Shyni @ Shynimol v. Varghese Mathew @ Reji & Thomas Mathew

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942** **Mat.Appeal.No.63 OF 2013** **AGAINST THE JUDGMENT IN O.P.NO.1250/2011 DATED 05-092012 OF FAMILY COURT, KOTTAYAM** **-------** ## **APPELLANT/S:** **SHYNI @ SHYNIMOL, AGED 33 YEARS, D/O.KURIAKOSE, KALLOOOPARAMBIL HOUSE, MANARCADU KARA, MANARCADU VILLAGE, KOTTAYAM, REPRESENTED BY HER MOTHER AND POWER OF ATTORNEY HOLDER, LEELAMMA KURIAKOSE, W/O.K.V.KURIAKOSE, KALLOOPARAMBIL HOUSE, VELLOOR KARA, VELLOOR P.O., PAMPADY VILLAGE, KOTTAYAM.** **BY ADVS. SRI.SOORAJ T.ELENJICKAL SHRI.K.NIRMALAN** ## **RESPONDENT/S:** **1 VARGHESE MATHEW @ REJI, S/O.THOMAS MATHEW, KAKKATTUPUTHUPARAMBIL HOUSE, CHAMBAKKARA P.O., KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT686032. 2 THOMAS MATHEW, AGED 65 YEARS, KAKKATTUPUTHUPARAMBIL HOUSE, CHAMBAKKARA P.O., KARUKACHAL VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686032.** [Mat **. A.No.63/2013]** -:2:- **R1 BY ADV. SRI.ARAVIND AJITH R1 BY ADV. SRI.JOHN JOSEPHROY R1 BY ADV. SRI.N.RATHEESH R1 BY ADV. SMT.SUMA RATHEESH R2 BY ADV. SRI.JOHN JOSEPH(ROY) R2 BY ADV. SRI.JIJO ISAAC** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2021, THE COURT ON 26-02-2021 DELIVERED THE FOLLOWING:** -:3:- ## J U D G M E N T [Mat. Appeal No.63/2013] Dated this the 26[th] day of February, 2021 ## A.Muhamed Mustaque, J. This appeal arises from the judgment in a petition filed by the appellant herein for return of patrimony and gold ornaments. The petition was filed before the Family Court, Kottayam at Ettumanoor. The Family Court partly allowed the claims of the appellant. Dissatisfied with the judgment, this appeal is preferred. 2. The case of the appellant was that at the time of engagement, a sum of Rs.5 lakh in cash was given to the respondents, who are her husband and father-in-law. According to the appellant, the gold ornaments weighing 93.5 sovereigns, belonging to her, have been misappropriated by the respondents. The Family Court, after adverting to the rival pleadings and evidence, ordered the respondents to return 3.5 sovereigns of gold ornaments and also directed to return [Mat **. A.No.63/2013]** -:4:- Rs.1,00,490/- along with interest. Out of Rs.1,00,490/-, Rs.50,000/- is towards patrimony and the balance amount for the allied expenses incurred by the appellant while the first respondent took her to England. 3. The learned counsel for the appellant, Shri Shyam Kumar vehemently argued and referred to the pleadings and evidence in the matter. According to him, there cannot be any direct evidence as to the entrustment of the gold ornaments or money and therefore, oral evidence adduced on the side of the appellant ought to have been accepted. According to him, credibility of the evidence could not be impeached during the cross examination. The Family Court ought to have relied upon such evidence, to accept the claims of the appellant. The learned counsel placed reliance on the judgment of this Court in Bexy Michael v. A.J.Michael [2010 (4) KHC 376] and Pankajakshan Nair v. Shylaja and Another [2017 (1) KHC 620]. Per contra the learned counsel for the respondents submitted that [Mat **. A.No.63/2013]** -:5:- evidence clearly would establish that there was no entrustment of gold ornaments and the Family Court rightly came to the conclusion that the gold ornaments were not misappropriated by the respondents. 4. The marriage took place on 13/4/2009. The appellant is working in England. According to the appellant, she was wearing 95½ sovereigns of gold ornaments at the time of marriage. The appellant, immediately after marriage, left to England on 28/4/2009. It is the case of the appellant that on the previous day of her departure to England, she had entrusted her entire gold ornaments to the respondents to be kept in the bank locker of the first respondent. 5. There are disputes with regard to the quantum of sovereigns adorned by the appellant. The Family Court doubted the financial capacity of the appellant in adorning such quantity of gold ornaments as claimed in the original petition. The appellant produced Exts.A3 and A4 to evidence that she had purchased 100 sovereigns [Mat **. A.No.63/2013]** -:6:- of gold ornaments from Josco Jewellers, Kottayam. However, the name of the appellant does not reflect in the documents. Therefore, the Family Court did not proceed to believe that those purchases were relatable to the gold ornaments adorned by the appellant. The Family Court took note of the pleadings in the petition filed by the appellant at para.5 wherein the appellant pleaded that from the very next day of the marriage, the first respondent-husband was behaving in a cruel manner. Taking it in the sense that it shows signs of discontent of marriage, the Family Court entered into a finding that it was more improbable for the appellant to entrust her gold ornaments with the respondents when she left to U.K. We are also of the view that in ordinary human course, when matrimonial differences started from the very inception of the marriage to a level of distress, no one will dare to entrust gold ornaments with the husband or his relatives. We, therefore, find the reasoning of the Family Court is more appealing. [Mat **. A.No.63/2013]** -:7:- While drawing an inference as to the conclusion of preponderance of probabilities, the Court must remind to accept the evidence related to human conduct which is more probable in such circumstances. The appellant has no explanation why she has not chosen to entrust the gold ornaments with her own immediate relatives for keeping the same in locker. In such circumstances, we only need to affirm the findings of the Family Court. Accordingly, we do so. 6. The appellant's precise case is that a sum of Rs.5 lakh was entrusted with the respondents on the date of engagement, as patrimony. The Family Court however found that Rs.50,000/- was paid. The cash alleged to have been entrusted was on 2/4/2009. The first respondent admitted that he had received Rs.50,000/- after the engagement to meet the marriage expenses. It is based on this evidence, the Family Court ordered return of Rs.50,000/-. According to the appellant, she withdrew Rs.2 [Mat **. A.No.63/2013]** ## -:8:- lakh from her account and she borrowed Rs.3 lakh from her cousin brother. Ext.A2 would show that she had withdrawn Rs.2 lakh on 2/4/2009. PW2 is the elder sister of the appellant. She deposed about purchase of gold ornaments and giving of Rs.5 lakh. PW1 is the appellant's mother. She also deposed in tune with pleadings. PW3 is the person from whom the appellant borrowed Rs.3 lakh. PWs2 and 3 were cross-examined at length. However, nothing was brought out to discredit their evidence. Coupled with the fact that it is a practice among Christian community to pay patrimony at the time of marriage, we find credence to the oral testimony of PWs 2 and 3. It is to be noted that the respondents admitted receipt of Rs.50,000/- at the time of engagement. In such circumstances, giving patrimony cannot be ruled out. The pass book of the appellant would show that Rs.2 lakh was withdrawn. Patrimony would be fixed in accordance with the status of the parties. The appellant and first respondent are qualified nurses. The evidence of PWs 2 and [Mat **. A.No.63/2013]** -:9:- 3 would clearly show that a sum of Rs.5 lakh was paid. In Bexy Michael (supra), this Court held that the Court cannot ignore in most of the Christian marriages that there is a chance of change of hands of property on the occasion of marriage. The Court also deprecated the rejection of the the claim, merely for the reason that documentary evidence is lacking. Considering the totality of the facts and circumstances, we are of the view that the appellant has proved her claim that Rs.5 lakh was paid at the time of engagement. 7. On an appreciation of evidence and pleadings as above, we allow the appeal in part. Keeping the judgment and decree of the Family Court in tact we pass the following modifications: The appellant is entitled to relief 'a' as ordered by the Family Court. The appellant is also entitled to relief 'b' ordered by the Family Court. Besides the above, the appellant is entitled to Rs.4,50,000/- (after giving credit to [Mat **. A.No.63/2013]** -:10:- Rs.50,000/- as reckoned for relief 'b') along with 9% interest till the date of realisation. The claim of the appellant that she is entitled to the balance gold ornaments other than granted in relief 'a' is declined and dismissed. The parties are directed to suffer their respective costs. All pending inter locutory applications are closed. Sd/A.MUHAMED MUSTAQUE, JUDGE Sd/- C.S.DIAS, JUDGE ms Mat A. No.63/2013 ## **APPENDIX** **APPELLANT'S/S EXHIBITS:NIL.** ## **RESPONDENTS'ANNEXURES:** **ANNEXURE-R2(B)** **TRUE COPY OF THE DISCHARGE SUMMARY.**