Jimna Sanoj v. Sanoj Shivanandan

**Mat.Appeal.Nos.654/2014 & 670/2014** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **Mat.Appeal.No.654 OF 2014** **AGAINST THE JUDGMENT IN OP 120/2012 DATED 31-05-2014 OF FAMILY COURT, KANNUR** ## **APPELLANT/PETITIONER:** **JIMNA SANOJ AGED 25 YEARS W/O.SANOJ, RESIDING AT NALINAM, NEAR MANIKKA KAVU, P.O.THANA, KANNUR -1, AMSOM KANNUR TALUK, KANNUR TALUK.** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT/RESPONDENT:** **SANOJ SHIVANANDAN** **S/O.SHIVANANDAN, RESIDING AT M.C.ENCLAVE, VILLA NO.I, SHIVAS, P.O.KUYYALI, THALASSERY, KANNUR DISTRICT - 670 101.** **R1 BY ADV. SRI.P.P.RAMACHANDRA** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2021, ALONG WITH Mat.Appeal.670/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.Nos.654/2014 & 670/2014** **2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** **Mat.Appeal.No.670 OF 2014** **AGAINST THE JUDGMENT IN OP 579/2012 DATED 31-05-2014 OF FAMILY COURT, KANNUR** ## **APPELLANTS/PETITIONERS:** **1 JIMNA SANOJ W/O.SANOJ, RESIDING AT NALINAM, NEAR MANIKKA KAVU, P.O THANA, KANNUR 1 AMSOM KANNUR TALUK, KANNUR TALUK.** **2 SANAA SANOJ D/O.SANOJ, AGED 1 YEARS, MINOR, REPRESENTED BY HER MOTHER AND GUARDIAN, JIMNA SANOJ, W/O.SANOJ, RESIDING AT NALNAM, NEAR MANIKKA KAVU, P.O THANA, KANNUR 1 AMSOM KANNUR TALUK, KANNUR TALUK.** **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENT/RESPONDENT:** ## **SANOJ SHIVANANDAN** **S/O.SHIVANANDAN, AGED 35 YEARS, RESIDING AT MC ENCLAVE, VILLA NO.1, SHIVAS P.O, KUYYALI, THALASSERY, KANNUR DISTRICT. 670 101.** **BY ADV. SRI.P.P.RAMACHANDRAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2021, ALONG WITH Mat.Appeal.654/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.Nos.654/2014 & 670/2014** **3** ## **JUDGMENT** ## **Dated this the 18th day of February 2021** ## **C.S.Dias, J.** As these appeals arise out of a common judgment in O.P. Nos 120/2012 and 579/2012 of the Family Court, Kannur, between the same parties, they are being disposed of by this common judgment. 2. Jimna Sanoj ( petitioner – wife) had filed O.P. 120/2012, seeking a decree for return of 295 sovereigns of gold ornaments of its value from Sanoj Sivanandan (respondent - husband). The wife also had filed O.P.No.579/2012 and MC 273/2012 for herself and the minor daughter of the couple named 'Sanaa Sanoj', against the respondent, seeking a decree for past maintenance for the period from 6.1.2012 to 16.8.2012 and an order for maintenance respectively. The Family Court by its common judgment dated 31.5.2014 dismissed both the original petitions and allowed M.C 273/2012, by directing the respondent **Mat.Appeal.Nos.654/2014 & 670/2014** **4** to pay the wife and the child maintenance at the rate of Rs.8000/- and Rs.5000/- per month. 3. Being aggrieved by the dismissal of the original petitions, the wife has filed Mat.Appeal No.654/2014 and the wife and the child have filed Mat.Appeal No.670/2014. For the sake of convenience, the wife is referred to as 'petitioner', the husband is referred to as 'respondent' and the child is being referred to as ' the child', wherever the context so requires. 4. The concise case of the petitioner in O.P.120/2012 is that, she was married to the respondent on 16.7.2008. The respondent and his sisters mentally and physically harassed the petitioner demanding more money and ornaments. The respondent and his parents had taken possession of 295 sovereigns of the petitioner's gold ornaments and kept it in their custody. One year after the marriage, the petitioner was taken to Gulf and was **Mat.Appeal.Nos.654/2014 & 670/2014** **5** subjected to physical and mental harassment. Almost everyday, the respondent demanded more dowry from the petitioner and made her life miserable. The petitioner was not even permitted to talk to her parents. On 5.3.2010, the petitioner's mother and her sister went to the residence of the respondent. The sister of the respondent called the Police alleging that the petitioner's mother and a lady had attempted to attack them. The petitioner's mother was coerced to subscribe her signature on a blank paper. The petitioner delivered the child on 24.5.2011. On 16.1.2012, the petitioner returned to India. On coming to learn that the respondent was proposing to leave the country, the petitioner, her parents and the child went to the matrimonial home. The parents of the respondent attacked the petitioner and she was admitted in the District Hospital. Crime No.100/2012 was registered against the respondent for offences under Sections 323 and 498A read with Section 34 of **Mat.Appeal.Nos.654/2014 & 670/2014** **6** Indian Penal Code. The passport of the petitioner and the child and her entire gold ornaments are in the unlawful custody of the respondent. Therefore, the petitioner is entitled to a decree for return of 295 sovereigns of gold ornaments or its value of Rs.67,85,000/-. 5. The petitioner also on the very same lines in O.P.No.120/2012, filed O.P No.579/2012, seeking maintenance for herself and her child at the rate of Rs.1,00,000/- each for the period from 16.1.2012 to 16.8.2012. The petitioner also sought for recovery of an amount of Rs.3,00,000/- incurred by her father for her MBA course and an amount of Rs.5,00,000/received by the respondent from her father for the honeymoon. Accordingly, she sought for the realisation of a total amount of Rs.22 lakh. 6. The respondent filed separate written statements in both the above original petitions with almost the same pleadings. The respondent refuted **Mat.Appeal.Nos.654/2014 & 670/2014** **7** the allegations in the original petitions. He admitted the marriage as well as the paternity of the child. He contended that he was not in possession of 295 sovereigns of gold ornaments as alleged in the petition. It was his case that he had no occasion to deal with the ornaments of the petitioner and there was no demand on his part to provide the ornaments. According to him, on 14.8.2008 all the petitioner's gold ornaments were kept in the locker of the North Malabar Bank, Kuthuparamba. He denied the allegations that amounts were entrusted to him. He pleaded that one year after the marriage, the petitioner demanded for dissolution of their marriage. She threatened that she would commit suicide, if the petitioner did not give his consent for divorce by mutual consent. The petitioner had filed a false complaint before the Thalassery Police. The respondent is ready to resume cohabitation with the petitioner and take her back to the parental home. **Mat.Appeal.Nos.654/2014 & 670/2014** **8** He accordingly sought the dismissal of the original petitions. 7. As already stated, the petitioner and the child had also filed M.C 273/2012 seeking an order for maintenance on the verbatim pleadings as in the original petitions. The respondent denied the allegations in the maintenance case. 8. The Family Court consolidated and jointly tried all the three cases. 9. The petitioner and a witness were examined as PW1 and PW2 and Exts.A1 to A10 were marked through them in evidence. The respondent was examined as RW1 and Exts.B1 to B11 (b) were marked on his side. The commission report was marked as Ext.C1. 10. The Family Court, after evaluating the pleadings and materials on record, by the impugned judgment dismissed the original petitions and allowed the M.C 273/2012 . **Mat.Appeal.Nos.654/2014 & 670/2014** **9** 11. The questions that emerge for consideration in these appeals are: (i) Whether the petitioner is entitled to a decree for recovery of her gold ornaments? (ii) Whether the petitioner and the child are entitled to a decree for past maintenance? (iii) Whether the petitioner is entitled to a decree for realisation of money? 12. Heard Sri.Cibi Thomas, the learned counsel appearing for the appellants/petitioner and Sri.P.P.Ramachandra, the learned counsel appearing for the respondent/respondent. 13. 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 gold ornaments and unless there are pleadings and materials to suggest that the ## **Mat.Appeal.Nos.654/2014 & 670/2014** **10** 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. ## Question No.(i) 14. The specific case of the petitioner in O.P 120/2012 was that the respondent and his parents had taken possession of her 295 sovereigns of gold ornaments. Hence, the petitioner is entitled for a decree for recovery of the gold ornaments or its value of Rs.67,85,000/-. 15. Pursuant to the order passed by the Family Court in I.A No.192/2012, an Advocate Commissioner was appointed to inspect locker No.3 of North Malabar Bank, Kuthuparamba Branch. The Commissioner, after conducting a local inspection of the branch locker filed Ext.C1 report reporting that 14 items of gold ornaments weighing 141.1 **Mat.Appeal.Nos.654/2014 & 670/2014** **11** sovereigns of gold ornaments were found in the locker. This aspect is against the case of the petitioner in O.P No.120/2012. Then the petitioner contended that there was a deficit of 153.9 sovereigns of gold ornaments in the bank locker for which there is no pleading or evidence. She tried to rely on Exts.A1 to A3 series photographs to establish that she had 295 sovereigns of gold ornaments at the time of marriage. The crucial aspect to be proved by the petitioner was that her gold ornaments were misappropriated by the respondent. On an analysis of the evidence, it is seen that as per Ext.B1 series letters dated 13.7.2009, the petitioner admitted in unequivocal terms that some of her gold ornaments were taken by her from the locker. It was on the basis of the said admission that the Family Court rejected the prayer of the petitioner for recovery of 295 sovereigns of gold ornaments from the respondent. **Mat.Appeal.Nos.654/2014 & 670/2014** **12** 16. Going by the ratio in **Alphonsa and Royson Mathew** (supra), the entire onus of proof to prove that the respondent had misappropriated the gold ornaments, in addition to the gold which was seen in the locker, was on the petitioner, which she miserably failed to prove. However, unfortunately, the Family Court though found there were 141.1 sovereigns of gold ornaments as reported by the Advocate Commissioner in Ext.C1, failed to decree the original petition, by permitting the petitioner to take the gold ornaments found in the bank locker in North Malabar Bank, Kuthuparamba. The judgment and decree to that extent on Question No.(i) is erroneous and wrong. In the said circumstances, we modify the judgment and decree in O.P. 120/2012 with regard to the gold ornaments, by permitting the petitioner to forthwith take the entire gold ornaments in the locker No.3 in the North Malabar Bank, Kuthuparamba Branch. Question No.(i) is answered **Mat.Appeal.Nos.654/2014 & 670/2014** **13** in favour of the petitioner in the said manner. ## Question No.(ii). 17. It is the case of the petitioner that the petitioner is entitled to realise an amount of Rs.3,00.000/- which was incurred by her father for her MBA course and also an amount of Rs.5,00,000/received by the respondent from the father of the petitioner for the honeymoon of the couple. 18. Admittedly, the amount of Rs.3,00,000/was spent by the petitioner's father for her own education. The petitioner does not have a case that the amount was entrusted to the respondent as the petitioner's share in her parental properties. Therefore, the petitioner cannot aspire for a decree to recover the said amount from the respondent, as there was no entrustment. 19. Again, relying on the ratio in **Alphonsa** and **Royson Mathew** (supra), we hold that there is no proof to substantiate that an amount of Rs.5,00,000/- **Mat.Appeal.Nos.654/2014 & 670/2014** **14** was given by the petitioner's father to the respondent for their honeymoon trip. Other than for the interested testimony of the petitioner, there is no material on record to substantiate the prayer. Moreover, the petitioner's father, who allegedly entrusted the money, has not been examined to prove the said allegation. In the above situation, we are of the opinion that the Family Court has rightly rejected the petitioner's prayer for return of Rs.5,00,000/also. ## Question No.(iii) 20. With respect to the claim of the petitioner and the child for past maintenance, it is seen that the Family Court had awarded an amount of Rs.8,000/and Rs.5,000/-, respectively, to the petitioner and the child towards future maintenance in MC 273/2012. This Court by its order dated 4.12.2019 in RP(FC) No.248/2014 has confirmed the order in MC 273/2012. In the said circumstances, we are of the **Mat.Appeal.Nos.654/2014 & 670/2014** **15** definite view, based on the very same findings in MC 273/2012, that the the Family Court ought to have granted the petitioner and the child past maintenance at the same rate of Rs.8,000/- and Rs.5,000/- for the period from 16.1.2012 to 16.8.2012 i.e, totalling to an amount of Rs.91,000/-. In the result, the Mat.Appeals are allowed, in part, as follows: (i) Mat.A No.654/2014 is allowed by permitting the appellant/petitioner to take the entire gold ornaments in Locker No.3 of North Malabar Bank, Kuthuparamba Branch. The appellant/petitioner shall produce a copy of this judgment before the Branch Manager, who shall permit the appellant/petitioner to open/break open the locker and take the entire contents in the locker. (ii) Mat.A Appeal No.670/2014 is allowed, in part, by directing the appellants/petitioners and the child an amount of (Rs.8,000+Rs.5,000) Rs.13,000/- for a period of seven months i.e. from 16.1.2012 to 16.8.2012 totalling to an amount of Rs.91,000/-, within one month from today, failing **Mat.Appeal.Nos.654/2014 & 670/2014** **16** which they would be entitled for interest @ 8% per annum from the date of petition till the date of realisation. (iii) In the facts and circumstances of the case, the parties are directed to bear their respective costs. Sd/- **A.MUHAMED MUSTAQUE JUDGE** **Sd/C.S.DIAS, JUDGE** ma/22.02.2021 /True copy/