Binoj K. S/o Late Mukundan v. Suvarna Surendan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** **Mat.Appeal.No.588 OF 2014** **AGAINST THE JUDGMENT IN OP 21/2012 DATED 09-04-2014 OF FAMILY COURT, THALASSERY** ## **APPELLANT/RESPONDENT:** **BINOJ K. S/O. LATE MUKUNDAN, KUCHAL HOUSE, EAST PONNIAM PONNIAM P.O, KANNUR - 670 641** **BY ADV. SRI.P.V.SURENDRANATH (SR.)** ## **RESPONDENT/PETITIONER:** ## **SUVARNA SURENDRAN** **D/O.SURENDRAN, CHAKODITANVIDA CHAMBOLAN HOUSE KOTTIYODI, PATHAYAKUNNU P.O, KANNUR, PIN-670691** **R1 BY ADV. SRI.CIBI THOMAS** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2019, THE COURT ON 07.01.2020 DELIVERED THE FOLLOWING:** **Mat.Appeal No.588 of 2014 2** ## **JUDGMENT** ## **Dias,J.** **The appellant is the respondent in O.P No.21/2012 of the Family Court, Thalassery. The petitioner in the** **original petition is the respondent in this Mat.Appeal.** **2. The appellant is aggrieved by the judgment and decree dated 9.4.2014 passed by the Family Court directing him to return six sovereigns of gold ornaments or its value as on the date of return of the** **ornaments to the respondent. The parties are for the sake of convenience referred** ## **Mat.Appeal No.588 of 2014 3** **to as “appellant” and “respondent” as per the status in this appeal.** **3. The respondent filed the original petition, inter alia, pleading that her marriage with the appellant was solemnised on 19.5.2010, as per the religious rites and customs of their community. Even though, in the initial days, they had a harmonious relationship, subsequently, the appellant changed his behaviour, and he became a habitual drunkard.** **4. The respondent further averred that her parents had given her 15 sovereigns of gold ornaments at the time of marriage. Within two months after the marriage, the appellant pledged a portion of her gold** **Mat.Appeal No.588 of 2014 4** **ornaments in a bank, for the purpose of travelling abroad. The appellant worked** **in Qatar for over a year. He used to phone and abuse her in vituperative language, without any reason. Her in-laws neglected and humiliated her for trivial reasons.** **5. The respondent also averred that, she joined a T.T.C Course in a nearby college. After a year, the appellant returned to India. The appellant again took away her remaining gold ornaments and pledged the same as he wanted to join a better job. He even took away her 'thali'. Due to the constant ill-treatment and cruelty that was meted out on her by** **Mat.Appeal No.588 of 2014 5** **the appellant, she was compelled to leave the matrimonial home. Thus, the respondent filed the original petition against the appellant, seeking recovery of the 13 sovereigns of her gold ornaments.** **6. The appellant filed a written objection, inter alia, denying the assertion that he misappropriated the respondent's gold ornaments. According to him, whatever gold ornaments the respondent had with her, she took it with her when she deserted the appellant. He averred that he had purchased a gold chain for the respondent and met to her entire education expenses. He also purchased household articles for the** **Mat.Appeal No.588 of 2014 6** **respondent and gave her father** **Rs.20,000/-, and used to maintain the respondent's parents.** **7. Along with O.P.21/2012, the respondent also filed O.P.1/2012, seeking a decree of divorce to dissolve her marriage with the appellant, and M.C 13/2012, seeking an order for maintenance.** **8. The Family Court tried the above cases separately, but disposed the cases by the impugned common judgment.** **9. In O.P.21/2012, the respondent was examined as PW1 and Ext.A1 was marked through her. The appellant was examined as RW1. Ext.X1 series statement that was marked in O.P.1/2012, was also considered** **Mat.Appeal No.588 of 2014 7** **in this case.** **10. The Family Court after considering the pleadings, the oral testimony of the appellant (RW1) and the respondent (PW1)and Ext.A1 cash bill and Ext.X-1 series statement, partly allowed O.P No.21/2012, by directing the appellant to return six sovereigns of gold ornaments or its value thereof to the respondent. It is challenging the said judgment and decree, this Mat.Appeal is filed.** **11. We have heard Adv.Bindumol Joseph, the learned counsel for the appellant and Adv.Cibi Thomas, the learned counsel for the respondent.** **12. From the facts and circumstances of** ## **Mat.Appeal No.588 of 2014 8** **the case, the following points emerge for consideration.** **(i) Whether the appellant has misappropriated the gold ornaments of the respondent?** **(ii) Whether the Family Court was right in directing the appellant to return six sovereigns of gold ornaments or its value thereof to the respondent?** **13. As the above points are** **intertwined, we consider them together.** **14. This Court in** _**Bhaskaran v. Radha**_ _**[2019 (3) KHC 960], Abubakker Labba v.Shameena [2018 (3) KLT 196] and Shinu P.K. v. Dhanya Madhavan [2013 (2) KHC 735]**_ ## **Mat.Appeal No.588 of 2014 9** **has succinctly declared the law that there should be specific pleadings and sufficient evidence to prove entrustment of gold ornaments and misappropriation.** **15. Based on the law declared by this Court in the above decisions, we have reappreciated the pleadings and evidence in the case.** **16. On going through the pleadings and evidence on record, we find that the** **respondent had specifically pleaded in the original petition that she was given 13 sovereigns of gold ornaments by her** **parents, which she adorned at the time of** **marriage. Though Ext.A1 estimate was** **produced by the respondent, it is seen** ## **Mat.Appeal No.588 of 2014 10** **that only a chain having a weight of 17.780 gms and a pair of earings having a weight of 4.310 gms were purchased. The appellant in his evidence admitted that the respondent had six sovereigns of gold ornaments.** **17. The Family Court also took note of Ext.X1 series which was produced in O.P.1/2012, i.e., a statement of the Ponniam Service Co-operative Bank Ltd, Thalassery. The document establishes that the mother of the appellant had pledged some of the respondent's gold ornaments. Some of the ornaments as shown in the schedule of the original petition correspond with the gold ornaments shown** **Mat.Appeal No.588 of 2014 11** **in Ext.X1 series.** **18. On a further evaluation of the oral testimony of RW-1, it is seen that he later admitted that the respondent was given 13 sovereigns of gold ornaments. However, he has taken the defense that the entire gold ornaments were managed by the respondent, and that he was totally ignorant about the same. It is also admitted by PW-1 in her evidence that the appellant had purchased and given her a two sovereign gold chain, which was in her possession.** **19. The Family Court after the evaluation of the pleadings and evidence on record rightly came to the conclusion,** ## **Mat.Appeal No.588 of 2014 12** **that the appellant had not denied the fact that he had pledged some of the gold ornaments of the respondent. Therefore, the Family Court held that the case projected by the respondent was probable and that there was a ring of truth in her oral testimony; which we also concur with.** **20. In cases of such nature, we can only decide the 'lis' on preponderance of probability and not on the basis of reasonable doubt.** **21. We have also seen that the appellant had given an amount of Rs.75,000/- to the respondent, to pursue** **her education.** ## **Mat.Appeal No.588 of 2014 13** **22. The Family Court rightly in the impugned judgment, deducted Rs.75,000/and the two sovereigns of gold ornaments which were admittedly in the possession of** **the respondent, from the total 13 sovereigns of gold ornaments,** **misappropriated/pledged by the appellant. Thus, the Family Court came to the conclusion that the appellant is liable to return six sovereigns of gold ornaments belonging to the respondent.** **23. We do not find any error or illegality in the conclusion arrived at by the Family Court. We concur with the finding of the Family Court in this regard** **Mat.Appeal No.588 of 2014 14** **and uphold that the respondent is entitled to recover six sovereigns of gold ornaments or its value as on the date of the original petition from the appellant and that the appellant is liable to return six sovereigns of gold ornaments or its value thereof.** **In the result, the Mat.Appeal is dismissed, directing the appellant to return the six sovereigns of gold ornaments or its value thereof on the date of the original petition to the respondent, within one month from today, failing which the respondent is granted a decree to recover the value of six sovereigns of gold ornaments as on the** **Mat.Appeal No.588 of 2014 15** **date of the original petition with 6% interest from the date of this judgment till the date of realisation. The parties are directed to bear their respective costs.** **Sd/-K.HARILAL, JUDGE** **ma/27/12/2019** **Sd/-C.S.DIAS, JUDGE** ## **/True copy/** **P.S to Judge**