Venu Madhavan Pillai v. Sheeja M.S and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 26[TH] DAY OF AUGUST 2021 / 4TH BHADRA, 1943 MAT.APPEAL NO. 545 OF 2019** **AGAINST THE JUDGMENT IN OP 1329/2011 OF FAMILY COURT, THIRUVANANTHAPURAM DATED 13.2.2019** ## **APPELLANT:** VENU MADHAVAN PILLAI, AGED 44 YEARS S/O.MADHAVAN PILLAI, RESIDING AT VAZHAPALLY VADAKKETHIL, KANNIMELCHERI, MARUTHADY.P.O., KAVANAD, KOLLAM DISTRICT (FLAT NO.S-I, RAJANI KOTHANDA GRAHA APARTMENTS, NO.83, 10 THE AVENUE,ASOK NAGAR, CHENNAI-83. BY ADV K.B.PRADEEP ## **RESPONDENTS:** 1 SHEEJA M.S, AGED 38, D/O.MANIAMMA, RESIDING AT SHEEJA COTTAGE, P.T.CHACKO NAGAR, MEDICAL COLLEGE.P.O., ULLOOR, ULLOOR VILLAGE, THIRUVANANTHAPURAM, PIN-695011. 2 KALYANI, AGED 18, D/O.SHEEJA.M.S., SHEEJA COTTAGE, P.T.CHACKO NAGAR, MEDICAL COLLEGE.P.O., ULLOOR, ULLOOR VILLAGE, THIRUVANANTHAPURAM, PIN-695011. Mat.Appeal No.545/2019 -:2:- 3 MINOR MADHAVI, AGED 16, MINOR, D/O.SHEEJA.M.S., OF DO- DOREPRESENTED BY HER MOTHER SHEEJA.M.S., RESIDING AT SHEEJA COTTAGE, P.T.CHACKO NAGAR, MEDICAL COLLEGE.P.O., ULLOOR, ULLOOR VILLAGE, THIRUVANANTHAPURAM, PIN-695011. BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON 26.08.2021 DELIVERED THE FOLLOWING: Mat.Appeal No.545/2019 ## -:3:- J U D G M E N T Dated this the 26[th ] day of August, 2021 ## Kauser Edappagath, J. This is an appeal filed u/s 19 of the Family Courts Act, 1984 against the judgment of the Family Court, Thiruvananthapuram (for short, “the court below”) in OP No.1329/2011 dated 13/2/2019. 2. The respondent before the court below is the appellant. The petitioners before the court below are the respondents. The parties are referred to as shown in the original petition unless otherwise stated. The petition was one for return of gold ornaments, recovery of money and for maintenance, past as well as future. 3. The first petitioner and the respondent are divorced spouses now. Their marriage was solemnized on 18/8/2000 at Anugraha Auditorium, Kollam. The petitioners 2 and 3 are the children born in the wedlock. After the marriage, the first petitioner and the respondent resided together at Kollam, Mat.Appeal No.545/2019 -:4:- Thiruvananthapuram and Chennai. At the time of marriage, the respondent was working in a travel agency. Admittedly, in 2003, the respondent started a business in travel agency under the name and style “Middle East Travels”. It was alleged that the petitioner was given 100 sovereigns of gold ornaments by her parents at the time of her marriage and when the respondent started his business mentioned above at Chennai, he initially pawned and then sold 85 sovereigns of gold ornaments out of it on the pretext that the money he had with him was insufficient to start his business. It was further alleged that the respondent told her that once the business thrives, he would buy her back the said gold ornaments which, however did not happen. It was further alleged that the respondent had demanded and collected a sum of `20,00,000/- from her parents and he used the same for his personal needs. It was also the case of the petitioner that even though the respondent draws an average monthly income of `2,00,000/- from his business and able to maintain the petitioners, he failed to maintain them. According to her, she does not have any job or source of income to maintain herself and the children. She demanded an amount of `20,000/- per Mat.Appeal No.545/2019 -:5:- month for her and `5,000/- each to the children. The original petition has been instituted for return of money of `20,00,000/-, gold ornaments or its equivalent value and also for maintenance, past as well as future, at the rates mentioned above. 4. The respondent entered appearance and filed written statement. The respondent denied the case of the petitioners that the first petitioner was given 100 sovereigns of gold ornaments at the time of marriage out of which, he pawned and sold 85 sovereigns of gold ornaments to start his business at Chennai and that he has further collected `20,00,000/- from the parents of the first petitioner. In so far as the claim regarding maintenance is concerned, he contended that the first petitioner was leading an immoral life with her paramour and hence, she is not entitled to maintenance. He further contended that he is a cancer patient and that he has no income. It was also contended that the first petitioner is running a ladies churidar material shop at Bakery Junction, Thiruvananthapuram. He sought for the dismissal of the petition. 5. The parties went on trial. The first and second petitioners were examined as PWs 1 and 2 and Exts.A1 to A21 Mat.Appeal No.545/2019 -:6:- were marked on the side of the petitioners. The respondent was examined as CPW1, a witness was examined as CPW2 and Exts.B1 to B18 were marked on the side of the respondent. Ext.X1 was marked as court exhibit. On evaluation of evidence, the court below found that the respondent had appropriated 85 sovereigns of gold ornaments of the first petitioner for his business purpose and accordingly ordered to return it or its equivalent value. It was further found that the petitioners are entitled for maintenance and the maintenance as prayed for was granted. However, the court below found that there was no evidence to show that the respondent has collected `20,00,000/from the parents of the first petitioner and the said claim was declined. Accordingly, the original petition was allowed in part as per the impugned judgment. Challenging the said judgment, this appeal has been preferred by the respondent. 6. We have heard Sri.K.B.Pradeep, the learned counsel for the appellant and Sri.R.T.Pradeep, the learned counsel for the respondent. 7. The learned counsel for the appellant/respondent assails the impugned judgment on the ground that the court Mat.Appeal No.545/2019 -:7:- below was unrealistic and unreasonable in the appreciation of oral evidence. The counsel submitted that the burden is entirely upon the petitioners to prove the entrustment as well as misappropriation of gold ornaments which they miserably failed to discharge. In so far as the decree regarding maintenance is concerned, the counsel submitted that he challenges the maintenance awarded to the first petitioner alone. It is submitted that the quantum of maintenance awarded by the court below is without taking into account the means of the first petitioner and the ability of the respondent. The learned counsel for the respondents/petitioners, on the contrary, submitted that oral evidence let in by the petitioners would prove the entrustment of gold ornaments as well as its misappropriation and as such, the court below was right in granting a decree in their favour. The counsel further submitted that the quantum of maintenance awarded by the court below is absolutely reasonable taking into account the status of the parties and their means and ability. 8. We will first consider the claim of the first petitioner for return of gold ornaments. In paragraph 6 of the original petition, it was pleaded that the first petitioner was given 100 sovereigns Mat.Appeal No.545/2019 -:8:- of gold ornaments by her parents at the time of marriage and when the respondent started his own business at Chennai, he initially pawned and then sold off 85 sovereigns of gold ornaments out of it on the pretext that the money he had was insufficient to start the business. In the chief affidavit also, the first petitioner reiterated it. It must be noted that there is absolutely no pleading much less evidence as to when exactly the gold ornaments were given to the respondent by the first petitioner. There is also no pleadings or evidence as to when the gold ornaments were pawned or sold. It is pertinent to note that the evidence on record would show that business at Chennai was started initially in the name of the respondent and then it was changed in the name of the first petitioner. The first petitioner has admitted during cross-examination that she was managing the business at Chennai before her separation with the respondent in the year 2011. The documentary evidence also would show that the first petitioner was actively involved in the business. If that be so, definitely, the first petitioner would be able to state when exactly the gold ornaments were pawned and then sold for business purpose. It is not a case where the gold Mat.Appeal No.545/2019 -:9:- ornaments entrusted to the husband by the wife after marriage in trust was misappropriated by the former. But, the definite case of the petitioners is that the gold ornaments gifted to her by the parents were collected from her by the respondent for starting a business at Chennai in which she was also actively involved. If the gold ornaments were pawned as alleged by the first petitioner, definitely there would be documentary evidence. Apart from the interested oral testimony of the first petitioner alone, there is absolutely no evidence to show that the first petitioner was having 100 sovereigns of gold ornaments, it was entrusted to the respondent and he misappropriated the same. The learned counsel for the petitioners relying on the latest decision of the Division Bench of this Court in _**Rajesh v. Deepthi**_ (2021 (4) KLT 455) has argued that the Court can act upon oral evidence to prove possession of gold ornaments at the time of marriage as well as its entrustment to the husband after the marriage. It was held in the above decision that it is unrealistic for a court to insist for documentary evidence regarding ornaments that had changed hands at the time of marriage and the court can act upon oral evidence if it is found credible and Mat.Appeal No.545/2019 -:10:- trustworthy. It was further held that the entrustment of gold ornaments by the wife to the husband or in-laws also could be established by the sole testimony of the wife. As stated already, the definite case of the first petitioner is that the gold ornaments were entrusted for starting the business which was admittedly commenced for the welfare of their family. She also took part actively in the business. In fact, the evidence shows that the business stood in her name and she was managing the entire business. In such a situation, the first petitioner should be able to plead and prove exactly the details of the entrustment of gold ornaments which she failed. The first petitioner also did not care to examine her parents to prove that she was given 100 sovereigns of gold ornaments at the time of marriage. The capacity of the first petitioner and her parents to procure 100 sovereigns of gold ornaments was seriously challenged in the written statement. Still, even the oral testimony of the father was not given. The source of the parents of the first petitioner to procure 100 sovereigns of gold ornaments was also not disclosed. No independent witness was examined to prove the entrustment. In the circumstances, the oral evidence of PW1 could not have Mat.Appeal No.545/2019 -:11:- been taken as credible or trustworthy. The court below without much discussion relied on the evidence of PW1 and granted a decree. In the absence of evidence to prove the possession, entrustment and misappropriation of gold ornaments, the court below was not justified in granting a decree to return the gold ornaments or its market value. Hence, we set aside the same. 9. The court below granted past as well as future maintenance to the first petitioner @ `20,000/- per month and for the second and the third petitioners @ `5,000/- each per month. The maintenance granted to the first petitioner alone is under challenge in this appeal. It has come out in evidence that the respondent is an affluent person having lot of properties in his name. The first petitioner and the respondent separated in August, 2011. He has been running the travel agency business thereafter. Even though he has stated in the cross-examination that he stopped the said business in 2012, there is no evidence. The respondent has contended in the written statement that the first petitioner is running a ladies churidar material shop at Bakery Junction, Thiruvananthapuram, but there is absolutely no evidence to substantiate the same. The petitioners have Mat.Appeal No.545/2019 -:12:- satisfactorily proved that the respondent has ability to maintain them. There is nothing on record to show that the first petitioner has means to maintain herself. The quantum of maintenance awarded by the court below appears to be very reasonable considering the standard of living of the parties and ability of the respondent. We see no reason to interfere with the finding of the court below regarding the maintenance awarded. For the reasons stated above, we set aside the relief No.(i) granted in the impugned judgment for return of the gold ornaments or its equivalent value and confirm the relief No.(ii) granting maintenance. The appeal is allowed in part to that extent. No costs. Sd/- ## **A.MUHAMED MUSTAQUE** **JUDGE Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** Rp Mat.Appeal No.545/2019 ## -:13:- ## **APPENDIX** APPELLANT'S EXHIBITS: NIL RESPONDENTS' EXHIBITS ANNEXURE R1(a) TRUE COPY OF THE ORDER DATED 24.11.2016 IN MAT.APPEAL NO.845/2016 OF THE HON'BLE HIGH COURT OF KERALA ANNEXURE R1(b) TRUE COPY OF THE ORDER DATED 19.12.2018 OF THE HON'BLE HIGH COURT OF KERALA IN CONT.CASE (C) NO.2075/2018.