## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
## **&**
**THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH**
**FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942**
**Mat.Appeal.No.508 OF 2014**
## **AGAINST THE ORDER IN OP 82/1999 DATED 25-01-2014 OF FAMILY COURT,THRISSUR**
## **APPELLANTS/PETITIONERS:**
**1 USHA AGED 44 YEARS D/O.AUGUSTIN K.P., KALATHIPARAMBIL HOUSE, ANAPPARA DESOM, RAMAVARMAPURAM P.O., VILVATTOM VILLAGE, THRISSUR TALUK AND DISTRICT. 2 MINOR ANTHONY AGED 17 YEARS S/O.1ST PETITIONER AND RESPONDENT. 3 MINOR SHIMSY AGED 16 YEARS D/O.1ST PETITIONER AND RESPONDENT. (MINORS REPRESENTED BY THEIR MOTHER AND GUARDIAN 1ST PETITIONER USHA).**
**BY ADV. SRI.V.C.MADHAVANKUTTY**
## **RESPONDENT/RESPONDENT:**
**JOSE AGED 48 YEARS S/O.KARUTHUKULANGARA ANTHONEY, KARAMUCK VILLAGE, KANDASSANGADAVU P.O., THRISSUR TALUK AND DISTRICT-680001.**
## **R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, ALONG WITH Mat.Appeal.548/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
Mat.Appeal Nos.508 & 548/2014
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
## **&**
**THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH**
**FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942**
## **Mat.Appeal.No.548 OF 2014**
**AGAINST THE ORDER IN OP 82/1999 DATED 25-01-2014 OF FAMILY COURT,THRISSUR**
## **APPELLANT/RESPONDENT:**
**JOSE S/O. ANTONY, KARUTHUKULANGARA HOUSE, KARAMUCK VILLAGE, KANDASSANKADAVU P.O., THRISSUR DISTRICT.**
## **BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENTS/PETITIONERS:**
**1 USHA D/O. AUGUSTIN K.P., KALATHIPARAMBIL HOUSE, ANAPPARA DESOM, RAMAVARMAPURAM P.O., VILVATTOM VILLAGE, THRISSUR DISTRICT. 2 ANTONY MINOR REPRESENTED BY THE NEXT FRIEND AND GUARDIAN, S/O. USHA, KALATHIPARAMBIL HOUSE, ANAPPARA DESOM, RAMAVARMAPURAM P.O., VILVATTOM VILLAGE, THRISSUR DISTRICT.**
**3 SHIMSY MINOR REPRESENTED BY THE NEXT FRIEND AND GUARDIAN D/O. USHA, KALATHIPARAMBIL HOUSE, ANAPPARA DESOM, RAMAVARMAPURAM P.O., VILVATTOM VILLAGE, THRISSUR DISTRICT.**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, ALONG WITH Mat.Appeal.508/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
Mat.Appeal Nos.508 & 548/2014
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J U D G M E N T
Dated this the 19[th] day of March, 2021
## A.Muhamed Mustaque,J.
These appeals arise from the order in OP No.82/1999 on the file of the Family Court, Thrissur. The appellants in Mat.Appeal No.508/2014 instituted OP No.82/1999 for return of gold ornaments and recovery of the value of immovable property. The Family Court granted a decree in favour of the appellants in Mat.Appeal No.508/14 to recover `92,750/- along with 6% interest for the value of the gold ornaments from the date of petition till realisation. The appellants in Mat.Appeal No.508/2014 have come up with this appeal as she was not granted amount equivalent to the current value of the gold. The same decree is under challenge in Mat.Appeal No.548/2014, aggrieved by the grant of relief to the appellants in Mat.Appeal No.508/2014. Though notice was not served on respondents in Mat.Appeal No.548/2014, since it was tagged along with Mat.Appeal No.508/2014, we requested Sri.V.C.Madhavankutty, learned counsel for the appellants in Mat.Appeal No.508/2014 to take notice
Mat.Appeal Nos.508 & 548/2014
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for the respondents in Mat.Appeal No.548/2014. Learned counsel readily accepted our request.
2. As far as the case of the appellants in Mat.Appeal No.508/2014 is concerned, it is covered against them by the Division Bench judgment of this Court in Thomas M.Varghese and Another v. Sonia Susan Thomas [2014 (3) KHC 500] wherein this court held that the wife seeking return of gold ornaments cannot claim the value as on the date of actual return. The relief was granted to the appellants in accordance with the assessment of the gold value claimed in the petition itself. We, therefore, are of the view that the appeal is to be dismissed as it is covered by the judgment in Thomas M. Varghese's case (supra).
3. OP No.82/1999 has a chequered history. The claim for return of gold ornaments was turned down by the Family Court as per its order in OP No.82/1999 dated 2/6/2010. That was challenged before this court by the appellants in Mat.Appeal No.508/2014, in Mat.Appeal No.856/2010 and this court by judgment dated 31/5/2013 remanded the matter back for fresh consideration.
4. One factor which this court directed the Family Court to analyse is with regard to the purchase
Mat.Appeal Nos.508 & 548/2014
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of immovable property by the appellant in Mat.Appeal No.548/2014. After the marriage, he acquired the immovable property. According to Smt.Usha, who is the 1[st] appellant in Mat.Appeal No.508/2014, Jose, the appellant in Mat.Appeal No.548/2014, has acquired the property by utilizing the gold ornaments belonging to her. The entire issue appears to have been centered around on this aspect after the remand.
5. There was certain dispute in regard to the gold ornaments adorned by Usha. But, Jose admitted that she had adorned some gold ornaments while in crossexamination. It has come out in evidence that Jose acquired 6 cents. He was a coolie worker and was only earning `100-`150 per day. He also constructed a house. He tried to bring in evidence in regard to the source of income by producing Ext.B1. Ext.B1 is a deed relinquishing his right over tharavadu property. That would show that he had only obtained `4,000/- by way of relinquishment. The land value of 6 cents of property appears to be `30,000/-. He has also constructed a house. This was taken as evidence to show that during matrimonial relationship, Jose has utilized the gold ornaments belonging to Usha.
Mat.Appeal Nos.508 & 548/2014
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6. Learned counsel appearing for Jose placing reliance on the judgment of this Court in Mohammedali v. Rahiyanath and Another [2015 KHC 820] argued that Family Court arrived at the conclusion regarding the quantity of gold ornaments by referring to the photographs and this court in Mohammedali's case (supra) deprecated such practice of ordering return of gold ornaments merely looking at photographs. Here in this case, Family Court relied not only on the photographs, but also on the admission of Jose in regard to the gold ornaments. RW1 has admitted that Usha adorned about nearly 10 sovereigns of gold ornaments at the time of marriage. Family Court on perusal of photographs came to the conclusion that the total sovereigns amount to 26½ as claimed by Usha. RW1 admitted that those photographs are relating to his marriage. We cannot find any reason to hold that such claim of Usha is an exaggerated claim for return of gold ornaments. Jose was unable to explain or give evidence as to the actual quantity of gold ornaments adorned by Usha at the time of marriage. He pretended ignorance. It is only when he was cross-examined, he admitted that the photographs are relating to his marriage and that most of those ornaments adorned by
Mat.Appeal Nos.508 & 548/2014
## -:7:-
Usha were gold.
7. On an analysis of the pleadings and evidence, Family Court came to the conclusion that in the absence of any proof regarding source of income to purchase the land and construction of the house, the only possible conclusion that could have been arrived at is that Jose might have constructed the house by utilizing the gold ornaments belonging to Usha. In fact, this court while remanding the matter specifically directed the Family Court to analyse the aspect in this regard. Therefore, we are of the view that the finding as such in regard to the quantity of gold ornaments and misappropriation is based on evidence. We therefore affirm the order of the Family Court.
Mat.Appeal Nos.508/2014 and 548/2014 are hence dismissed. No costs.
## **Sd/-**
## **A.MUHAMED MUSTAQUE**
**JUDGE Sd/-**
## **DR. KAUSER EDAPPAGATH**
Rp
## **JUDGE**
Mat.Appeal Nos.508 & 548/2014
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## **APPENDIX IN MAT.APPEAL IN 548/2014.**
**APPELLANT'S EXHIBITS:**
**ANNEXURE A1**
**TRUE COPY OF HTE ORDER IN OP NO.82/1999 PASSED BY THE FAMILY COURT, THRISSUR DATED 2.6.2010.**
**ANNEXURE A2**
**TRUE COPY OF THE JUDGMENT IN MAT.APPEAL NO.856/2010 PASSED BY THIS HONOURABLE COURT DATED 31.5.2013.**
True Copy
PS to Judge
Rp
