K.B.Anildath vs Sheeja
2021 Latest Caselaw 17624 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT
            THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                     &
            THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
        FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
                     MAT.APPEAL NO. 1202 OF 2017
AGAINST THE JUDGMENT IN O.P.NO.976/2012 OF FAMILY COURT,    PALAKKAD
APPELLANT/S:

    1       K.B.ANILDATH, AGED 43 YEARS,
            S/O.BALAKRISHNAN, KINATTINGAL VEEDU, THENUR P.O.,
            PALAKKAD DISTRICT, REPRESENTED BY THE POWER OF ATTORNEY
            HOLDER, K.V.BALAKRISHNAN, S/O.VELAYUTHAN, AGED 75
            YEARS, KAKKODE VEEDU, THENUR P.O., PALAKKAD DISTRICT.
    2       K.V.BALAKRISHNAN, S/O.VELAYUTHAN,
            AGED 75 YEARS, KAKKODE VEEDU, THENUR P.O., PALAKKAD
            DISTRICT.
    3       P.K.KUNHULAKSHMI, W/O.BALAKRISHNAN,
            AGED 65 YEARS, KINATTINGAL VEEDU, THENUR P.O., PALAKKAD
            DISTRICT.
            BY ADVS.
            SRI.BINOY VASUDEVAN
            SRI.R.MANIKANTAN


RESPONDENT/S:

            SHEEJA, D/O.SIVADAS, AGED 38 YEARS,
            KODUNGATHU VEEDU, EZHAKKAD AMSOM,
            PALAKKAD TALUK, PALAKKAD DISTRICT.
            BY ADVS.
            SRI.ARUN MATHEW VADAKKAN
            SRI.SANTHEEP ANKARATH



THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
10.08.2021, THE COURT ON 27.08.2021 DELIVERED THE FOLLOWING:
 Mat. Appeal No.1202/2017                2

      A.MUHAMED MUSTAQUE & Dr.KAUSER EDAPPAGATH, JJ.

      =======================================

                           Mat. Appeal No.1202 of 2017

                   ~~~~~~~~~~~~~~~~~~~~~~~~~

                   Dated this the 27th day of August, 2021
                   =========================

                                 JUDGMENT

A.Muhamed Mustaque, J.

This appeal is filed by the respondents in O.P. No.976 of 2012 on the

file of the Family Court, Palakkad.

2. The Family Court granted a decree by allowing a petition filed by

the respondent herein for recovery of money and gold ornaments from

the appellants.

3. The first appellant married respondent on 13.05.2007. The

matrimonial life was not smooth for both. The husband filed a petition for

divorce on the ground of cruelty as O.P.No.465 of 2010 on the file of

Family Court, Palakkad which was dismissed. In an appeal filed by the

first appellant, we, by a separate judgment, allowed the appeal on

10.8.2021, and granted a decree of divorce.

4. After filing of the petition for divorce by the husband, the

respondent herein, filed O.P.No.976 of 2012, from which this appeal

arises.

5. There are two claims, one for return of Rs.50,000/- alleged to

have been paid by the parents of the respondent. It is alleged that the

appellants misappropriated the amount. The other claim is for return of

gold ornaments from the appellants.

Claim for return of money

6. It is stated in the petiiton that a sum of Rs.50,000/- was given to

the respondent by her parents and that money was taken by the first

appellant on the marriage day itself. The appellants refuted this claim in

the counter affidavit. There is absolutey no evidence to prove that

parents of the respondent had given her Rs.50,000/-. They were not

examined. It is quite improbable that on the first day itself, such amount

will be misappropriated or appropriated by the husband or the family

members. The respondent has no case that the amount was given as

partrimony. The Family Court also did not rely on any material evidence

in entering a finding that the respondent is entitled for return of

Rs.50,000/-. The finding without support of such evidence cannot be

sustained. Therefore, we set aside the finding that the respondent is

entitled to return of Rs.50,000/- from the appellants.

Claim for return of gold ornaments

7. According to the respondent, her parents gave her 115.7725

sovereigns of gold ornaments. Except 7.7725 sovereigns of gold

ornaments, all other ornaments were misappropriated by the appellants.

Appellants disputed quantity of the gold ornaments, and also

appropriation of gold ornaments belonging to the respondent.

8. The Family Court relied on Ext.A1 series of documents to hold that

respondent adorned 115.7725 sovereigns of gold ornaments. There are

no original bills produced before Family Court to establish the quantum

of gold ornaments. When huge quantity of gold ornaments is involved,

court cannot merely rely on the estimate prepared by jewellers,

especially when such jewellers were not examined. The Family Court also

relied on photographs, which do not indicate the quantum of gold

ornaments. It only indicates that substantial gold ornaments were worn

by the respondent on the wedding day. The respondent should have

examined the jeweller from whom gold ornaments were purchased. No

explanation was offered for non examintation of the jeweller from whom

such huge quantity of gold ornaments were purchased. When there

exists possibility of independent evidence, to establish or prove a fact,

the court cannot ignore such mode of evidence and simply rely on

interested testimony of a party. We, therefore, are of the view that

respondent failed to prove the quantum of gold ornaments adorned by

her at the time of marriage.

9. However, we find from the photographs as well as admission of

RW1 and RW2, that the respondent adorned gold ornaments at least to

the quantity of 50 sovereigns. RW1 is the father of first appellant and

RW2 is the sister in law of first appellant. RW1 deposed that respondent

adorned 45 sovereigns and RW2 stated that respondent adorned 50

sovereigns. Therefore, we hold that respondent adorned at least 50

sovereigns gold ornaments at the time of marriage.

10. Next question to be considered is with regard to entrustment

and appropriation of the gold ornaments by the appellants. Admittedly,

out of total gold ornaments, the respondent was keeping possession of

7.7725 sovereigns of gold ornaments. The balance therefore is only 42.

2275 sovereigns. According to the respondent, gold ornaments after the

marriage were entrusted with the first appellant, who in turn, handed

over the same to the third appellant for safe custody. Neither the first

appellant nor the third appellant was examined before the Family Court

to deny that. It is a consistent case of the appellants that respondent,

while leaving the matrimonial home, took all the gold ornaments along

with her. That would show that gold ornaments were brought to the

matrimonial home after the marriage. The appellants have no case that

the respondent never brought any gold ornaments to their house. The

Family Court found certain discrepancies regarding the evidence given by

RW1 and RW2. These discrepancies also fortify the case that appellants

failed to establish that the repondent took all her gold ornaments when

she left matrimonial home. When it is shown that entire gold ornamnets

were brought to the matrimonial home, it is the duty of the husband and

other family members to prove that gold ornaments were not

misappropriated by them. In such circumstances, we are of the view that

appellants are bound to return 42.2275 sovereigns of gold ornaments to

the respondent. The appeal is thus partly allowed. The impugned decree

is modified to the extent of allowing recovery of 42.2275 sovereigns of

gold ornaments. All other reliefs granted in the impugned judgment are

set aside. The parties are directed to suffer their respective costs.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

Dr.KAUSER EDAPPAGATH, JUDGE

lgk/26.08.2021