Kamalamma P., Lekha Bhaskar, and July Sreejith v. Jayamini K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943 MAT.APPEAL NO.800 OF 2011 AGAINST THE ORDER/JUDGMENT IN OP 860/2008 OF FAMILY COURT,** **ALAPPUZHA** ## **APPELLANTS/RESPONDENTS:** 1 KAMALAMMA.P, AGED 72 YEARS, W/O.LATE N.K.BHASKARAN, ERUPATHIL HOUSE,, CHANDANAKKAVU, IRON BRIDGE P.O., ALAPPUZHA-II. 2 LEKHA BHASKAR AGED 49 YEARS D/O.LATE BHASKARAN, ERUPATHIL HOUSE,, CHANDANAKKAVU, IRON BRIDGE P.O., ALAPPUZHA-II. 3 JULY SREEJITH, AGED 43 YEARS D/O.LATE BHASKARAN, RAJBAHAVAN, B.T.S. ROAD,, NEAR CHANGAMPUZHA PARK, EDAPPALLY P.O.,, ERNAKULAM. BY ADVS. SRI.N.J.JOHNSON SRI.P.K.RAVI KRISHNAN ## **RESPONDENT/PETITIONER:** JAYAMINI.K., AGED 41 YEARS, D/O.K.P.NARAYANAN, MANJUSHA, PAZHAVEEDU P.O.,, CHANDNAKKAVU, ALAPPUZHA. BY ADV SRI.S.SANAL KUMAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal No.800 of 2011 2 # **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** ------------------------------------ Mart. Appeal No.800 of 2011 ------------------------------------ Dated this the 17[th] day of January, 2022 ## **J U D G M E N T** ## **Sophy Thomas, J.** The respondents in O.P No.860 of 2008 on the file of Family Court, Alappuzha are the appellants herein. The respondent, who is the daughter-in-law of the 1[st] appellant and sister-in-law of other appellants, filed that O.P for recovery of 50 sovereigns of gold ornaments, which she had allegedly entrusted with the husband of the 1[st] appellant, for the marriage of the 3[rd] appellant. The Family Court decreed that O.P directing the appellants to return Rs.4,50,000/- being the value of 50 sovereigns of gold ornaments with 6% interest per annum from the date of O.P till realisation. Aggrieved by the said judgment and decree, the appellants preferred this appeal. 2. The respondent is the wife of one Mr.Sreejith, who is the son of the 1[st] appellant and brother of appellants 2 and 3. The marriage between the respondent and Mr.Sreejith was solemnised Mat.Appeal No.800 of 2011 3 on 09.04.2000. At the time of marriage, 50 sovereigns of gold ornaments were given from her family. On 16.04.2000, marriage of the 3[rd] appellant was solemnised. Since her father Sri.Bhaskaran was having some financial problems, he asked the respondent to give away her 50 sovereigns of gold ornaments for giving to the 3[rd] appellant for her marriage. Accordingly, the respondent gave her entire 50 sovereigns of gold ornaments to the 3[rd] appellant, on the assurance that the ornaments would be returned within three months. But they did not keep their word. Meanwhile, Sri.Bhaskaran passed away. The appellants ill-treated the respondent, and compelled her to leave her matrimonial home. So, she shifted her residence to a rented house, along with her husband. She issued a lawyer notice asking the appellants to return her gold ornaments. But they were not amenable. So she filed the above O.P for recovery of her 50 sovereigns of gold ornaments or its market value from the appellants. 3. The appellants/respondents contested the case challenging the jurisdiction of the Family Court as well as the alleged entrustment of 50 sovereigns of gold ornaments, pleaded by the respondent. The parties went on trial by examining PWs 1 to 5 and marking Exts.A1 to A3 from the side of 4 Mat.Appeal No.800 of 2011 petitioner/respondent, and examining RWs 1 and 2 and marking Ext.B1 from the side of appellants/respondents. After evaluating the facts and evidence, the Family Court decreed the O.P allowing the petitioner/respondent to recover Rs.4,50,000/- being the value of 50 sovereigns of gold ornaments with 6% interest per annum from the date of petition till realisation from the respondents/appellants jointly. 4. The appellants are assailing the impugned judgment and decree mainly on three grounds; - i) The Family Court had no jurisdiction to entertain O.P No.860 of 2008, as parties to the marriage were - not in the party array. - ii) The respondent/wife was not having 50 sovereigns of gold at the time of marriage. - iii) No gold ornaments were entrusted by the petitioner/respondent with the respondents/ appellants. 5. Now let us have a scrutiny of the available facts and evidence, in the light of the grounds urged by the appellants, to assail the impugned judgment and decree. 6. Learned counsel for the appellants contended that the Mat.Appeal No.800 of 2011 5 husband of the respondent is not in the party array, and there is evidence to show that still they are leading their marital life. Since one of the parties to the marriage has not been joined in the suit, and there is no marital dispute between them, it cannot be said that it is a dispute coming under Section 7(1) of the Family Courts Act. But, the case of the respondent/wife is that, she was given 50 sovereigns of gold ornaments from her family at the time of marriage, and the entire gold ornaments were entrusted with her father-in-law, as he requested the same to conduct the marriage of his daughter, the 3[rd] appellant. So, the receipt of gold ornaments as her paternal share, and entrustment of gold ornaments with her in-laws as a trust, are essentially a 'circumstance arising out of marital relationship' and so, the dispute is squarely coming under explanation (d) to Section 7(1) of the Family Courts Act. ## 7. In _**Leby Issac**_ vs. _**Leena M. Ninan and others**_ reported in 2005 (3) KLT 665, a Division Bench of this Court held that, if a petition is filed before Family Court for an order or injunction 'in circumstances arising out of a marital relationship', such petition is maintainable before the Family Court. The inclusion of the word 'circumstances' in the relevant provision is quite significant and it 6 Mat.Appeal No.800 of 2011 must have been done to include all such circumstances, surrounding, preceding and closely following a marital relationship, i.e. the principal event of marriage and the eventualities surrounding the same. So, there cannot be any dispute with respect to the fact that, the entrustment of gold ornaments received by the bride from her family and entrusted with the in-laws as a trust, is a 'circumstance arising out of a marital relationship' and hence, the O.P is maintainable before the Family Court. 8. Now the next question to be considered is whether the respondent was having 50 sovereigns of gold ornaments at the time of marriage. 9. PW1, the respondent/wife, relied on Ext.A1 marriage certificate to say that she was having 50 sovereigns of gold ornaments at the time of marriage. She admitted that, herself and her husband Sri.Sreejith were classmates and their marriage was a love marriage, though it was subsequently arranged by their families. Ext.A1 marriage certificate is challenged by the appellants as it was not entered in the marriage register kept in book form in SNDP Branch No.710. PW1 gave testimony to the effect that the then Secretary of Alappuzha SNDP registered their 7 Mat.Appeal No.800 of 2011 marriage at Thalassery. PW2, the Secretary of SNDP Branch No.710 deposed that Ext.A1 is not part of the marriage register book maintained in SNDP. But, according to her, when SNDP marriages are conducted in distant places, they used to take separate detachable sheets to register the marriage, and after entering the details in the format, it will be kept compiled in the office. Anyhow, marriage between the respondent and her husband were registered with SNDP, and it shows that the bride was wearing 50 sovereigns of gold ornaments at the time of marriage. That document is seen signed by the father of the bride as well as the bridegroom, and their signature is not disputed by either parties. So, we need not doubt about the genuineness of that document, and we have to go by the entry in that register, to hold that the bride was wearing 50 sovereigns of gold ornaments at the time of marriage. 10. The next question to be considered is whether 50 sovereigns of gold ornaments, which the bride was wearing at the time of marriage, was entrusted with the appellants. PW1, the wife, would say that her marriage was on 09.04.2000. On 16.04.2000, the marriage of the 3[rd] appellant was solemnised. According to her, since father of the 3[rd] appellant Sri.Bhaskaran Mat.Appeal No.800 of 2011 8 had some financial problems, he requested her, two days prior to the marriage of his daughter, to hand over her entire 50 sovereigns of gold ornaments for the marriage of the 3[rd] appellant, assuring that it would be returned within three months. Curiously enough, her husband was not a witness to that transaction. Her case is that her husband was working in a construction company and often he was outside Kerala. But it is to be noted that, if Sri.Bhaskaran demanded her gold ornaments two days prior to the marriage of the 3[rd] appellant, it might have been on 14.04.2000. It was the 6[th] day of marriage of the respondent with Mr.Sreejith. In all probability, on the 6[th] day of marriage, Mr.Sreejith might not have gone out of station in connection with his construction work especially when two days after that, marriage of his sister was going to happen. Moreover, when a newly married lady was asked to give her entire gold ornaments for the marriage of her sister-inlaw, definitely, there might have been some discussion with her parents or at least with her husband. 11. It is quite strange that on the 6[th] day of marriage, the respondent gave her entire gold ornaments to her father-in-law, for the marriage of her sister-in-law. The respondent was not able to say the details of the gold ornaments entrusted with Mat.Appeal No.800 of 2011 9 Sri.Bhaskaran when she was cross examined by the appellants. Though her case is that the gold ornaments were entrusted with Sri.Bhaskaran on the 6[th] day of her marriage, on the assurance that it would be returned within three months, there is nothing to show that she demanded her gold ornaments from Sri.Bhaskaran, till his death in the year 2001. She sent Ext.A2 lawyer notice to the appellants only on 02.07.2008 and filed the O.P on 26.08.2008. She admitted before court that, in consultation with her husband and with his consent, she filed the O.P. 12. PW3 and PW4 are the relatives of husband of the respondent. PW3 would say that the respondent was having 60 sovereigns of gold ornaments at the time of marriage. Even the respondent had no such case in her pleadings or evidence. Moreover, he would say that Sri.Bhaskaran had agreed to return the gold by selling away his property. The respondent had no such case in her pleadings. It has come out in evidence that PWs 3 and 4 are not in good terms with the appellants after the death of Sri.Bhaskaran. PW5 is a friend of the husband of the respondent. He also deposed about the mediation talk for giving back the gold ornaments of the respondent. The testimony of PWs 3 to 5 will clearly show that they are very close to the 10 Mat.Appeal No.800 of 2011 respondent and her husband and they are not in good terms with the appellants. RW1, the 3[rd] appellant, also stated that PWs 3 and 4 are not in good terms with them. So, their testimony is not inspiring our confidence. 13. According to PW1, the 3[rd] appellant was given 100 sovereigns of gold ornaments at the time of marriage, out of which, she claims that 50 sovereigns were given by her. RW2 is the husband of RW1. He would say that RW1 was having only 71 sovereigns of gold ornaments at the time of marriage. PW1 could have called for the wedding photographs of the 3[rd] appellant, to have a comparison with the wedding photographs of the respondent, to show that the ornaments are one and the same. But that was not attempted to by the respondent. 14. At the time of marriage of the 3[rd] appellant, PW1 was wearing 15 sovereigns of gold ornaments as admitted by her during cross examination. According to her, she had received 15 sovereigns of gold ornaments as gift from relatives at the time of marriage. She had no such case in her pleadings. If her entire gold ornaments were received by her father-in-law, there might not have been any balance ornaments with her, to attend the marriage of the 3[rd] appellant, that too, on the 7[th] day of her Mat.Appeal No.800 of 2011 11 marriage. Only to cover up that situation, she has improved her case saying that she was wearing 15 sovereigns of gold ornaments which she obtained as wedding gifts from relatives. There is nothing to show that apart from 50 sovereigns of gold ornaments mentioned in Ext.A1, she was having any other gold ornaments with her when she reached her matrimonial home, or even thereafter. If she is admitting that she was wearing 15 sovereigns of gold ornaments at the time of marriage of the 3[rd] appellant, it will go against her case that, her entire gold ornaments were received by her father-in-law, two days prior to the marriage of the 3[rd] appellant, as there is nothing to prove gifting of gold ornaments to the respondent by her relatives, at the time of marriage or thereafter. 15. Though the pleadings of the respondent is to the effect that, her 50 sovereigns of gold ornaments were received by her father-in-law, during cross examination, she would say that the ornaments were entrusted with the 1[st] appellant-mother-in law. Except the testimony of PW1, there is nothing to prove the entrustment of gold ornaments either with Sri.Bhaskaran or with the 1[st] appellant. The best witness, her husband did not come forward, to support her case. Mat.Appeal No.800 of 2011 12 16. It has come out in evidence that there is a criminal case registered against the respondent for assaulting appellants 1 and 2. There was criminal case filed by the respondent against the appellants also. Learned counsel for the appellants produced copy of judgment in CC No.398 of 2011 of Judicial First Class Magistrate Court-II, Alappuzha, in which the appellants herein were the accused and the respondent herein was the de facto complainant, alleging offences punishable under Sections 420 and 498A read with Section 34 of IPC. The appellants were found not guilty of the offences alleged, and they were acquitted. 17. The husband of the respondent, who is the son of the 1[st] appellant and brother of appellants 2 and 3, is behind the curtain, and he has not come forward either to support the appellants or the respondent. The respondent would say that, she filed the suit in consultation with her husband, and on getting his consent. The gold ornaments of the respondent was allegedly received by the father-in-law on 14.04.2000. The father-in-law died in the year 2001. There is nothing to show that till 2008, the respondent made any demand for her gold ornaments. The judgment in CC No.398 of 2011 mentions about sale of the property of Sri.Bhaskaran after his death, in which the husband of Mat.Appeal No.800 of 2011 13 the respondent also was a party. The respondent had no case that Sri.Bhaskaran had agreed to return her gold ornaments, after selling away his property. But PWs 3 and 4 gave evidence to the effect that the gold ornaments of the respondent were agreed to be returned after selling away the property of Sri.Bhaskaran. So, in all probability, the husband of the respondent, dissatisfied with the disposal of the property or dissatisfied with his share, might have made his wife instrumental for filing the O.P, he himself remaining behind the curtain, as if he had no information about the transaction alleged by his wife. 18. On going through the entire facts and evidence, we are not convinced about the entrustment of 50 sovereigns of gold ornaments alleged by the respondent, either with late Bhaskaran or with the appellants. So, the impugned judgment and decree of the Family Court, Alappuzha is liable to be set aside. In the result, this Mat.Appeal is allowed setting aside the impugned judgment and decree. The parties shall suffer their respective costs. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- ## **SOPHY THOMAS JUDGE** smp