Kerala High Court
Anoop S.B vs Maya Gopinathan on 5 April, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
MAT.APPEAL NO. 847 OF 2011
AGAINST THE ORDER/JUDGMENT IN OP(OS) 10/2009 OF FAMILY COURT,
ALAPPUZHA
APPELLANTS/RESPONDENTS:
1 ANOOP S.B.
AGED 42 YEARS
S/O BALAKRISHNAN , SABARI VIHAR VEEDU,, AGASTYAKKOTU
MURI, ANGEL VILLAGE,, PATHANAMTHITTA TALUK.
2 SWARNAMMA
AGED 72 YEARS
W/O. BALAKRISHNAN, SABARI VIHAR VEEDU,, AGASTYAKKOTU
MURI, ANGEL VILLAGE,, PATHANAMTHITTA TALUK.
BY ADV SRI.R.REJI
RESPONDENT/PETITIONER:
MAYA GOPINATHAN
AGED 37 YEARS
D/O. AMMINI KUTTI, KOYIKKALETHU VEEDU, PUTHIYAVILA
MURI, KANDALOOR VILLAGE .P.O., KARTHIKAPALLY TALUK -
691573.
BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
28.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.847 of 2011 2
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
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Mat.Appeal No.847 of 2011
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Dated this the 5th day of April, 2022
JUDGMENT
Sophy Thomas, J.
The respondents in O.P (OS) No.10 of 2009 on the files of
Family Court, Alappuzha are the appellants herein. The 1 st appellant
is the husband, 2nd appellant is his mother and the respondent is his
wife.
2. The respondent-wife filed the above O.P for recovery of
money and gold. As per judgment dated 30.05.2011, the Family
Court, Alappuzha decreed that O.P in part, against which the
respondents therein have come up with this appeal.
3. The brief facts necessary for the appeal could be stated as
follows:
The 1st appellant married the respondent on 04.05.2003. It
was the second marriage of both. At the time of marriage, the
respondent was given 89 sovereigns of gold ornaments by her
parents. Prior to the marriage, her father entrusted Rs.2 lakh with
the 1st appellant as her patrimony. After marriage, on 26.07.2004
her father gave Rs.2 lakh to the 1st appellant on his request.
Moreover, Rs.1,50,000/- was received by the 1st appellant, on various
occasions from her family, for his business purposes. On the first
night itself, the 1st appellant took all her gold ornaments for safe
custody and entrusted the same with the 2 nd appellant. Later they
sold away the entire gold ornaments for discharging their liabilities
and to satisfy their personal needs. So, she filed the O.P for
recovery of Rs.14,40,000/- including the value of gold
misappropriated by them, and the amounts entrusted with the
1st appellant, before and after the marriage.
4. The appellants/respondents filed objection contending that,
there was no demand for dowry since it was the second marriage of
both. Her parents had told the 1 st appellant that, 50 sovereigns of
gold ornaments given to her for her first marriage was with them,
and they could give some more ornaments for the second marriage.
It was also promised that, an amount of Rs.2 lakh would be paid as
her patrimony. The ornaments which the respondent was wearing at
the time of marriage, was with her under her lock and key, and the
appellants never received it from the respondent, or verified its
weight. The amount promised to be given from the house of the
respondent was given by way of a demand draft, on 26.07.2004
drawn on Bank of Baroda, Kozhikode branch. Except that, no other
amount was ever paid or received before or after the marriage. On
the sixth day of marriage, the 1 st appellant and respondent went to
her house and at that time, she had taken all her gold ornaments
with her. On the very next day, he left for Madras to resume his job,
and the respondent also joined her job in TTI at Haripad. The
respondent informed him, that her gold ornaments were kept in Bank
locker. They never misused or misappropriated the gold ornaments,
as alleged by her. The appellants put forward a counterclaim for
Rs.70,000/- being the value of a ring weighing one sovereign and
thali chain weighing six sovereigns given to the respondent at the
time of marriage, to which the respondent filed replication.
5. After formulating necessary issues by the Family Court, the
parties went on trial. PWs 1 to 3 were examined and Exts.A1 to A7
were marked from the side of the petitioner/wife. RWs 1 and 2 were
examined and Exts.B1 to B4 were marked from the side the
respondents/appellants.
6. On analysing the facts and evidence, the Family Court
decreed the O.P in part permitting the petitioner/wife to recover
Rs.8,90,000/- being the value of 89 sovereigns of gold ornaments
from the respondents/appellants jointly, and Rs.2 lakh from the
1st respondent/husband, with 6% interest per annum from the date
of O.P till realisation. The counterclaim advanced by the appellants
was dismissed. Aggrieved by the judgment and decree, the
respondents in that O.P preferred this appeal on the following
grounds:
7. The Family Court, without considering the pleadings and
evidence, came to the conclusion that, the respondent was having 89
sovereigns of gold ornaments at the time of her marriage, and
further found that her entire ornaments were taken away by the
appellants. The finding of the Family Court that, the ring and thali
chain given by the 1st appellant was a gift and so, they are not
entitled to get it back, is not correct. The Family Court ought to have
appreciated the testimony of PW1 that, she was wearing almost
same quantity of ornaments, while attending the marriage of the
brother of the 1st appellant, when she has got a case that, her entire
gold ornaments were taken away by the appellants in the first night
itself. While in the box, PW1 made a futile attempt to say that, the
ornaments worn by her at the marriage of brother of the 1 st appellant
belonged to her sister-in-law. That sister-in-law was not examined
before court.
8. The case of the respondent is that, her entire gold
ornaments were removed by the appellants on the date of marriage
itself i.e 04.05.2003. Admittedly, they are living separate from
01.03.2006. The O.P was filed only in the year 2009. That itself will
show lack of bonafides from her part. The particulars of her
ornaments were not furnished in the original petition. So, according
to the appellants, the Family Court ought to have dismissed the O.P.
9. Since no separate appeal was preferred by the appellants
against dismissal of the counterclaim, or no court fee was paid in the
present appeal for incorporating a prayer challenging dismissal of the
counterclaim, we are not concerned with the dismissal of the
counterclaim in this appeal.
10. The appellants are admitting receipt of Rs.2 lakh by way of
Ext.A2 Demand Draft dated 26.07.2004. The 1 st appellant is ready to
return that amount to the respondent as he received that amount in
trust as her patrimony. So, relief (b) in the impugned decree needs
no interference.
11. Now we have to find out whether the appellants received
the gold ornaments of the respondent and misappropriated the same
and if so, are they liable to pay back its market value.
12. According to the respondent, she was having 89 sovereigns
of gold ornaments at the time of marriage. RW1, the 1 st appellant,
deposed that, her parents told him that she was having 50
sovereigns of gold ornaments for her first marriage and they will give
some more ornaments in addition to that, for her second marriage.
PW1, the respondent, and PW2, her father, stated before court that,
she was having 80 sovereigns of gold ornaments for her first
marriage and adding 9 more sovereigns to that, she was wearing 89
sovereigns when she married the 1st appellant. No documents are
seen produced by the respondent or her father to prove purchase of
89 sovereigns of gold ornaments. The only document relied on by
the respondent is the wedding photograph. Ext.A3 is the wedding
photographs produced by the respondent and Ext.B2 is the wedding
photographs produced by the 1st appellant. It will show that, the
respondent was wearing considerable quantity of ornaments. But,
one may not know from a photograph whether the ornaments worn
were of gold or about its weight. The 1 st appellant also admitted
before court that, the respondent was wearing ornaments as seen in
the wedding photographs. He is not aware of its weight and he
deposed before court that, he never received those ornaments from
the respondent or verified its weight. According to him, whatever
may be the weight of gold ornaments she was wearing at the time of
marriage, it was kept in her custody only under her lock and key, and
either himself or his mother never received those ornaments for any
purpose. The Family Court, without any factual foundation, jumped
into a conclusion on seeing Ext.A3 series photographs that, she
possessed substantial amount of gold ornaments as claimed by her,
and there was no reason for the appellants to deny that, she had as
much amount of gold as she claimed, and entered into a finding that
she was in possession of 89 sovereigns of gold ornaments when she
joined house of the appellants after marriage.
13. The case of the respondent was that, on the first night
itself, the 1st appellant received her entire 89 sovereigns of gold
ornaments and handed it over to the 2 nd appellant for safe custody
and after few months, they sold it away to discharge their liabilities.
The respondent has no case that, the appellants were having a Bank
locker to keep her gold ornaments. There is no evidence to show
that, the appellants were having any liabilities to be cleared at the
time of marriage of the respondent, and that they had cleared any
such liabilities by selling away her gold ornaments. It is difficult to
believe that, entire gold ornaments of a lady who was given in
marriage with 89 sovereigns of gold, were taken away even without
leaving a thali chain and ear stud to wear, that too, in the first night
itself. If she had a case that, after keeping ornaments for her daily
use, the remaining ornaments were received by the appellants for
safe keeping, it would have been a believable story.
14. The respondent was admitting that, the 1st appellant had
given her a gold ring weighing one sovereign and thali chain
weighing six sovereigns at the time of marriage. But, according to
her, in the first night itself, the 1 st appellant received back her thali
chain along with the gold ornaments given to her from her family and
after that, she had never seen those ornaments.
15. The respondent admitted before court that, after four
months of her marriage with the 1 st appellant, there was marriage of
his brother, which she also attended. The appellants produced
Ext.B3 series photographs to show that, the respondent who
attended that marriage was wearing gold ornaments. PW1, the
respondent, admitted that, in Ext.B3 series photographs, her
photograph also is seen, in which she was wearing gold ornaments.
Ext.A3 series wedding photographs produced by the respondent will
clearly show that, the ornaments worn by her in Ext.B3 photographs
are similar to the ornaments seen in Ext.A3 series. Ext.B3 series
photographs will falsify her case that, in the first night itself her
entire gold ornaments were taken away by the appellants. PW1
made a futile attempt to say that, the ornaments worn by her in
Ext.B3 series photographs, were of her sister-in-law. But, her sister-
in-law was not examined to support her case.
16. The case of the respondent that, prior to the marriage, Rs.2
lakh was given by her father to the 1 st appellant and after marriage,
Rs.1,50,000/- was given on various occasions was found against the
respondent. The 1st appellant is admitting that, after marriage, on
26.07.2004, he was given a Demand Draft for Rs.2 lakh. The case of
the respondent is that, the 1st appellant had no love or affection
towards her and she was subjected to matrimonial cruelties. He
received her entire gold ornaments in the first night itself even
without sparing her thali chain. If that be so, there was no chance
for giving Rs.2 lakh to the 1 st appellant on 26.07.2004 i.e. after
about one year of their marriage.
17. The testimony of the respondent is to the effect that, in
March 2006, the 1st appellant demanded Rs.5 lakh and he compelled
her to withdraw deposits from her Bank Account and when she
refused, she was assaulted and deserted. Even if we admit her case
as true, we cannot believe that the respondent waited for three more
years to claim back her 89 sovereigns of gold ornaments from the
appellants. She filed the O.P for recovery of money and gold only in
the year 2009 and no satisfactory explanation is there for the delay.
18. PW1 admitted before court that, she was having a Bank
locker of her own and after death of her former husband, she was
keeping her ornaments in that locker. As we have already seen,
there is nothing to show that, the appellants were having a Bank
locker. So, in all probability, the respondent might have been
keeping her ornaments in her bank locker.
19. RW1 deposed before court that, on the sixth day of
marriage, himself and the respondent went to the house of the
respondent and then she was having all her gold ornaments with her.
On the very next day, he went back to Madras to resume his job and
he was told by the respondent that she had kept the gold ornaments
in her locker.
20. PW2, the father of the respondent, would say that, the gold
ornaments of the respondent was kept in his locker and for her
marriage with the 1st appellant, the ornaments were taken back and
the locker was closed. But, he had not adduced any evidence to
show that, the ornaments of the respondent were kept in his locker,
and after her marriage with the 1 st appellant, that locker was closed.
When there is categoric admission from the part of PW1 that, she
was having a locker facility of her own, there was no probability for
keeping those ornaments at the house of the appellants. So, the
available facts and evidence will substantiate the case of the
appellants that, whatever gold ornaments the respondent had at the
time of marriage were in her custody only, and there is nothing to
show that, the appellants ever received the same or
misappropriated the same. So, relief (a) in the impugned judgment is
liable to be set aside.
21. As we have seen, the 1st appellant is admitting receipt of
Rs.2 lakh from the respondent and he is ready to return the same.
So relief (b) in the impugned decree is to be confirmed.
In the result, the Mat.Appeal is allowed in part as follows:
I) Relief (a) in the impugned judgment and decree is set
aside.
II) Relief (b) in the impugned judgment and decree is
confirmed and the 1st appellant is directed to return Rs.2
lakh to the respondent with 6% interest per annum from
the date of O.P till realisation, within three months from
today and in default, the respondent is entitled to recover
the same from the 1st appellant and his assets.
III) No order as to costs. Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
