Abraham Philip, M.J. Philip, and Mariamma Philip v. Siji Mary Chacko

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943 MAT.APPEAL NO. 131 OF 2016** **AGAINST THE JUDGMENT IN O.P.No.493/2012 OF FAMILY COURT, THIRUVALLA, PATHANAMTHITTA ------** ## **APPELLANT/S:** 1 **ABRAHAM PHILIP, AGED 33 YEARS, S/O.M.J.PHILIP, MODIYIL HOUSE, CHUNAKAPPARA P.O., NIRMALAPURAM, KOTTANGAL VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, REPRESENTED BY P.A.HOLDER M.J.PHILIP, THE 2ND APPELLANT.** 2 **M.J.PHILIP, AGED 61 YEARS, S/O.YOHANNAN THOMAS, MODIYIL HOUSE, CHUNKAPPARA P.O., NIRMALAPURAM, KOTTANGAL VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.** 3 **MARIAMMA PHILIP, AGED 33 YEARS, W/O.M.J.PHILIP, MODIYIL HOUSE, CHUNKAPPARA P.O., NIRMALAPURAM, KOTTANGAL VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADV SRI.MANU RAMACHANDRAN** ## **RESPONDENT/S:** **SIJI MARY CHACKO, AGED 26 YEARS, D/O.CHACKO, RESIDING AT EDAVATHARA PEEDIKAYIL LATHA BHAVAN, 5, PUTHENKAVU, CHENGANNOOR, ALAPPUZHA DISTRICT.** **BY ADV SRI.V.PHILIP MATHEW** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MAT.APPEAL No.131/2016 2** ## **JUDGMENT** ## A.Muhamed Mustaque, J . This appeal arises from a judgment of the Family Court allowing patrimony of Rs.5,00,000/- to be recovered from the appellants. The respondent herein approached the Family Court, Thiruvalla, for recovery of Rs.5,00,000/- along with other claims for gold ornaments. The claim for gold ornaments has been declined and it has become final as there is no challenge against the same at the instance of the respondent. The first appellant and the respondent have been separated by a decree of divorce. Their marriage was solemnized on 11.05.2011 in accordance with the Christian rites and ceremonies. They lived together as husband and wife only for a short period of three months. 2. The case of the respondent before the Family Court, in brief, is as follows: On the date of engagement on 07.05.2011, the respondent's father's elder brother entrusted Rs.5,00,000/- with the second appellant. The respondent stated that a sum of Rs.4,00,000/- was withdrawn from the Indian Overseas Bank, Puthenkavu ## **MAT.APPEAL No.131/2016 3** branch and Rs.1,00,000/- was withdrawn from the Indian Overseas Bank, Chengannur Branch. 3. The appellants' case was that they did not receive Rs.5,00,000/- as alleged in the petition. They admitted the engagement ceremony was on 07.05.2011. They also admitted the receipt of Rs.25,000/- towards marriage expenses. 4. The evidence, in this case, consists of oral and documentary evidence. PW1 is the father of the respondent who claims that he was a witness to the payment of Rs.5,00,000/-. PW2, Sri.Geevarghese, is the brother of PW1, who allegedly accompanied on the date of engagement. PW3 is the bank manager who was examined regarding the claim for gold ornaments. Therefore, his evidence may not have relevance in this appeal. On the side of the appellants, the second appellant was examined as RW1. RW2 is the relative of RW1. He was examined to prove that only a sum of Rs.25,000/- was received towards marriage expenses. 5. Exts.A1 to A4 were marked on the side of the respondent. Exts.B1 to B6 were marked on the side of the appellants. The court exhibits are Exts.X1 and X2. ## **MAT.APPEAL No.131/2016 4** 6. We shall now advert to the finding of the Family Court. The Family Court relied on Exts.A3 series of statement of account of the Indian Overseas Bank to find that the substantial amounts were withdrawn from the bank account immediately preceding the marriage. The Family Court also found that parents of the respondent were working in gulf country for more than 25 years and they were financially affluent to pay Rs.5,00,000/-. The Family Court also relied on the evidence of RW2, who had deposed that Rs.27,000/was paid to a broker who arranged the marriage. The most crucial aspect, the Family Court noted that on 09.05.2011, just after two days of the engagement, a sum of Rs.3,00,000/- was deposited in the first appellant's account. This was evident from Ext.B2 passbook. 7. The learned counsel for the appellants Sri.Manu Ramachandran submitted that there was a lack of averments in regard to the entrustment and the Family Court erred in appreciating the facts and evidence in proper respect. The learned counsel also pointed out that the Family Court failed to note the expenses for conducting the marriage and there was no evidence or ## **MAT.APPEAL No.131/2016 5** any independent witness to prove the payment of Rs.5,00,000/- as claimed by the respondent. The learned counsel further argued that the interest awarded at 9% is a commercial rate and the Family Court ought not have awarded such exorbitant interest. 8. The learned counsel for the respondent Sri.Philip Mathew defended the judgment and submitted that taking note of the affluent circumstances of the parties, it is impossible to believe the case of the appellants that they received only Rs.25,000/-. The learned counsel particularly pointed out the deposit of Rs.3,00,000/- on 09.05.2011 in the first appellant's account. It was further argued that if the brokerage admittedly is given Rs.27,000/-, it is impossible to believe the appellants' case that they received only Rs.25,000/- towards marriage expenses. It is further argued that handing over the money by the bride's parents to the bride-groom at the time of engagement is a common practice among Christians, and this Court had taken judicial notice of the same in Bexy Michael v. A.J. Michael [2010 (4) KHC 376] . 9. We have scanned the pleadings and the evidence. There cannot be any dispute regarding the ## **MAT.APPEAL No.131/2016 6** financial capacity of the respondent or her parents to pay Rs.5,00,000/- to the appellants towards patrimony. Admittedly, the parents of the respondent worked in the gulf country for more than 25 years. The first appellant was working at that time in Libya as a construction supervisor. Taking note of the status of the party, it is quite improbable to believe that the appellants received only Rs.25,000/- at the time of marriage. That apart as seen from Ext.B2, a sum of Rs.3,00,000/- was deposited in the account of the first appellant on 09.05.2011, just two days after the alleged entrustment of patrimony on 07.05.2011. The appellants have no explanation as to the source of Rs.3,00,000/-. The case of the appellants is that the money belonging to the first appellant and out of which he had deposited Rs.2,00,000/- in the respondent's account. It is to be noted that the appellants never raised any counter-claim. Further, the appellants have also not explained the source of Rs.3,00,000/-. In such circumstances, quite probable that the appellant received a substantial amount as patrimony at the time of engagement. The case of the appellants is that they have received only ## **MAT.APPEAL No.131/2016 7** Rs.25,000/-. That contention cannot be accepted at all, taking note of the status of the parties. The case put forward by the respondent is more probable for more than one reason. It is the admitted case of RW2 that a sum of Rs.27,000/- was paid to the broker who arranged the marriage. A sum of Rs.3,00,000/- is seen deposited in the first appellant's account on 09.05.2011. The Family Court took the view that Rs.3,00,000/- was deposited in the first appellant's account and Rs.2,00,000/- might have been spent towards marriage expenses. Taking note of the status of the parties, it is probable to say that Rs.5,00,000/- was paid. We do not find any infirmity with such finding. The preponderance of probabilities, such circumstances, have to be weighed in favour of the parties whose case is near to the truth than the case of the party whose case is found to be false. We find some force in the argument of the learned counsel for the appellants that the interest awarded at the rate of 9% is too high. We find that 6% interest would be sufficient. In the light of the discussions as above, the appeal is partly allowed to the extent of interfering with the interest awarded. **MAT.APPEAL No.131/2016 8** In all other respects, the finding of the Family Court is sustained. No order as to costs. **Sd/A.MUHAMED MUSTAQUE JUDGE** **Sd/DR. KAUSER EDAPPAGATH JUDGE** ln