# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
## **&**
**THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**MONDAY, THE 01ST DAY OF OCTOBER 2018/ 9TH ASWINA, 1940**
**Mat.Appeal.No. 231 of 2010**
**AGAINST THE ORDER IN OP 136/2004 of FAMILY COURT,THRISSUR DATED 19-05-2009**
## **APPELLANTS/RESPONDENTS:**
**1 BIJOY T.V., S/O.T.R.VIJAYARAJAN, THAIVALAPPIL HOUSE,PORATHUSSERY, IRINJALAKUDA NORTH P.O.,THRISSUR DISTRICT.**
**2 T.R.VIJAYARAJAN THAIVALAPPIL HOUSE,PORATHUSSERY, IRINJALAKUDA NORTH P.O.,THRISSUR DT.**
**3 KOMALAVALLY W/O.T.R.VIJAYARAJAN THAIVALAPPIL HOUSE,PORATHUSSERY,IRINJALAKUDA NORTH P.O.,THRISSUR DT.**
**BY ADV. SRI.K.S.BHARATHAN**
## **RESPONDENT/PETITIONER:**
**SREEYA P.SREENIVAS, D/O.P.G.SREENIVASAN, PAMBUKATTIL HOUSE,POOLANI, MELUR, THRISSUR DIST.**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 1.10.2018, ALONG WITH MAT.APPEAL NO.740/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
Mat.Appeal Nos.740/09 & 231/10
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## **J U D G M E N T**
## _**Shaffique, J.**_
These two appeals have been filed by the petitioner and respondents in OP No. 136/2004 of the Family Court, Thrissur. The OP is filed by the petitioner wife claiming return of 80 sovereigns of gold ornaments and money. The contention urged by the petitioner is that the petitioner and 1[st] respondent got married on 4/11/2001. On account of matrimonial disputes, they are living separately. Her contention is that, at the time of marriage, her parents have given her 80 sovereigns of gold ornaments. It is alleged that the gold ornaments were kept in a locker maintained in their joint names in the Town Co-operative Bank, Irinjalakuda. While leaving the matrimonial home, on 18/10/02, she was not given back the gold ornaments. Hence, claim has been made for return of gold ornaments or its equivalent value of `3,14,000/- Petitioner also had a case that, an amount of `50,000/- was paid to the 1[st] respondent at the time of marriage which also he had appropriated.
2. Respondents denied the allegations. According to him, he had not taken any of the gold ornaments or money whereas he had given her a thali chain weighing 9½ sovereigns and a bangle weighing 2½ sovereigns. He also had spent `50,000/- for her B.Ed course.
3. The above case was tried along with OP No.137/2004 which was filed for divorce. Common evidence was taken in the case. PWs1 to PW6 were examined on the side of the petitioner/wife. She relied upon
Mat.Appeal Nos.740/09 & 231/10
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Exts.A1 to A10. Respondents examined two witnesses as RW1 and RW2 and produced Ext.B1.
4. The Family Court granted divorce against which no challenge had been made. The above OP was partly allowed directing return of `3,00,000/- being the value of ornaments with interest. Petitioner as well as the respondents have preferred these appeals.
5. It is contended on behalf of the appellant/wife who has filed MA No.740/2009 that though an alternate relief was claimed for return of gold ornaments or its value and money, the Court had only granted its value. There ought to have been a direction to return the gold ornaments as the value of the gold had substantially increased from time to time.
6. On the other hand, learned counsel for the appellant/husband who had filed MA No.231/2010 even challenges the very direction of the Court below granting a decree for recovery of money, being the value of gold ornaments.
7. The first question to be considered in the present appeals is whether the Family Court was justified in arriving at a conclusion that the respondent/husband had appropriated 80 sovereigns of gold ornaments. From the pleadings, it appears that the definite case of the wife was that she had 80 sovereigns of gold ornaments and when she reached the matrimonial home, the same was kept in a locker facility opened in their joint names. Ext.A9 series proves the aforesaid fact. The locker was
Mat.Appeal Nos.740/09 & 231/10
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opened as per an agreement dated 8/11/2001. The marriage between the couple was on 4/11/2001. Apparently, the locker had been opened only for keeping the gold ornaments belonging to the wife. Though the husband pleads ignorance about the quantity of gold ornaments, Ext.A10 disproves the said fact. Ext.A10 is the marriage register maintained by the SNDP Sakha Yogam and in one of the columns of the marriage register in one of the entries, the gold ornaments given to the bride is recorded. It is mentioned that she was given 80 sovereigns of gold ornaments. There is no reason to disbelieve the said entry in the register. Therefore, we have to proceed on the basis that she was having 80 sovereigns of gold ornaments.
8. In the objection filed by the husband, he does not say anything about the gold ornaments being kept in a locker facility, whereas in evidence, he had taken up a contention that he was operating the locker on instructions of his wife and she had taken away all the gold ornaments with her. Ext.A9(e) would show that a joint application was given by the couple for closing the locker and Ext.A9(d) would indicate that the locker facility was closed on 26/3/2002. Ext.A9(f) further indicates that, on 26/3/2002, at 12.15 p.m. Bijoy T.V/husband had opened locker No.61. These documents clearly prove the fact that the husband had opened the locker on 26/3/2002, the date on which the locker facility was closed. Apparently, respondent husband had not
Mat.Appeal Nos.740/09 & 231/10
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stated anything in his objection about opening of the locker by himself either on behalf of his wife or for himself. Therefore, when there is absolutely no pleading regarding the operation of the locker facility, he cannot take a contention during evidence when he is confronted with Ext.A9 series that he was operating the locker on instructions from his wife. We have no hesitation to hold that he had made up a story that he was operating the locker on instructions from his wife.
9. There is no doubt that the locker facility itself was opened for keeping the gold ornaments belonging to the wife. If the wife was operating the locker, definitely, respondent husband could have summoned the documents from the bank to prove that she was operating the locker. There is no such evidence. He had not made any attempt to prove any fact in order to indicate that wife was operating the locker at any point of time. He himself had not stated that he had operated the locker. Under such circumstances, we have to proceed on the basis that whatever gold ornaments were kept in the locker had been taken by the husband.
10. The husband does not have a case that he had taken the gold ornaments and entrusted it to his wife. No such statement is seen in the written objection. Therefore, the wife's version is believable and the version of the husband cannot be believed. Under such circumstances, the Court below was justified in directing return of 80 sovereigns of gold
Mat.Appeal Nos.740/09 & 231/10
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## ornaments.
11. But the respondent husband has a further case that he had given to the petitioner wife 9½ sovereigns of gold ornaments by way of a thali chain and 2½ sovereigns of gold ornaments by way of a bangle. PW1 in her evidence admits that she had received 9½ sovereigns of thali chain which is available with her and also a bangle weighing 1½ sovereigns. This quantity of gold ornaments which had been given by the husband had to be deducted from the gold ornaments which are to be returned. Therefore, we hold that the respondent husband is liable to return 69 sovereigns of gold ornaments or its value to the petitioner/wife.
12. Having found so, the question to be considered is the claim in MA No.740/2009. The contention urged by the appellant/wife is that though an alternate prayer was made for return of `3,14,000/-, being the value of gold ornaments, the Court below ought to have directed return of gold ornaments as well. There is no dispute about the fact that value of gold has considerably increased over a period of time and due to the pendency of the appeal, there had been substantial change in the value of gold. At present, the value of gold will be more than `22,000/-. In the memorandum of appeal, appellant/wife had claimed only an amount of `7,00,000/-. In the OP, petitioner/wife had claimed return of 80 sovereigns of gold ornaments or in the alternative, an amount of `3,14,000/-.
Mat.Appeal Nos.740/09 & 231/10
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13. Learned counsel for the respondent husband had relied upon a judgment of this Court in _**Thomas M.Varghese v. Sonia Susan Thomas**_ (2014 (3) KLT 487). That was also a case in which wife had claimed return of gold ornaments or its equivalent value. But the appeal was filed by the husband. Family Court directed return of the value of gold ornaments. During the course of hearing, in the appeal filed by the husband, wife made a claim that instead of value of gold ornaments, there should be a direction to return the gold ornaments as such. It was observed that in the absence of any appeal or cross appeal, it is not possible for the appellate Court to modify the judgment at the instance of the respondent. The factual circumstance in the said case has no application to the present facts as in the present matter, appeal has already been filed by the wife claiming return of gold ornaments or its present value.
14. Taking into consideration the factual circumstances involved in the matter, it would only be appropriate to modify the decree to the claim made in the memorandum of appeal. Accordingly, these appeals are disposed of as under:-
(a) Mat.Appeal Nos. 740/09 and 231/10 are partly allowed and the decree shall stand modified as under:-
(i) That the petitioner/wife shall be entitled to recover an amount of `7,00,000/- (Rupees Seven lakhs only) with interest @6% per annum
Mat.Appeal Nos.740/09 & 231/10 :8:
from the date of petition till realisation from the respondent/husband.
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