Boby, Antony Biju and Lizy v. Preetha Prathap

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943** ## **Mat.Appeal.No.390 OF 2013** **AGAINST THE ORDER IN OP 757/2008 DATED 22-02-2013 OF FAMILY COURT,KOLLAM** ## **APPELLANTS/RESPONDENTS 1 TO 3:** **1 BOBY AGED 38 YEARS S/O.ANTONY, BIJU HOUSE, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM. 2 ANTONY BIJU HOUSE, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM. 3 LIZY W/O.ANTONY, BIJU HOUSE, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM.** **BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)** ## **RESPONDENT/PETITIONER:** **PREETHA PRATHAP AGED 32 YEARS D/O.ALICE, VALIYAVILA VEEDU (PRATHEEKSHA), KANJIRAKODUI CHERRY, MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM.** **R1 BY ADV. SRI.SAJJU.S R1 BY ADV. SRI.K.SHAJ** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-032021, THE COURT ON 18-05-2021 DELIVERED THE FOLLOWING:** Mat.Appeal No.390/2013 -:2:- J U D G M E N T Dated this the 18[th ] day of May, 2021 ## Dr.Kauser Edappagath, J. This is an appeal filed u/s 19 of the Family Courts Act, 1984 against the order of the Family Court, Kollam in OP No.757/2008 dated 22[nd] February, 2013. 2. The respondents before the court below are the appellants. The petitioner before the court below is the respondent. The parties are referred to as shown in the original petition unless otherwise stated. The petition was one for return of gold ornaments and recovery of money. 3. The marriage between the petitioner and the 1[st] respondent was solemnized on 5/6/2005 as per the Christian religious rites and ceremonies. The 2[nd] respondent is the father and the 3[rd] respondent is the mother of the 1[st] respondent. Admittedly, the petitioner and the 1[st] respondent resided together only till September, 2006. It is the case of the petitioner that her Mat.Appeal No.390/2013 -:3:- parents had given her 75 sovereigns of gold ornaments at the time of marriage and further her parents gave a sum of `3,50,000/- to the 1[st] respondent in the presence of respondents 2 and 3 as patrimony. It is alleged that the said amount was misused by respondents 1 to 3 for their personal purpose. It is further alleged that the respondents collected the entire gold ornaments from the petitioner in piece meal and misappropriated the same. It is also alleged that the respondents ill-treated the petitioner at the matrimonial home and on 3/9/2006, the respondents 2 and 3 forcibly took her in an autorickshaw at the instance of the 1[st] respondent to her parents' residence and at that time she was not allowed to take any gold ornaments. The original petition has been filed for the return of gold ornaments and money mentioned above. 4. The respondents entered appearance and filed written statement. The respondents denied the case set up by the petitioner that a sum of `3,50,000/- was paid to the 1[st] respondent by the parents of the petitioner as patrimony at the time of marriage. In so far as the gold ornaments are concerned, Mat.Appeal No.390/2013 -:4:- the respondents admitted that the petitioner was wearing some gold ornaments at the time of marriage and the petitioner intimated them that she has 51 sovereigns of gold including gold chain weighing 2 sovereigns and a ring weighing 1 sovereign given by the 1[st] respondent. It is contended that on the 5[th] day of marriage, the 1[st] respondent returned to his place of employment and the petitioner continued her stay at her parental home and it was represented by the petitioner that all her gold ornaments were kept in the bank locker in Kundara since it was not safe to keep the same at the matrimonial home. Thus, the case of the petitioner that gold ornaments were entrusted to the respondents and they misappropriated the same had been denied. The respondents further contended that at the time of marriage, the 1[st] respondent gave 6½ sovereigns of gold ornaments to the petitioner and they have raised a counter claim to realise the said gold ornaments. 5. The parties went on trial. On the side of the petitioner, PWs 1 to 3 were examined and Exts.A1 to A8 were marked. On the side of the respondent, RW1 was examined and Exts.B1 to B4 Mat.Appeal No.390/2013 -:5:- were marked. The plea of the respondents that they did not receive `3,50,000/- from the parents of the petitioner as patrimony and hence they are not liable to return the same was accepted by the Court below. The Court below found that 32.50 sovereigns of gold ornaments belonging to the petitioner were taken over and misappropriated by the respondents and the respondents were directed to return the same to the petitioner. The counter claim preferred by the respondents was also allowed and the petitioner was directed to return 6.50 sovereigns of gold ornaments or its current value to the respondents. The said 6.50 sovereigns of gold ornaments were allowed to be set off towards the gold ornaments ordered to be returned by the respondents to the petitioner. Challenging the said order, respondents preferred this appeal. 6. We heard the learned counsel for the appellants as well as the respondents. 7. The learned counsel for the appellants/respondents assailed the impugned judgment on the ground that the Court below was unreasonable and unrealistic in the appreciation of Mat.Appeal No.390/2013 -:6:- oral evidence. The counsel submitted that inasmuch as the petitioner was claiming a decree for return of gold ornaments, the burden rests squarely on her to prove the claim satisfactorily and the petitioner miserably failed to discharge the said burden. The counsel further submitted that the finding of the Court below that 32.50 sovereigns of gold ornaments were taken over and misappropriated by the respondents was based on guess work which is impermissible. 8. On the other hand, the learned counsel for the respondent/petitioner submitted that oral as well as documentary evidence let in by the petitioner would prove the entrustment of gold ornaments as well as its misappropriation and the Court below rightly allowed the petition. 9. As stated already, the case set up by the petitioner is that 75 sovereigns of gold ornaments were given to the petitioner by her parents at the time of marriage and the respondents collected those gold ornaments in piece meal from her and misappropriated the same. To prove the fact that the petitioner was having 75 sovereigns of gold ornaments as well as its Mat.Appeal No.390/2013 -:7:- entrustment and misappropriation by the respondents, the petitioner relies on the oral testimony of PW1 to PW3 and Exts.A7 series and A8. PW1 is the petitioner. PW2 is the uncle and PW3 is the father of the petitioner. They gave evidence in tune with the pleadings. Their evidence would prove that the petitioner was wearing gold ornaments at the time of marriage. That apart, the respondents had also admitted in the written statement that the petitioner was wearing some gold ornaments at the time of marriage and the petitioner stated to them that the quantity of the said gold ornaments was 51 sovereigns. The gold ornaments are scheduled in the petition. Ext.A7 series are estimates and retail invoice bills issued by Bhima and Brother Jewellers for the purchase of the gold ornaments. PWs 1 to 3 gave evidence that gold ornaments were purchased as per Ext.A7 series. PW3 gave evidence that the entire gold ornaments covered by Ext.A7 series were not given to the petitioner and out of 75 sovereigns of gold ornaments, some gold ornaments were given to his younger daughter and wife. Ext.A8 photograph and Ext.B1 album would also show that the petitioner was wearing gold ornaments. All Mat.Appeal No.390/2013 -:8:- these evidence clearly establish that the petitioner was having at least 51 sovereigns of gold ornaments with her as admitted by the respondents. 10. The case of the petitioner is that the entire gold ornaments belonged to her were taken by the respondents one by one after marriage and they misappropriated the same. The 1[st] respondent is admittedly employed as a clerk in the Revenue Department at the Civil Station, Kozhikode. The parties were residing at Kollam after the marriage. It is not in dispute that on the 5[th] day of marriage, the 1[st] respondent left to his place of employment at Kozhikode. According to the petitioner, after the 1[st] respondent left to his place of employment, she continued her stay in the matrimonial home along with respondent Nos. 2 and 3 and ultimately on 3/9/2006, the respondents 2 and 3 forcibly took her to her parents' house. But the claim of the respondents is that after the 1[st] respondent left to his place of employment on the 5[th] day of marriage, the petitioner continued her stay with her parents and she informed them that all the gold ornaments were kept at a bank locker at Kundara. At any rate, it has come out in Mat.Appeal No.390/2013 -:9:- evidence that on the 5[th] day of marriage, the petitioner left the matrimonial home. The petitioner gave evidence that she did not take any gold ornaments with her. The Court below on analysis of evidence correctly found that naturally there is possibility to keep the gold ornaments except required for daily use in safe custody under the supervision of in-laws. The Court below further found that the major portion of the gold ornaments which is being used in the regular use would be under the safe custody of the respondents. Based on the same, the Court below found that at least 25 sovereigns of gold ornaments including 6.50 sovereigns of gold ornaments given by the 1[st] respondent at the time of marriage were in the custody of the petitioner and were taken along with her while leaving the matrimonial home and the balance 32.50 sovereigns of gold ornaments were with the respondents and hence the petitioner is entitled to get back the said gold ornaments. If evidence adduced by both parties does not aid the Court to come to a just conclusion, then the Court would be justified in deciding the case based on reasonable probabilities and legal inferences arising from proved or admitted Mat.Appeal No.390/2013 -:10:- facts. As stated already, even the respondents have admitted that the petitioner was wearing gold ornaments at the time of marriage and the petitioner told them that the quantity of the said gold ornaments was 51 sovereigns. The respondents have also admitted that after the marriage, for few days, the petitioner and the 1[st] respondent resided together in the matrimonial home. During that period, the gold ornaments might have been kept at the matrimonial home. It may be safe to assume that when the petitioner left the matrimonial home, she might have taken gold ornaments for her daily use with her and the balance might have been kept at the matrimonial home. It is not possible to insist for strict proof regarding the gold ornaments that the petitioner had carried with her when she returned home. The Division Bench of this Court in _**Jubairiya M.K. v. Abusalih and Another**_ (2013 (2) KHC 304) has held that in matrimonial cases, it is difficult to get documentary evidence to prove money transaction and exchange of gold and oral evidence of the parties, if found believable, can be relied upon by the Court to prove payment of money and gold. In _**Leelamma N.P. v. M.A.Moni**_ (2017 (3) KHC 340), the Division Mat.Appeal No.390/2013 -:11:- Bench of this Court held that once it is proved that gold ornaments were entrusted by the wife to the husband, the burden is on the husband to prove as to what happened to the gold ornaments. It is further held that if it was taken by the wife when she left the matrimonial home, the same has to be proved by the husband. Again, the Division Bench in _**Pankajakshan Nair v. Shylaja and Another**_ (2017 (1) KHC 620) held that it is quite natural that once the marriage is over and the bride has come to the house of in-laws, there is possibility of ornaments being entrusted to the elders as a trustee for keeping the articles during the subsistence of the marriage and the duty is cast on the husband to disprove this fact and also to prove the fact that it was taken by the wife at the time she left the matrimonial home. The evidence adduced by the respondents is hardly sufficient to discharge the burden that the petitioner took the entire gold with her when she left the matrimonial home. Thus, the only probability is that the gold ornaments belonged to the petitioner except those she uses on daily basis were kept at the matrimonial home with the respondents who misappropriated the Mat.Appeal No.390/2013 -:12:- same. 11. On an anxious consideration of the entire evidence on record and pleadings, we are satisfied that the Court below was absolutely justified in holding that 32.50 sovereigns of gold ornaments belonging to the petitioner were taken away and misappropriated by the respondents. On reappreciation of evidence, we find no reason to interfere with any of the findings of the Court below. The appeal fails and it is only to be dismissed. In the result, the appeal is dismissed. No costs. **Sd/-** **A.MUHAMED MUSTAQUE JUDGE Sd/DR. KAUSER EDAPPAGATH** Rp True Copy **JUDGE** PS to Judge