Boby vs Preetha Prathap
2021 Latest Caselaw 12462 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                 &

          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

    TUESDAY, THE 18TH DAY OF MAY 2021 / 28TH VAISAKHA, 1943

                    Mat.Appeal.No.390 OF 2013

  AGAINST THE ORDER IN OP 757/2008 DATED 22-02-2013 OF FAMILY
                         COURT,KOLLAM


APPELLANTS/RESPONDENTS 1 TO 3:

      1      BOBY
             AGED 38 YEARS
             S/O.ANTONY, BIJU HOUSE, PERAYAM CHERRY, MULAVANA
             VILLAGE, KOLLAM TALUK, KOLLAM.

      2      ANTONY
             BIJU HOUSE, PERAYAM CHERRY, MULAVANA VILLAGE,
             KOLLAM TALUK, KOLLAM.

      3      LIZY
             W/O.ANTONY, BIJU HOUSE, PERAYAM CHERRY, MULAVANA
             VILLAGE, KOLLAM TALUK, KOLLAM.

             BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)

RESPONDENT/PETITIONER:

             PREETHA PRATHAP
             AGED 32 YEARS
             D/O.ALICE, VALIYAVILA VEEDU (PRATHEEKSHA),
             KANJIRAKODUI CHERRY, MULAVANA VILLAGE, KOLLAM
             TALUK, KOLLAM.

             R1 BY ADV. SRI.SAJJU.S
             R1 BY ADV. SRI.K.SHAJ

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-03-
2021, THE COURT ON 18-05-2021 DELIVERED THE FOLLOWING:
 Mat.Appeal No.390/2013

                                  -:2:-




                          J U D G M E N T

              Dated this the 18th day of         May, 2021


Dr.Kauser Edappagath, J.

This is an appeal filed u/s 19 of the Family Courts Act, 1984

against the order of the Family Court, Kollam in OP No.757/2008

dated 22nd February, 2013.

2. The respondents before the court below are the

appellants. The petitioner before the court below is the

respondent. The parties are referred to as shown in the original

petition unless otherwise stated. The petition was one for return

of gold ornaments and recovery of money.

3. The marriage between the petitioner and the 1 st

respondent was solemnized on 5/6/2005 as per the Christian

religious rites and ceremonies. The 2 nd respondent is the father

and the 3rd respondent is the mother of the 1st respondent.

Admittedly, the petitioner and the 1st respondent resided together

only till September, 2006. It is the case of the petitioner that her Mat.Appeal No.390/2013

parents had given her 75 sovereigns of gold ornaments at the

time of marriage and further her parents gave a sum of

`3,50,000/- to the 1st respondent in the presence of respondents

2 and 3 as patrimony. It is alleged that the said amount was

misused by respondents 1 to 3 for their personal purpose. It is

further alleged that the respondents collected the entire gold

ornaments from the petitioner in piece meal and misappropriated

the same. It is also alleged that the respondents ill-treated the

petitioner at the matrimonial home and on 3/9/2006, the

respondents 2 and 3 forcibly took her in an autorickshaw at the

instance of the 1st respondent to her parents' residence and at

that time she was not allowed to take any gold ornaments. The

original petition has been filed for the return of gold ornaments

and money mentioned above.

4. The respondents entered appearance and filed written

statement. The respondents denied the case set up by the

petitioner that a sum of `3,50,000/- was paid to the 1 st

respondent by the parents of the petitioner as patrimony at the

time of marriage. In so far as the gold ornaments are concerned, Mat.Appeal No.390/2013

the respondents admitted that the petitioner was wearing some

gold ornaments at the time of marriage and the petitioner

intimated them that she has 51 sovereigns of gold including gold

chain weighing 2 sovereigns and a ring weighing 1 sovereign

given by the 1st respondent. It is contended that on the 5 th day

of marriage, the 1st respondent returned to his place of

employment and the petitioner continued her stay at her parental

home and it was represented by the petitioner that all her gold

ornaments were kept in the bank locker in Kundara since it was

not safe to keep the same at the matrimonial home. Thus, the

case of the petitioner that gold ornaments were entrusted to the

respondents and they misappropriated the same had been

denied. The respondents further contended that at the time of

marriage, the 1st respondent gave 6½ sovereigns of gold

ornaments to the petitioner and they have raised a counter claim

to realise the said gold ornaments.

5. The parties went on trial. On the side of the petitioner,

PWs 1 to 3 were examined and Exts.A1 to A8 were marked. On

the side of the respondent, RW1 was examined and Exts.B1 to B4 Mat.Appeal No.390/2013

were marked. The plea of the respondents that they did not

receive `3,50,000/- from the parents of the petitioner as

patrimony and hence they are not liable to return the same was

accepted by the Court below. The Court below found that 32.50

sovereigns of gold ornaments belonging to the petitioner were

taken over and misappropriated by the respondents and the

respondents were directed to return the same to the petitioner.

The counter claim preferred by the respondents was also allowed

and the petitioner was directed to return 6.50 sovereigns of gold

ornaments or its current value to the respondents. The said 6.50

sovereigns of gold ornaments were allowed to be set off towards

the gold ornaments ordered to be returned by the respondents to

the petitioner. Challenging the said order, respondents preferred

this appeal.

6. We heard the learned counsel for the appellants as

well as the respondents.

7. The learned counsel for the appellants/respondents

assailed the impugned judgment on the ground that the Court

below was unreasonable and unrealistic in the appreciation of Mat.Appeal No.390/2013

oral evidence. The counsel submitted that inasmuch as the

petitioner was claiming a decree for return of gold ornaments, the

burden rests squarely on her to prove the claim satisfactorily and

the petitioner miserably failed to discharge the said burden. The

counsel further submitted that the finding of the Court below

that 32.50 sovereigns of gold ornaments were taken over and

misappropriated by the respondents was based on guess work

which is impermissible.

8. On the other hand, the learned counsel for the

respondent/petitioner submitted that oral as well as documentary

evidence let in by the petitioner would prove the entrustment of

gold ornaments as well as its misappropriation and the Court

below rightly allowed the petition.

9. As stated already, the case set up by the petitioner is

that 75 sovereigns of gold ornaments were given to the petitioner

by her parents at the time of marriage and the respondents

collected those gold ornaments in piece meal from her and

misappropriated the same. To prove the fact that the petitioner

was having 75 sovereigns of gold ornaments as well as its Mat.Appeal No.390/2013

entrustment and misappropriation by the respondents, the

petitioner relies on the oral testimony of PW1 to PW3 and Exts.A7

series and A8. PW1 is the petitioner. PW2 is the uncle and PW3

is the father of the petitioner. They gave evidence in tune with

the pleadings. Their evidence would prove that the petitioner

was wearing gold ornaments at the time of marriage. That apart,

the respondents had also admitted in the written statement that

the petitioner was wearing some gold ornaments at the time of

marriage and the petitioner stated to them that the quantity of

the said gold ornaments was 51 sovereigns. The gold ornaments

are scheduled in the petition. Ext.A7 series are estimates and

retail invoice bills issued by Bhima and Brother Jewellers for the

purchase of the gold ornaments. PWs 1 to 3 gave evidence that

gold ornaments were purchased as per Ext.A7 series. PW3 gave

evidence that the entire gold ornaments covered by Ext.A7 series

were not given to the petitioner and out of 75 sovereigns of gold

ornaments, some gold ornaments were given to his younger

daughter and wife. Ext.A8 photograph and Ext.B1 album would

also show that the petitioner was wearing gold ornaments. All Mat.Appeal No.390/2013

these evidence clearly establish that the petitioner was having at

least 51 sovereigns of gold ornaments with her as admitted by

the respondents.

10. The case of the petitioner is that the entire gold

ornaments belonged to her were taken by the respondents one

by one after marriage and they misappropriated the same. The 1 st

respondent is admittedly employed as a clerk in the Revenue

Department at the Civil Station, Kozhikode. The parties were

residing at Kollam after the marriage. It is not in dispute that on

the 5th day of marriage, the 1st respondent left to his place of

employment at Kozhikode. According to the petitioner, after the

1st respondent left to his place of employment, she continued her

stay in the matrimonial home along with respondent Nos. 2 and 3

and ultimately on 3/9/2006, the respondents 2 and 3 forcibly took

her to her parents' house. But the claim of the respondents is

that after the 1st respondent left to his place of employment on

the 5th day of marriage, the petitioner continued her stay with her

parents and she informed them that all the gold ornaments were

kept at a bank locker at Kundara. At any rate, it has come out in Mat.Appeal No.390/2013

evidence that on the 5th day of marriage, the petitioner left the

matrimonial home. The petitioner gave evidence that she did not

take any gold ornaments with her. The Court below on analysis of

evidence correctly found that naturally there is possibility to keep

the gold ornaments except required for daily use in safe custody

under the supervision of in-laws. The Court below further found

that the major portion of the gold ornaments which is being used

in the regular use would be under the safe custody of the

respondents. Based on the same, the Court below found that at

least 25 sovereigns of gold ornaments including 6.50 sovereigns

of gold ornaments given by the 1st respondent at the time of

marriage were in the custody of the petitioner and were taken

along with her while leaving the matrimonial home and the

balance 32.50 sovereigns of gold ornaments were with the

respondents and hence the petitioner is entitled to get back the

said gold ornaments. If evidence adduced by both parties does

not aid the Court to come to a just conclusion, then the Court

would be justified in deciding the case based on reasonable

probabilities and legal inferences arising from proved or admitted Mat.Appeal No.390/2013

facts. As stated already, even the respondents have admitted

that the petitioner was wearing gold ornaments at the time of

marriage and the petitioner told them that the quantity of the

said gold ornaments was 51 sovereigns. The respondents have

also admitted that after the marriage, for few days, the petitioner

and the 1st respondent resided together in the matrimonial home.

During that period, the gold ornaments might have been kept at

the matrimonial home. It may be safe to assume that when the

petitioner left the matrimonial home, she might have taken gold

ornaments for her daily use with her and the balance might have

been kept at the matrimonial home. It is not possible to insist for

strict proof regarding the gold ornaments that the petitioner had

carried with her when she returned home. The Division Bench of

this Court in Jubairiya M.K. v. Abusalih and Another (2013 (2)

KHC 304) has held that in matrimonial cases, it is difficult to get

documentary evidence to prove money transaction and exchange

of gold and oral evidence of the parties, if found believable, can

be relied upon by the Court to prove payment of money and gold.

In Leelamma N.P. v. M.A.Moni (2017 (3) KHC 340), the Division Mat.Appeal No.390/2013

Bench of this Court held that once it is proved that gold

ornaments were entrusted by the wife to the husband, the

burden is on the husband to prove as to what happened to the

gold ornaments. It is further held that if it was taken by the wife

when she left the matrimonial home, the same has to be proved

by the husband. Again, the Division Bench in Pankajakshan

Nair v. Shylaja and Another (2017 (1) KHC 620) held that it is

quite natural that once the marriage is over and the bride has

come to the house of in-laws, there is possibility of ornaments

being entrusted to the elders as a trustee for keeping the articles

during the subsistence of the marriage and the duty is cast on

the husband to disprove this fact and also to prove the fact that it

was taken by the wife at the time she left the matrimonial home.

The evidence adduced by the respondents is hardly sufficient to

discharge the burden that the petitioner took the entire gold with

her when she left the matrimonial home. Thus, the only

probability is that the gold ornaments belonged to the petitioner

except those she uses on daily basis were kept at the

matrimonial home with the respondents who misappropriated the Mat.Appeal No.390/2013

same.

11. On an anxious consideration of the entire evidence on

record and pleadings, we are satisfied that the Court below was

absolutely justified in holding that 32.50 sovereigns of gold

ornaments belonging to the petitioner were taken away and

misappropriated by the respondents. On reappreciation of

evidence, we find no reason to interfere with any of the findings

of the Court below. The appeal fails and it is only to be dismissed.

In the result, the appeal is dismissed. No costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                         DR. KAUSER EDAPPAGATH

Rp             True Copy                         JUDGE

               PS to Judge