Kerala High Court
Vanitha.V.S vs Anilkumar on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS.JUSTICE SOPHY THOMAS
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
MAT.APPEAL NO.688 OF 2013
AGAINST THE ORDER/JUDGMENT IN OP 688/2013 OF FAMILY COURT,
ATTINGAL
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APPELLANT/S:
VANITHA.V.S., AGED 26 YEARS,
D/O. LATE SAILAJA VARIJAKSHAN, V.S.COTTAGE,
KEDAKULAM, VARKALA IN AYIROOR VILLAGE,
CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM.
BY ADVS.
SRI.T.A.UNNIKRISHNAN
SRI.K.SATHEESH KUMAR
RESPONDENT/S:
ANILKUMAR, AGED 35 YEARS,
S/O. LATE KUNJUPILLAI, KALLUVILA, VADAKKATHIL,
NEDUMPANA P.O., NEDUMPANA VILLAGE, KOLLAM
DISTRICT, PIN-691576.
BY ADVS.
SRI.GOVIND PADMANAABHAN
SRI.MANU V.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.11.2021, ALONG WITH Mat.Appeal.755/2013, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal Nos.688 & 755/2013 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA,
1943
MAT.APPEAL NO. 755 OF 2013
AGAINST THE ORDER/JUDGMENT IN OP 688/2013 OF FAMILY COURT,
ATTINGAL
APPELLANT/S:
ANILKUMAR, AGED 41 YEARS,
AGED 41 YEARS, S/O.LATE KUNJU PILLAI,
KALLUVILA VADAKKATHIL,NEDUMPANA (PO),
NEDUMPANA VILLAGE, KOLLAM DISTRICT.
BY ADVS.
SRI.G.P.SHINOD
SRI.GOVIND PADMANAABHAN
SRI.MANU V.
SRI.RAM MOHAN.G.
RESPONDENT/S:
VANITHA.V.S., AGED 32 YEARS,
AGED 32 YEARS,D/O.LATE SAILAJA VARIJAKSHAN,
V.S.COTTAGE, KEDAKULAM, VARKALA,
AYIRROR VILLAGE, CHIRAYINKEEZH TALUK,
THIRUVANANTHAPURAM DISTRICT
BY ADVS.
SRI.K.SATHEESH KUMAR
SRI.K.SATHEESH KUMAR
SRI.T.A.UNNIKRISHNAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.11.2021, ALONG WITH Mat.Appeal.688/2013, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal Nos.688 & 755/2013 3
JUDGMENT
[Mat.Appeal Nos.688/2013, 755/2013]
A.Muhamed Mustaque, J.
These appeals arise from the judgment in O.P.No.688/2013
on the file of the Family Court, Attingal. We refer the parties by
their name for brevity and convenience. Vanitha, the wife of
Anil Kumar approached the Family Court, Attingal, with the
petition for recovery of gold ornaments and money from Anil
Kumar. She set out her claim under three different heads. The
first claim was for the recovery of 65 sovereigns of gold
ornaments. It is alleged by her that these gold ornaments have
been misappropriated by Anil Kumar. The second claim was for
the return of Rs.1,00,000/- as pocket money given at the time of
marriage. The third claim was for the return of Rs.3,00,000/-
paid by the father of Vanitha to Anil Kumar.
2. The Family Court allowed the recovery of 20
sovereigns of gold ornaments or its market value and also to
recover Rs.1,00,000/- from Anil Kumar.
3. Anil Kumar filed M.A.No.755/2013 challenging the
decree as above. Not being satisfied with the decree as above,
Vanitha filed M.A.No.688/2013.
4. We have heard the learned counsel on both sides.
We shall advert to each claim separately.
5. The claim for gold ornaments:
According to Vanitha, she had 57 sovereigns of gold
ornaments given to her by her parents at the time of marriage.
The marriage was solemnised on 31/1/2002. Her case was that
after the marriage, 8 sovereigns of gold ornaments were given
to Anil Kumar and his mother by the father of Vanitha. It was
the case of Vanitha that within one year of marriage, Anil Kumar
collected the entire gold ornaments including her Thali chain
and sold the same. It is also alleged by her that the entire sale
proceeds were utilised by Anil Kumar for his personal needs.
Anil Kumar denied the entrustment of gold ornaments and also
misappropriation of the gold ornaments. Anil Kumar was
running a tutorial college prior to his marriage. As seen from the
proceedings, after the marriage, he became a process server in
the Judicial Department. Though there was no evidence as to
the quantum of gold ornaments available with Vanitha, the
Family Court, after referring to the photographs and also the
status of the parties came to the conclusion that Vanitha might
have possessed 65 sovereigns of gold ornaments as alleged by
her. However, the Family Court was not persuaded to believe the
entire gold ornaments were entrusted and misappropriated by
Anil Kumar. The Family Court, however, found that Anil Kumar
had taken away 20 sovereigns of gold ornaments and utilised for
his needs. Absolutely, there was no discussion on these aspects
in the impugned judgment. It is to be noted that no reason was
assigned by the Family Court to hold that only 20 sovereigns of
gold ornaments were sold and utilised by Anil Kumar. There
was no specific allegation in the petition in regard to the nature
of entrustment, date etc. Except the bald allegations in the
petition, no specific instance of entrustments have been
mentioned in the petition. It is to be noted, it was stated in the
petition that the gold ornaments were sold and the entire
proceeds were utilised by Anil Kumar for his personal needs. If
Vanitha knew about the sale of such gold ornaments, she should
have alteast enquired about the place where the gold ornaments
were sold. She could have also mentioned the year in which the
gold ornaments were sold. We need not disturb the finding in
regard to the quantum of gold ornaments possessed by Vanitha.
But at the same time, in the absence of any specific allegations in
regard to entrustment, the court could not have entered into a
mere guesswork and awarded the recovery of 20 sovereigns of
gold ornaments. The preponderance of probability would arise
when there is atleast some evidence on record to show
entrustment. In the absence of any evidence adduced in regard
to the same, we may not be justified in accepting that finding.
Therefore, we have no hesitation to hold that the decree granted
to recover 20 sovereigns of gold ornaments by Anil Kumar is
legally and unsustainable. Accordingly, we set aside the decree
as above.
6. Payment of pocket money of Rs.1,00,000/-:-
It is the specific case of Vanitha that at the time of
marriage, her father handed over Rs.1,00,000/ towards pocket
money to Anil Kumar. That amount is liable to be returned. Anil
Kumar denied the receipt of such amount. The Family Court
found the discrepancies in the chief examination and the cross
examination. According to the Family Court, in the chief
examination, Vanitha stated that her mother handed over the
amount and in the cross-examination, she stated that her father
gave the amount and the mother was not alive at the time of
marriage. It is the admitted case that her mother passed away in
1997. We perused the chief examination. We find that though
initially it was mentioned as the mother, it was corrected as the
father. We, therefore, find no discrepancy in the testimony of
Vanitha. We cannot ignore the fact that such kind of handing
over the money exist in some part of the state. There cannot be
any direct evidence regarding payment of such amount.
7. Vanitha's father was in the gulf country. The oral
testimony of Vanitha cannot be totally ignored and discarded.
The Family Court committed a mistake in finding that there was
a discrepancy in the oral testimony. We have no hesitation to
accept the oral testimony of Vanitha in regard to payment of
Rs.1,00,000/- as pocket money at the time of marriage. We set
aside the impugned decree to the extent and allow the recovery
of Rs.1,00,000/- as pocket money given at the time of marriage.
8. The claim for Rs.3,00,000/-.
According to Vanitha, her father had paid Rs.,3,00,000/ on
different occasions. It was in order to meet certain financial
obligations of Anil Kumar. To establish this, she has produced
Ext.A2 series of letters. The authorship of the letters has been
denied by Anil Kumar. Since there was a dispute regarding
ownership of the letters, the Family Court insisted for his
handwriting in open court. In compliance with the direction,
'handwriting' was taken in open court. This has been marked as
Ext.C1. On a comparison of Ext.A2 series and Ext.C1, the Family
Court came to the conclusion that Ext.A2 series of letters were
written by Anil Kumar. Ext.A2 series of letters were requesting
money from Vanitha's father. However, no exact amount has
been mentioned in Ext.A2 series of letters. The Family Court on
guesswork, ordered a decree of Rs,1,00,000/- as against the
claim of Rs.3,00,000/-. It is to be noted that Ext.A3 is the
document showing the transfer of Rs.25,000/- to Anil Kumar's
Account. According to Anil Kumar, the said amount was sent for
the benefit of his own family and not for his personal use. But
the Family Court, taking note of Ext.A2 series of letters, did not
accept the explanation of Anil Kumar. However, the Family
Court, at the same time was also not prepared to accept the
claim of payment of Rs.3,00,000/-. In modest calculation, the
Family Court arrived at a conclusion that atleast Rs.1,00,000/-
could have been paid. We cannot ignore the finding of the
Family Court in this regard. Anil Kumar is withholding the
information with his knowledge. Ext.A2 series is found to be
genuine and the Family Court made a comparison. The
probability of the case of payment of atleast Rs.1,00,000/- is
more, we need to accept that finding. We, therefore, affirm the
finding.
In such circumstances, both appeals are partly allowed as
above. We modify the impugned judgment as follows:
The claim for the recovery of gold ornaments is dismissed.
The impugned judgment, accordingly, is set aside to the extent as
above. The claim for recovery of Rs.1,00,000/- as pocket money
is allowed. We also sustain the order of the Family Court to
recover Rs.1,00,000/- as against the claim of Rs.3,00,000/-. We
direct Anil Kumar to pay the total amount of Rs.2,00,000/-
within a period of three months. On default, this amount can be
recovered together with interest at 6% from the date of default
till realisation.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
ln
