Jayasree D/O Dathan v. Rajesh Kumar

**1** **Mat.Appeal.No.64 OF 2017** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942** **Mat.Appeal.No.64 OF 2017** **AGAINST THE JUDGMENT IN OP 371/2013 DATED 21-11-2016 OF FAMILY COURT, MAVELIKKARA** ## **APPELLANT/PETITIONER:** **JAYASREE D/O.DATHAN, SREEVENKITESWARA NILAYAM, PUTHIYAVILA, PATTOLI MARKET P O, KARTHIKAPPALLY TALUK.** **BY ADV. SRI.G.PRIYADARSAN THAMPI** ## **RESPONDENT/RESPONDENT:** **RAJESH KUMAR AGED 40 YEARS, S/O.MOHANAN, MARTHANDAN CHIRAYIL, MUTHUKULAM SOUTH MURI, MUTHUKUKLAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN-690516.** **R1 BY ADV. SRI.C.A.CHACKO** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.64 OF 2017** **2** ## **JUDGMENT** **Dated this the 29th day of January 2021** C.S.Dias, J. Aggrieved by the judgment and decree in O.P.No.371/2013 of the Family Court, Mavelikara, the petitioner in the original petition has filed the appeal. The original petition was filed seeking a decree for recovery of gold ornaments and money, but the same was dismissed. The respondent in the original petition is the respondent in the appeal. 2. The concise case of the appellant/petitioner in the original petition was as follows:- The petitioner is the wife of the respondent. Their marriage was solemnised on 29.4.2007. At the time of the marriage, the petitioner's parents had given her 15 sovereigns of gold ornaments as her share in her parental properties and had gifted 5 sovereigns of gold ornaments to the respondent. On the date of **Mat.Appeal.No.64 OF 2017** **3** engagement, the petitioner's father had entrusted an amount of Rs.1,00,000/- to the respondent. One week after the marriage, the respondent and his family members harassed the petitioner demanding more dowry. In the mean time, the respondent took away the petitioner's gold ornaments, except for a gold chain weighing 2 sovereigns, under the pretext of safe keeping. Subsequently, the petitioner came to learn that the respondent had misappropriated the gold ornaments and the money that was entrusted to him. In August, 2008, the respondent demanded a further amount of Rs.2,00,000/- to settle his debts. The father of the petitioner arranged the demanded amount and entrusted the same to the respondent on 28.8.2008. The respondent is an alcoholic and is having illicit relationship with other woman. Whenever he comes on leave, he lavishly spends the money for his opulent life style and immoral activities. The respondent subjected the petitioner with physical **Mat.Appeal.No.64 OF 2017** **4** and mental cruelty. The step-father of the respondent attempted to misbehave towards the petitioner. The petitioner was constrained to leave the matrimonial home. She filed M.C No.9/2010 before the Judicial First Class Magistrate Court-I, Haripad, against the respondent under the Protection of Women from Domestic Violence Act. The said petition was allowed and the respondent was directed to pay the petitioner maintenance at the rate of Rs.3000/- per month. Although the respondent challenged the order in appeal, the appeal was dismissed. In the said circumstances, the petitioner is entitled for a decree for return of 18 sovereigns of gold ornaments, recovery of Rs.3,00,000/, compensation of Rs.5,00,000/- and an amount of Rs.1,00,000/- towards marriage expenses. 3. The original petition was resisted by the respondent who filed a written objection, inter-alia, refuting the allegations in the original petition. The **Mat.Appeal.No.64 OF 2017** **5** respondent admitted the marriage. He contended that the marriage between the couple was dissolved as per the decree of divorce passed on 28.9.2012 in O.P. (HMA)No.101/2010 of the Family Court, Alappuzha. The respondent is employed in the Indian Army. The petitioner adopted a recalcitrant attitude towards the respondent and refused to share the bed with him. She insisted that her son in the first marriage be accommodated in their bed room. The petitioner failed to discharge her duties as his wife. The couple are separated since 4.7.2007. The allegation that the petitioner's father had entrusted an amount of Rs.3,00,000/- and that he misappropriated the gold ornaments of the petitioner are utter falsehood. The petitioner left the matrimonial home with her entire gold ornaments. The respondent had gifted the petitioner a thali chain weighing 3 ½ sovereigns and a gold ring weighing ½ sovereigns. In addition to the same, the respondent had sent an amount of **Mat.Appeal.No.64 OF 2017** **6** Rs.75,000/- to the petitioner. The sole intention of the petitioner in filing the original petition is to harass the respondent. The couple have only lived together for a limited period. The petitioner vexatiously instituted a criminal case against the respondent and his parents. The petitioner is not entitled for any relief as claimed in the original petition and the same may be dismissed. 4. The petitioner and two witnesses were examined as PW1 to PW3 and Ext.A1 was marked through them. The respondent and a witness were examined as RW1 and RW2 and Exts.B1 to B7 were marked through them. 5. The Family Court, after evaluating the pleadings and materials on record, by the impugned judgment and decree dismissed the original petition. 6. Heard the learned counsel appearing for the appellant/petitioner and the learned counsel appearing for the respondent/respondent. 7. The sole question that emerges for **Mat.Appeal.No.64 OF 2017** **7** consideration in this appeal is whether the impugned judgment and decree passed by the Family Court is correct or not. 8. It is no longer res-integra, in view of the categoric declaration of law by this Court in **Alphonsa v. Neetha** [2019 (4) KLT 846] and **Royson Mathew** v. **Minimol [** 2020 (3) KLT 280], that the initial burden to prove the entrustment of gold and money is on the person who claims the decree for recovery of money, and unless there are pleadings/evidence on record to suggest that the entrustment was for a specific purpose or that the entrustment was in the nature of trust or under the specific understanding that the amounts will be returned, an action for recovery of money may not succeed. 9. The specific case of the petitioner in the original petition is that an amount of Rs.1,00,000/- was entrusted at the time of engagement. The petitioner has also averred that 15 sovereigns of gold ornaments **Mat.Appeal.No.64 OF 2017** **8** were given as her share in her parental properties and further five sovereigns of gold was given as a gift to the respondent. It is her further case that an amount of Rs.2,00,000/- was given to the respondent in August,2008. 10. On a re-appreciation of the oral testimonies of PW1 to PW3 and Ext.A1 copy of the marriage register, there is no material to substantiate the entrustment of money or that the petitioner was given 15 sovereigns of gold ornaments and the respondent was gifted five sovereigns of gold ornaments. 11. In an original petition for recovery of gold ornaments or its value, the crucial aspect to be looked into is not that the petitioner had adorned gold ornaments, but whether there is proof to substantiate that the gold ornaments were misappropriated by the respondent. 12. In the case on hand, there is absolutely no **Mat.Appeal.No.64 OF 2017** **9** material to prove that the respondent had misappropriated 15 sovereigns of the petitioner's gold ornaments or he was gifted five sovereigns. Even going by the version of PW2, he has only stated that 15 sovereigns of gold ornaments was given as the petitioner's share in her parental properties and five sovereigns were given to the respondent as a gift. Moreover, the said entry is not seen reflected in Ext.A1 marriage register, which is normally written in the coloumn provided in the register as per the custom and usual practice in the parties community. 13. With reference to entrustment of an amount of Rs.2,00,000/- to the respondent in August, 2008 also, we do not find any material on record to substantiate the said plea. The mere assertion of the petitioner for recovery of 20 sovereigns of gold ornaments and an amount of Rs.2,00,000/-, was rightly disbelieved and rejected by the Family Court. There is no proof or evidence to establish the entrustment of **Mat.Appeal.No.64 OF 2017** **10** gold or the said amount as laid down in **Alphonsa** and **Royson Mathew** (supra). Similarly, the petitioner has not proved the damages that she has sustained or marriage expenses that she incurred. Moreover, it is seen that it was a second marriage between the parties and the marriage has already been dissolved by the Family Court. In the said circumstances, we are of the firm opinion that the petitioner has failed to prove the misappropriation of the gold ornaments, the entrustment of Rs.2,00,000/-, the damages she suffered to claim compensation and for the alleged marriage expenses. 14. On an evaluation of the pleadings and the oral testimonies of PW1 to PW3, it is seen that the father of the petitioner (PW3) had entrusted an amount of Rs.1,00,000/- to the respondent on 13.3.2006. The version of PW3 is corroborated with the evidence of PW2 as well as the petitioner (PW1). The finding of the Family Court that there is no entry in Ext.A1 with **Mat.Appeal.No.64 OF 2017** **11** regard to Rs.1,00,000/- is erroneous on this aspect because it is quite obvious that entries regarding payment of money are not written in the register in view of the Dowry Prohibition Act. In the said circumstances, we are of the firm opinion that the petitioner has proved that the petitioner's father had entrusted an amount of Rs.1,00,000/- to the respondent on the date of engagement ,i.e., 13.3.2006. 15. On an overall re-appreciation of the pleadings and materials on record and the law laid down in **Alphonsa** and **Royson Mathew (** supra), we are of the considered opinion that the petitioner is only entitled for a decree for an amount of Rs.1,00,000/- which was entrusted at the time of engagement. The Family Court has rightly rejected all the other claims of the petitioner, which we uphold. 14. In the result, the appeal is allowed, in part, as follows: **Mat.Appeal.No.64 OF 2017** **12** (i) The appellant/petitioner is permitted to realise an amount of Rs.1,00,000/- from the respondent within two months from today. (ii) The respondent is directed to pay the petitioner an amount of Rs.1,00,000/- within two months from today, failing which, the appellant/ petitioner would be entitled to realise the said amount with interest at the rate of 6% per annum from the date of petition till the date of realisation. (iii) The findings of the Family Court in respect of the appellant/petitioner's claim for recovery of gold ornaments, amount of Rs.2,00,000/-, for compensation and for marriage expenses are upheld. (iv) In the facts and circumstances of the case, the parties are directed to bear their respective costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE JUDGE** > ma/01.02.2021 /True copy/ **Sd/C.S.DIAS JUDGE** **Mat.Appeal.No.64 OF 2017** **13**