Reena L. v. J. Jayaprakash

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945** ## **MAT.APPEAL NO. 649 OF 2012** **OP 612/2007 OF FAMILY COURT, NEDUMANGAD** ## **APPELLANTS/PETITIONERS** **1 REENA L., D/O.LEELA, D/O.LEELA, POURNAMI, PULLAYIL P.O, KILIMANOOR, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** **2 THEERTHA MINOR DAUGHTER, AGED 7 YEARS, D/O.REENA L, RESDING AT POURNAMI, PULLAYIL P.O, KILIMANOOR, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.M.R.RAJESH SRI.K.M.ALEXANDER** ## **RESPONDENT/RESPONDENT** **J. JAYAPRAKASH S/O.JAYADEVAN, PUTHAN MADOM, AVANAVANCHERI, AATINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.T.K.ANANDA KRISHNAN SMT.JANAKI KRISHNAN A** ## **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** ## **8.2.2024, THE COURT ON 27.2.2024 DELIVERED THE FOLLOWING:** Mat.Appeal 649/2012 2 ## **ANU SIVARAMAN & C.PRATHEEP KUMAR, JJ.** ------------------------------------------------------------------ Mat.Appeal No.649 of 2012 ----------------------------Dated : 27[th] February, 2024 ## **JUDGMENT** ## C.Pratheep Kumar, J. 1. This is an appeal filed by the petitioners in O.P.612/2007 and respondent in O.P.562/2007 on the file of the Family court, Nedumangad, against the judgment dated 26.7.2011. The 1[st] appellant is the wife of the respondent and the 2[nd] appellant is their minor daughter. The marriage of the 1[st] appellant with the respondent was solemnized on 29.05.2004, as per customary rites and ceremonies and the 2[nd] appellant was born in the wedlock on 09.03.2005. At the time of marriage, the respondent was employed as a Loco pilot in Indian Railways. According to the appellant, at the time of marriage she was given 101 sovereigns of gold ornaments and a sum of Rs.5,00,000/- was entrusted with the respondent as patrimony. Out of 101 sovereigns of gold ornaments, the entire gold except 10 sovereigns were kept by the respondent in a locker in his name. The marriage of the sister of the respondent was held on 05.06.2005. The entire gold ornaments kept in the locker were utilized by the respondent and his parents for the marriage of respondent's sister. Another 7 Mat.Appeal 649/2012 3 sovereigns of gold ornaments obtained by the child from the relatives were also in the possession of the respondent. In O.P.562/2007 the respondent prayed for a decree of divorce while in O.P.612/2007 the appellant prayed for return of 98 sovereigns of gold ornaments, patrimony of Rs.5,00,000/- and also maintenance. Both the O.P.s were tried together and as per the impugned judgment, the learned Family Court allowed O.P.562/2007 dissolving the marriage between the 1[st] appellant and the respondent. However, in O.P.612/2007, the prayer for return of gold and patrimony was rejected and maintenance to appellants 1 and 2 at the rate of Rs.2500/- alone was allowed. The judgment in O.P.612/2007 denying the prayer for return of gold and patrimony alone is challenged in this appeal. Now the points that arise for consideration are the following :- - (i) Whether the appellants are entitled to get a decree for return of any gold ornaments and patrimony as prayed for ? (ii) Whether the impugned judgment in O.P.612/2007 to the extent it denied the prayer for return of gold and patrimony is liable to be interfered with, in the light of the grounds raised in the appeal ? 2. Heard both sides. 3. Points (i) & (ii) :- At the time of marriage between the 1[st] appellant and Mat.Appeal 649/2012 4 the respondent on 29.05.2004 the respondent was working as Loco pilot in Indian Railways and the 1[st] appellant was unemployed. According to the appellants, at the instance of the respondent, a patrimony of Rs.5,00,000/- was entrusted with the respondent for being used for her welfare. According to the appellants, out of the above Rs.5,00,000/-, Rs.2,00,000/- was given directly to the respondent on 15.4.2004 and the remaining Rs.3,00,000/- was entrusted with the father of the respondent on 15.5.2004. The respondent totally denied having received any such amount from the side of the appellants. 4. In order to prove the payment of patrimony, the appellants relied upon Ext.A1 passbook issued from Thiruvananthapuram District Co-operative Bank in the name of the father of the appellant. From Ext.A1 passbook it can be seen that the appellant's father had withdrawn a sum of Rs.2,00,000/- on 15.4.2004 and another Rs.3,00,000/- on 15.5.2004. The learned Family Court Judge has not acted upon those entries in Ext.A1 due to the presence of two deposits immediately after those withdrawals. As per Ext.A1, the account holder had deposited a sum of Rs.2,60,000/on 29.4.2004, 14 days after the withdrawal of Rs.2,00,000/-. Similarly, on 26.5.2004 a sum of Rs.3,50,000/- was deposited, 11 days after the withdrawal of Rs.3,00,000/-. During the cross-examination of the 1[st] appellant as PW1 and her father as PW2, questions were asked about Mat.Appeal 649/2012 5 those deposits immediately after the withdrawal of Rs.2,00,000/- and Rs.3,00,000/- respectively. At that time, they have deposed that those deposits are amounts received by PW2 from his pension benefits. However, at the time of evidence, he had not produced any document to show that he had received any such amount towards pension benefits. It was mainly on that ground, the Family court has omitted to act upon the entries in Ext.A1. 5. However, along with the appeal, as Annexures A and B, the appellants produced two documents. Annexure-A letter dated 6.5.2004 issued from the office of the Accountant General, Kerala states that DCRG amount of Rs.2,07,752/- and commuted value of pension amounting to Rs.1,61,458/- (total 2,07,752 + 1,61,458 = 3,69,210) was admitted to PW2. Annexure-B is a communication issued by the Assistant Provident Fund Officer, Thiruvananthapuram dated 21.4.2004 sanctioning a sum of Rs.2,60,696/- being the amount of deposit with interest due to PW2. Therefore, from Annexure-A1 and A2 it can be seen that as per those documents PW2, the father of the 1[st] appellant had received Rs.3,69,210/towards pension benefits and Rs.2,60,696/- towards provident fund deposit and interest in April and May, 2004. According to PW2, those amounts were credited to his account in the District Co-operative bank namely Ext.A1. It is true that the exact date on which those amounts were Mat.Appeal 649/2012 6 encashed by PW2 is not clear from Annexures-A and B. However, in the light of Annexures A and B the appellants could satisfactorily explain the two deposits of Rs.2,60,000/- on 29.4.2004and Rs.3,50,000/- on 26.5.2004. All those withdrawals and deposits were prior to the marriage of the 1[st] appellant with the respondent. Therefore, in the light of Annexures-A and B documents it can be safely concluded that the appellants have satisfactorily explained the circumstances under which deposit of Rs.2,60,000/- and Rs.3,50,000/- came in Ext.A1 passbook. In the light of the above explanation, there is absolutely no scope, justification or reason to suspect the entries in Ext.A1 passbook, any further. In the above circumstances, there is every reason to believe that Rs.2,00,000/- withdrawn on 15.4.2004 and Rs.3,00,000/- withdrawn on 14.5.2004 as seen from Ext.A1 passbook can only be to give as patrimony to the respondent on 15.4.2004 and 15.5.2004 respectively, as contended by the appellants. Therefore, from the available evidence, it can be safely concluded that in connection with the marriage of the 1[st] appellant with the respondent, a sum of Rs.5,00,000/- was given to the respondent as patrimony. The respondent has no case that he had utilized the above Rs.5,00,000/- received as patrimony for the welfare of the 1[st] appellant and as such, he is liable to repay the above Rs.5,00,000/- to the appellant with interest from the date of the petition. Mat.Appeal 649/2012 7 6. The case of the appellant is that at the time of marriage, she had 101 sovereigns of gold ornaments and out of which, 91 sovereigns were received by the respondent and kept in a locker maintained in the name of the respondent with the District Co-operative Bank, Thiruvananthapuram. Exts.X1 to X3 are the documents produced from the bank to prove that there was a safe deposit locker in the name of the respondent and that it was being operated by the respondent. The respondent admits that he had a safe deposit locker with the District Co-operative Bank, Thiruvananthapuram. He would also admit that the gold ornaments of the appellant were kept in that locker. However, according to him, the appellant had only 60 sovereigns of gold ornaments at the time of marriage and out of which only 40 sovereigns were kept in the bank locker. 7. The appellant could not produce any documents to prove the quantity of gold ornaments owned by her at the time of marriage. She had produced Exts.A8 and A9 wedding photographs to show that she was wearing ornaments at the time of marriage. From Exts.A8 and A9 it can be seen that at the time of marriage the appellant was wearing some ornaments. At the time of evidence the respondent admitted that those ornaments Mat.Appeal 649/2012 8 seen in Exts.A8 and A9 wedding photographs are gold ornaments. However, except the oral testimonies of the appellant as PW1 and her father as PW2, there is no other evidence to prove the correct quantity of those ornaments. 8. As argued by the learned counsel for the respondent, in the petition, the appellant had not disclosed the details of the gold ornaments belonged to her and allegedly appropriated by the respondent. However, at the time of evidence, she had given even minute details of the gold ornaments she was allegedly wearing at the time of marriage. According to the appellant, at the time of marriage, she was wearing new ornaments as well as old ornaments. According to her, 50 sovereigns of gold ornaments belonged to her mother were exchanged in Bhima jewellery and 40 sovereigns of new ornaments were purchased from there. Though at one stage she deposed that the bills and estimates in respect of purchase of those 40 sovereigns of gold ornaments after exchanging 50 sovereigns of old ornaments are in the possession of her father, she could not produce those bills/estimates. The specific case of the appellant is that her entire gold ornaments kept in the locker were taken by the respondent for being used for the marriage of the respondent's sister Jayanthi. At the time of evidence the appellant as PW1 also deposed that her entire 91 sovereigns of gold ornaments kept in the locker were used by Jayanthi at the time of Mat.Appeal 649/2012 9 her marriage. However, during the cross-examination, PW1 deposed that Jayanthi had about 50 sovereigns of gold ornaments alone, at the time of her marriage. When she was asked whether any of her gold ornaments were found with Jayanthi at the time of her marriage, PW1 gave an evasive answer that she could not verify the ornaments worn by Jayanthi at the time marriage. 9. The specific case of the appellant is that the respondent and his father requested her to give her gold ornaments for the marriage of Jayanthi on condition that the respondent's father would assign 22 cents of landed property and residential house therein in the joint names of the appellant and the respondent. However, according to her, she had declined the above offer. As per the evidence of PW1, the respondent had taken away her gold ornaments kept in the locker and given to Jayanthi without her consent. In spite of the above circumstances, the contention of the appellant that she had not verified the ornaments worn by Jayanthi at the time of marriage to see whether those ornaments belonged to her or not, could not be believed. As we have already noted above, even according to PW1, the quantity of ornaments worn by Jayanthi at the time of her marriage was only about 50 sovereigns. In the above circumstance, the case of the appellant that her 91 sovereigns of gold ornaments kept in the locker of the respondent were used for the marriage of Jayanthi cannot be Mat.Appeal 649/2012 10 fully correct. 10.As we have already noted above, in the OP, the details of the gold ornaments worn by the appellant at the time of marriage and allegedly appropriated by the respondent are not given. However in the proof affidavit of PW1, she had given the details and weight of each ornament out of 101 sovereigns allegedly belonged to her. During the crossexamination of PW1 it is revealed that out of the above 101 sovereigns, 40 sovereigns alone were new ornaments purchased from Bhima jewellery after exchanging 50 sovereigns of old ornaments. At one stage, she deposed that in addition to the above 40 sovereigns of newly purchased ornaments, 11 sovereigns of gold ornaments brought by her brother from abroad were also worn by her. During the latter part of the cross-examination she claimed that she was wearing 50 sovereigns of old ornaments also. At that time she had given all the details of those ornaments as well as the weight of each ornament. The above claim of PW1 is against the version in the appeal also. In ground No.N of the appeal the contention is that nearly half of the gold ornaments were obtained by exchanging old ornaments of mother and the rest have been brought by her brother from abroad. 11.PW2 has no case that at the time of marriage the appellant was wearing Mat.Appeal 649/2012 11 50 sovereigns of gold ornaments purchased by him, 40 sovereigns of new gold exchange from Bhima jewellery and another 11 sovereigns brought by his son from abroad. Further, as we have already noted above, the appellant could not produce any scrap of paper to prove the purchase of any of the gold ornaments including those newly purchased, by exchanging the old. In the above circumstances, from the available evidence, it is to be held that with regard to the quantum of the gold ornaments worn by the appellant at the time of marriage, there is no reliable evidence. 12.The admission of respondent is that at the time of marriage, the 1[st] appellant had 60 sovereigns of gold ornaments and out of which only 40 sovereigns were kept in the bank locker in his name. In the absence of any reliable evidence to prove the quantity of the gold ornaments of the appellant kept in the bank locker of the respondent, we are constrained to believe the admission of respondent as RW1 that 40 sovereigns of gold ornaments of the appellant alone was kept in his bank locker. Since the above bank locker was in the name of the respondent and it could be operated only by the respondent, he is bound to account for the above 40 sovereigns of gold ornaments to the appellant. At the time of evidence, RW1 also admitted that two weeks before the marriage of his sister, the above locker was opened and thereafter there were no ornaments Mat.Appeal 649/2012 12 remaining in the said locker. Subsequently the above locker facility itself was closed. In the above circumstances, it is the burden of the respondent to prove that the above 40 sovereigns of gold ornaments belonging to the appellant were returned by him to her. The contention of the respondent that he only went along with the appellant to the bank for opening the locker and that the gold ornaments were handled by the 1[st] appellant herself could not be believed, as the locker is in his name and he alone can open the same. In the available evidence, there is nothing to show that the respondent had returned the above 40 sovereigns of gold ornaments kept in his locker to the appellant. In the above circumstances, it is to be held that the respondent could not prove that 40 sovereigns of gold ornaments belonging to the appellant and kept in his bank locker was returned to the appellant at any point of time and as such, the appellant is entitled to get a decree for return of 40 sovereigns of gold ornaments or its market value. The points are answered accordingly. 13.In the decision in **Ranjeevan v. Pournami Raj, 2023 (2) KLT 286** , a Division Bench of this Court has held that while granting a decree for return of gold ornaments, the Court is obliged to state in such decree to pay the value of the gold in money terms as an alternative relief, in the following words :- - _“.........The court is obliged to state in such a decree to pay the value of_ _the gold ornaments in money terms as an alternative relief. If the value_ Mat.Appeal 649/2012 13 _is not quantified, the direction shall be to pay the value at the time of making payment. If the value of the gold ornaments is quantified and the amount is stated in the decree, invariably, interest on such amount from the date of decree till the payment shall also to be ordered.”_ 14.In the result, the appeal is allowed in part as follows :- The respondent is directed to pay a sum of Rs.5,00,000/- and return 40 sovereigns of gold ornaments to the 1[st] appellant within a period of one month from today. In case of default, the 1[st] appellant is allowed to realize a sum of Rs.5,00,000/- along with interest at the rate of 6% per annum till realization and also the market value of 40 sovereigns of gold ornaments at the time of payment. ## **Anu Sivaraman, Judge** Sd/- **C.Pratheep Kumar, Judge** Mrcs/9.2.2024