IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 16 of 2005()
1. S.R.SURESH BABU, S/O.RAMAN,
... Petitioner
Vs
1. BEENA, D/O.PRABHAKARAN,
... Respondent
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :25/06/2009
O R D E R
R.BASANT & M.C. HARI RANI,JJ
==============================
MAT APPEAL NOS.15,16 & 17 OF 2005
============================
DATED THIS THE 25TH DAY OF JUNE 2009
JUDGMENT
Hari Rani,J.
These appeals are preferred by the appellant/husband /
father against the common judgment passed by the Family Court
in O.P.Nos.1193/2001, 387/2001 and 1265/2001. The
respondent in Mat.Appeal Nos.16 & 17/2005 is the wife of the
appellant. Respondents 1 and 2 in Mat.Appeal No.15/2005 are
the wife and daughter of the appellant.
2. Mat.Appeal No.15/2005 is preferred by the appellant
against the judgment and decree in O.P.No.1193/2001 filed by
respondents 1 and 2, his wife and daughter for maintenance.
That petition was allowed in part and maintenance allowance at
the rate of Rs.7500/- per month was awarded in favour of the
second respondent/daughter from the date of petition till her
marriage. That order is challenged in this appeal.
3. Mat.Appeal No.16/2005 is preferred by the appellant/
husband challenging dismissal of his claim in O.P.No.387/2001
for divorce of the respondent/wife filed under Section 13(1) of
the Hindu Marriage Act,1955
4. Mat.Appeal No.17/2005 is preferred by the appellant/
husband against the judgment and decree in O.P.No.1265/2001
filed by the appellant for declaration that he is the absolute
owner of A to C schedule properties purchased under Exts.A6 to
A8 and that he is the title holder of the vehicle, Maruti Zen car
shown in D schedule of the petition. That petition was dismissed
by the Family Court. For sake of convenience, these appeals are
dealt with separately.
Mat.Appeal No. 15/2005
1. The appellant herein is the respondent in
O.P.No.1193/2001 filed by respondents 1 and 2 claiming
maintenance to the first respondent/wife at the rate of
Rs.25,000/- per mensem and at the rate of Rs.10,000/- per
mensem for the second respondent/daughter. Another claim was
also made for return of Rs.5 lakhs with interest thereon from the
appellant. That claim for return of Rs.5 lakhs has been given up
by the first respondent at the time of trial. She admitted that
she had withdrawn that amount by herself. As regards the
maintenance of the first respondent, the court below has held
that she is not entitled for maintenance. That finding has not
been challenged and has become final. As regards the
maintenance of the second respondent/daughter, Rs.7500/- per
mensem was allowed by the court below for her maintenance as
against the claim of Rs.10,000/- made in the petition. That
direction is challenged in this appeal.
2. It is submitted by the learned counsel for the
appellant/father that the maintenance amount awarded in favour
of the second respondent at the rate of Rs.7,500/-per mensem is
highly unreasonable and without considering the evidence on
record. A reasonable amount may be fixed, it is prayed. This
prayer is opposed by the learned counsel for respondents.
3. The appellant is admittedly residing separately from
respondents 1 and 2. It is contended by the first respondent/wife
that the appellant had abandoned them. They were driven out of
his house in April 2001. The appellant has no case that he has
ever asked his wife and daughter to come back and reside along
with him. Thus the appellant is not maintaining his daughter, the
second respondent and as the father of the second respondent,
he is bound to maintain her whatever be the reason for separate
residence.
4. In the counter statement filed by the appellant it was
admitted that he has legal and moral obligation to maintain his
child, the 2nd respondent/petitioner. According to him, he is
ready to pay Rs.500/- per month to her. Thus the only dispute in
this appeal is regarding the quantum of maintenance awarded in
favour of the second respondent and whether the amount of
Rs.7,500/- per mensem in favour of the second respondent as
fixed by the court below is excessive as contended in this appeal.
5. It is well settled that while assessing the rate of
maintenance to be awarded, the requirements of the person who
claims maintenance has to be borne in mind. The first
respondent as CPW1 has deposed that the second respondent,
their daughter is studying and that maintenance claim of
Rs.10,000/- per month was made in the petition which is
reasonable. The different heads has not been specified in the
petition. According to the 1st respondent, the appellant who is the
father of the child, is conducting a very good business at Dubai
with a monthly profit of more than Rupees five lakhs. This has
not been denied in the counter statement filed by the appellant.
6. Considering the evidence on record, the lower court has
found that the first respondent is able to maintain herself and no
maintenance allowance can be awarded in her favour. Regarding
the second respondent, it is conceded by the appellant in the
counter statement itself that he is ready and willing to pay
Rs.500/- per month as maintenance allowance to the second
respondent. Rs.10,000/- per month was claimed as maintenance
allowance to the second respondent, which according to CPW1,
her mother, is the amount required for the food, clothing and
educational expenses of their daughter who is studying. Ext.X3
has been relied on by the lower court to conclude that more than
Rs.11 lakhs is in deposit in the credit of the appellant. The
admission on the part of the appellant that he has got other bank
accounts also has been taken into consideration by the trial
Judge. Considering the affluence and the income and status of
the parties, the appellant was directed to pay Rs.7500/- per
mensem to the second petitioner as maintenance with effect from
the date of petition till her marriage . She was allowed to
recover the same from the appellant and his assets. We find no
reason to interfere with that finding and there is nothing on
record to reduce that amount of maintenance allowed in favour of
the second respondent herein who is the daughter of the
appellant. Thus, we find that the quantum of maintenance at
the rate of Rs.7,500/- per mensem fixed by the lower court in
favour of the second respondent herein is reasonable and there is
no ground to reduce the same. This appeal is accordingly
dismissed.
Mat.Appeal No.16/2005
1. The appellant and the respondent married on 10-7-1985
and one daughter was born in that wedlock. The marriage and
paternity is admitted. At the time of marriage, the appellant was
working in Dubai and they admittedly stayed there for 10 years.
Subsequently, they returned to India and stayed at
Thiruvananthapuram. This is also admitted. It is contended by
the appellant in the petition that thereafter the wife/respondent
began to ill-treat him and he was insulted and humiliated in front
of others. She used to pick up quarrels for silly matters and
would leave the marital home without his consent. She was
leading loose life. The life of the appellant became extremely
miserable due to the irrational behaviour of the respondent. She
was leading infamous life. She exploited him for money. She
filed petition before the Women’s Commission against him which
was withdrawn later. The marriage between the appellant and
the respondent has irretrievably broken down due to the cruelty
and desertion by the respondent. On these allegations the
appellant prayed for divorce on the ground of cruelty and
desertion.
2. The respondent resisted the case of the appellant.
According to her, the appellant ill-treated her with cruelty. He
used to come to house in late hours and quarrel with her without
any reason. After taking liquor he used to beat her several
times. She suffered everything for the sake of the daughter.
She was loyal to the appellant whereas the appellant was very
cruel towards her. Later, she came to know that the appellant
was suffering from mental disorder. He took treatment as
instructed by the doctor. But he discontinued to take medicine
as advised by the Doctor and thereafter he became violent again.
The appellant is under the control of some anti-social elements
who compelled him to marry one lady Anila and they are now
living as husband and wife. The respondent prayed the petition
may be dismissed .
3. The evidence in this case on the side of the appellant
consists of oral testimony of PWs.1 to 4 and documentary
evidence of Exts.A1 to A12 and Exts.X1 to X7. CPWS.1 to 5 were
examined on the side of the respondent and Exts.B1 to B24 were
marked. The learned trial Judge on consideration of the
respective cases of the parties and the evidence adduced by them
both oral and documentary came to the conclusion that the
appellant/petitioner had failed to prove such cruelty on the part
of the respondent so as to pass a decree for dissolution of
marriage. The petition was hence dismissed.
4. Heard the learned counsel appearing for the appellant
and the learned counsel appearing for the respondent.
5. This petition is filed by the appellant/husband under
Section 13(1) of the Hindu Marriage Act, 1955 against the
respondent/wife for dissolution of marriage on the ground of
cruelty and desertion. When this appeal was taken up for
hearing, it was submitted by the learned counsel for the appellant
that the appellant is not pressing the ground of desertion as it
was mentioned before the trial Judge also and is claiming divorce
of the respondent, his wife on the ground of cruelty only, that is
under Section 13(1)(ia) of the Act.
6. Clause (ia) of Section 13 (1) specifies cruelty as one of
the grounds for divorce. The relevant portion of Section 13 reads
as follows:
“13. Divorce,-(1)Any marriage solemnised, whether
before or after the commencement of this Act, may, on
a petition presented by either the husband or the wife,
be dissolved by a decree of divorce on the ground that
the other party-
xx xx xx
(ia) has, after the solemnisation of the marriage,
treated the petitioner with cruelty; “
7. Cruelty contemplated by sub-clause (ia) of Section 13
(1) is both physical and mental. We are concerned herein with
the latter as the learned counsel for the appellant submitted that
the appellant is relying on the mental cruelty only for claiming
divorce against the respondent. It is not possible to define
mental cruelty `exhaustively’. According to the learned counsel,
the pleadings of the respondent before the courts below in
different cases are itself sufficient to constitute mental cruelty.
8. Mental cruelty in Section 13(1)(ia) can broadly be
defined as that conduct which inflicts upon the other party such
mental pain and suffering as would make it not possible for that
party to live with the other. In other words, mental cruelty must
be of such a nature that the parties cannot reasonably be
expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to cause
injury to the health of the petitioner. What is cruelty in one case
may not amount to cruelty in another case. The fact that a
marriage has irretrievably broken down does not permit
dissolution of marriage on that ground. The same may have to
be kept in mind as a circumstance while ascertaining the type of
cruelty contemplated by Section 13(1)(ia). Merely because there
are allegations and counter allegations, a decree of divorce
cannot follow. There must be really some extraordinary
features to warrant grant of divorce on the basis of pleadings
and evidence. In the instant case the husband had filed divorce
petition against the wife on the ground of cruelty and the wife
denied the allegations of cruelty levelled against her. In the
counter statement filed by the wife and the questions put by her
counsel to the first petitioner/PW1 in cross examination,
allegations/suggestions had been made that the conduct of the
petitioner/husband amounts to cruelty in the eye of law and
therefore,the first petitioner cannot claim divorce. It is
significant to note that this is not a case where the allegations
are made only by one party against the other. Both have levelled
serious allegations against the other. It is settled law that
physical violence is not a necessary ingredient of cruelty and
also that making reckless allegations of immorality against the
other spouse amounts to mental cruelty. Mental cruelty is now
well recognized as a ground for divorce. While evaluating the
same, every act must be judged with reference to its attendant
circumstance, and the physical or mental conditions or
susceptibility of the innocent spouse and the intention of the
offending spouse are all matters of decisive importance. It is
not possible to compartmentalise the concept of cruelty. In
each case the facts have to be considered. The whole matter
must be taken together.
9. It is argued by the learned counsel for the appellant
that the cruelty alleged by the appellant claiming divorce of his
wife is not of violent acts but of injurious reproaches, complaints
and accusations of immorality against the appellant and also the
allegation of mental illness against him which is not proved.
These amount to cruelty, it is contended. The respondent raised
false contentions in the counter statement in O.P.No.1265/2001
that the appellant has withdrawn various amounts that stood in
her name by practising impersonation and cheating which are
also false. The respondent raised scandalous allegations of
impersonation, cruelty etc. against the appellant and even then
she refused the claim of divorce made by the appellant which
also revealed the cruel behaviour of the respondent. The
respondent kidnapped the appellant and administered some
unknown medicines to him from J.J.Hospital under the guise of
treatment of mental illness by CPW2 from where he was rescued
and admitted at Sree Uthradam Thirunal Hospital for proper
treatment. False allegations of infidelity against the appellant
that he married one Anila and is living with her as husband and
wife also amount to cruelty. The learned counsel for the
respondent submitted that all the allegations regarding the
cruelty set out in the petition and the behavioural problems etc.
attributed to the respondent are false which would show the
intolerance, jealousy etc. of the appellant and no specific
incidents have been pointed out by the appellant regarding
cruelty alleged against the respondent. The definite case of the
respondent that the appellant was suffering from slight mental
illness and he had consulted the Doctor who was examined as
CPW2 and he was reluctant to take medicines etc.are proved
from the testimony of CPWs.1 and 2. According to the
respondent, if medicines are regularly taken by the appellant,
there would be no problems between them and that the appellant
is a loyal and loving husband. Due to the interventions of the
friends and relatives of the appellant he was reluctant to take
medicines which ended in the family problems between the
husband and the wife, it is submitted.
10. The appellant was examined as PW1. The marriage
between the appellant and the respondent was solemnized on
10-7-1985. According to PW1, after the marriage, they were
living together as husband and wife in Dubai for about 10 years
peacefully and then they returned from Dubai and settled at
Thiruvananthapuram. Thereafter, the respondent had been
behaving cruelly towards him and consequently he filed the
petition claiming divorce on the ground of cruelty. It was
deposed by the appellant that the respondent started quarrel
with the petitioner for silly matters and used to go to her house
without his permission. He was humiliated and insulted by the
respondent in the presence of others. Due to intolerance,
disobedience and tendency to quarrel for silly reasons on the part
of the respondent created the life of the appellant extremely
miserable. In the petitions also, the respondent raised false
contentions against him which also amount to cruelty.
11. PW2 was examined to prove the case of the appellant
against the respondent regarding her cruel behaviour towards
him. He is the cousin brother of PW1. PW2 has deposed that he
saw the respondent along with tuition master of the daughter of
PW1 and the respondent was talking to him from their bed room.
PW1 has no case that there was any illicit relationship between
the respondent and the said tuition master. The circumstance
spoken to by PW2 as the cruel behaviour of the respondent
towards the appellant has not been accepted by the trial judge.
Though several allegations were made against the respondent
regarding her cruel nature, none of the same has been
substantiated by the appellant. The case of the appellant that
the respondent stayed in a Family Suite in Y.W.C.A.Guest house
has been admitted by the respondent and according to her, she
stayed there along with her daughter for preparation of
examination of her daughter due to the problems in their marital
home which arose due to the mental illness of the appellant.
Only some general and vague allegations are made by the
appellant regarding cruelty alleged against the respondent. None
of the same can be accepted by a court of law to break a marital
tie between the spouses. So also the examination of PW2,
cousin brother of the appellant will not help the appellant to
substantiate the immoral or loose life of the respondent as
alleged by the appellant in the petition. Talking with another
person that too, to the tuition master of her daughter from the
bed room cannot be given much weight to hold that the
respondent is of immoral character.
12. Respondent as CPW1 has denied all the allegations
against her. She has deposed that the appellant has abnormal
behaviour due to his mental disorder and she never wanted the
marital tie to be broken. CPW3, the Vice Principal of Nirmala
Bhavan School was examined to prove that the daughter of the
appellant and the respondent was gloomy and moody when she
was studying in that school which CPW3 understood during
counselling of the student. According to CPW3, she came to
know that the gloomy nature of the daughter of the appellant
and the respondent was due to the behaviour of her father at
home. CPW1 has admitted that she preferred a complaint
against the appellant before the Women’s Commission which was
withdrawn by her after the appellant agreed to take medicines to
control his mental illness. Cruel nature has been attributed by
the respondent against the appellant which according to her is
due to the mental disorder of the appellant which can be cured by
taking medicines regularly. CPW2, the doctor in the J.J.Hospital
deposed that the appellant was suffering from paranoid
schizophrenia. Ext.B24 and the testimony of CPW2 would reveal
that the appellant was suffering from mental illness for which he
was admitted at G.G.Hospital and J.J.Hospital and advised to take
medicines. According to CPW1/respondent, her husband PW1
was reluctant to take medicines regularly due to the intervention
of his relatives and friends which created marital problems
between them. The allegations of cruelty and immorality against
the respondent were attributed due to the mental illness of the
appellant which can be corrected only by proper treatment for
which dissolution of marriage is not the proper remedy. So, she
is not prepared to break the marital tie and is opposing the
petition. The evidence of CPW5, who is the brother-in-law of the
appellant, and the respondent also would reveal that the
appellant was suffering from mental ailment which aggravated
due to failure to take medicines. The violent nature of the
appellant and his ill-treatment towards the respondent and their
daughter is also spoken to by CPW5.
13. It is evident from the deposition of PWs.1 and 2 and
CPWs.1,2 and 5 that cruelty can be attributed to the appellant
and not to the respondent/wife. The appellant has raised the
allegation and also deposed before court to the effect that the
respondent was leading immoral life has not been substantiated.
It is specifically stated by CPW1 that she is not at all ready to the
demand of divorce made by her husband. Though it is evident
from the oral testimony of PW1 and CPW1 that the marital
relationship between the appellant and the respondent got
strained and there is evidence to show that the respondent filed
petition before the Women’s Commission against the appellant,
those reasons are not sufficient to prove the allegations of cruelty
against the respondent to seek a decree of divorce. On the
other hand, there is sufficient evidence to show that the appellant
used to ill-treat the respondent due to some mental disorder
which can be corrected by taking medicines. It is not possible to
apprehend human conduct and behaviour for all times to count
and judge what is cruelty. The test to be applied is whether
the cruelty is of such type that the appellant/petitioner cannot
reasonably be expected to live with the respondent or living
together with the spouse has become incompatible. The fact that
the marriage has broken down is no reason in itself for a finding
of cruelty. In the present case, there are allegations and counter
allegations against each other as is evident from the petition and
the counter statement which are indications of strain in the
relationship between the parties and the same cannot be taken
as a circumstance to grant the relief of divorce. The stand
taken by the respondent/wife clearly shows that though there is
strain in the relationship between parties, the marriage has not
irretrievably broken down yet.
14. After considering the respective contentions of both
parties and the arguments advanced by the learned counsel for
the appellant and the respondent and evidence adduced by both
parties in this case before the trial court, we find there is no
evidence of any intention on the part of the wife/respondent to
disrupt the marital life with the appellant, her husband. There is
no evidence to sustain the allegations of cruelty against her.
Instead the husband’s behaviour establishes an intention to break
the married life. So, there is no cause of action for the
husband/appellant against the respondent to claim a decree for
divorce. A contumacious spouse cannot be permitted to take
advantage of his own inappropriate conduct and claim divorce on
that ground.
15. After considering the facts and evidence in this case in
detail as is evident from the judgment, the petition filed by the
husband for divorce was correctly dismissed by the lower court.
We agree with the reasons and conclusions of the trial court.
We, therefore, find no reason to interfere with the judgment and
decree passed by the trial Judge. This appeal is accordingly
dismissed.
Mat.Appeal NO.17/2005
1. The husband/appellant filed O.P.No.1265/2001 with the
prayer for declaration that he is the absolute owner of the
properties shown in Schedules A to C of the petition, which
according to him were purchased under Exts.A6 to A8. He further
prayed for a declaration that he is the title holder of the vehicle,
Maruti Zen car shown in D schedule of the petition. The prayer
was resisted by the respondent. She contended that those
properties were purchased from the income obtained from the
rubber estate and other properties. Such income was collected
by her parents and given to her for the purchase of the same. It
was found by the court below that no sufficient evidence was
adduced by the appellant to indicate that he had purchased the
properties with his funds and consequently the claim for
declaration that he is the title holder of A to C schedule
properties was rejected.
2. Heard the learned counsel for the appellant and the
learned counsel for the respondent.
3. It is argued by the learned counsel for the appellant that
there are inconsistent versions of the respondent regarding the
source of the money and the learned trial Judge without
considering those inconsistent versions of the respondent has
rejected the prayer for declaration as sought for by the appellant.
According to the learned counsel for the respondent, those
properties were purchased by the respondent and the sale
consideration was paid by her father, Prabhakaran for and on her
behalf as recited specifically in the assignment deeds, Exts.A6 to
A8.
4. The properties shown in schedule A to C of the petition
were admittedly purchased on 14-10-1991, 14-10-1991 and
23-12-1991 respectively as revealed from Exts.A6, A8 and A7
which is not disputed. The marriage between the spouses took
place on 10-7-1985. The above mentioned sale deeds were
executed in favour of and in the name of the respondent alone.
In all the documents it was stated unambiguously that the sale
consideration was received from the father of the respondent
named Prabhakaran for and on behalf of the respondent, Beena
Babu. According to the appellant, though the purchases under
Exts.A6 to A8 were in the name of the respondent, the same
were purchased with his own funds and not by the money given
by the father of the respondent as mentioned in the documents
or from the income of the rubber estate of the respondent as
contended in the counter statement filed by her. Thus the point
in dispute is regarding the source of the sale consideration
covered under Exts.A6 to A8 in respect of A to C schedule
properties shown in the petition.
5. The appellant as PW1 has deposed before the trial court
that on 1-6-1991 Rs.one lakh was deposited by him in the
account of his father-in-law and that amount was utilised for
purchasing the properties. The documents of acquisitions of the
properties are admittedly covered under Exts.A6 to A8 which
would show that all the acquisitions were in the name of the
respondent/wife alone. It is also recited therein that the
respondent has to enjoy the properties by paying tax etc.
6. Before the court below the appellant was examined as
PW1. According to PW1, the entry on 1-6-1991 in Ext.A3 pass
book would reveal that Rs.one lakh had been paid by him to his
father-in-law, Prabhakaran. That amount was utilised to
purchase the properties covered under Exts.A6 to A8. The
respondent,CPW1 has deposed that the said amount of Rs.one
lakh was utilised to purchase the property covered under Ext.B5
executed on 5-6-1991 in the name of PW1. The father-in-law of
the appellant examined as CPW4, who is the father of the
respondent, has deposed that the property covered under Ext.B5
was purchased by him on 5-6-1991 after withdrawing Rs.one lakh
on 1-6-1991 from the Bank and by paying the balance amount by
himself. Exts.B5, B6, B7 and B9 were marked on the side of the
respondent wherein it was mentioned that the sale consideration
was paid by Prabhakaran,CPW4 and it was provided by the
appellant. On the other hand in Exts.A6 to A8 it is recited that
the sale consideration for the purchase of those properties were
given by CPW4, the father of the respondent on her behalf to the
vendees therein. Thus on facts and in the light of the relevant
recitals in Exts.A6 to A8 it cannot be disputed that the purchase
of the properties covered therein was in the name of the
respondent/wife for her enjoyment. Funds to purchase the above
properties were raised from the hands of CPW4, the father-in-
law. The appellant had not contributed any amount towards the
sale consideration of the properties as revealed from the
documents itself. The clear and unambiguous recitals in Exts.A6
to A8 clinches the issue as to who had paid the sale consideration
and from whose fund the consideration has been given entirely
and exclusively, that is from the hands of CPW4 undoubtedly.
There is recital in the document that the purchases under
Exts.A6 to A8 were in the name of the respondent/wife
exclusively and sale consideration covered under all the
documents were contributed by CPW4,her father. Thus the
consideration was paid entirely by the father of the respondent-
vendee and not from the funds of the appellant as alleged in the
petition. Thus it is revealed that the entire consideration covered
under the sale deeds of the properties shown in Schedule A to C
of the petition were paid out of the exclusive funds of the father
of the respondent on her behalf for her enjoyment and not out of
the funds of the appellant as claimed. There is nothing to
suggest that the purchase of the abovesaid properties in the
name of the respondent were utilisiing the consideration which
came from the funds of the appellant exclusively. In the nature
of the pleadings and evidence adduced by the parties, it is
impossible to hold that the purchases of the properties covered
under Exts.A6 to A8 were made by the appellant for and on
behalf of the respondent which is proved otherwise from the
specific recitals in the documents. Though Ext.A6 to A8 were
executed after the solemnization of marriage between the
appellant and the respondent, in the light of the unambiguous
recitals in all the documents that consideration came entirely
from the father-in-law of the appellant, we are satisfied that the
view of the trial Judge that the appellant is not entitled to get a
declaration that he is the title holder of A to C schedule
properties is absolutely correct and no interference of this Court
is required.
7. The appellant has also claimed a declaration to the effect
that he is the absolute owner of Maruti Zen car shown in D
schedule of the petition. According to him, it was purchased
with his own funds and a direction may be given to the
respondent to surrender the R.C.book to him and further
direction to the Regional Transport Officer to transfer the
ownership in his name. The appellant as PW1 has deposed that
the car was purchased by him on 6-8-1999 while he was working
abroad as per his instruction given to the respondent,his wife
availed a loan from the State Bank of Travancore account in her
name. This is disputed by the respondent. The appellant has
relied on Exts.X1 to X4 and also the evidence of PW3, the Bank
Manager. Ext.X1 is the letter sent to the appellant from State
Bank of Travancore wherein it was mentioned that loan of
Rs.2,96,000/- was sanctioned as per loan No.MTC 3/99 in the
name of Smt.Beena Babu, the respondent herein for the purchase
of one Maruti Zen Car. It is also stated therein that the account
was closed on 21-10-1999 from the proceeds of term deposit.
Exts.X2 to X4 were also proved through PW3 which were relied
on by the appellant to substantiate his contentions regarding the
loan transaction with the State Bank of Travancore. From the
evidence of PW3 and Ext.X1 it is clear that the car loan was
availed by the respondent and the account was closed from the
proceeds of the term deposit in the name of Suresh Babu, the
appellant. In the cross examination of PW3, he has stated that
loan No.MTC.3/99 was sanctioned to Beena Babu, the respondent
and it was for the purchase of Maruti car and the registered
owner of the car is Beena Babu. The vehicle was given as
primary security which was hypothecated to the Bank. Ext.X3
would indicate that the loan transaction was closed by crediting
an amount of Rs.3,11,944/- on 21-10-1999 but it would not
reveal that the amount shown therein had come from the account
of the appellant. The pass book or other documents were not
produced by the appellant to show that the amount was actually
transferred from his term deposit covered under Ext.X2. It is
revealed from the evidence of PW3 and from Exts.X1 to X3 that
the respondent had availed loan for purchase of Maruti Zen Car
and the appellant was only a guarantor and the vehicle stands in
the name of the respondent. The appellant who stood as
guarantor for the purchase of said car cannot claim that he is the
title holder of the vehicle. It is worthwhile to note that in the
claim for maintenance of the wife, it is the very specific defence
of the appellant that she is affluent and has sufficient means.
Compelling evidence must be placed before the court to
persuade the court to accept his version that the purchases of
properties exclusively in the name of the wife were made using
his exclusive funds. No such evidence was made available
before the Family court. Considering the evidence on record, the
trial Judge has found that the appellant is not entitled to get a
declaration that he is the absolute owner of Maruti Zen car as
claimed by him. We hold that the said finding of the court below
is correct. The same is hence confirmed. This appeal is
accordingly dismissed
8. Considering the facts and evidence of these cases in
detail, we find no reason to interfere with the judgments and
decrees in the above cases passed by the trial Judge and the
same are confirmed. These appeals are accordingly dismissed.
No costs.
R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.
ks.