## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE K.HARILAL**
## **&**
**THE HONOURABLE MRS. JUSTICE ANNIE JOHN**
**FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940**
**Mat.Appeal.No. 81 of 2017**
**AGAINST THE JUDGMENT DATED 09-11-2016 IN OP 255/2013 of FAMILY COURT, ERNAKULAM**
## **APPELLANT/ RESPONDENT :**
**SAJIN, AGED 32 YEARS, S/O.SAHADEVAN, ARATHARA HOUSE, EZHIKKARA.P.O, N.PARAVOOR.**
**BY ADV. SRI.T.M.RAMAN KARTHA**
## **RESPONDENT/ PETITIONER :**
**SUNANDA,**
**AGED 27 YEARS, D/O.R.SURESH BABU, PRANAVAM, SAHAKARANA CROSS ROAD, EDAPPALLY.P.O, CHENNAI - 24.**
**BY ADV. SRI.T.O.XAVIER**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## JUDGMENT
## K.Harilal, J.
The appellant herein was the husband of the respondent. Their marriage was solemnized on 03.02.2012 and the longevity of the marriage was merely 13 days. The respondent returned from marital home on
16.02.2012. The respondent filed OP.No.255/2013 seeking a decree to return Rs.5 lakhs with interest @Rs.12% per annum and gold ornaments weighing
422.500 grams or its market value by the appellant herein. The appellant herein denied the claim for money and gold ornaments. After considering the evidence on record adduced by both parties, which consists of the oral
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testimony of PW1 to PW3 and Exts.A1 to A8 from the part of the respondent and the oral testimony of RW1, the Family Court allowed the OP as prayed for. The legality and correctness of the aforesaid order granting the relief as prayed for, are assailed in this appeal. (The parties are referred to as in the original petition).
2. Heard the learned counsel for the appellant/ respondent and the learned counsel for the respondent/ petitioner.
3. In view of the arguments at the bar, the question that arises for consideration is whether the Family Court is justified in granting a decree to realise 40 sovereigns of gold ornaments or its value and Rs.5 lakhs from the respondent. We have meticulously gone through the pleadings and evidence on record. It is the
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specific case of the petitioner that she was given 422.500 grams of gold ornaments and Rs.5 lakhs at the time of marriage. But the same was not returned to her.
4. The respondent took the ornaments forcefully from the petitioner under the threat and coercion of the father-in-law and the mother-in-law of the petitioner. In the objection filed by the respondent in paragraph 6, it is specifically stated that the respondent had neither received money nor gold ornaments from the petitioner. There was no money dealings between the petitioner or her family and the respondent. Whatever ornaments and belongings the petitioner had in her possession had been taken away by her on the day she left the matrimonial home in autorikshaw. Thus, the respondent had not taken any of her gold ornaments or
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money. Hence, the allegation that the money and gold ornaments were in the custody of the respondent is absolutely false.
5. Going by the impugned judgment passed by the Family Court, we find that the Family Court allowed the original petition, as prayed for, mainly on the ground that there is no specific denial against the entrustment of gold ornaments with the respondent. On a meticulous analysis of the pleadings of both the respondent and the petitioner, we find that the aforesaid finding is absolutely incorrect. In the original petition, there is no specific pleadings with respect to the entrustment of gold ornaments with the respondent or his parents. It is true that the respondent has stated that at the time of marriage, the petitioner was given Rs.5 lakhs and 422.500
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grams of gold ornaments and house hold articles towards the share in the family property. We are of the opinion that the aforesaid averments do not disclose the entrustment of the said gold ornaments or money with the respondent or his parents.
6. In the above context, the decision laid down by this Court in Abubakker Labba v. Shameena [ 2018 (3) KHC 219] assumes significance and relevance. In the
aforesaid decision this Court held as follows :
“In the case of the claim of return of movables, more specifically, money and gold ornaments, which were allegedly given to the wife in connection with the marriage, from the parents of the husband, there cannot be a constructive or presumptive entrustment, without actual physical delivery of the same to them and it must be specifically pleaded and proved by sufficient evidence, by the claimant wife. Merely on the evidence that the bride had worn gold ornaments, at the time of marriage,
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it cannot be held that the ornaments, which were worn at the time of marriage, were entrusted with the father and mother of the bridegroom. Unless there is sufficient evidence from the wife, to prove the entrustmment of gold ornaments with the parents of the husband, after the marriage, the parents of the husband cannot be held liable to return the same. Normally there cannot be a joint entrustment of money or gold ornaments with three persons, the husband and his parents, without disclosing the mode of entrustment or the identity of the person to whom the money or gold ornaments were actually handed over. The absence of specific pleadings and sufficient evidence to prove the manner in which the entrustment of money and gold ornaments were made with the parents of the husband will be fatal, to the claim for returning the same by them”.
## 7. In view of the aforesaid decision, we hold
that, in the instant case, there is no sufficient pleadings manifesting the entrustment of gold ornaments with the
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respondent. It is pertinent to note that the petitioner resided along with the respondent in the matrimonial home for 13 days only and admittedly there was no cohabitation or consummation and she left the matrimonial home on her own volition in an autorikshaw. When the marriage was admittedly not consummated and when there was no cohabitation, it cannot be believed that the respondent forcefully took the gold ornaments from the petitioner in the presence of the parents of the respondent, unless the same is proved by cogent evidence. But, no evidence has been adduced to prove that the gold ornaments were taken by force or coercion by the respondent in the presence of his parents. More importantly, when the petitioner was examined as PW1, she herself has given a go-bye to the said pleadings and
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she has narrated a new story that the gold ornaments were given to the mother of the respondent as a result of the coercion exercised by her to the respondent. Thus, we find that the evidence with respect to the manner in which the gold ornaments were allegedly taken by the respondent is contradictory and mutually destructive.
8. In the above view, we find that the respondent has miserably failed to plead and prove the entrustment of gold ornaments or the alleged acquisition of gold ornaments by the respondent or his parents by way of coercion, as alleged in the original petition. The court below absolutely went wrong in finding that there is no pleadings from the part of the respondent denying the entrustment of gold ornaments with him by the petitioner. As we have noticed above in para 6 of the petition, he has
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specifically denied the entrustment of money and gold ornaments. Coming to the entrustment of money also, there is no pleadings as to who has given money or to whom it was given. No circumstances under which the money was given to the respondent was pleaded in the original petition. In other words, the manner in which the amount was given is not pleaded or proved in evidence. In the proof affidavit also, the manner in which money was entrusted to the respondent is not disclosed, the identity of the person, who has given money or the person who received the same are not specifically averred in the original petition. The date or the occasion in which the money was given in connection with the marriage was also not disclosed in the original petition. Thus, we find that the pleadings with regard to the entrustment of Rs.5
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lakhs also do not disclose any kind of entrustment of that amount with the respondent or his parents.
9. Coming to the evidence of PW2 and PW3,
PW2 is the Secretary of the SNDP Yogam at Edappally and he was examined to prove that at the time of marriage, 408 grams of gold ornaments and Rs.5 lakhs was given to the respondent. But, it has come out in evidence that he was not the Secretary of the Shakha at the time of marriage and he is not the signatory to the register of marriage, maintained in the office of the SNDP Yogam. More importantly, going by the chief affidavit filed by PW2, we find that he has reiterated all the reliefs sought for in the original petition. If that be so, such a witness cannot be treated as an independent witness and we find that he stepped into the shoes of the petitioner. Therefore, no
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reliance can be placed on the evidence of PW2. Even if the evidence of PW2 is admitted at its entirety, it would go to show that she was wearing 408 grams of gold ornaments at the time of marriage. Merely on the reason that she was found wearing 408 grams of gold ornaments at the time of marriage, it cannot be held that those gold ornaments were entrusted with the husband or his parents, unless other corroborative evidence is adduced to that effect. But, we further find that the court below has omitted to evaluate the oral testimony of PW1 to PW3. As regards the alleged entrustment of money and gold ornaments, the only available evidence is the oral testimony of PW1 to PW3. But the court below has omitted to consider those evidence and decreed the OP, as prayed for, on a finding that there is no denial of
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entrustment from the part of the respondent, which we have already found erroneous and unsustainable.
10. In the above analysis, we find that the Family Court has miserably failed to evaluate the pleadings and evidence in its correct perspective and went wrong on a mere assumption that at the time of marriage, the respondent was given 408 grams of gold ornaments and Rs.5 lakhs without any kind of evidence.
Consequently the impugned judgment will stand set aside and the appeal will stand allowed.
Sd/K.HARILAL, JUDGE
Sd/ANNIE JOHN, JUDGE
RKM
