## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
## **&**
**THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940**
## **Mat.Appeal.No. 842 of 2010**
## **AGAINST THE ORDER IN OP 638/2005 of FAMILY COURT, KOTTARAKKARA**
## **APPELLANTS/RESPONDENTS:**
**1 SURESHKUMAR, AGED 33 YEARS, S/O.RAMACHANDRAN PILLAI, RESIDING AT ARANDA KULANGARA VEEDU, METHUKUNMEL,THAZHATHU VADAKKU MURI,PATTAZHI, VADAKKEKARA VILLAGE, PATHANAPURAM TALUK, KOLLAM DIST.,REP.BY P/A HOLDER DINESH KUMAR, AGED 36 YEARS, S/O RAMACHANDRAN PILLAI RESIDING AT THE ABOVE ADDRESS. 2 RAMACHANDRAN PILLAI AGED 60 YEARS S/O.NARAYANAPILLAI, RESIDING AT ARANDA KULANGARA VEEDU, METHUKUNMEL,THAZHATHU VADAKKU MURI,PATTAZHI, VADAKKEKARA VILLAGE, PATHANAPURAM TALUK, KOLLAM, DISTRICT. BY ADVS. SMT.T.S.MAYA (THIYADIL) SMT.PRINCY XAVIER SMT.V.SREELATHA RESPONDENT/PETITIONER: ANUJA B.PILLAI, AGED 27 YEARS, D/O.RETNAMMA, SRINILAYAM METHUKUNMEL, PATTAZHI VADAKKEKKARA VILLAGE, NOW RESIDING AT, ANUJA BHAVAN, ANANDAPALLY.P.O., ADOOR,, PATHANAMTHITTA689645. BY ADV. SRI.V.PREMCHAND**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2018, THE COURT ON 28.09.2018 DELIVERED THE FOLLOWING:**
Mat.Appeal No.842/10
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## **J U D G M E N T**
## _**Shaffique, J.**_
This appeal is filed by the respondents in OP No.638/2005 challenging order dated 9.9.2010 of the Family Court, Kottarakara by which the petition has been decreed permitting the petitioner/respondent herein to recover 51.5 sovereigns of gold ornaments or, in the alternative, the value thereof and also maintenance of `1500/- from 20.5.2005 till the date of remarriage.
2. The short facts that have arisen in the matter are as under:-
The parties are described as shown in the Original Petition, unless otherwise stated. Petitioner and the 1[st] respondent got married on 7.4.2003. At the time of marriage, her parents had given her 51.5 sovereigns of gold ornaments. According to the petitioner, she handed over her gold ornaments to the 2[nd] respondent as per the request made by the 1[st] respondent. The 1[st] respondent was employed in military service and he left for employment shortly after marriage. She further alleged that she was forced to leave the matrimonial home on 7.4.2005 on account of the cruelty of the respondents. She was also beaten
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by the 2[nd] respondent on 14.4.2005. A crime was registered in respect of the said incident as well.
3. In the objection filed by the respondents, they denied entrustment of gold ornaments. They also denied the fact that they were aware of the weight of the gold ornaments. According to them, one week after the marriage, petitioner's father came to the house of the respondents. He offered to keep the gold ornaments in the locker in his name and accordingly, all the ornaments, except a few of them for daily use, were entrusted to her father. They also denied having committed any cruelty and harassment.
4. Before the Family Court, PWs 1 to 3 were examined on behalf of the petitioner and she relied upon Exts.A1 to A3. The respondents examined DWs 1 to 3 and relied upon Exts.B1 to B3. The Family Court decreed the petition as stated above, against which the respondents have preferred this appeal.
5. Learned counsel for the appellants contended that there is no basis for the claim and the Family Court had not properly appreciated the evidence on record. There are substantial discrepancies in the evidence, which would clearly
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prove that the case set up by the petitioner was false. It is pointed out that there is no evidence of either entrustment of gold ornaments or its appropriation by the respondents. The 1[st] respondent was working as a military servant and the petitioner does not have a case that he had taken away any of the gold ornaments. The place, where the petitioner was residing, was not safe enough to keep the gold ornaments and, therefore, it was entrusted to her father to be kept in a safe locker, which is proved by the testimony of the witnesses examined on the side of the respondents.
6. On the other hand, learned counsel appearing for the petitioner/respondent, while supporting the judgment of the Family Court, placed reliance on two judgments of this Court. One is _**Pankajakshan Nair v. Shylaja and Another**_ [2017 (1) KHC 620 (DB)] _,_ wherein this Court held that once the marriage is over and the bride comes to the matrimonial home, there is every possibility of the ornaments to be entrusted to the elders as a trustee for keeping the articles during subsistence of the marriage. Once there is entrustment, then, duty is cast upon the defendants to disprove the said fact that it was entrusted to them.
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7. Another judgment is _**Leelamma N.P. v. M.A. Moni**_ [2017 (3) KHC 340 (DB)] _,_ wherein also it is held that when gold ornaments have been entrusted to the husband, then, it will be in the nature of a trust and so long as the matrimonial relationship continues, the trust will continue till the dissolution of the marriage.
8. Having regard to the controversy involved in the matter, we have to analyse the evidence and ensure whether the Family Court had properly appreciated the evidence in the case. There is no dispute about the fact that the case relating to a claim for return of gold ornaments has to be considered based on preponderance of probabilities. In the case on hand, PW1 is none other than the petitioner. She has given evidence in the light of the averments in the petition. In paragraph 4 of the plaint, it is stated that, after marriage, at the instance of the 1[st] respondent, the gold ornaments were entrusted to the 2[nd] respondent. Later, she was being ill treated by stating that the dowry was not enough. While she was examined as PW1, she deposed that after the marriage, she lived with her husband for one and half months. After that period, he left for employment. According to her, she was ill-treated from the first day of marriage until he left
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for employment. He was a drunkard and was in the habit of consuming liquor at all times. She also deposed that except a thali chain and three bangles, all the other gold ornaments were taken by the respondents. She also deposed that the ear ring which she was wearing was brought from her house.
9. PW2 is the person who knew both the parties. She stated that she was also present when petitioner's family purchased 35 sovereigns of gold ornaments from Thankamalika Jewellers and 15 sovereigns from Alleppey Jewellers. Her evidence will only prove that the petitioner was having 51 sovereigns of gold ornaments at the time of her marriage.
10. PW3 is a relative of the petitioner. His evidence also does not indicate anything about appropriation of gold ornaments.
11. DW1 is the 2[nd] respondent, who is the father of 1[st] respondent. Though in the chief affidavit, he had indicated that the gold ornaments were taken away by the petitioner's father for keeping it in a locker, during cross examination, he stated that he has no personal knowledge about the same. He deposed that his son had given the ornaments to PW1's father. He also deposed that the gold ornaments were taken by her father after 15 days
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and until then she was wearing those gold ornaments.
12. DW2 is the 1[st] respondent. He had filed the affidavit _inter alia_ stating that the gold ornaments were taken by petitioner's father. He stated that until the gold ornaments were taken by petitioner's father, it was kept in the steel almirah at their house. He also deposed that gold ornaments were entrusted by the petitioner to her father after informing him. He further deposed that two bangles were pledged by his father at the instance of the petitioner and the money was used for her treatment. One bangle was already released and given back and the other bangle is released from pledge and was available with him. The bangles weighed 1½ sovereigns.
13. DW3 is a photographer who had proved certain photographs produced by the respondent.
14. From the evidence of the aforesaid witnesses, it is rather clear that the petitioner was having sufficient quantity of gold ornaments at the time of marriage, and according to her, the entire gold ornaments were appropriated by the respondent. But, in evidence, she had admitted that the thali chain and three bangles were with her. If she was in possession of three bangles, necessarily, the claim should have been made after deducting
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the weight of the said ornaments. Contention urged by her is that on the date of marriage itself, by evening, all her ornaments including the ear rings had been removed. This contention is quite inconceivable. If at all, the ornaments are taken to be kept in safe custody, as far as a newly wed bride is concerned, she will be permitted to use atleast a few of her ornaments. A photograph which has been produced by the appellant and marked as Ext.B1, which was taken after four days of marriage, proves that she was wearing sufficient ornaments. Therefore, the contention that all her gold ornaments were taken into custody by evening on the date of marriage may not be correct.
15. As far as the first respondent is concerned, he was employed in Military Service and the petitioner does not have a case that he had taken and appropriated the gold ornaments. Her contention is that at his instance, the gold ornaments were entrusted to his parents.
16. DW1 has been examined before the Court. He submitted that none of the ornaments were entrusted to him. According to him, all the ornaments remained with the petitioner herself.
17. Contention urged by the respondents is that
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petitioner's father had taken the gold ornaments. Her father is not examined in the case. Therefore, we are only left with the evidence of PW1. When a claim for return of gold ornaments is being considered, the petitioner will have to prove entrustment and appropriation of gold ornaments. There is some doubt regarding the entrustment in the manner spoken to by the petitioner as she is found to be in possession of sufficient quantity of gold ornaments even on the fourth day of marriage. But apparently it is not the entire quantity of ornaments she had at the time of marriage that she was wearing at that time.
18. We have already held that she was having 51 sovereigns of gold ornaments. She even admitted the fact that three bangles and thali chain were with her, which fact was not mentioned in the petition.
19. Though the contention of respondents is that father of the petitioner had taken the gold ornaments for keeping it in a locker, no attempt had been made by the respondents to call upon the petitioner's father to provide the particulars of the locker. They have not even stated that the locker facility was available in a particular bank.
20. Taking into account all these circumstances, we are of
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the view that atleast some of the gold ornaments were entrusted by the petitioner to the respondents.
21. Taking a rough estimate based on the admission made by the petitioner and other circumstances, we are of the view that it would only be appropriate to direct return of a reasonable quantity of gold ornaments and in the facts and circumstances of the case, we estimate it at 30 sovereigns.
Accordingly, this appeal is partly allowed. The order of the Family Court is modified. Instead of the decree permitting return of 51½ sovereigns of gold ornaments, petitioner is permitted to recover from respondents 1 and 2, 30 sovereigns of gold ornaments or its value at the time of payment. No costs.
## **Sd/-**
## **A.M.SHAFFIQUE**
**JUDGE Sd/-**
## **P.SOMARAJAN**
Rp //True Copy// PS to Judge
**JUDGE**
