragraph 19, the respondents have admitted that the father of the petitioner gave the 1st respondent a supplementary card of his credit card. However, it was contended that it was used to purchase goods for petitioner’s family and not used for his personal purpose. It must be noted that admittedly the 1st respondent had no job or income while he was staying at U.S.A. Therefore, it was quite probable that the 1st respondent depended on the petitioner and her father to meet his financial requirements. Ext. A15 series, the copy of account statement of the master card of the father of the petitioner, would corroborate the oral testimony given by the petitioner in this regard. As stated already, the respondents admitted in the objection statement that the 1st respondent used the supplementary card given by the father of the petitioner. Still, the 1st respondent did not enter into the box to depose that he did not use the card for his personal needs. For these reasons, we are of the view that the court below was correct in allowing the claim under this head as well.
15. Claim No.(v): The claim under this head is towards the price of the Honda Accord car allegedly purchased by the petitioner at the instance of the 1st respondent for his use. The claim under this head is for $22000 equivalent to ₹9,24,000/-. The entire claim was allowed by the court below.
16. The only pleading about this claim in the Original Petition is that at the instance of the 1st respondent, the petitioner was forced to spend $22000 to purchase a Honda Accord car for him by raising a loan from a financial institution. To prove this claim, the petitioner relies on Exts. A6 to A8 apart from her oral evidence. The car was purchased on 22/5/2004. The 1st respondent returned to Kerala on 8/7/2004. Ext. A6 is the sale contract of the car. Ext. A7 is the odometer disclosure statement pertaining to the car. Ext. A8 series are the account statement of Harris Bank from whom the loan was availed. Exts. A6 to A8 coupled with the oral evidence of PW1 would show that the car was purchased in the joint name of the petitioner and the 1st respondent by availing loan. Even according to the petitioner, the total price of the car was $22000. In chief examination, PW1 has stated that she raised a loan for $16000 and she made initial payment of $6000 in cash. Ext. A8 would show that due to the non payment of loan amount, the vehicle was seized, it was sold for $7500 and proceeds were adjusted towards the loan amount. After adjusting the sale proceeds, the petitioner was directed to pay $3492.12. Exts. A8 and A8(a) would show that unpaid principal balance of the loan account was $11192.23. Thus, towards the loan account, the petitioner had paid $4808 ($16,000 – $11192). The total amount spent by the petitioner towards the purchase of the car would come to $14,300 only ($4808 mentioned above + $6,000/- initially paid by her + $3492 paid in response to Ext. A8).
17. As stated already, the car was purchased in the joint name of the petitioner and the 1st respondent. After purchase of the car, the 1st respondent was in U.S.A. only for about one and a half months. So he used the car only during the said short period. Apart from the oral testimony, there is nothing on record to show that the car was purchased for the use of the 1st respondent alone. On the other hand, the circumstances show that the car was purchased in the joint name of the petitioner and the first respondent for the use of both. Hence, the 1st respondent cannot be burdened with the entire $14300 mentioned above. The petitioner is entitled to half of the same only, ie., $7150 equivalent to ₹3,00,300/-. Hence, we reduce the amount awarded under this head to ₹3,00,300/-.
18. Claim No.(vi): The 1st respondent who is a medical graduate went to U.S.A. to practice medicine. He was admittedly preparing for the Medical Studies Examination (USMLE) to practice there as a medical practitioner. In the objection statement, in paragraph 21, the respondents have admitted that considering the low salary of the petitioner, the 1st respondent took only $700 for attending the course and further spent $695 for the USMLE Examination. It was further admitted that the said payments were made using the supplementary card of the father of the petitioner. Ext. A11 series and Ext. A12 produced by the petitioner would substantiate her case that the 1st respondent spent $4500 (equivalent to ₹1,89,000/-) for his studies for USMLE Exam and a sum of ₹20,000/- for buying books for the preparation for the said examination. Hence, we confirm the relief granted under this head as well.
19. Claim No.(vii): According to the petitioner, as per the directions of the respondents, she had been sending $150 every month to the 3rd respondent and $75 every month to the 2nd respondent. Thus, a total sum of $1575 (equivalent to ₹66,150/-) was sent from December, 2003 to June, 2004, it was alleged. The said amount was claimed under this head.
20. In the objection statement, the respondents have partly admitted this claim. In paragraph 22 of the objection, it is contended that only $100 was sent to respondent No.3 for four to five months. It is pertinent to note that in the evidence of RW1 and RW2, they did not deny the claim made by the petitioner under this head. The petitioner has also produced Ext. A5, counterfoil bills of 35 cheque leaves, in order to prove this claim. The oral evidence of PW1 coupled with Ext. A5 series clearly prove the claim made by the petitioner under this head. Hence, we confirm the relief granted by the court below under this head.
21. Claim No.(viii): The claim under this head is for $1500 equivalent to ₹63,000/- allegedly collected by the 1st respondent from the petitioner to meet the expenditure to travel back to India from U.S.A in July, 2004. Apart from the oral testimony of PW1, there is no documentary evidence to show that the petitioner spent any amount for the travel ticket of the 1st respondent for his return journey from U.S.A. to India. On the other hand, the evidence of RW1 coupled with Exts. B7 and B7(e) would clearly show that the air ticket was purchased by RW1. Hence, the court below was absolutely justified in rejecting the claim under this head.
22. Claim No.(ix): The petitioner and the 1st respondent were residing in U.S.A with the parents of the petitioner. According to the petitioner, the 1st respondent started complaining that there was no sufficient privacy and due to his compulsion, she was forced to hire an apartment at a monthly rent of $678. It is further alleged that the said apartment was never used as the 1st respondent left USA on 8/7/2004 and she had to spend altogether $5338 (equivalent to ₹2,24,196/-) towards the same. She claims the said amount under this head. Ext. A9 lease agreement and Ext. A10 series, copies of cheques, were pressed into service to substantiate this claim. Ext.A9 is the lease agreement. It is dated 1st July, 2004. Ext. A9 would show that lease was taken for a period of one year on a monthly rent of $678. It would further show that security deposit of $970 was also given. It is pertinent to note that on the eighth day after taking the apartment on lease, the 1st respondent left U.S.A. PW1 in cross-examination admitted that since June, the 1st respondent used to tell her that he would return to India. At any rate, even according to the petitioner, they together stayed in the apartment only for seven days. Thus, the petitioner could have very well vacated the apartment after one month if it was actually taken under the compulsion of the 1st respondent. The petitioner claimed only one month’s rent of $678 under this head. Apart from that, she has claimed $2712 towards advance amount and penalty. Clause 5 in Ext. A9 would show that security deposit of $970 paid was refundable. Absolutely no explanation has been given by the petitioner as to under what circumstances she paid penalty. For all these reasons, we are of the view that the 1st respondent cannot be fastened with the liability of more than one month’s rent under this head. Hence, the amount granted under this head is reduced to $678 (equivalent to ₹28,476/-).
23. Claim No.(x): The petitioner claims under this head $24000 (equivalent to ₹10,07,370/-) towards the expenses borne by her for the 1st respondent’s stay in U.S.A from 12/8/2003 to 8/7/2004 at the rate of $65 per day which includes food, accommodation, transportation utilities, clothing, phone (land cell) and miscellaneous (computer, internet calling cards and medical) expenses.
24. It is true that the 1st respondent was residing along with the petitioner and her parents. He was not having any job or income. Naturally, he has to depend upon the petitioner and her father for food, shelter, clothing and his personal expenditure. It is quite normal that when the husband is jobless, that too in a foreign country, and wife is employed, she would take care of his needs. During the marital life, spouses might have spent voluntarily for their joint need or for the need of either of them. The amount spent by one spouse voluntarily during the subsistence of the marriage for food, clothing and personal expenditure of the other spouse cannot be legally claimed back by the former. The Division Bench of this court recently in Royson Mathew v. Minimol K. and Others (2020 (3) KHC 307) has held that there may be several transactions between the spouses during the period when the marriage was subsisting and such amount cannot be sought to be recovered by either of them, unless there are sufficient pleadings and evidence to show that such entrustment was not gratuitous or was for a specific purpose, or under trust or was under threat, coercion etc. There is no such pleadings in the petition. On the other hand, pleadings and evidence would indicate that the alleged amount was spent by the petitioner gratuitously. That apart, no data has been furnished by the petitioner to prove that she had spent $24000 (equivalent to ₹10,07,370/-) under this head. Hence, we find no reason to interfere with the rejection of claim by the court below under this head.
25. We have already found that the rejection of claim No. (i) by the court below was not correct and the petitioner is entitled to ₹5,00,000/- under the said head. However, the amount granted by the court below under claim Nos.(v) and (ix) are found to be excessive and, thus, reduced as indicated therein.
In the light of our findings as above, we allow both the appeals in part. The impugned judgment and decree is modified reducing the decree amount to ₹16,39,926/- (Rupees Sixteen lakhs thirty nine thousand nine hundred and twenty six only) with interest @12% per annum from the date of the original petition till realisation. The parties are directed to suffer their respective costs.