Sivakumar @ Rajesh v Sivakumari L

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939 Mat.Appeal.No. 202 of 2010 ( ) ------------------------------- AGAINST THE JUDGMENT IN OP 1156/2006 of FAMILY COURT, NEDUMANGAD DATED 05-01-2010 APPELLANT(S)/RESPONDENT: ----------------------- SIVAKUMAR @ RAJESH SON OF GOPALAKRISHNAN, AGED 31 YEARS, RESIDING AT SARASWATHI BHAVAN, VIKAS NAGAR 68, PATTATHANAM,, KOLLAM. BY ADV. SRI.K.N.SASIDHARAN NAIR RESPONDENT(S)/PETITIONER: ------------------------- SIVAKUMARI.L, D/O.SIVARAJAN ACHARI, AGED 27 YEARS, RESIDING AT LEKSHMI VILASAM, THOLICODE, VITHURA P.O., NEDUMANGAD TALUK. BY ADV. SRI.P.S.APPU BY ADV. SRI.C.A.ANOOP BY ADV. SRI.JIBU P THOMAS BY ADV. SRI.T.C.SURESH MENON THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25-72017, ALONG WITH MA. 208/2010, THE COURT ON 24/10/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== Mat.Appeal Nos. 202 & 208 of 2010 ====================== Dated this, the 24[th] day of October, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ These appeals are filed by the respondent in OP Nos.1156/2006 and 1234/2006 challenging common judgment dated 5/1/2010. Both the Original petitions were filed by the respondent herein. OP No.1156/2006 was filed by the wife for dissolution of marriage and OP No.1234/2006 was filed for return of gold ornaments, money etc. The Family Court decreed both the petitions, against which these appeals had been filed by the husband/respondent before the Family Court. 2. The short facts involved in the petition are as under; and the parties are referred to as shown in the Original Petition until otherwise stated:- The marriage between the parties was solemnized on 9/11/2000. Wife contended that at the time of marriage, she was Mat.Appeal Nos.202 &208/10 -:2:- given 150 sovereigns of gold ornaments by her parents and 25 sovereigns by her relatives. A new Maruthi Zen car was also presented to the husband by the petitioner's parents. It is also contended that at the time of ring exchange ceremony, diamond ring having a value of `1 lakh and `5 lakh was paid as cash to the respondent. That apart, valuable household articles were also given. The allegation raised by her was that on the second day of marriage, the gold was weighed by the respondent and his mother and it was kept in their custody. 3. There was marital discord between the couple. She noticed that husband was taking some medicines regularly. On the 7[th] day of marriage, he became violent and destroyed various household articles. He thereafter became unconscious due to epilepsy. When she enquired about the matter, the family members of respondent accused her for the plight of the respondent and that his disease was on account of her inauspicious horoscope. According to her, after the aforesaid incident, the relationship was not cordial and she was physically and mentally ill treated. The fact that he was having a disease was not disclosed before the marriage and according to the petitioner/wife, the respondent had cheated her and her parents. Mat.Appeal Nos.202 &208/10 -:3:- It is stated that whenever he failed to take medicines, he had to be forced to do so and he would either behave abnormally and at times gloomy or quarrel with her and manhandle her. At the time of marriage, respondent was running a jewellery shop and he used to go to the shop at 10 am and return back fully drunk. When this situation continued, being unable to handle the cruelty, she took shelter in a neighbouring house and at the intervention of the police, her father came to the house and took her back. Having found that the marital life is irretrievably broken and that she was treated with cruelty during the marital relationship, she sought for divorce alleging cruelty and also for return of all the ornaments, jewellery, vehicle, household articles and money that had been handed over prior to the marriage as well as after the marriage. 4. The respondent denied the allegations raised in the petition. According to him, he had taken care of her in a proper manner and he is not a person who consumes any liquor. He also denied the fact that he was suffering from any particular disease. He however submitted that the petitioner had only 101 sovereigns of gold ornaments which included those presented by her relatives and it is so mentioned in the register maintained by Mat.Appeal Nos.202 &208/10 -:4:- the Viswakarma Society. The car presented at the time of marriage was used by them till 2006. Though he admitted to have received 2 gold sovereigns at the time of ring exchange, he denied the fact that it was a diamond ring. He denied having received `5 lakhs or any household articles as alleged. He stated that all the ornaments she had was taken by her on different occasions and the ornaments are in her custody. According to him, they lived together till 4/11/2006. His further allegation was that after the marriage he learnt that his wife was having some physical ailment and she is not in a position to lead a marital life. He took steps for medical treatment and since his wife realised that she has serious physical disabilities, she was picking up quarrels in his house. He also contended that in connection with her sister's marriage proposal, they stayed in the wife's house for two days and during that time, she had taken all the gold ornaments with her. She again went to her parental house in October and returned on 1[st] November. At that time she was wearing a thali chain and two rings. When he asked her about it, she informed him that since they do not have any children, the gold ornaments were given to her sister. According to him, on 4[th] November, she intended to go to her parental house, but, her Mat.Appeal Nos.202 &208/10 -:5:- mother-in-law did not allow her to do so. She quarrelled with mother-in-law and left the house. Her whereabouts were not found and a complaint was filed before the Kollam East police station. Police came in search of the petitioner and found her in the house of one Jaleel which was situated 1 km away. Her father came and took her to his house. Though the appellant requested her to continue the marital relationship, she was not willing. He had also issued a lawyer's notice on 5/12/2006 for restitution of conjugal rights. According to him, petitioner had deserted him and it is not a case of cruelty. 5. Before the Family Court, PWs 1 to 4 were examined on behalf of the petitioner and they relied upon Exts.A1 to A4. The respondent relied upon the evidence of DW1 and DW2 and produced Exts.B1 to B4. 6. PW1 in her evidence has spoken in accordance with the averments in the pleadings. During cross examination, she was asked why she could not give birth to a child though she conceived four times, her answer was that twice she had abortion since she was pushed down the stair case and on two other occasions on account of the work that she was doing and the travel they had undertaken. Further questions were asked Mat.Appeal Nos.202 &208/10 -:6:- indicating that she had gynecological infirmities which she denied. Further cross examination proceeded on the basis that her gold ornaments were taken and given to her sister. 7. PW2 is the father of PW1. In his evidence he also spoke in accordance with the contentions urged by the respondent herein in the petition. When cross examined he further indicated that he had seen the appellant assaulting his daughter. He had seen the same in his house as well as in the matrimonial house and she was mentally harassed. A suggestion was made to the witness stating that he had taken the gold ornaments of the petitioner for her sister's marriage which he denied. According to him, all the gold ornaments were kept by the appellant and his mother. 8. PW3 is a person who knew both the parties. He is a friend of PW2. He used to attend all the functions in PW2's house. He had attended the engagement of the couple. In his chief affidavit he stated that 150 sovereigns and a Maruthi Zen car were given at the time of marriage. At the time of engagement, a diamond ring weighing 2 sovereigns and `5 lakh was given. On the date of marriage, the relatives had given the bride 25 sovereigns of gold and they have also given one fridge, godrej Mat.Appeal Nos.202 &208/10 -:7:- almirah, 4 kgs of silver utensils and several household utensils. He later on came to know that the appellant was suffering from epilepsy which was not known prior to marriage. In cross examination he stated that the couple was living happily for one year and problem started thereafter. He also stated that photographs and videos were taken during the marriage. Anyway he deposed that the payment of dowry was not photographed. He affirmed that she was having 150 sovereigns of gold ornaments. 9. DW1 is the appellant. He filed chief affidavit in accordance with the contentions urged by him. In cross examination, he admitted having filed a Caveat OP No.31/2006 before the Family Court. He however admits that he was having epilepsy. He further stated that she had abortion about six times and that they could not have a child on account of the bad influence of horoscope. After the marriage was fixed, there was continuous poojas at their residence. He further stated that since he was not keeping well, there was a safe locker in his house. However, nothing in the shop is kept in the said locker. 10. First we shall consider the appeal against decree for dissolution of marriage. The respondent had raised specific Mat.Appeal Nos.202 &208/10 -:8:- allegations with reference to the cruelty meted out on her. Further she has also stated that he was suffering from epilepsy. Ext.A3 series are the documents relied upon to prove the said fact which would apparently indicate that the appellant was suffering from epilepsy even before marriage. This fact is also admitted by him while being examined before Court, whereas, in the pleadings, the said allegation was completely denied. It is therefore apparent that the fact of epilepsy was suppressed by the appellant which the respondent had come to know only after the marriage. From this fact itself, it is clear that the appellant had not approached the Court by stating the true and correct facts. 11. On an appreciation of the evidence tendered in this behalf, the Family Court had arrived at a conclusion that there was suppression of material facts prior to the marriage. Further, several inconsistencies had been noticed by the Family Court which had been recorded which forms part of the judgment especially in regard to the number of times she had conceived and suffered abortion. All these circumstances which had been highlighted by the Family Court clearly indicate that cruelty had been meted out against the respondent and therefore, even on a reappreciation of the factual situation and the evidence adduced Mat.Appeal Nos.202 &208/10 -:9:- by the parties, we do not think that a different view can be taken in the matter. Accordingly, we confirm the judgment of the Family Court granting divorce to the respondent. 12. As far as the other appeal is concerned which concerns recovery of gold ornaments, money, vehicle as well as household articles, Family Court observed that Ext.A2 series photographs corroborates the testimony of PW1 that a diamond gold ring weighing 2 sovereigns was given to the appellant at the time of ring exchange. In regard to payment of `5 lakhs, there is dispute between the parties regarding the said payment. The first contention urged is that there is no material to prove the source of money. PW2 in cross examination has stated that he was running a jewellery shop under the name Sivalakshmi Jewellery for the last 30 years. He had married away his younger daughter on 16/11/2006 by giving 125 sovereigns of gold ornaments, `5 lakhs and a Santro car along with household articles. PW3 uncle of PW1 also supports the aforesaid view. PW4 is another witness who also witnessed payment of `5 lakhs and gold ring at the time of engagement. The Family Court observed that the evidence of PWs1 to 4 appears to be trustworthy. On a perusal of the entire evidence of PWs1 to 4 as well, we do not find any infirmity in the Mat.Appeal Nos.202 &208/10 -:10:- ## said evidence to disbelieve them. 13. As far as the gold ornaments are concerned, appellant only admits to have received 101 sovereigns of gold ornaments and the car. PW1 in her evidence had stated that she was wearing 24 bangles, 5 of the bangles were kept in a bag and balance ornaments she had, was taken in a bag. Evidence of PW1 is supported by PW2. The second witness on behalf of appellant was DW2 Thyagarajan. He was the Branch Secretary of Kollam Viswakarma Society. In his evidence, he has stated that 1% of the gold ornaments given to the bride has to be contributed to the Viswakarma society. The Family Court observed that taking into consideration the said obligation, the exact quantity of gold ornaments may not be mentioned in the register. Ext.B3 is the marriage register where the value of Maruthi Zen car is shown as `2 lakhs whereas during the relevant time, the value of new Maruthi Zen car was approximately `4 lakhs. It is therefore clear that the actual quantity of gold ornaments may not have been mentioned in the register maintained for the aforesaid purpose. Evidence of PW2 to PW4 supports the evidence of PW1 in this regard. On a reappreciation of the evidence as well, we do not find any infirmity in accepting the version of the respondent/wife. Mat.Appeal Nos.202 &208/10 -:11:- It is further evident that both the parties are involved in jewellery business and therefore it is always possible that large quantity of gold ornaments will be given at the time of marriage. Further, as we have already stated, the appellant had not approached the court with clean hands. They have denied various facts which is later borne out by evidence and even on their admission. Under such circumstances, the Family Court has accepted the version of the wife and had directed return of the gold ornaments, household articles and the amount which was alleged to have been given. 14. Learned counsel for the appellant however placed reliance on the judgment in _**Bhagwati Prasad v. Chandramaul**_ (AIR 1966 SC 735) wherein they relied on paragraphs 9 and 10 which reads as under:- _**“9** . There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court in Sheodhari Rai v. Suraj Prasad Singh, AIR 1954, SC 758. In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the_ Mat.Appeal Nos.202 &208/10 -:12:- _Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by it in its pleadings._ _**10** . But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the_ Mat.Appeal Nos.202 &208/10 -:13:- _argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”_ 15. He also placed reliance on the judgment in _**George v. Koshy**_ (2001 (3) KLT 122) based on which it is contended that an exemption from the period of limitation has to be specifically pleaded in the plaint. Yet another judgment relied upon is _**Ram Sarup Gupta v. Bishun Narain Inter College**_ (AIR 1987 SC 1242). In the said judgment, after referring to _**Bhagwati Prasad**_ (supra), it is held that in the absence of pleading, evidence, if any, produced by the parties cannot be considered and that no party should be permitted to travel beyond its pleading. What the Court has to consider is whether the matter in question was involved in Mat.Appeal Nos.202 &208/10 ## -:14:- the trial and whether any evidence is adduced in that behalf. 16. He also placed reliance on _**Bachhaj Nahar v. Nilima Mandal and another**_ [(2008) 17 SCC 491] to emphasise the very same point that without any pleading, no amount of evidence can be looked into to grant any relief. He referred to paragraph 23 which reads as under:- _**23**[*]_ ~~_**.**_~~ _It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property ‘A’, court cannot grant possession of property ‘B’. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.”_ 17. Reference is also made to a Division Bench judgment of this Court in _**Ajitha Kumari v K.D. Jayasekharan**_ [2016 (5) Mat.Appeal Nos.202 &208/10 -:15:- KHC 664 (DB)]. This judgment is relied upon to contend that unless the entrustment is admitted, there is no question of raising an inference that the respondent is liable to return the gold ornaments. 18. The argument raised based on the aforesaid judgments is that there is no demand for return of gold ornaments. The only contention urged is that on the second day of marriage, the appellant and his mother took all the gold ornaments, weighed it, scolded her for the shortage and except two bangles, one ear ring and one thali mala, the rest of the gold were kept in their custody. She was manhandled by mother-in-law and sister-in-law on 4/11/2006. She informed the matter to the appellant and without any provocation he also manhandled her and attempted to kill her. She ran away to the neighbouring house and with the help of police, her father reached there and took her to the parental home. She further pleaded in paragraph 15 that for the benefit and welfare of the petitioner/respondent herein, she is entitled to get 'A' and 'B' schedule items or its value along with `5 lakhs with interest, cost of household articles, silver utensils, vehicle etc. She stated that the cause of action had arisen on 9/11/2000 and lastly on 4/11/2006 when she left the matrimonial home. The Mat.Appeal Nos.202 &208/10 -:16:- relief sought was to recover 182 sovereigns of gold ornaments or its value of `13,60,000/-, to recover the value of C and D schedule properties, ie the vehicle, household articles and silver utensils and for return of `5 lakhs with interest. Perusal of A schedule gold ornaments would also show that there were 152 sovereigns and B schedule items were gifted articles which contain gold coin also. C schedule is the Maruthi Zen car and D schedule are the household articles including silver utensils, the total value of which is shown as `95,000/-. 19. The appellant admitted that the respondent was having only 101 gold sovereigns including those that had been presented by close relatives which was mentioned in the register kept by the Viswakarma society The register was signed by all concerned including their parents. The car was given at the time of marriage which was used by both of them till November, 2006. He denied having given the diamond ring, `5 lakhs and household articles. He also denied the fact of the relatives receiving any gold ornaments from the parents of the respondent. According to him, her gold articles were not weighed. All the gold ornaments were in her custody and she had taken it back on different occasions. Mat.Appeal Nos.202 &208/10 -:17:- 20. Though no specific contention had been raised regarding plea of limitation or in the memorandum of appeal, the contention is that in so far as there is no demand for return of gold ornaments, cause of action at best can arise only from the alleged date of entrustment, which is the second day of marriage. Marriage was on 9/11/2000 and the cause of action would accrue on 10/11/2000 onwards. When there is no demand for return of gold ornaments, there could not be any cause of action on 4/11/2006 when she left the matrimonial home. There is no pleading to the effect as to how the plea of limitation is exempted and therefore the Family Court should have dismissed the petition as barred by limitation. 21. This OP is filed for return of gold ornaments invoking Section 7 of the Family Courts Act. Section 7(1) states that the Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in Explanation. Explanation (c) clearly indicates that a suit or proceeding between the parties to a marriage with respect to property of the parties or of either of them can be adjudicated by the Family Court. Therefore, the only Mat.Appeal Nos.202 &208/10 -:18:- question to be considered is the date on which a claim for recovery of gold ornaments, money and other articles can be filed by a party to the marriage. There is no special law of limitation as far as Family Courts are concerned and the Limitation Act applies in matters relating to Family Courts also. 22. The first ground taken up is that there is no specific pleading regarding appropriation of the items by the appellant. But the perusal of the petition in OP No.1234/2006 would show the following aspects. (a) At the time of ring exchange, counter petitioner was given 2 soveriengs of diamond ring worth `1 lakh and `5 lakhs as pocket money. The petitioner and counter petitioner were provided with gold ornaments weighing 150 sovereigns at the time of marriage by her parents and 25 sovereigns by the close relatives. Parents of the petitioner had also given a gift of Maruthi Zen car and other household articles and silver utensils. (b) During pongal, parents of the petitioner gifted to the counter petitioner, his sister and his mother 5 sovereigns of gold coins. (c) With reference to the gold ornaments alone, there is a pleading that on the second day of marriage, counter petitioner Mat.Appeal Nos.202 &208/10 -:19:- and his mother took the gold ornaments, weighed it and kept them under their custody except two bangles, one ear ring and one thali mala. (d) Subsequent pleadings, proceed to indicate the difficulties faced by her in the matrimonial home, that she had become pregnant and she was unable to live in the said house. (e) Thereafter, reference is made to the incident on 4/11/2006 when she was taken to her house. (f) Respondent thereafter felt that the matrimonial relationship between the couple had irretrievably broken and for her benefit and welfare, she is entitled to get back all the articles or its value. 23. This being a suit for specific movable property, Article 69 applies where the period of limitation is 3 years from the date when the property is wrongfully taken. In this case, it is apparent from the pleadings that all the gold ornaments, vehicle, utensils, etc., had been given and it is not returned and her contention is that she is entitled to get it for her benefit. In other words, the possession of the articles with the respondent becomes wrongful only when they started living separately. As long as they were residing together, there is no wrongful appropriation of the said Mat.Appeal Nos.202 &208/10 -:20:- properties. Petitioner does not say so. Therefore, as far as return of articles are concerned, which is specific movable property, viz, the gold ornaments, utensils, vehicle etc., the suit is filed within the period of limitation and therefore there is no necessity to make any specific pleading seeking exemption from the period of limitation. As far as recovery of money is concerned, as there is no specific period of limitation, Article 113 applies and the limitation period is 3 years, when the right to sue accrues. Apparently, the right to sue accrues only when the parties separate in a matrimonial dispute. As long as the matrimonial relation is in existence and there is no conflict between the couple, a claim for property may not arise. In this case, a demand is made by filing a suit only when the matrimonial suit had arisen. Therefore, the cause of action had accrued only when the matrimonial dispute had arisen between the parties, which is on 4/11/2006. Under such circumstances, we do not think that the contention that the claim is barred by limitation is sustainable. Of course, as rightly pointed out by the learned counsel for the appellant, there is no pleading to invoke Section 10 of the Limitation Act. But in the present case, the pleadings clearly suggest that no demand had been made for the immovable Mat.Appeal Nos.202 &208/10 -:21:- properties or return of money or gold ornaments prior to the filing of suit. Further, the respondent did not have a case that any of those articles were appropriated by the appellant at any point of time. She has only stated that it is in their custody. Therefore, the plea of limitation raised by the learned counsel for the appellant will not succeed. 24. Yet another argument raised by the learned counsel for appellant is that the only evidence available is Ext.B3, the register prepared by the Viswakarma Society at the time of marriage duly signed by the parties. Only 101 sovereigns of gold ornaments had been stated. Ext.B3 register would show that 808 grams of gold ornaments and a vehicle having an upset value of `2 lakhs were given as gift. The respondent had produced certain photographs as Ext.A2 series and the appellant had produced some photographs as Ext.B1 series. Ext.A2 series apparently would show that she was wearing large quantity of gold ornaments, though the exact quantity could not be discerned. One photograph also shows the exchange of rings at the time of engagement which was also a fact that was denied by the appellant. It is therefore clear that she was having sufficient quantity of gold ornaments and there is no reason to disbelieve Mat.Appeal Nos.202 &208/10 -:22:- their version. PW2, being a gold merchant, they had also the financial capacity to give such quantity of gold ornaments. 25. However, it is seen that the Family Court had directed return of 182 sovereigns of gold ornaments which includes ornaments given as gift by the relatives at the time of marriage and during other ceremonies. Evidence of PW 3 and 4 virtually proves the existence of giving of 150 sovereigns of gold ornaments and the gift of 25 sovereigns. PW4 is the person who had weighed the gold ornaments using an electronic balance. Hence, there is nothing wrong in accepting the version of the petitioner as far as the 175 sovereigns of gold ornaments are concerned. Now coming to the gold ornaments gifted subsequent to the marriage, i.e., during pongal ceremony, contention is that one sovereign each was given to the respondent/appellant, his mother, sister brother etc. It is not something which had been appropriated by the respondent. Other parties are not made parties to the lis. Under such circumstances, it is not appropriate to direct return of the 5 said gold coins which were given at the time of pongal ceremony. 26. Coming to the other two items namely the vehicle and the household articles, the parties lived together for about 6 years Mat.Appeal Nos.202 &208/10 -:23:- and they have been using the same during the matrimonial life. The vehicle and the household articles were intended for their own use and those are all articles which does not have a long life. Under such circumstances, directing return of those articles or its value was unnecessary and at this point of time, when another 11 years had already elapsed. 27. Learned counsel for the appellant also submitted that interest granted is highly exorbitant and therefore modification is to be made in that regard. For refund of `5 lakhs, the appellant was directed to pay 12% interest, which, according to us, is on the higher side. Hence, interest of justice will be served in directing payment of interest at 6% per annum and it is ordered accordingly. 28. In the above circumstances, we are of the view that the respondent is entitled for return of A and B schedule items alone after deducting 5 sovereigns of gold coins. The direction to pay the value of C and D schedule properties are hereby set aside. 29. Accordingly, these appeals are disposed of as under:- - (i) Mat.Appeal No.202/10 is dismissed. - (ii) Mat.Appeal No.208/2010 is partly allowed. The Mat.Appeal Nos.202 &208/10 -:24:- judgment and decree in OP No.1234/2006 is modified and a decree is passed as under:- (a) That petitioner/wife is allowed to realise 177 sovereigns of gold ornaments or in the alternative its value of `13,25,000/(Rupees Thirteen lakhs twenty five thousand only) from the respondent/husband and his assets. (b) The petitioner is also allowed to realise an amount of `5 lakhs with 6% interest from the date of petition till realisation from the respondent and his assets. (c) If the 177 sovereigns of gold ornaments or its value is not paid within two months from the date of the aforesaid judgment, the respondent shall be liable to pay interest @6% per annum from the date of this judgment till realisation. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **ANU SIVARAMAN, JUDGE** Rp //True Copy// PS to Judge