Nicy Joseph v. Shijo, Annakkutty and Simi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943 MAT.APPEAL NO. 761 OF 2014** **AGAINST THE ORDER IN OP 188/2012 OF FAMILY COURT,** ## **THODUPUZHA, IDUKKI** ## **APPELLANTS/RESPONDENTS 1, 3 & 4:** 1 SHIJO, AGED 38 YEARS S/O.THOMAS, EMBARAYIL HOUSE, VETTIMATTAM KARA, ALAKODE VILLAGE, THODUPUZHA TALUK, IDUKKI DIST 2 ANNAKUTTY, AGED 78 YEARS W/O.THOMAS, EMBARAYIL HOUSE, VETTIMATTAM KARA, ALAKODE VILLAGE, THODUPUZHA TALUK, IDUKKI DIST 3 SIMI, D/O.JAIMON, MANNARMATTATHIL HOUSE,KURICHITHANAM KARA, VAZHOOR KARA, VAZHOOR VILLAGE, KOTTAYAM DIST BY ADV SRI.LATHEESH SEBASTIAN ## **RESPONDENT/PETITIONER:** NICY JOSEPH, D/O.JOSEPH, AGED 36 YEARS, CHEMBAKASSERY HOUSE, KAKKOMBU KARA, MUTTOM VILLAGE, THODUPUZHA TALUK BY ADVS.SRI. JOHNSON JOSEPH SRI.N.M.MOHAMMED AYUB THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2021, THE COURT ON 6.10.2021 DELIVERED THE FOLLOWING: Mat.Appeal NO.761/2014 -:2:- J U D G M E N T Dated this the 6[th ] day of October, 2021 ## Kauser Edappagath, J. This is an appeal filed u/s 19 of the Family Courts Act, 1984 against the order of the Family Court, Thodupuzha (for short, 'the court below') in OP No.188/2012 dated 29[th] May, 2014. 2. The respondents at the court below are the appellants. The petitioner is the respondent. The parties are referred to as shown in the original petition unless otherwise stated. 3. The original petition was one for recovery of gold ornaments, money and movable properties. 4. The petitioner is the wife of the 1[st] respondent. The second and third respondents are the parents of the 1[st] respondent. The 2[nd] respondent died during the pendency of the proceedings. The 4[th] respondent, who is the sister of the 1[st] respondent, was impleaded as the legal heir of the deceased 2[nd] respondent. The marriage between the petitioner and the 1[st] respondent was solemnized on 14/9/2000 as per Christian Mat.Appeal NO.761/2014 -:3:- religious rites and ceremonies. A male child was born in the wedlock on 15/8/2001. It is alleged that on the date of engagement, the father of the petitioner entrusted `1,00,000/- to the respondents 1 to 3 as patrimony and they received the said amount as trustees. It is further alleged that at the time of marriage, the parents of the petitioner gave 34 sovereigns of gold ornaments to the petitioner and the same were entrusted to respondents 1 to 3 who misappropriated the same. Those gold ornaments have been described in Schedule A of the petition. It is further alleged that after the birth of the child, the father of the petitioner gave 6 sovereigns of gold ornaments to the child which was also later taken away by the respondents and misappropriated the same. Those gold ornaments have been shown in Schedule B of the petition. It is also alleged that, after the marriage, father of the petitioner gave a wooden almirah, wooden cot, mixie, rice cooker and other utensils to the respondents 1 to 3. Those movable properties have been shown in Schedule C of the petition. The original petition has been instituted for return of money, gold ornaments and the movables Mat.Appeal NO.761/2014 -:4:- mentioned above. 5. The respondents 1 to 3 entered appearance and filed objection statement. The respondent No.4 was set _ex parte_ . The respondents 1 to 3 denied the case set up by the petitioner that gold, money and movables were entrusted to them as trustees and they misappropriated the same. It is contended that at the time of marriage, the petitioner was having only 6 sovereigns of gold ornaments and the remaining ornaments she wore at the time of marriage were imitation rold gold. According to respondents 1 to 3, the 6 sovereigns of gold ornaments which the petitioner was having is still with her. The respondents sought for the dismissal of the petition. 6. The parties went on trial. The petitioner was examined as PW1 and her father was examined as PW2. Exts.A1 and A2 series were marked on the side of the petitioner. The first respondent was examined as RW1. Exts.B1 to B3 were marked on the side of the respondents. After trial, the court below allowed the petition as prayed for vide the impugned order. The respondents 1, 3 and 4 have preferred this appeal challenging the Mat.Appeal NO.761/2014 -:5:- said order. 7. We have heard the learned counsel for the appellants as well as the respondent. 8. As stated already, there are three claims; (1) return of money, (2) return of gold ornaments and (3) return of movable properties. We will first consider the claim for return of money. The definite case of the petitioner is that on the date of engagement, PW2 entrusted to the respondents 1 to 3 `1,00,000/- as patrimony and they received the said amount as trustees of the petitioner. To prove the same, the petitioner relies on her own oral testimony as well as the oral testimony of her father, PW2. Both PW1 and PW2 gave positive evidence regarding the entrustment of `1,00,000/- to the respondents 1 to 3 on the date of the engagement. Even though PW1 and PW2 were crossexamined at length in this regard, nothing tangible has been extracted from their evidence to discredit their testimony. The Division Bench of this Court in _**Bexy Michael v. A.J.Michael**_ [2010 (4) KHC 376] took judicial notice of the practice among Christians and held that it is a known practice among Christians Mat.Appeal NO.761/2014 -:6:- that properties/money is exchanged at the time of marriage from the parents of the bride to the parents of the groom. It was further held that the oral evidence could be relied on to prove the said fact. We see no reason to disbelieve the oral testimony rendered by PW1 and PW2 regarding the entrustment of `1,00,000/- to respondents 1 to 3. Hence, we confirm the finding of the court below regarding the same. 9. In so far as the claim regarding C Schedule movables is concerned, there is clear pleading as well as evidence on record. PW1 and PW2 clearly gave evidence that movables described in the C Schedule were given to respondents 1 to 3. The respondents have admitted the receipt of one almirah as well. We find no reason to disbelieve the oral testimony given by PW1 and PW2 in this regard and hence we confirm the finding of the court below in this regard as well. 10. The third claim is regarding return of gold ornaments. The burden squarely rests on the petitioner to prove the claim for return of gold ornaments satisfactorily. True, the oral evidence of the wife could be relied on if it is found to be credible and Mat.Appeal NO.761/2014 -:7:- trustworthy. The court below relied on the oral testimony of PW1 and PW2 and allowed the claim. But, on perusal of pleadings and the evidence given by PW1 and PW2, we are of the view that the petitioner did not have a consistent case regarding the entrustment and misappropriation of gold ornaments and failed to discharge the burden cast on her. 11. As stated already, the case set up by the petitioner is that her father gave 34 sovereigns of gold ornaments at the time of her marriage which she wore on the date of marriage and her father also gave another 6 sovereigns of gold ornaments to her child after the birth of the child on 15/8/2001. PW1 during crossexamination stated that the 34 sovereigns of gold ornaments were purchased from Alappatt Fashion Jewellery, Ernakulam and the bill was entrusted to the 1[st] respondent. Again she stated in cross-examination that 6 sovereigns of gold ornaments were purchased from Velliyeppally Jewellers, Pala and the bill was kept in her home. PW2 in chief examination stated that the 34 sovereigns of gold ornaments were purchased from Alappatt Fashion Jewellery, Ernakulam, that the first respondent was Mat.Appeal NO.761/2014 -:8:- present at that time and the estimate for purchase of the gold ornaments was entrusted to the 1[st] respondent. Thus, it has come out in evidence that all the gold ornaments were purchased from the jewellery and the bills were also issued. An explanation has been offered by the petitioner for non production of the bill that it is with the first respondent. But it is pertinent to note that the said explanation offered is not supported by pleadings. There is no pleading in the original petition that at the time of purchase of the gold ornaments, the first respondent was present and the bill was entrusted to him. Admittedly the gold ornaments purchased were taken by the petitioner and her father from the jewellery. It is quite difficult to believe that the bill alone was entrusted with the first respondent. The court below also relied on Ext.A1 series photographs. It is true that Ext.A1 series photographs would show that the petitioner was wearing ornaments at the time of marriage. The definite case of the respondents is that except 6 sovereigns of gold ornaments, the rest of them were imitation gold. It is not possible to find out from the photographs whether the entire gold ornaments worn by the Mat.Appeal NO.761/2014 ## -:9:- petitioner were pure gold or not. 12. In so far as the entrustment and alleged misappropriation of the gold ornaments are concerned, the petitioner does not have a consistent case at all. In paragraph 3 of the original petition, it is pleaded that on the next day of the marriage, the first respondent told the petitioner that there was frequent trouble of thieves and it was not safe for her to wear the gold ornaments and he insisted to entrust the gold ornaments with the 2[nd] and 3[rd] respondents and accordingly she entrusted those gold ornaments with the 2[nd] and 3[rd] respondents. In paragraph 4, it is pleaded that the first respondent many times demanded the petitioner to give her gold ornaments for pledging with a view to raise fund for his lavish life and whenever the petitioner objected the first respondent's demand, he abused her in filthy language and forcibly took away the gold ornaments. When RW1 was examined, the suggestion put forward to him by the counsel for the petitioner was that the gold ornaments were forcibly taken by the respondents 2 and 3 for the purpose of the marriage of the sister of the 1[st] respondent. Thus, the petitioner Mat.Appeal NO.761/2014 -:10:- has three different stories to tell about the alleged misappropriation of gold ornaments. That apart, PW1 in crossexamination stated that the gold ornaments were kept in an almirah at the house of the 1[st] respondent and the key was with the 1[st] respondent and that on the 3[rd] day after the marriage, the entire gold ornaments were taken away by the respondents. In cross-examination, at a later point of time, she stated that all the gold ornaments were taken by the year 2002. This inconsistent versions of the petitioner in the pleadings as well as in the evidence create doubt as to the genuineness of the claim of the petitioner. However, RW1 has admitted in evidence that the petitioner was given 6 sovereigns of gold ornaments at the time of marriage. We are of the view that the petitioner is entitled to get back the said 6 sovereigns of ornaments alone inasmuch as there is no proof for the entrustment of the remaining sovereigns of gold ornaments. Thus, the finding of the court below regarding the return of gold ornaments is liable to be interfered with to that extent. Since the petitioner does not have a case that the money, gold ornaments and movables were entrusted to the 4[th] Mat.Appeal NO.761/2014 -:11:- respondent, no relief can be granted against her. In the light of the above findings, we set aside the relief granted by the court below to return 40 sovereigns of gold ornaments or its equivalent value. Instead, we direct respondents 1 and 3 to return 6 sovereigns of gold ornaments or its equivalent value of `1,35,450/- (Rupees One lakh thirty five thousand four hundred and fifty only). The rest of the reliefs granted are confirmed. The appeal is allowed in part as indicated above. No costs. Sd/- ## **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** Rp