Venu Madhavan Pillai vs Sheeja M.S
2021 Latest Caselaw 17446 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  THURSDAY, THE 26TH 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- DO-
           REPRESENTED 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 26th 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

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

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

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

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

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

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

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

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

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

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.