Abraham Philip vs Siji Mary Chacko
2021 Latest Caselaw 14986 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 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                 MAT.APPEAL NO. 131 OF 2016

 AGAINST THE JUDGMENT IN O.P.No.493/2012 OF FAMILY COURT,
                THIRUVALLA, PATHANAMTHITTA
                          ------
APPELLANT/S:

    1     ABRAHAM PHILIP, AGED 33 YEARS,
          S/O.M.J.PHILIP, MODIYIL HOUSE,
          CHUNAKAPPARA P.O., NIRMALAPURAM, KOTTANGAL
          VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA
          DISTRICT, REPRESENTED BY P.A.HOLDER M.J.PHILIP,
          THE 2ND APPELLANT.
    2     M.J.PHILIP, AGED 61 YEARS,
          S/O.YOHANNAN THOMAS, MODIYIL HOUSE,
          CHUNKAPPARA P.O., NIRMALAPURAM, KOTTANGAL
          VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA
          DISTRICT.
    3     MARIAMMA PHILIP, AGED 33 YEARS, W/O.M.J.PHILIP,
          MODIYIL HOUSE, CHUNKAPPARA P.O., NIRMALAPURAM,
          KOTTANGAL VILLAGE, MALLAPPALLY TALUK,
          PATHANAMTHITTA DISTRICT.
          BY ADV SRI.MANU RAMACHANDRAN

RESPONDENT/S:

          SIJI MARY CHACKO, AGED 26 YEARS,
          D/O.CHACKO, RESIDING AT EDAVATHARA PEEDIKAYIL
          LATHA BHAVAN, 5, PUTHENKAVU, CHENGANNOOR,
          ALAPPUZHA DISTRICT.
          BY ADV SRI.V.PHILIP MATHEW
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MAT.APPEAL No.131/2016                       2



                                     JUDGMENT

A.Muhamed Mustaque, J.

This appeal arises from a judgment of the Family

Court allowing patrimony of Rs.5,00,000/- to be

recovered from the appellants. The respondent herein

approached the Family Court, Thiruvalla, for recovery

of Rs.5,00,000/- along with other claims for gold ornaments. The claim for gold ornaments has been

declined and it has become final as there is no

challenge against the same at the instance of the

respondent. The first appellant and the respondent

have been separated by a decree of divorce. Their

marriage was solemnized on 11.05.2011 in accordance

with the Christian rites and ceremonies. They lived

together as husband and wife only for a short period

of three months.

2. The case of the respondent before the Family

Court, in brief, is as follows:

On the date of engagement on 07.05.2011, the

respondent's father's elder brother entrusted

Rs.5,00,000/- with the second appellant. The

respondent stated that a sum of Rs.4,00,000/- was

withdrawn from the Indian Overseas Bank, Puthenkavu

branch and Rs.1,00,000/- was withdrawn from the Indian

Overseas Bank, Chengannur Branch.

3. The appellants' case was that they did not

receive Rs.5,00,000/- as alleged in the petition. They

admitted the engagement ceremony was on 07.05.2011.

They also admitted the receipt of Rs.25,000/- towards

marriage expenses.

4. The evidence, in this case, consists of oral

and documentary evidence. PW1 is the father of the

respondent who claims that he was a witness to the

payment of Rs.5,00,000/-. PW2, Sri.Geevarghese, is

the brother of PW1, who allegedly accompanied on the

date of engagement. PW3 is the bank manager who was

examined regarding the claim for gold ornaments.

Therefore, his evidence may not have relevance in this

appeal. On the side of the appellants, the second

appellant was examined as RW1. RW2 is the relative of

RW1. He was examined to prove that only a sum of

Rs.25,000/- was received towards marriage expenses.

5. Exts.A1 to A4 were marked on the side of the

respondent. Exts.B1 to B6 were marked on the side of

the appellants. The court exhibits are Exts.X1 and

X2.

6. We shall now advert to the finding of the

Family Court. The Family Court relied on Exts.A3

series of statement of account of the Indian Overseas

Bank to find that the substantial amounts were

withdrawn from the bank account immediately preceding

the marriage. The Family Court also found that parents

of the respondent were working in gulf country for

more than 25 years and they were financially affluent

to pay Rs.5,00,000/-. The Family Court also relied on

the evidence of RW2, who had deposed that Rs.27,000/-

was paid to a broker who arranged the marriage. The

most crucial aspect, the Family Court noted that on

09.05.2011, just after two days of the engagement, a

sum of Rs.3,00,000/- was deposited in the first

appellant's account. This was evident from Ext.B2

passbook.

7. The learned counsel for the appellants Sri.Manu

Ramachandran submitted that there was a lack of

averments in regard to the entrustment and the Family

Court erred in appreciating the facts and evidence in

proper respect. The learned counsel also pointed out

that the Family Court failed to note the expenses for

conducting the marriage and there was no evidence or

any independent witness to prove the payment of

Rs.5,00,000/- as claimed by the respondent. The

learned counsel further argued that the interest

awarded at 9% is a commercial rate and the Family

Court ought not have awarded such exorbitant interest.

8. The learned counsel for the respondent

Sri.Philip Mathew defended the judgment and submitted

that taking note of the affluent circumstances of the

parties, it is impossible to believe the case of the

appellants that they received only Rs.25,000/-. The

learned counsel particularly pointed out the deposit

of Rs.3,00,000/- on 09.05.2011 in the first

appellant's account. It was further argued that if

the brokerage admittedly is given Rs.27,000/-, it is

impossible to believe the appellants' case that they

received only Rs.25,000/- towards marriage expenses.

It is further argued that handing over the money by

the bride's parents to the bride-groom at the time of

engagement is a common practice among Christians, and

this Court had taken judicial notice of the same in

Bexy Michael v. A.J. Michael [2010 (4) KHC 376].

9. We have scanned the pleadings and the

evidence. There cannot be any dispute regarding the

financial capacity of the respondent or her parents to

pay Rs.5,00,000/- to the appellants towards patrimony.

Admittedly, the parents of the respondent worked in

the gulf country for more than 25 years. The first

appellant was working at that time in Libya as a

construction supervisor. Taking note of the status of

the party, it is quite improbable to believe that the

appellants received only Rs.25,000/- at the time of

marriage. That apart as seen from Ext.B2, a sum of

Rs.3,00,000/- was deposited in the account of the

first appellant on 09.05.2011, just two days after the

alleged entrustment of patrimony on 07.05.2011. The

appellants have no explanation as to the source of

Rs.3,00,000/-. The case of the appellants is that the

money belonging to the first appellant and out of

which he had deposited Rs.2,00,000/- in the

respondent's account. It is to be noted that the

appellants never raised any counter-claim. Further,

the appellants have also not explained the source of

Rs.3,00,000/-. In such circumstances, quite probable

that the appellant received a substantial amount as

patrimony at the time of engagement. The case of the

appellants is that they have received only

Rs.25,000/-. That contention cannot be accepted at

all, taking note of the status of the parties. The

case put forward by the respondent is more probable

for more than one reason. It is the admitted case of

RW2 that a sum of Rs.27,000/- was paid to the broker

who arranged the marriage. A sum of Rs.3,00,000/- is

seen deposited in the first appellant's account on

09.05.2011. The Family Court took the view that

Rs.3,00,000/- was deposited in the first appellant's

account and Rs.2,00,000/- might have been spent

towards marriage expenses. Taking note of the status

of the parties, it is probable to say that

Rs.5,00,000/- was paid. We do not find any infirmity

with such finding. The preponderance of probabilities,

such circumstances, have to be weighed in favour of

the parties whose case is near to the truth than the

case of the party whose case is found to be false.

We find some force in the argument of the learned

counsel for the appellants that the interest awarded

at the rate of 9% is too high. We find that 6%

interest would be sufficient. In the light of the

discussions as above, the appeal is partly allowed to

the extent of interfering with the interest awarded.

In all other respects, the finding of the Family Court

is sustained. No order as to costs.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ln