Mat.Appeal Nos.473 of 2014 & 416 of 2019 (PRADEEP v RAJITHA & ORS; VASANTHI v RAJITHA & ORS) - High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** **Mat.Appeal.No.473 OF 2014** ## **AGAINST THE JUDGMENT IN OP 773/2007 DATED 12-12-2012 OF FAMILY COURT,THRISSUR** ## **APPELLANT/1ST RESPONDENT:** **PRADEEP, AGED 51 YEARS, S/O.MENOTH PARAMBIL BALAN, MANAKKODI DESOM & VILLAGE, THRISSUR TALUK - 680 017.** **BY ADVS. SRI.K.SHRIHARI RAO SRI.S.K.MADHU** ## **RESPONDENTS/PETITIONER/3RD RESSPONDENT:** **1 RAJITHA, AGED 45 YEARS, D/O.PILLATTIL VELUKUTTY, THOLOOR DESOM & VILLAGE, THRISSUR THALUK - 680 552. 2 VASANTHI, AGED 62 YEARS, W/O.MENOTH PARAMBIL BALAN, MANAKKODI DESOM & VILLAGE, THRISSUR TALUK - 680 017.** **R1 BY ADV. SRI.BENOJ C AUGUSTIN R1 BY ADV. SMT.J.KASTHURI R1 BY ADV. SRI.NAGARAJ NARAYANAN R1 BY ADV. SRI.PRATHAP PILLAI R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.SEBIN THOMAS R1 BY ADV. SRI.VIVEK V. KANNANKERI R1 BY ADV. SRI.VISHNU BHUVANENDRAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2020, ALONG WITH Mat.Appeal.416/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.A.Nos.473/2014 & 416/2019 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 06TH DAY OF MARCH 2020 / 16TH PHALGUNA, 1941** **Mat.Appeal.No.416 OF 2019** **AGAINST THE JUDGMENT IN OP 773/2007 DATED 12-12-2012 OF FAMILY COURT,THRISSUR** ## **APPELLANT/RESPONDENT NO.3 IN I.A. AND OP:** **VASANTHI, AGED 67 YEARS, W/O. MENOTH PARAMBIL BALAN, MANAKKODI DESOM AND VILLAGE, THRISSUR DISTRICT - 680017** **BY ADVS. SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.S.K.MADHU SRI.M.C.MONY** ## **RESPONDENTS/PETITIONER AND 1ST RESPONDENT IN I.A AND OP:** - **1 RAJITHA, AGED 50 YEARS, D/O. PALLATHIL VELUKUTTY, THOLOOR DESOM AND VILLAGE, THRISSUR DISTRICT - 680 552** **2 PRADEEP, AGED 56 YEARS, S/O. MENOTH PARAMBIL BALAN, MANAKKODI DESOM AND VILLAGE, THRISSUR TALUK AND DISTRICT - 680017** **R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.BENOJ C AUGUSTIN R1 BY ADV. SRI.RAFEEK. V.K.** ## **Mat.A.Nos.473/2014 & 416/2019 3** **R1 BY ADV. SRI.U.M.HASSAN R1 BY ADV. SMT.P.PARVATHY R1 BY ADV. SMT.SURYA P SHAJI R2 BY ADV. SRI.S.K.MADHU** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.03.2020, ALONG WITH Mat.Appeal.473/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.A.Nos.473/2014 & 416/2019 4** ## **JUDGMENT** ## **Dated this the 6th day of March 2020** ## _**Shaffique, J**_ These two appeals have been filed against the judgment in O.P.No.773 of 2007 delivered on 12.12.2012. In the decree passed by the Family Court, the liability has been fastened only on the respondent. An application for amendment was filed as I.A.No.2741 of 2014, which was allowed by the Family Court and accordingly the judgment was directed to be corrected and instead of the word ‘respondent’, the Family Court has permitted correction of the same as 'respondents'. Hence Mat Appeal No.416 of 2019 has been filed by the third respondent challenging the said order as well. 2. The Original Petition has been filed by the first respondent in Mat Appeal No.473 of 2014 seeking return of gold ornaments and money. The ## **Mat.A.Nos.473/2014 & 416/2019 5** marriage between the couple was solemnized on 16.01.1992 and two children were born in the wedlock. On account of matrimonial issues, they separated in the year 2006. The contention urged by the petitioner/wife was that, at the time of marriage, she was adorned with 90 sovereigns of gold ornaments and Rupees one lakh was paid as her parental share. The gold ornaments and money were entrusted with the respondents, namely her husband and his parents, but it was not returned. Hence she claimed the same before the Family Court. The respondents denied the allegations. According to them, the wife’s family did not have the source to acquire 90 sovereigns of gold ornaments or to pay Rupees one lakh. They denied having been entrusted with gold ornaments and also Rs.1 lakh. According to them, the claim is absolutely baseless. 3. Before the Family Court, the petitioner was examined as PW1 and the respondent as RW1. Exts.A1 ## **Mat.A.Nos.473/2014 & 416/2019 6** and A2 series and B1 and B2 are the documents relied upon by both the parties. The Family Court after considering the evidence, granted a decree for return of 50 sovereigns of gold ornaments or its value at the rate of Rs.6500/- per sovereign with future interest. 4. Learned counsel for the appellant in Mat. Appeal No.473 of 2014 while impugning the aforesaid judgment, contended that there is no evidence to prove that the petitioner/wife had 90 sovereigns of gold ornaments and also that Rs.1 lakh was given as parental share at the time of marriage. According to the respondents, the petitioner’s family did not have the source to acquire 90 sovereigns of gold ornaments or to pay the amount. That apart, there is no evidence to prove the alleged entrustment. Learned counsel for the appellant also placed reliance on the judgment of this Court in _**Alphonsa v. Neetha (2019 (4) KLT 846)**_ and _**Bhaskaran v. Radha**_ ## **Mat.A.Nos.473/2014 & 416/2019 7** _**(2019 (3) KLT 584)**_ . On the other hand, the learned counsel appearing for the petitioner/wife placed reliance on Ext.A2 series letters and contended that the said letters written by the first respondent to the petitioner clearly proves the fact that her gold ornaments were entrusted to the husband’s family. 5. The controversy involves around the question regarding the gold ornaments the bride was wearing at the time of marriage. The Family Court found that there is no evidence to prove that she was having 90 sovereigns of gold ornaments, which finding appears to be correct. The petitioner alone had been examined as PW1. Though she had stated in her evidence that the gold ornaments were acquired from her relatives' jewellery shop, no other evidence was forthcoming to corroborate her testimony. She had only produced the photograph as Ext.A1. The photograph, of course indicates that ## **Mat.A.Nos.473/2014 & 416/2019 8** she was wearing some ornaments. But from the photograph, it may not be possible for us to arrive at a conclusion, as to how much gold ornaments she was wearing at the relevant time. The respondents do not have a specific case as to the gold ornaments the bride was wearing at the time of marriage. Their contention was that the wife’s family did not have the source to acquire so much gold ornaments. But from the photograph produced as Ext.A1, it is rather clear that she was wearing some gold ornaments. What exactly was the quantity of gold ornaments cannot be discerned from the said photograph. Therefore, the contention of the respondents that they were not aware of the quantity of the gold ornaments the bride was wearing, cannot be believed. It is quite normal in our society that when a girl is given in marriage, the family members will be told about the quantity of gold ornaments the bride will be wearing at the ## **Mat.A.Nos.473/2014 & 416/2019 9** time of marriage or the parental share that is given to the girl. To plead total ignorance about the quantity of gold ornaments is something which cannot be believed. But still, this is a case in which the respondents took up a contention regarding the source of the petitioner’s family to acquire the gold ornaments. No evidence has been adduced to prove their source. Of course, the couple was living together for more than 14 years and sufficient evidence may not be available. Still some witness ought to have been examined to prove acquisition of so much quantity of gold ornaments. Therefore, we have no hesitation to hold that the bride was having some gold ornaments, the quantity of which cannot be discerned from the photograph. But the Family Court observed that, in the absence of any such evidence, 50 sovereigns could be taken as a reasonable quantity of gold ornaments that the bride was having at the relevant ## **Mat.A.Nos.473/2014 & 416/2019 10** time. 6. The next contention urged by the appellant is that there is no evidence for entrustment. The petitioner had produced Ext.A2 series letters. Ext.A2 is the letter written in an inland letter. It is dated 24.12.1993. The seals also would indicate that the letter had been sent from Parambur to Thrissur in the year 1993. The first respondent while being examined as RW1 denied that he had sent such letter. He also denied his handwriting. But this letter is sent to none other than the petitioner and perusal of the letter would indicate that it is sent by her husband. Though he denied his handwriting, on a bare perusal of the letter and other letters produced by the petitioner would indicate that the letters have been issued by none other than her husband. His signature in other letters is similar to the signature as seen in Ext.A2(a). In Ext.A2(a), he had stated that he does ## **Mat.A.Nos.473/2014 & 416/2019 11** not want any of her gold ornaments and that he is not interested in the same and his only aim in life is to take back all her gold ornaments from his father and mother and hand over to her. From this letter, it is rather clear that there was an entrustment of his wife’s gold ornaments to his parents. Further during evidence, while being examined as PW1, she stated that she had demanded her gold ornaments during her cousin’s marriage and she did not get it back. She had made complaints to the family members, but the gold ornaments were not returned. Probably, Ext.A2(a) had been written when she made a demand for her gold ornaments. From the aforesaid evidence, it is rather clear that the gold ornaments belonging to the respondent had been entrusted to his parents, for which he is also responsible. He had offered to collect it and give it back. He having denied even the letter and when the Family Court had taken cognizance of the said ## **Mat.A.Nos.473/2014 & 416/2019 12** letter and had arrived at a finding that the letter had been written by the first respondent, we do not find any error being committed by the family court in arriving at such a finding. In the light of the aforesaid facts and circumstances, it is rather clear that the appellant/petitioner was having some gold ornaments and it was entrusted to the respondents. 7. Now the only question is as to what would be the quantity of the gold ornaments so entrusted. The Family Court arrived at a conclusion that it was 50 sovereigns. There is no material to arrive at such a conclusion. Taking into account the fact that she was having some gold ornaments and that it was entrusted to the respondents, and especially when no evidence had been adduced to prove the source of income or acquiring gold ornaments, we feel it appropriate to modify the decree by reducing the quantum of gold ornaments to 25 ## **Mat.A.Nos.473/2014 & 416/2019 13** sovereigns. In the result, Mat Appeal No.473 of 2014 is partly allowed. The decree granted by the court below shall stand modified as under: (i) Instead of the direction to return 50 sovereigns of gold ornaments, the respondents shall return 25 sovereigns or its equivalent value as on the date of decree of the Family Court, that is 12.12.2012. (ii) The gold ornaments are to be returned within a period of one month from the date of receipt or production of a copy of this judgment, failing which, the equivalent value will carry interest at the rate of 6% per annum from the date of decree till reaslisation. In all other respects, the decree shall stand confirmed. **==> picture [432 x 13] intentionally omitted <==** concerned there is no reason to interfere with the trial court judgment, especially in the light of ## **Mat.A.Nos.473/2014 & 416/2019 14** the above said findings. The Family Court had corrected the judgment to make all the respondents liable for the same. Mat Appeal No.416 of 2019 is hence dismissed. sd/- ## **A.M.SHAFFIQUE** ## **JUDGE** sd/- **GOPINATH P. JUDGE** pm **Mat.A.Nos.473/2014 & 416/2019 15** ## **APPENDIX OF Mat.Appeal 416/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE ORDER DATED 12.12.12 IN OP NO.773/2007 ON THE FILE FAMILY COURT, THRISSUR ANNEXURE A2 TRUE COPY OF THE IA NO.2741/14 DATED 19.07.2014 WITH AFFIDAVIT IN OP NO.773/2007 ON THE FILE FAMILY COURT, THRISSUR ANNEXURE A3 TRUE COPY OF THE IA NO.4442/16 WITH AFFIDAVIT DATED 21.09.2016 IN OP NO.773/2007 ON THE FILE OF FAMILY COURT,THRISSUR ANNEXURE A4 TRUE COPY OF THE ORDER DATED 14.02.2017 IN IA NO.4442/16 IN OP NO.773/2007 ON THE FILE OF FAMILY COURT, THRISSUR** **RESPONDENTS EXHIBITS: NIL**