Thomas George v. Mini Mathai & Elleesa

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940** **MAT.APPEAL.NO. 678 OF 2009** **-----------------IN OP 919/2003 OF FAMILY COURT,ERNAKULAM DATED 17-04-2009** **--------------------** ## **APPELLANT(S)** **THOMAS GEORGE S/O.LATE VARKEY AGED 44 YEARS, PERUMATTATHIL HOUSE, PEZHAKKAPPILLY PO., MUVATTUPUZHA, ERNAKULAM DISTRICT** **BY ADV.SRI.JOHN JOSEPH(ROY).** ## **RESPONDENT(S):** **MINI MATHAI & ELLESA ,D/O.MATHAI AGED 40 YEARS, CHAKKITTUKUDIYIL HOUSE, KALLOORKADU PO, KALLOORKKADU, MUVATTUPUZHA.** **BY ADV. SRI.M.S.UNNIKRISHNAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DXY** ## **K.HARILAL & A.M.BABU, JJ. ---------------------------------------Mat.Appeal.No. 678 of 2009** **-----------------------------------------------Dated this the 19[th] day of June, 2018** ## **J U D G M E N T** ## **A.M.Babu, J.** Appellant was the husband of the respondent. Their marriage was dissolved by this court by a decree of divorce. The respondent moved the family court claiming return of 22 sovereigns of gold ornaments. The claim was allowed. Therefore has come the appellant in appeal. 2. The case of the respondent is summarized below: Her marriage with the appellant was solemnized on 22.02.1998. As bride she wore 30 sovereigns of gold ornaments. All her ornaments were kept in the house of the appellant. The respondent was wearing only the bare minimum ornaments weighing 8 sovereigns. When she went for the the baptism of her sister's child, she had taken a chain and two bangles more. Those **Mat.Appl.No. 678 of 2009** ..2.. ornaments were taken back to her matrimonial home when the appellant had taken her to his house later. The marital relationship went unfriendly. The spouses started to live separately. When she went to her house, only 8 sovereigns of gold ornaments of hers were taken by her. The remaining 22 sovereigns of gold ornaments were in the house of the appellant in his custody. He is liable to return her ornaments weighing 22 sovereigns or pay Rs 1,03,400/- as the value thereof with interest. 3. The appellant contested the suit. He raised the following contentions: No ornament of the respondent is with the appellant. She had taken all her ornaments to her house when she left her matrimonial home on 23.12.2018. She did not bring any ornament of hers back to her matrimonial home when she came back. She relinquished all her claims at the time of disposal of M.F.A.No. 516/01. She is not entitled to a decree directing return of 22 sovereigns of gold ornaments. 4. Both sides adduced evidence before the family court. **Mat.Appl.No. 678 of 2009** ..3.. PW1 was examined and Exts A1 to A3 were marked on the side of the respondent. RW1 was examined and Exts B1 and B2 were marked on the side of the appellant. 5. The family court on appraisal of the pleadings and evidence of the rival parties came to the conclusion that the claim of the respondent for 22 sovereigns of gold ornaments was true and genuine. Therefore a decree as sought for was granted. 6. We heard Shri. John Joseph, the learned counsel for the appellant and Sri. M.S Unnikrishnan, the learned counsel for the respondent. 7. The evidence available in the case is oath against oath. No documentary evidence is possible in a case of this nature. The respondent claimed that she had 30 sovereigns of gold ornaments. She contended that she used to wear ornaments weighing 8 sovereigns and that the remaining 22 sovereigns of ornaments were kept in the house of the appellant in his custody when she left that house. The said contention of the respondent is denied by the appellant. According to him, she had taken all **Mat.Appl.No. 678 of 2009** ..4.. her belongings including her ornaments when she left his house on the night of 23.12.1998. The learned judge of the family court after having an appraisal of the evidence adduced on both sides accepted the case of the respondent and granted her a decree. We shall reappraise the evidence. 8. PW1 is the respondent. She swore in her proofaffidavit as follows: She wore 30 sovereigns of gold ornaments as bride. Those ornaments were given to her by her parents. All her ornaments came to the custody of her husband. She used to wear only 8 sovereigns of gold ornaments. The remaining 22 sovereigns of ornaments were kept in the almirah in her bedroom in her matrimonial home. On 23.01.1999 when she attended the baptism of her sister's child, she wore a chain and two bangles in addition to her usual wearings of 8 sovereigns of gold ornaments. Thereafter for sometime she was residing in her house. She came back to her matrimonial home on 09.02.1999. She did not take her ornaments with her at that time. Thereafter on 07.03.1999 **Mat.Appl.No. 678 of 2009** ..5.. herself and the appellant had gone to her house and took her ornaments and other belongings except her engineering degree certificate. Her 22 sovereigns of gold ornaments were kept in the almirah in her bedroom in her matrimonial home. Finally she was ousted from her matrimonial home on 26.03.1999. She left her belongings such as gold ornaments, degree certificate, dress et cetera in her matrimonial home. 9. We have discussed the evidence of PW1 as appearing in her proof-affidavit. She faced cross-examination. In crossexamination too she maintained that her 22 sovereigns of gold ornaments were left in the custody of the appellant when she left his house. She repeated in cross-examination that she used to wear only 8 sovereigns of gold ornaments. She spoke that she wore more than 8 sovereigns of ornaments only on special occasions. She deposed that at the time of the baptism ceremony of her sister's child, she wore gold ornaments weighing 8½ sovereigns in addition to the ornaments of 8 sovereigns she used to wear. She asserted in cross-examination that on 07.03.1999 **Mat.Appl.No. 678 of 2009** ..6.. she went to her house along with the appellant and had taken her gold ornaments to her matrimonial home. She denied the suggestion put to her in cross-examination that when she left her matrimonial home, she took all her ornaments with her. Having read the evidence of the PW1 we find no reason to disbelieve her. She survived cross-examination. Nothing tangible could be brought out in cross-examination to disbelieve her. The evidence of PW1 inspires confidence. Her evidence is reliable and acceptable. However, a definite conclusion is possible only after reading and assessing the evidence of the appellant. 10. The appellant was examined as RW1. He deposed to his case in his proof-affidavit. He swore in the proof-affidavit as under: He did not demand money and gold ornaments and he did not receive anything. He was not entrusted with any belongings of the respondent. He did not even ascertain the weight of the gold ornaments the respondent had. It was not at all necessary for him to ascertain such matters. He only heard from his former wife that she had 30 sovereigns of gold **Mat.Appl.No. 678 of 2009** ..7.. ornaments. On 23.12.1998 by night the father of the respondent had taken the respondent to her house. She had taken with her all her costly belongings including dress materials and ornaments. The respondent came back to his house, but did not bring her ornaments back. He did not verify whether the respondent brought her ornaments back. He was never in possession of any ornament of the respondent. 11. RW1 was cross-examined. He who stated in his proof-affidavit that he did not ascertain the weight of the gold ornaments of the respondent gave a different version in crossexamination . He spoke that the respondent was given by her parents 30 sovereigns of gold ornaments at the time of the marriage. The appellant who pretended to know nothing about the gold ornaments of the respondent conceded in crossexamination that he too went to the jwellery to buy 30 sovereigns of gold ornaments for the respondent. Therefore the version in the proof-affidavit of RW1 that he had no idea about the gold ornaments of his former wife was a false statement. **Mat.Appl.No. 678 of 2009** ..8.. RW1 conceded in cross-examination that the gold ornaments, dress, books, certificates et cetera of the respondent were kept in the bedroom of the couple in his house. RW1 repeated in crossexamination that the gold ornaments were kept in the almirah kept in the said room. When he concedes that the gold ornaments of his wife were kept in the room in his house and states that she had taken all her ornaments with her when she left his house on 23.12.1998, it is for him to prove that she did take her ornaments with her. Therefore his evidence should be perfect or at least reliable. But his evidence is not so. In crossexamination he spoke that he went to the house of the respondent on 07.03.1999 to take the certificate of the respondent. At that time, said RW1, the mother of the respondent alone was present in that house. According to RW1, he did not enter the house and kept outside the house for 15 minutes. His evidence was to the effect that throughout the duration of 15 minutes he was demanding the engineering degree certificate of the respondent. RW1 spoke that he made **Mat.Appl.No. 678 of 2009** ..9.. such a demand. He added that it was a strong demand. He stated that the engineering degree certificate of the respondent was not an important document for him. He did not explain why did he insist on to get the certificate of his wife which was not an important document for him. He thus proved himself to be a person who was not even amenable to keep the certificate of his wife in his wife's house. We are unable to accept his version that such a person had permitted his wife to keep all her ornaments in her house and come to his house without any ornament. We have no hesitation to state that RW1 was cornered in crossexamination . 12. Having had a reappraisal of the of the evidence in the case, we find that the evidence of PW1 has a clear edge over the evidence of RW1. We do not find any reason to disbelieve PW1. We have reasons for not accepting the evidence of RW1. We have stated those reasons. We find that the family court did not go wrong when it preferred the evidence of PW1 to the evidence of RW1. The evidence in the case proves the claim of the respondent **Mat.Appl.No. 678 of 2009** ..10.. to be true and genuine. 13. The learned counsel for the appellant argued that the respondent had no claim for any gold ornaments at the time of prosecution of O.P.No. 15852 of 1999 before this court. That was a petition filed by the appellant for a declaration that the marriage was a nullity. The respondent laid a counter-claim for divorce. The relief sought by the appellant was refused and the relief of divorce sought by the respondent was decreed. The claim for gold ornaments was not a subject matter in the said proceedings and therefore it was not necessary for the respondent to state anything about her claim for ornaments in the said proceedings. We are unable to accept the argument that the failure to mention anything about the gold ornaments in the aforesaid proceedings is fatal to the claim of the respondent for gold ornaments. 14. The appellant had a contention that the claim of the respondent for gold ornaments was barred by the law of limitation. The claim of the respondent for her ornaments is not **Mat.Appl.No. 678 of 2009** ..11.. barred by any length of time inasmuch as a statutory trust under section 6 of the Dowry Prohibition Act is created. In this connection we need not state anything more than referring to the decision of this court in _**Bindu.K.P v Surendran C.K (2018(2) KHC 1).**_ 15. For reasons stated by us, we do not find any reason whatsoever to interfere with the decree granted by the family court. The decree is only to be confirmed. The appeal deserves only a dismissal. However, in the circumstances of the case, we make no order as to costs. 16. Dismissed. No costs. Sd/- ## **K.HARILAL, JUDGE** Sd/- ## **A.M.BABU, JUDGE** \\True Copy\\ PA to Judge Dxy 21.06.2018