1. These appeals are filed against the Common Order dated 30.06.2012 in O.P.No.523 and 1142 of 2010, passed by the learned Additional Family Court Judge, Hyderabad.
2. One G.Manjula/wife filed O.P.No.1142 of 2010, against her husband/appellant herein for return of gold ornaments and also for an amount of Rs.1,45,081/- with interest @ 24% per annum and for costs. The minor children represented by her mother G.Manjula, filed O.P.No.523 of 2010 against the appellant/father for grant of maintenance of Rs.8,000/- per month to each of them and also for an amount of Rs.8,00,000/-towards marriage expenses of her daughter. The trial Court examined P.Ws.1 to 3 and marked Exs.P1 to P29 on behalf of the petitioners/respondents herein and also examined R.Ws.1 and 2 and marked Exs.R1 to R43 on behalf of the respondent/appellant herein. Though, P.W.3 and R.W.2 filed their chief affidavits, they could not appear for Cross-examination, as such their evidence was eschewed. The trial Court after considering the oral and documentary evidence of both sides, allowed O.P.No.1142 of 2010 with costs, directing the appellant herein to return all gold articles as mentioned in Ex.P14-Memorandum of securities totaling net weight of 236.500 gms. In case, if the appellant/respondent fails to return the gold articles, he has to pay the cost of the gold articles as per the present market value (22 carets) and also directed to pay an amount of Rs.1,45,081/- with interest @ 12% per annum from the date of petition till decree and @ 6% per annum from the date of decree till realization. So also, O.P.No.523 of 2010 is allowed, directing the appellant herein to pay an amount of Rs.8,000/- per month to petitioners/respondents towards their maintenance and also to pay an amount of Rs.8,00,000/- towards marriage expenses of petitioner No.1/respondent No.1 herein. Aggrieved by the said Order in O.P.No.523 of 2010, respondent therein preferred F.C.A.No.348 of 2012 and against the Order in O.P.No.1142 of 2010, preferred F.C.A.No.357 of 2012.
3. The parties herein are referred as petitioner/wife/mother and respondent/father as arrayed in the trial Court, for the sake of convenience.
4. The petitioner/wife stated that her marriage was performed with respondent/husband on 13.11.1991, and they are blessed with two children namely G.Nikhil Gupta, aged about 14 years and G.Anisha Gupta aged about 15 years. Both petitioner and respondent jointly filed O.P.No.200 of 2007, seeking divorce and the same was decreed in Lok Adalat on 05.02.2008. As per the terms and conditions agreed therein, respondent agreed to return 60 tulas of gold belonging to her and accordingly respondent returned the gold ornaments on 07.04.2007, as per the list. Later, he approached her and requested to join his company with a promise to look after her and her children, as such she joined him in the first week of March, 2008. She has also handed over her gold and silver ornaments to respondent for safe custody. On 07.12.2008, he abused her in filthy language, manhandled her and her children and necked out from the house, and thus she went to her parent’s house without taking her gold and silver ornaments, as such she got issued legal notice to respondent on 23.12.2008, demanding him to return her gold and silver ornaments. He received the said notice and replied with false allegations.
5. Later, respondent again approached her and requested to join him, as such believing him innocently, she joined his matrimonial company in the last week of March, 2009, along with her children. On 18.04.2009, at his instance, she mortgaged the gold ornaments and obtained gold loan of Rs.1,65,500/- vide account No.24525. The respondent also induced her to obtain another loan for an amount of Rs.1,28,000/- vide account No.24526 and he handed over the Xerox copies of the bank receipts to her by keeping originals with him. In the loan transactions, respondent put her name as nominee to the loan account and she put the name of respondent as nominee in her gold loan account. Petitioner stated that due to harassment of the respondent, she along with her children returned to her parent’s house on 25.04.2009, and she got issued another notice on 04.11.2009, demanding the respondent to return gold ornaments. Respondent on receiving the said notice, gave reply with false allegations. In his reply notice, he admitted that petitioner withdrawn E.P and again joined him on 05.03.2009 and left to her parent’s house on 25.04.2009. Both petitioner and respondent lived together from 05.03.2009 to 25.04.2009. The gold ornaments which were mortgaged in the bank are the same ornaments received by the petitioner on 07.04.2007, as per the compromise between them. Respondent after receiving amount from the bank, necked her out from the house on 25.04.2009. On 23.06.2010, respondent cleared the gold loan and realized the gold ornaments and the same are in his custody and he did not clear the loan amount, which are in the name of petitioner. The petitioner cleared the loan amount by paying Rs.1,45,081/- with interest and released the gold ornaments from bank on 22.04.2010, as such petitioner got issued another notice on 01.05.2010, demanding the respondent to return the gold ornaments. Though, he received the notice, he did not give any reply. He is liable to return the gold ornaments and is bound to pay an amount of Rs.1,45,081/-, which was cleared by her. She further stated that as per the compromise in O.P.No.200 of 2007, respondent agreed to pay an amount of Rs.5,000/- per month towards maintenance of the children, but respondent did not pay the said amount. The petitioner’s daughter was studying intermediate and her son is studying 10th class. She paid an amount of Rs.22,000/- towards fees of her daughter and Rs.15,000/- towards fees of her son and also incurred expenditure of more than Rs.8,000/- towards books, travelling and dresses, etc., She has no financial capacity to pay the amount and she paid the fees of children by borrowing hand loans. She requests Rs.8,00,000/- towards marriage expenses of her daughter.
7. The contents of the counters in both the O.P’s are one and the same and need not be reiterated. Respondent stated that petitioner addressed a letter on 16.12.2006, stating that she was doubting him, there are misunderstandings and apologized him. Petitioner has filed E.P.No.841 of 2009, for payment of her maintenance. In a reply dated 31.12.2008, he clarified that gold ornaments are with the petitioner. He also stated that petitioner while leaving him, took away the cash of Rs.1,00,000/- and other gold items and documents, as such he is not liable to return the gold ornaments. The gold ornaments which were mortgaged by him belong to him. In fact, after joining him, petitioner tactfully removed the entire gold which was kept by him and got filed false police complaint against him. Later, he married one Gayitri on 08.10.2010. She established Study Center by name Success Study Circle and doing business and the father the petitioner is having five flats towards his share. Out of five flats petitioner and her children are residing in one flat and remaining flats were let out to third parties. Petitioner is getting monthly rent of Rs.15,000/- per month. She closed her business in Vijayawada branch and went into financial crisis. Their children are maintaining mobile phones, son is maintaining Honda activa and thus petitioner/mother is having sufficient means to maintain her children.
8. Both the O.P’s are clubbed and as per the Order dated 17.05.2011, common evidence was recorded in O.P.No.1142 of 2010.
9. There is no dispute regarding the marriage and paternity and both the parties obtained divorce by mutual consent on 05.02.2008, in the Lok Adalat. In this case, after divorce, both petitioner and respondent resided together. Petitioner contended that respondent took away her gold ornaments, mortgaged them in A.P Co-operative Bank and obtained loan. She cleared her loan amount. Though the respondent cleared the gold loan, he did not handover the gold ornaments, as such she asked for return of gold ornaments along with the amount cleared by her towards loan. She further asked for maintenance of Rs.5,000/-per month. Whereas, respondent stated that petitioner parents have given her only 15 tulas of gold and he purchased 45 tulas of gold after the marriage. As per Ex.P3, she possessed 60 tulas of gold. It is also admitted by both the parties that petitioner joined respondent on 05.03.2009 and left his home on 25.04.2009, and thus they lived together for a period of one and half month. Exs.P13 and 14 are obtained by pledging gold ornaments. Ex.P13 is the voucher, which shows that petitioner cleared the gold loan bearing No.24526, and paid an amount of Rs.1,45,081/- in the bank. The trial Court observed that Exs.R4 and P15 are one and the same, school fee receipts are also filed before the trial Court. The trial Court observed that it is bounden duty of the father to incur education and marriage expenses of his daughter and accordingly directed him to pay Rs.8,000/- each per month and also to pay an amount of Rs.8,00,000/- towards marriage expenses of the petitioner’s daughter.
10. Now, it is for this Court to see whether the Order of the trial Court is on proper appreciation of facts or not.
11. This Court finds it reasonable to extract the terms of contract entered between both the parties in the year 2008:-
TERMS OF COMPROMISE
i) That the petitioner No.2 herein already taken back her gold ornaments weighing 15 tulas which were presented at the time of marriage by her parents as well as the other gold ornaments weighing nearly 45 tulas which were purchased by the petitioner No.1 after the marriage for her.
ii) That it is also agreed that the responsibility of the children shall be with the petitioner No.2 and the petitioner No.2 shall look after the maintenance and the welfare of the children for which the petitioner No.1 shall pay an amount of Rs.5,000/- per month initially towards children maintenance and thereafter petitioner No.1 shall increase the same for future studies of the children.
iii) That both the petitioners were also agreed that both the children shall be under the custody of mother i.e., petitioner No.2 herein.
iv) That the responsibility of the marriage of the children shall be both the petitioners herein.
v) That it is also agreed that either the petitioners shall not claim any maintenance or property from each other in future.
vi) That it is also agreed between both parties that the petitioners are at liberty to go for their second marriage as per their will and wish from today onwards.
A compromise petition was filed in O.P.No.200 of 2007 with the said terms of compromise. Accordingly, it was recorded and divorce was granted on 05.02.2008. In the said order, it was clearly mentioned that in spite of best efforts by the members of the bench, petitioners are reluctant for reunion stating that there is lot of mistrust and lack of understanding and it is not possible for them to live together in future and their marriage is irretrievably broken down and accordingly marriage was dissolved by mutual consent and divorce was granted.
12. The brief facts of this case are that after divorce, for the reasons best known to petitioner and respondent, they lived together and during that time, they took bank loan by pledging gold ornaments, as such again wife filed petition to return gold ornaments. It is an admitted fact that both the petitioner and respondent live together after the divorce. Admitted facts need not be proved. As per the loan account No.24525 dated 18.04.2009, respondent obtained gold loan of Rs.1,65,000/-and petitioner obtained Rs.1,28,000/- vide account No.24526 by mortgaging her gold ornaments. Perusal of the facts shows that respondent did not pay maintenance amount, as such she filed E.P for recovery of said amount. The case of the respondent is that both of them decided to stay together and during their period of stay, they also agreed to take gold loan by pledging ornaments. It clearly shows that petitioner has voluntarily given her gold ornaments to the respondent and both of them obtained gold loan amounts. The contention of the respondent is that petitioner is doing business and she used the said amount for running the business. As per the evidence on record, it cannot be said that for what purpose loan was taken and used the same. As per the Memorandum of Securities dated 18.04.2009, vide gold loan No.24525, which is in the name of respondent/husband, the following gold ornaments are pledged and obtained an amount of Rs.1,65,500/-: i) Four Bangles ii) One black beed chain, iii) two necklaces with lockets, iv) two rings stones and v) four top hanging stones. Petitioner has not received all the gold ornaments from the respondent, as such respondent is directed to return the said ornaments to the petitioner. Respondent mainly contended that at the time of marriage, petitioner was having 15 tulas of gold, later he purchased 45 tulas of gold, but admittedly, respondent returned 60 tulas of gold to his wife on 07.04.2007, when both of them agreed to take divorce by mutual consent, as such now he cannot contend that he is not liable to return the said gold ornaments. He also alleged that she committed theft of gold ornaments from his house without his knowledge, but he has not lodged any complaint. Therefore, his allegation cannot be believed. Petitioner obtained the loan by pledging gold ornaments and she cleared loan of Rs.1,41,081/- and received her gold ornaments. It was not brought in evidence that for what purpose, she utilized the said loan, though she stated that respondent induced her to take the loan, she is not illiterate, as such her allegation is baseless. She pledged her gold ornaments, obtained loan and cleared the same, as such her claim for refund of the said amount is not maintainable and is dismissed.
12. So far as F.C.A.No.348 of 2012 is concerned, it is evident from the terms of compromise that appellant agreed to pay an amount of Rs.5,000/- per month towards maintenance of children. However, it was also agreed that he shall increase the same for future studies of the children, as such, wife filed an application claiming maintenance of Rs.8,000/- per month and the same was also allowed by the trial Court directing the appellant to pay an amount of Rs.8,000/- per month towards maintenance of her daughter from the date of petition till she married and also directed him to pay an amount of Rs.8,000/-per month towards maintenance of her son from the date of petition, till he attains majority and thus this Court finds no reason to interfere with it. So also, in clause 4 of the terms of compromise, it was agreed that the responsibility of marriage of the children shall be on both the parents, as such the mother of the respondents herein claimed for an amount of Rs.8,00,000/-towards marriage expenses. The appellant stated that he has given 45 tulas of gold purchased by him to his wife for the purpose of giving the same to her daughter at the time of marriage, but the said fact was not clearly mentioned in the terms of compromise. It was stated that 15 tulas of gold were presented at the time of marriage and 45 tulas of gold was purchased by him after the marriage. Therefore, granting of Rs.8,00,000/- towards marriage expenses of the daughter, by the trial Court is just and reasonable, though the mother of the respondents is also having responsibility to perform her daughter’s marriage. Anyway, Rs.8,00,000/- contributed by appellant himself is not sufficient to perform the marriage and she has to incur the other expenses. Therefore, we do not find any reason to interfere with the impugned order.
13. In the result, F.C.A.No.357 of 2012 is partly allowed, confirming the common order dated 30.06.2012, to an extent of directing the appellant herein to return the gold ornaments as mentioned in Ex.P14/memorandum of securities to the respondent herein, within one month from the date of receipt of a copy of this Judgment. Otherwise, respondent is entitled for the cost of the gold articles as per the present market value (22 carets rate). However, F.C.A.No.348 of 2012 is dismissed confirming the common order dated 30.06.2012 in O.P.No.523 of 2010 passed by the trial Court.
Pending miscellaneous petitions, if any, shall stand closed.
