IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
MAT.APPEAL NO.76 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 45/2019 OF FAMILY COURT,
PALA
APPELLANT/RESPONDENT IN THE OP:
ANIL CHERIAN POLACHIRACKAL @ ANIL NAINAN
AGED 37 YEARS
S/O. NINAN CHERIAN, EMPLOYED AS ADMINISTRATION
OFFICER, AND DOMICILED IN KUWAIT,
ADDRESS FOR SERVICE,
POLACHIRACKAL HOUSE, KOTTAMURICKAL P.O.
CHANGANACHERRY, KOTTAYAM 686 105.
BY ADVS.
SRI.S.K.BALACHANDRAN
SMT.N.D.DEEPA
RESPONDENT/PETITIONER IN THE OP:
ASHA K.THOMAS
D/O. K.K. THOMAS AND EMPLOYED AS NURSE, RESIDING AT
KANJIRATHUMMOOTTIL HOUSE, PAMPADY P.O. PAMPADY,
KOTTAYAM 686 502.
BY ADV SRI.ALEX.M.SCARIA
SMT.SHERLY MOL THOMAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH Mat.Appeal.86/2020 AND CONNECTED
CASES, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
MAT.APPEAL NO. 86 OF 2020
AGAINST THE ORDER/JUDGMENT in OP 45/2019 OF FAMILY COURT,
PALA
APPELLANT/RESPONDENT IN THE OP:
ANIL CHERIAN POLACHIRACKAL @ ANIL NAINAN
AGED 37 YEARS
S/O NINAN CHERIAN,EMPLOYED AS ADMINISTRATION
OFFICER AND DOMICILED IN KUWAIT.
ADDRESS FOR SERVICE:
POLACHIRACKAL HOUSE,
KOTTAMURICKAL P.O,
CHANGANACHERRY,KOTTAYAM 686105
BY ADVS.
SRI.S.K.BALACHANDRAN
SMT.N.D.DEEPA
RESPONDENT/PETITIONER IN THE OP:
ASHA K THOMAS
AGED 33 YEARS
D/O K.K THOMAS AND EMPLOYED AS NURSE.
RESIDENCE-KANJIRATHUMMOOTTIL HOUSE,PAMPADY P.O
KOTTAYAM 686502.
BY ADVS.
SRI.ALEX.M.SCARIA
SMT.SARITHA THOMAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH Mat.Appeal.168/2020 AND CONNECTED
CASES, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
MAT.APPEAL NO. 168 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 46/2019 OF FAMILY COURT,
PALA
APPELLANT/PETITIONER:
ASHA K.THOMAS
AGED 29 YEARS
D/O.THOMAS, KANJIRATHUMMOOTTIL HOUSE, PAMPADY P.O.,
PAMPAD KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, PIN-
686 034, REPRESENTED BY HER POWER OF ATTORNEY
HOLDER K.K.THOMAS, S/O.LATE K.M.KURUVILA, AGED 62
YEARS, RESIDING AT KANJIRATHUMOOTTIL HOUSE, PAMPADY
P.O., KOTTAYAM DISTRICT-686 502.
BY ADVS.
ALEX.M.SCARIA
SMT.SARITHA THOMAS
RESPONDENTS/RESPONDENTS:
1 ANIL NAIAN @ NAINAN P.CHERIYAN
AGED 34 YEARS
S/O.NINAN CHERIYAN, POLACHIRACKAL HOUSE, KOTTAMURI
P.O., KOTTAMURI KARA, THRIKKODITHANAM VILLAGE,
CHENGANACHERRY TALUK, KOTTAYAM DISTRICT-686 105.
2 NAINAN CHERIYAN,
AGED 67 YEARS
POLACHIRACKAL HOUSE, KOTTAMURI P.O., KOTTAMURI
KARA, THRIKKODITHANAM VILLAGE, CHANGANACHERRY
TALUK, KOTTAYAM DISTRICT-686 105.
Mat.Appeal No.76 of 2020 & conn. cases 4
3 RACHEL NAINAN,
AGED 70 YEARS
W/O.NINAN CHERIYAN, POLACHIRACKAL HOUSE, KOTTAMURI
P.O., KOTTAMURI KARA, THRIKKODITHANAM VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686 105.
BY ADVS.
SMT.SHERLY MOL THOMAS
SRI.S.K.BALACHANDRAN
SMT.N.D.DEEPA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH CO.73/2020, MAT.APPEAL 76/2020 AND
CONNECTED CASES, THE COURT ON 27.07.2022 DELIVERED THE
FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
CO NO. 73 OF 2020
AGAINST THE ORDER/JUDGMENT IN O.P 46/2019 OF FAMILY COURT,
PALA AND CONNECTED WITH MAT.APPEAL 168/2020
CROSS OBJECTORS/RESPONDENTS IN OP:
1 ANIL CHERIAN POLACHIRACKAL @ ANIL NAINAN,
S/O.NINAN CHERIAN, AGED 37 AND CURRENTLY RESIDENT
AT BUILDING No.135, POLACHIRACKAL HOUSE,
KOTTAMURICKAL.P.O, THRICKODITHANAM, CHANGANACHERRY,
KOTTAYAM, KERALA - 686 105.
2 RACHEL NINAN,
W/O.NINAN CHERIAN, AGED 74, REPRESENTED BY ANIL
CHERIAN POLACHIRACKAL, AND RESIDING AT BUILDING
NO.135, POLACHIRACKAL HOUSE, KOTTAMURICKAL.P.O.,
THRICKODITHANAM, CHANGANACHERRY TALUK, KOTTAYAM,
KERALA - 686105.
BY ADV.
SMT.SHERLY MOL THOMAS
RESPONDENT/PETITIONER IN OP:
ASHA K.THOMAS
D/O.THOMAS, AGED 34 YEARS, AND HAVING RESIDENCE AT
KANJIRATHUMMOOTTIL HOUSE, PAMPADY P.O, PAMPADY
KARA, PAMPADY VILLAGE, KOTTAYAM, KERALA - 686 502.
BY ADV ALEX.M.SCARIA
THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH Mat.Appeal.168/2020 AND CONNECTED
CASES, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 6
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
-------------------------------------------------
Mat.Appeal Nos.76, 86 & 168 of 2020 &
Cross Objection 73 of 2020
-----------------------------------------------
Dated this the 27th day of July, 2022
JUDGMENT
Sophy Thomas, J.
The husband is the appellant in Mat.Appeal Nos.76 and 86 of 2020, and the cross objector in C.O No.73 of 2020. The wife is the appellant in Mat.Appeal No.168 of 2020 and the respondent in the other proceedings.
2. The wife filed O.P No.45 of 2019 for a decree of divorce, and O.P No.46 of 2019 for recovery of patrimony, before the Family Court, Pala. The Divorce O.P was decreed in her favour, against which the husband preferred Mat.Appeal No.76 of 2020. Her O.P for recovery of patrimony as well as the counterclaim by the husband for recovery of a gold chain were dismissed, against which the husband filed Mat.Appeal No.86 of 2020 and the wife filed Mat.Appeal No.168 of 2020. Apart from that, the husband filed a cross objection opposing Mat.Appeal No.168 of 2020 filed by the wife.
Mat.Appeal No.76 of 2020 & conn. cases 7
3. O.P Nos.45 and 46 of 2019 were tried together by the Family Court, Pala. After formulating necessary issues, the parties went on trial. PWs 1 to 3 were examined and Exts.A1 to A8 series were marked from the side of the wife and DWs 1 and 2 were examined and Exts.B1 to B48 were marked from the side of the husband. After analysing the evidence in a cursory manner, the Family Court decreed O.P No.45 of 2019 dissolving their marriage, and dismissed O.P No.46 of 2019 rejecting her claim for patrimony in toto and also dismissed the counterclaim put forward by the husband. Hence the parties have come up with the above appeals, and cross objection.
4. Now let us have a reappraisal of the facts and evidence to find out whether there was any illegality or impropriety in the judgment impugned, warranting interference by this Court.
5. The wife shall be referred as the appellant and the husband shall be referred as the respondent hereinafter.
6. The appellant filed O.P No.45 of 2019 for dissolution of her marriage on the ground of matrimonial cruelties. Her marriage with the respondent was solemnised on 03.06.2013. They went for a honeymoon trip on 12.06.2013 and even according to the respondent, they lived together, only upto 03.07.2013. So, their marital relationship lasted for just one month, and it ended up with Mat.Appeal No.76 of 2020 & conn. cases 8 their honeymoon.
7. The case of the appellant is that, the respondent was cruel in his nature and behaviour and he was never a loving or caring husband. He was an addict to porn videos and he had no interest in leading a normal marital life with the appellant. He was interested in gay sex. He was always watching obscene videos in his bedroom. During their train journey to Jaipur from Udaipur, an altercation occurred between them, and the respondent pushed her forcibly, and luckily she did not fall from the train. She stopped her journey and returned to her work place. She is so sure that, if she had continued with him, it would have been dangerous to her life.
8. The respondent opposed her contentions and according to him, he was a very loving and caring husband and he never ill- treated his wife. At the same time, he is admitting the unhappy incident that occurred in their train journey during their honeymoon trip. He is admitting that, they parted their ways on 03.07.2013 i.e. just after one month of their marriage. DW2, the mother of the respondent, also supported him saying that, there was no ill-treatment towards the appellant and the couple were very happy after their marriage. Admittedly, the appellant came back to her matrimonial home on 20.08.2013. But she returned to her paternal house on 08.11.2013. According to the respondent, Mat.Appeal No.76 of 2020 & conn. cases 9 he belongs to a very rich and reputed family and he is well educated and a loving husband. If that be so, in normal course, no wife will abandon her matrimonial life, that too just after one month of the marriage.
9. Before hearing the appeals, we also attempted for an amicable settlement to find out whether the parties could be reconciled to resume their marital relationship. But it did not work out as the appellant was adamant in her stand that she could not continue with him without fear of life. When a wife complains about the cruel nature of her husband, we cannot expect any evidence to corroborate her testimony as to the nature, attitude and behaviour of her husband inside their bedroom. The appellant alone is the person competent to say about their private life, and even the family members may have only hearsay information from them. So, sufficient weightage has to be given to the statement of the appellant, who lived with the respondent just for 30 days.
10. The appellant is very much scared of continuing her marital relationship with the respondent, and according to her, her life itself will be in danger if she continues to live with him. The couple lived together just for one month and they are living separate for about ten years spoiling their youthful years engaged in litigations. Obviously, their relationship is dead and we could see Mat.Appeal No.76 of 2020 & conn. cases 10 no chances of reconciliation between them, so as to lead a meaningful married wife. But, at the same time, the respondent is not willing for a joint petition for divorce, to dissolve their marriage free of any stigma.
11. In Beena vs. Shino G.Babu (2022 (2) KLT 139), this Court held that, when both the parties are unable to lead a meaningful matrimonial life due to inherent differences of opinion, and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation. The purpose of marriage is to hold matrimonial ties lifelong, respecting mutual obligations and rights. If the court is able to form an opinion that due to incompatibility, the marriage failed, and one of the spouses was withholding consent for mutual separation, the court can very well treat that conduct itself as cruelty. If one of the spouses is refusing to accord divorce on mutual consent after having convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse. No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair. The portrayal of such conduct through manifest behaviour of the spouse in a manner understood by a prudent, as 'cruelty' is the language of the lawyer Mat.Appeal No.76 of 2020 & conn. cases 11 for a cause before the court. There is no useful purpose served in prolonging the agony any further and the curtain should be rung at some stage.
12. In Samar Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511), the Apex Court held that "once the parties have separated and separation has continued for a sufficient length of time, and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties".
13. The respondent though flatly denied all the allegations of cruelties levelled against him, he never confronted the appellant with respect to those allegations during cross examination. His cross examination was mainly confined to the monetary aspects. Since the case put forward by the appellant regarding matrimonial cruelties was not even challenged during her cross examination, it is only to be accepted, and the judgment impugned is only to be confirmed.
14. The Family Court totally rejected the monetary claims of Mat.Appeal No.76 of 2020 & conn. cases 12 the appellant by dismissing O.P No.46 of 2019. Her case was that, her father entrusted Rs.10 lakh with the respondent and his parents on 26.05.2013 during engagement ceremony. PW2, the father of the appellant, availed loan of Rs.10 lakh from Pampady Service Co-operative Bank and that amount was entrusted with the respondent and his parents as deposed by him. Ext.A2 pass book of PW2 substantiates that fact. PW3, the mother of the appellant, also corroborated that testimony. The Family Court rebutted the contention of the respondent that, the parents of PW1 had no source of income to pay Rs.10 lakh towards her patrimony. But, at the same time, for want of pleadings as to when, where and whom, the amount was entrusted, her claim was rejected.
15. In O.P No.46 of 2019, in paragraph 3, it was specifically pleaded that, Rs.10 lakh was entrusted with the respondents in connection with the engagement ceremony by the father of the appellant. It was quite a strange and unfortunate finding by the Family Court, 'that the amount can be physically given to only one person and normally there cannot be a joint entrustment of money, and hence the version that the amount was given to respondents 2 and 3 can only be said to be vague'. Time and again the Apex Court has reminded that, the pleadings should receive a liberal construction and no pedantic approach should be adopted to defeat Mat.Appeal No.76 of 2020 & conn. cases 13 justice on hair splitting technicalities.
16. The respondent has got a case that on 26.05.2013, he was not available in his house and he had gone to the house of his friend. The definite case of the appellant is that, the amount was entrusted on the date of engagement, and so it is too much for the respondent to contend that, on the date of his own engagement, he was not available in his house, and he had gone to the house of his friend.
17. The respondent and his mother were categoric in saying that, they never received any patrimony from the father of the appellant. According to them, they were financially rich and the appellant belonged to a poor family. In the argument notes filed by the respondent, in paragraph 7.3(j), it is submitted that since PWs 2 and 3 admitted that the money was given to parents of the respondent, DW1 has not taken the money, and he cannot be held liable for it. It is conventional in Christian marriages to entrust patrimony amount of the bride with the bridegroom, his parents, or even with the uncles. It is entrusted for the bride as a trust to be used for her benefit, and the recipients are bound to keep it in trust for her and they are liable to return the same as and when demanded. We cannot expect any documentary evidence to prove such transactions, and we have to analyse human conduct in the Mat.Appeal No.76 of 2020 & conn. cases 14 touchstone of ground realities. Probabilities, presumptions and surrounding circumstances are to be looked into, to reach a conclusion as to whether a fact alleged is proved with preponderance of probabilities.
18. The appellant was a Nursing Tutor in Udaipur at the time of marriage. Her mother was a Staff Nurse working in Saudi Arabia for 17 years and she retired as Head Nurse from District Hospital, Kottayam. Her father was working as Supervisor/Warden of an Orphanage drawing monthly salary. Her parents were having landed properties extending more than 1 Acre as evidenced from Ext.A8 series tax receipts. Moreover they had availed a loan of Rs.10 lakh to give patrimony to their daughter. So, their source of income was sufficiently proved. The engagement ceremony was on 26.05.2013 and the loan was availed on 04.05.2013. There is nothing to show that, the said amount or any portion of it was utilised for purchasing her gold ornaments. When PWs 1 to 3 proved the source of Rs.10 lakh and categorically deposed before court the entrustment of that amount with the respondent or even with his parents, we have to hold that the entrustment is sufficiently proved, and it doesn't matter who among them received it on hand. The testimony of DWs 1 and 2 were not sufficient enough to impeach the testimony of PWs 1 to 3 regarding Mat.Appeal No.76 of 2020 & conn. cases 15 entrustment of patrimony or to disprove Ext.A2 document.
19. Now regarding the gold ornaments, the case of the appellant is that, she was given 62 sovereigns of gold ornaments for her marriage, and apart from that, a chain weighing 2.5 sovereigns was given to the bridegroom from her family. Ext.A3 wedding photograph will show the ornaments worn by her at the time of marriage. Ext.A4 series are the bills for purchasing gold ornaments from Josco Fashion Jewellers, Kottayam, dated 28.05.2013. It is true that the bills are in the name of the parents and uncle of the appellant. PW2, the father of the appellant, deposed that as told by the jewellery people, three separate bills were prepared, may be for the purpose of saving tax. PW3, the mother of the appellant, was working in Saudi Arabia for 17 years and according to her, she had brought gold ornaments from Saudi for her daughter, and those ornaments were exchanged at the time of marriage. Ext.A4 series bills also will prove that old gold was exchanged for purchasing new ornaments. The total price of gold ornaments purchased on that day was Rs.10,79,420/- and after adjusting the price of old gold exchanged, the balance amount given in cash was only Rs.1,46,000/-. So much so the respondents cannot have a case that, with the alleged patrimony of Rs.10 lakh, gold ornaments were purchased for her marriage. PWs 1 and 2 Mat.Appeal No.76 of 2020 & conn. cases 16 deposed that they had bid two chitties, and they had savings from salary and agricultural income to meet the marriage expenses, and only to pay the patrimony, PW2 availed the bank loan. There is no reason to disbelieve their testimony.
20. The total quantity of gold ornaments purchased on 28.05.2013 was 361.53 gms equivalent to 45.19 sovereigns. The case of the appellant is that, she was having total 62 sovereigns of gold ornaments. But there is nothing to show that apart from the gold ornaments purchased as per Ext.A4 series bills, she was having any other old gold ornaments with her, at the time of marriage. Moreover, PWs 2 and 3 deposed before court that PW1 was wearing new gold ornaments at the time of marriage. Anyhow there is evidence to show that 45.19 sovereigns of gold ornaments were purchased immediately before her marriage which includes a chain weighing 2½ sovereigns. That might have been the chain given to the respondent from her family which is proved by Ext.A5 photograph and admitted by the respondent. The respondent could not prove that the said chain was returned to the appellant at any point of time. So, we have to find that including the chain given to the respondent, 45.19 sovereigns of gold ornaments were given from her family.
Mat.Appeal No.76 of 2020 & conn. cases 17
21. The appellant is admitting that, she was keeping 4.5 sovereigns with her for her daily use. So the balance entrusted for safe custody in locker, with the respondents might have been only 40.69 sovereigns.
22. Now let us see whether the appellant could prove the entrustment of gold ornaments with the respondent and his parents.
23. The respondent and his mother admitted before court that, after marriage except for one or two days in her paternal house, the appellant was residing at her matrimonial home. DW2 categorically stated in her proof affidavit that after marriage, except on 6th and 7th of June, the appellant was residing with the respondent at his home till they proceeded for honeymoon trip on 12.06.2013. So, practically, the appellant was staying at her matrimonial home, and therefore, there was no chance for her to take her ornaments back to her paternal house, before they proceeded for their honeymoon trip.
24. The defence of the respondent regarding the gold ornaments is manifold. DWs 1 and 2 are admitting that, the appellant was wearing ornaments at the time of marriage, but they do not know whether it was gold or silver. Deviating from the pleadings, the respondent put forward a new case that on the very Mat.Appeal No.76 of 2020 & conn. cases 18 next day of marriage, father of the appellant reached his house, and took all her gold ornaments with him. It is a story difficult to be swallowed without a pinch of salt. There was no probability for a father to reach the matrimonial home of her daughter, on the very next day of marriage to take back all the gold ornaments given to her from her family in connection with the marriage. Since the couple left for their honeymoon trip on 12.06.2013 i.e. just after seven days of their marriage, that too from their matrimonial home, normally the ornaments might have been entrusted with the parents-in-law or it might have been kept safe in a bank locker. The respondent has no case that the appellant or her family had a bank locker and the ornaments were kept in that locker before they proceeded for their honeymoon trip. Since the respondent was also available with the appellant, he might have been well aware of the arrangements made for keeping her gold ornaments safe, before they proceeded for their honeymoon. We cannot expect that the couple will go for their honeymoon trip to North India wearing 40-45 sovereigns of gold ornaments.
25. The respondent has got another case that, the gold ornaments of the appellant were returned to Josco jewellers and the amount was received back, for which no evidence is forthcoming. Even DW2 has no case that, when the appellant Mat.Appeal No.76 of 2020 & conn. cases 19 returned to her matrimonial home on 08.11.2013 along with her father, she had taken her entire gold ornaments with her. What DW2 has stated is that, when the appellant returned, she had taken the 2½ sovereigns of gold chain given to the respondent, and also the 4 sovereign chain given to her by DW2.
26. When the parties are aware of the true state of affairs, suppressing that fact, they are taking the court for a ride, to guess many things. Many matters have to be considered and decision has to be taken on disputed questions of fact, on the touchstone of probabilities. It would be unreasonable and irrational for a court to look for documentary evidence in matrimonial issues to prove a particular fact. We have to analyse the oral evidence of parties and their witnesses, and decision has to be taken based on preponderance of probabilities. As we have already stated, the respondent has no specific case regarding the gold ornaments of the appellant. At one point, he was even disputing the genuineness of the gold ornaments. Yet another point, he would say that, on the very next day of marriage, her entire gold ornaments were taken away by her father. But, the available facts will show that, there was every probability for the appellant to entrust the gold ornaments with the respondent and his parents before she went out for honeymoon trip just after seven days of Mat.Appeal No.76 of 2020 & conn. cases 20 her marriage. So, the respondent and his parents are answerable to the gold ornaments of the appellant entrusted with them.
27. Going by the documents and evidence, the gold ornaments entrusted with the respondent and his parents might have been only 40.69 sovereigns and they are liable to return the same to the appellant in specie or its market value as on the date of payment.
28. Regarding the counterclaim of the respondent, DW2 says that, a gold chain weighing 4 sovereigns was given by her to the appellant. They are relying on Ext.B8 photograph to prove the same. But, at the same time, DWs 1 and 2 categorically stated that, no gold ornaments were given to the appellant either by the respondent or his parents. In the light of such a statement, there cannot be a decree for recovery of any gold ornaments from the appellant. So, the dismissal of the counterclaim by the Family Court is justified.
29. The appellant has put forward a claim for movables worth Rs.75,100/-, which forms dress materials worth Rs.40,000/- and the remaining are furniture, lamp, mattress etc. Since there is evidence to show that on 08.11.2013, the appellant went back to her paternal house on her own, along with her father, she might have taken her dress items with her. She has no case that she was Mat.Appeal No.76 of 2020 & conn. cases 21 forcibly driven out, or she had an expectation of coming back to her matrimonial home. So normally she might have taken back her dress with her, when she returned to her paternal house, along with with her father. Regarding the furniture, the respondent totally denied her claim. At the same time, he has got a case that, after they separated, parents of the appellant reached his house on 26.11.2013 and took away all her belongings. There is no challenge or contra evidence adduced from the side of the appellant. So, her claim for movables is liable to be rejected.
In the result, above cases are disposed of as follows:
(i) Mat.Appeal Nos.76 of 2020, 86 of 2020 and Cross Objection 73 of 2020 are dismissed.
(ii) Mat.Appeal No.168 of 2020 is allowed in part, setting aside the impugned judgment and granting a decree in favour of the appellant as follows:
(a) The respondents are directed to return Rs.10 lakh to the appellant within three months from today and in default she can recover the same from the respondents and their assets with interest @ 6% per annum from the date of default till realisation.
Mat.Appeal No.76 of 2020 & conn. cases 22
(b) The respondents are directed to return 40.69 sovereigns of gold ornaments to the appellant within three months from today and in default, she can recover its market value as on the date of payment, from the respondents and their assets.
The Mat.Appeals and the Cross Objection are disposed of accordingly, without any order as to costs.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
SOPHY THOMAS JUDGE smp