Jencin Mathew v. Bobby P. Augustine and Augustine Baby

# **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.66 OF 2019** **AGAINST THE JUDGMENT IN OP 261/2015 DATED 21-11-2018 OF FAMILY COURT, MUVATTUPUZHA** ## **APPELLANT/PETITIONER:** **JENCIN MATHEW, AGED 36 YEARS D/O.MATHEW, RESIDING AT NADUVILEDATHU HOUSE, KIZHAKOMBU KARA, KIZHAKOMBU P.O, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM, PIN- 686662. BY ADVS. SRI.K.RAKESH ROSHAN SRI.I.K.RAJU SMT.THUSHARA.V** ## **RESPONDENT/RESPONDENTS:** **1 BOBY.P.AUGUSTINE, AGED 38 YEARS S/O.AUGUSTINE, RESIDING AT PANNIVALLIYAVIL HOUSE, KADANADU KARA AND VILLAGE, KADANALMEENACHIL POST, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN- 686653.** **2 AUGUSTINE @ BABY, AGED 60 YEARS PANNIVALLIYAVIL HOUSE, KADANADU KARA AND VILLAGE, KADANAL MEENACHIL-POST, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN- 686653.** ## **R2 BY ADV. DOMSON J.VATTAKUZHY** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2019, ALONG WITH Mat.Appeal.393/2019, THE COURT ON 7.01.2020 DELIVERED THE FOLLOWING:** ## **Mat.A Nos.66 and 393 of 2019 2** **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.393 OF 2019** **AGAINST THE ORDER IN I.A 221/2019 IN O.P 261/2015 OF FAMILY COURT, MUVATTUPUZHA** ## **APPELLANT/S:** **1 BOBBY. P.AUGUSTINE AGED 35 YEARS,S/O.AUGUSTINE, PANNIVALLIYAVIL HOUSE, KADANADU KARA, KADANADU VILLAGE, MEENACHIL TALUK.** **2 BABY AUGUSTINE, AGED 61 YEARS,S/O.AUGUSTINE, PANNIVALLIYAVIL HOUSE, KADANADU KARA, KADANADU VILLAGE, MEENACHIL TALUK. BY ADVS. SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE** ## **RESPONDENT/S:** **JENCIN MATHEW AGED 33 YEARS,D/O.MATHEW, NADUVILEDATHU HOUSE, KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA, PIN-686661 R1 BY ADV. SRI.K.RAKESH ROSHAN R1 BY ADV. SRI.I.K.RAJU R1 BY ADV. SMT.THUSHARA.V** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2019, ALONG WITH Mat.Appeal.66/2019, THE COURT ON 7.1.2020 DELIVERED THE FOLLOWING:** ## **Mat.A Nos.66 and 393 of 2019** ## **3** **:** ## **COMMON JUDGMENT** **(Dated this the 7[th] January, 2020)** **Dias,J.** **The petitioner in O.P No.261/2015 on the file of the Family Court, Muvattupuzha is the appellant in Mat.Appeal No.66/2019. The 1[st] respondent in the appeal, the appellant's husband, is the 1[st] respondent and his father is the 2[nd] respondent in the above appeal.** **2. Mat.Appeal No.393/2019 is filed by** **the respondents in O.P.261/2015 (the** **Mat.A Nos.66 and 393 of 2019 4** **respondents in Mat.Appeal No.66/2019)** **challenging the order passed in I.A** **No.221/2019 in O.P 261/2015.** **3. Since the subsequent Mat.Appeal is filed against a consequential order passed by the Family Court, these appeals are consolidated, heard and disposed of by** **this common judgment. The parties are for the sake of convenience referred to as “petitioner” and “respondents”, as per their status in O.P.261/2015.** **Mat.A 66/2019** **4. The petitioner had filed** **O.P.261/2015 under Section 7(c) of the Family Courts Act, seeking a decree for** **recovery of money and her gold ornaments allegedly misappropriated by the** **Mat.A Nos.66 and 393 of 2019 5** **respondents. It was her case before the Family Court that she was married to the 1[st] respondent on 12.01.2012, as per the religious rites and customs of their community. The 2[nd] respondent is the father of the 1[st] respondent. She averred that at the time of marriage she was employed as a Nurse in the United Kingdom, and that the** **1[st] respondent was employed in Iraq. As the marriage was an arranged one, an amount of Rs.3 lakh was given to the 2[nd] respondent on 7.1.2012, as the petitioner's share in her parental properties. She also averred that she was given sixty sovereigns of gold ornaments at the time of marriage. The petitioner's parents also gifted a wrist chain** **Mat.A Nos.66 and 393 of 2019 6** **weighing three sovereigns and a gold ring weighing one sovereign. The petitioner also had in her possession thirteen sovereigns of gold ornaments which was purchased with her own resources. 5. The petitioner pleaded in the original petition that the respondents for the purpose of the 1[st] respondent's sister's marriage demanded the** **petitioner's gold ornaments. While the petitioner was in the United Kingdom, the respondents took away the petitioner's gold ornaments and pledged some of them. When the 1[st] respondent went on a visit to the United Kingdom, the petitioner had entrusted with him 3,000 pounds (at that point of time, the amount had a exchange** ## **Mat.A Nos.66 and 393 of 2019 7** **value of Rs.2,55,000/-).** **6. It was her further case that as demanded by the respondents she had sent an amount of Rs.6,90,000/- which was credited in the 1[st] respondent's bank account. Later on, differences of opinion arose between the couple, as the 1[st] respondent manhandled the petitioner. The 1[st] respondent, thereafter, filed an original petition before the Family Court, Pala, seeking the permanent custody of their child. As the marital relationship was irretrievably broken down, the petitioner no longer reposed trust and faith in the respondents, and thus instituted O.P.261/2015 seeking for recovery of 73 sovereigns of her gold** ## **Mat.A Nos.66 and 393 of 2019** ## **8** |**ornaments**<br>**that**<br>**were**<br>**allegedly**| |---| |**misappropriated by the respondents, and**| |**also for a decree for recovery of**| |**Rs.12,45,000/- from the respondents.**| |**7.**<br>**The respondents appeared in the**| |**case and filed a detailed written**| |**objection. The respondents admitted the**| |**marriage as well as the paternity of the**| |**child. The respondents bluntly denied**| |**entrustment of money at the time of**| |**marriage. The 1st respondent admitted that**| |**he was gifted with a wrist chain, but**| |**only**<br>**weighing**<br>**one**<br>**sovereign.**<br>**The**| |**respondents never knew the quantity,**| |**quality or purity of the petitioner's gold**| |**ornaments, which were always in her**| |**possession. The 1st respondent also denied**| ## **Mat.A Nos.66 and 393 of 2019 9** **that he was given 3,000 pounds as alleged. The respondents further averred that all the petitioner's gold ornaments were kept in a locker in the joint names of the couple at the State Bank of Travancore, Koothattukulam Branch. The 1[st] respondent, however, admitted that he had received an amount of Rs.6 lakh in April, 2013 and Rs.90,000/- on 6.8.2011. But, the respondents took the defense that the amount was handed over to the petitioner's father in connection with her sister's marriage and Rs.75,000/- was given as maintenance expense to the petitioner's parental home.** **8. The petitioner and two witnesses were examined as PW1 to PW3 and Exts.A1 to** ## **Mat.A Nos.66 and 393 of 2019 10** **A3 were marked through them. The respondents and three other witnesses were examined as RW1 to RW4 and Exts.B1** **and B2 were marked through them. Exts.X1 to X13 were summoned and marked through the above witnesses.** **9. The Family Court after considering the pleadings, the oral testimony of the witnesses and the documentary evidence on** **record, partly allowed the original petition by directing the 1[st] respondent to** **return the wrist chain weighing one sovereign and permitting the petitioner to realise an amount of Rs.4 lakh with** **interest at the rate of 6% per annum from** **the date of petition till the date of** **realisation of the amount from the** ## **Mat.A Nos.66 and 393 of 2019 11** **respondents and their assets.** **10. It is aggrieved by the rejection of the other claims of the petitioner that the present Mat.Appeal is filed.** **Mat.Appeal 393/2019** **11. The petitioner along with O.P.261/2015 had filed I.A No.412/2015 seeking an order of attachment before judgment of the attachment scheduled properties belonging to the 2[nd] respondent.** **The Family Court passed an order of attachment before judgment.** **12. Subsequent to the judgment and decree passed by the Family Court in O.P.261/2015, the 2[nd] respondent deposited the decree amount of Rs.5,14,043/- before the Family Court, and then filed I.A** ## **Mat.A Nos.66 and 393 of 2019** ## **12** **No.48/2019 seeking withdrawal of the** **attachment.** **13. The petitioner opposed the application on the ground that Mat.Appeal No.66/2019 is filed against the impugned judgment and decree, and that in the mean time if the attachment is withdrawn, it would cause substantial prejudice to the petitioner.The Family Court did not pass any order on the above application.** **14. Subsequently, the respondents filed I.A 221/2019 praying that the amount that has been deposited before the Family Court may be returned to the 2[nd] respondent since he wanted to conduct his daughter's marriage. He averred that the amount that was deposited before the Family Court was** ## **Mat.A Nos.66 and 393 of 2019 13** **borrowed by him from a third person, on the belief that he could get the attachment withdrawn and then mortgage the property. The petitioner opposed the said application also. The Family Court by order dated 16.4.2019 dismissed the application on the ground that as per the order of this Court in I.A No.1/2019 in Mat.A 66/2019, the attachment scheduled property is furnished as security and that an additional amount may be decreed in Mat.Appeal 66/2019. Hence, the amount may not be returned, and the attachment may not be withdrawn. The Family Court dismissed the application. It is assailing the said order that Mat.Appeal 393/2019 is filed by the respondents.** ## **Mat.A Nos.66 and 393 of 2019 14** **15. We have heard Adv.Rakesh Roshan the learned counsel for the appellant and Adv.Domson J.Vattakuzhy, the learned counsel for the respondents.** **16. From the facts in the above appeals, the following points emerge for determination.** **(i) Whether the petitioner is entitled to recover 73 sovereigns of gold ornaments as claimed in O.P. 261/2015?** **(ii) Whether the petitioner is entitled to a decree for recovery of money as claimed in the original petition?** **(iii) Whether the respondents are entitled to get the amount that was deposited as per I.A 48/2019 in** ## **Mat.A Nos.66 and 393 of 2019 15** **O.P.261/2015 or get the attachment before judgment withdrawn?** **17. As the points are interweaved, we are considering them together.** **18. We have re-appreciated the entire pleadings and evidence on record.** **19. This Court in** _**Bhaskaran v. Radha**_ _**[2019 (3) KHC 960], Abubakker Labba v. Shameena [2018 (3) KLT 196] and in Shinu P.K v.Dhanya Madhavan [2013 (3) KHC 735]**_ **has succinctly laid down the law that, in a petition filed for return of gold ornaments and money, there should be specific pleadings and evidence describing** **the details of the gold ornaments and the the amount that were entrusted at the time** ## **Mat.A Nos.66 and 393 of 2019 16** **of marriage. The initial onus of proof is on the wife to substantiate that the amount and the gold ornaments were misappropriated by the husband and his family, and that money was entrusted to them in trust at the time of marriage.** **20. Keeping in mind the above declaration of law by this Court, we have perused the pleadings on record pertaining to the alleged entrustment of gold and the money by the petitioner's family to the respondents. The counsel for the appellant fairly concedes that there is no specific pleading in the original petition that Rs.3 lakh was entrusted at the time of marriage. There is also no specific plea that 73 sovereigns of gold** ## **Mat.A Nos.66 and 393 of 2019 17** **ornaments were misappropriated by the respondents. On the other hand, it is seen that the petitioner and the 1[st] respondent had taken a joint locker in the State Bank of Travancore, Koothattukulam Branch, wherein the petitioner had kept her gold ornaments. The petitioner does not have a case that during the said period, the 1[st] respondent had opened the locker and taken away the gold ornaments. Regarding the allegation that the petitioner had entrusted 3000 pounds to the 1[st] respondent, when he visited the United Kingdom, there is no evidence.** **21. The only fact that has been proved by the petitioner and admitted by the 1[st] respondent was that an amount of** **Mat.A Nos.66 and 393 of 2019 18** **Rs.6,90,000/- was sent by the petitioner to the 1[st] respondent and the amount was credited to his bank account in State Bank of Travancore. The 1[st] respondent does not deny that he has received the amount. But, his case is that he entrusted the amount to the petitioner's father towards the marriage expenses of the petitioner's sister and for their house renovation work. Therefore, going by the evidence of the witnesses examined in the case, it is manifestly established that an amount of Rs.6,90,000/- was sent to the bank account of the 1[st] respondent. There is no evidence or proof regarding the entrustment of the earlier amount of Rs.3 lakh and 3000 pounds and also the alleged** ## **Mat.A Nos.66 and 393 of 2019 19** **misappropriation of the petitioner's gold ornaments weighing 73 sovereigns. The Family Court on a threadbare analysis of point Nos.1 and 2 has discussed the matter in detail. The entire evidence was evaluated by the Family Court, and the Family Court rightly concluded that the respondents had not misappropriated the gold ornaments or an amount of Rs.3 lakh was entrusted to them.** **22. With reference to point No.3, the** **entrustment of 3000 pounds and Rs.6,90,000/- being credited to the bank account of the 1[st] respondent, the Family Court, admittedly, by a guess work, presumed that the 1[st] respondent had given an amount of Rs.2,90,000/- to the** ## **Mat.A Nos.66 and 393 of 2019 20** **petitioner's father. Thus, by the impugned judgment, 1[st] respondent has been directed to return Rs.4 lakh.** **23. On a re-appreciation of the finding of the Family Court in paragraph 18 of the impugned judgment, it is seen that there is absolutely no evidence for the Family Court to arrive at the conclusion that the** **1[st] respondent entrusted Rs.2,90,000/- to the petitioner's father.** **24. The 1[st] respondent had not summoned and examined the concerned witnesses to prove that he had returned Rs.2,90,000/from the amount that he received from the** **petitioner. The Family Court has in unequivocal words held that the finding is on the basis of guess work. Such** ## **Mat.A Nos.66 and 393 of 2019 21** **guess work is impermissible in law. The Family Court is bound to render specific findings on the basis of the pleadings, issues formulated and evidence on record, to arrive at its conclusions. The petitioner had discharged her burden of proof by proving that the amount of Rs.6,90,000/- was sent to the bank of the 1[st] respondent. Thereafter, the onus of proof shifted on the 1[st] respondent to prove that he had handed over Rs.2,90,000/- to the petitioner's father, as alleged in the written objection. But, the 1[st] respondent has not discharged the burden by any cogent evidence that he paid Rs.2,90,000/- to the petitioner's father. Thus, we are of the opinion that** ## **Mat.A Nos.66 and 393 of 2019 22** **the 1[st] respondent is liable to return an amount of Rs.6,90,000/- to the petitioner and that the petitioner is entitled to a decree for realising an amount of Rs.6,90,000/- from the 1[st] respondent** **personally and from his assets. Thus, point Nos.1 to 3 are answered accordingly. Accordingly, we concur with the findings of the Family Court on point Nos.1 and 2 in the impugned judgment, but we modify the decree permitting the petitioner to realise an amount of Rs.4 lakh from the respondents; instead, we permit the petitioner to recover an amount of Rs.6,90,000/- from the 1[st] respondent** **personally and from his assets.** **25. With regard to point No.4, i.e,** **Mat.A Nos.66 and 393 of 2019 23** **pertaining to Mat.Appeal 393/2019, whether the respondents are entitled to get the amount of Rs.5,14,043/- returned to them and/or get the order of attachment before judgment withdrawn? we order that, in view of our findings in Mat.Appeal 66/2019 that the petitioner is entitled to recover an amount of Rs.6,90,000/- with interest at the rate of 6% per annum from the date of petition till the date of realisation from the 1[st] respondent and his assets, and that the 1[st] respondent is also liable to return the wrist chain weighing one sovereign of gold ornament, or its value thereof, we direct the respondents to deposit the balance amount decreed in favour of the petitioner as per this** ## **Mat.A Nos.66 and 393 of 2019 24** **judgment and decree before the Family court, within three months from the date of receipt of a copy of this judgment. On depositing the entire amount in** **fulfillment of this judgment and decree in Mat.Appeal No.66/2019, the attachment before judgment ordered in I.A No.412/2015 shall stand withdrawn. In case the respondents deposit the entire amount as ordered by this Court in Mat.Appeal No.66/2019, the Family Court shall withdraw the attachment before judgment ordered in I.A No.412/2015 in O.P.261/2015 and communicate the same to the Sub Registry Office, Ramapuram. The petitioner shall be at liberty to withdraw the entire amount so deposited as per the procedure** ## **Mat.A Nos.66 and 393 of 2019 25** **established in law.** **In the result, Mat.Appeal No.66/2019 is allowed in part as follows:** **(i) The 1[st] respondent is directed to return the wrist chain weighing one sovereign, failing which, the petitioner shall be entitled to realise its value as on the date of the original petition with** **6% interest per annum from the date of original petition till the date of its realisation from the 1[st] respondent** **personally and from his properties.** **(ii) The petitioner is granted a decree for realising an amount of** **Rs.6,90,000/- with interest at the rate of** **6% per annum from the date of original petition till the date of realisation** **Mat.A Nos.66 and 393 of 2019 26** **from the 1[st] respondent personally and from his properties.** **(iii) The parties shall bear their respective costs.** **Mat.Appeal 393/2019 is allowed in part, as follows:** **(i) The respondents are directed to deposit the balance decree amount, as per this judgment and decree passed by this Court in Mat.A No.66/2019. The amount of Rs.5,14,043/- already deposited shall be given credit by the Family Court.** **(ii) If the respondents deposit the remaining amount in fulfillment of this judgment and decree within three months from the date of obtaining a copy of this judgment, in addition to Rs.5,14,043/-** ## **Mat.A Nos.66 and 393 of 2019 27** **already deposited, the order of attachment before judgment ordered in I.A No.412/2015 of the Family Court shall stand withdrawn, and the order shall be communicated to the Sub Registry Office, Ramapuram. On such deposit, the petitioner shall be at liberty to withdraw the entire amount deposited as per the procedure established in law.** **(iii) The parties shall bear their respective costs.** **Sd/- K.HARILAL, JUDGE** **ma/28/12/2019 Sd/-C.S.DIAS, JUDGE /True copy/ P.S to Judge**