Kerala High Court
Usha vs Jose on 19 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942
Mat.Appeal.No.508 OF 2014
AGAINST THE ORDER IN OP 82/1999 DATED 25-01-2014 OF FAMILY
COURT,THRISSUR
APPELLANTS/PETITIONERS:
1 USHA
AGED 44 YEARS
D/O.AUGUSTIN K.P., KALATHIPARAMBIL HOUSE, ANAPPARA
DESOM, RAMAVARMAPURAM P.O., VILVATTOM VILLAGE,
THRISSUR TALUK AND DISTRICT.
2 MINOR ANTHONY
AGED 17 YEARS
S/O.1ST PETITIONER AND RESPONDENT.
3 MINOR SHIMSY
AGED 16 YEARS
D/O.1ST PETITIONER AND RESPONDENT. (MINORS
REPRESENTED BY THEIR MOTHER AND GUARDIAN 1ST
PETITIONER USHA).
BY ADV. SRI.V.C.MADHAVANKUTTY
RESPONDENT/RESPONDENT:
JOSE
AGED 48 YEARS
S/O.KARUTHUKULANGARA ANTHONEY,
KARAMUCK VILLAGE, KANDASSANGADAVU P.O.,
THRISSUR TALUK AND DISTRICT-680001.
R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
19.03.2021, ALONG WITH Mat.Appeal.548/2014, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal Nos.508 & 548/2014
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942
Mat.Appeal.No.548 OF 2014
AGAINST THE ORDER IN OP 82/1999 DATED 25-01-2014 OF FAMILY
COURT,THRISSUR
APPELLANT/RESPONDENT:
JOSE
S/O. ANTONY, KARUTHUKULANGARA HOUSE, KARAMUCK
VILLAGE, KANDASSANKADAVU P.O., THRISSUR
DISTRICT.
BY ADV. SRI.DINESH MATHEW J.MURICKEN
RESPONDENTS/PETITIONERS:
1 USHA
D/O. AUGUSTIN K.P., KALATHIPARAMBIL HOUSE,
ANAPPARA DESOM, RAMAVARMAPURAM P.O., VILVATTOM
VILLAGE, THRISSUR DISTRICT.
2 ANTONY MINOR
REPRESENTED BY THE NEXT FRIEND AND GUARDIAN,
S/O. USHA, KALATHIPARAMBIL HOUSE, ANAPPARA
DESOM, RAMAVARMAPURAM P.O., VILVATTOM VILLAGE,
THRISSUR DISTRICT.
3 SHIMSY MINOR
REPRESENTED BY THE NEXT FRIEND AND GUARDIAN
D/O. USHA, KALATHIPARAMBIL HOUSE, ANAPPARA
DESOM, RAMAVARMAPURAM P.O., VILVATTOM VILLAGE,
THRISSUR DISTRICT.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
19.03.2021, ALONG WITH Mat.Appeal.508/2014, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal Nos.508 & 548/2014
-:3:-
J U D G M E N T
Dated this the 19th day of March, 2021
A.Muhamed Mustaque,J.
These appeals arise from the order in OP
No.82/1999 on the file of the Family Court, Thrissur.
The appellants in Mat.Appeal No.508/2014 instituted OP
No.82/1999 for return of gold ornaments and recovery of
the value of immovable property. The Family Court
granted a decree in favour of the appellants in
Mat.Appeal No.508/14 to recover `92,750/- along with 6%
interest for the value of the gold ornaments from the
date of petition till realisation. The appellants in
Mat.Appeal No.508/2014 have come up with this appeal as
she was not granted amount equivalent to the current
value of the gold. The same decree is under challenge
in Mat.Appeal No.548/2014, aggrieved by the grant of
relief to the appellants in Mat.Appeal No.508/2014.
Though notice was not served on respondents in
Mat.Appeal No.548/2014, since it was tagged along with
Mat.Appeal No.508/2014, we requested
Sri.V.C.Madhavankutty, learned counsel for the
appellants in Mat.Appeal No.508/2014 to take notice
Mat.Appeal Nos.508 & 548/2014
for the respondents in Mat.Appeal No.548/2014. Learned
counsel readily accepted our request.
2. As far as the case of the appellants in
Mat.Appeal No.508/2014 is concerned, it is covered
against them by the Division Bench judgment of this
Court in Thomas M.Varghese and Another v. Sonia Susan
Thomas [2014 (3) KHC 500] wherein this court held that
the wife seeking return of gold ornaments cannot claim
the value as on the date of actual return. The relief
was granted to the appellants in accordance with the
assessment of the gold value claimed in the petition
itself. We, therefore, are of the view that the
appeal is to be dismissed as it is covered by the
judgment in Thomas M. Varghese's case (supra).
3. OP No.82/1999 has a chequered history. The
claim for return of gold ornaments was turned down by
the Family Court as per its order in OP No.82/1999
dated 2/6/2010. That was challenged before this court
by the appellants in Mat.Appeal No.508/2014, in
Mat.Appeal No.856/2010 and this court by judgment dated
31/5/2013 remanded the matter back for fresh
consideration.
4. One factor which this court directed the
Family Court to analyse is with regard to the purchase
Mat.Appeal Nos.508 & 548/2014
of immovable property by the appellant in Mat.Appeal
No.548/2014. After the marriage, he acquired the
immovable property. According to Smt.Usha, who is the
1st appellant in Mat.Appeal No.508/2014, Jose, the
appellant in Mat.Appeal No.548/2014, has acquired the
property by utilizing the gold ornaments belonging to
her. The entire issue appears to have been centered
around on this aspect after the remand.
5. There was certain dispute in regard to the
gold ornaments adorned by Usha. But, Jose admitted that
she had adorned some gold ornaments while in cross-
examination. It has come out in evidence that Jose
acquired 6 cents. He was a coolie worker and was only
earning `100-`150 per day. He also constructed a house.
He tried to bring in evidence in regard to the source
of income by producing Ext.B1. Ext.B1 is a deed
relinquishing his right over tharavadu property. That
would show that he had only obtained `4,000/- by way of
relinquishment. The land value of 6 cents of property
appears to be `30,000/-. He has also constructed a
house. This was taken as evidence to show that during
matrimonial relationship, Jose has utilized the gold
ornaments belonging to Usha.
Mat.Appeal Nos.508 & 548/2014
6. Learned counsel appearing for Jose placing
reliance on the judgment of this Court in Mohammedali
v. Rahiyanath and Another [2015 KHC 820] argued that
Family Court arrived at the conclusion regarding the
quantity of gold ornaments by referring to the
photographs and this court in Mohammedali's case
(supra) deprecated such practice of ordering return of
gold ornaments merely looking at photographs. Here in
this case, Family Court relied not only on the
photographs, but also on the admission of Jose in
regard to the gold ornaments. RW1 has admitted that
Usha adorned about nearly 10 sovereigns of gold
ornaments at the time of marriage. Family Court on
perusal of photographs came to the conclusion that the
total sovereigns amount to 26½ as claimed by Usha. RW1
admitted that those photographs are relating to his
marriage. We cannot find any reason to hold that such
claim of Usha is an exaggerated claim for return of
gold ornaments. Jose was unable to explain or give
evidence as to the actual quantity of gold ornaments
adorned by Usha at the time of marriage. He pretended
ignorance. It is only when he was cross-examined, he
admitted that the photographs are relating to his
marriage and that most of those ornaments adorned by
Mat.Appeal Nos.508 & 548/2014
Usha were gold.
7. On an analysis of the pleadings and evidence,
Family Court came to the conclusion that in the absence
of any proof regarding source of income to purchase the
land and construction of the house, the only possible
conclusion that could have been arrived at is that Jose
might have constructed the house by utilizing the gold
ornaments belonging to Usha. In fact, this court while
remanding the matter specifically directed the Family
Court to analyse the aspect in this regard. Therefore,
we are of the view that the finding as such in regard
to the quantity of gold ornaments and misappropriation
is based on evidence. We therefore affirm the order of
the Family Court.
Mat.Appeal Nos.508/2014 and 548/2014 are hence
dismissed. No costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
Rp JUDGE
Mat.Appeal Nos.508 & 548/2014
APPENDIX IN MAT.APPEAL IN 548/2014.
APPELLANT'S EXHIBITS:
ANNEXURE A1 TRUE COPY OF HTE ORDER IN OP NO.82/1999
PASSED BY THE FAMILY COURT, THRISSUR
DATED 2.6.2010.
ANNEXURE A2 TRUE COPY OF THE JUDGMENT IN MAT.APPEAL
NO.856/2010 PASSED BY THIS HONOURABLE
COURT DATED 31.5.2013.
True Copy
PS to Judge
Rp
