Kamalamma.P & 2 Others vs Jayamini.K
2022 Latest Caselaw 740 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                  &
             THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
  MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943
                     MAT.APPEAL NO.800 OF 2011
 AGAINST THE ORDER/JUDGMENT IN OP 860/2008 OF FAMILY COURT,
                             ALAPPUZHA
APPELLANTS/RESPONDENTS:

    1    KAMALAMMA.P, AGED 72 YEARS,
         W/O.LATE N.K.BHASKARAN, ERUPATHIL HOUSE,,
         CHANDANAKKAVU, IRON BRIDGE P.O., ALAPPUZHA-II.

    2    LEKHA BHASKAR AGED 49 YEARS
         D/O.LATE BHASKARAN, ERUPATHIL HOUSE,,
         CHANDANAKKAVU, IRON BRIDGE P.O., ALAPPUZHA-II.

    3    JULY SREEJITH, AGED 43 YEARS
         D/O.LATE BHASKARAN, RAJBAHAVAN, B.T.S. ROAD,, NEAR
         CHANGAMPUZHA PARK, EDAPPALLY P.O.,, ERNAKULAM.

         BY ADVS.
         SRI.N.J.JOHNSON
         SRI.P.K.RAVI KRISHNAN



RESPONDENT/PETITIONER:

         JAYAMINI.K., AGED 41 YEARS,
         D/O.K.P.NARAYANAN, MANJUSHA, PAZHAVEEDU P.O.,,
         CHANDNAKKAVU, ALAPPUZHA.

         BY ADV SRI.S.SANAL KUMAR




     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
17.01.2022,    THE   COURT   ON   THE    SAME   DAY   DELIVERED   THE
FOLLOWING:
 Mat.Appeal No.800 of 2011              2


                     A.MUHAMED MUSTAQUE &
                         SOPHY THOMAS, JJ.
                   ------------------------------------
                     Mart. Appeal No.800 of 2011
                   ------------------------------------
               Dated this the 17th day of January, 2022


                            JUDGMENT

Sophy Thomas, J.

The respondents in O.P No.860 of 2008 on the file of Family

Court, Alappuzha are the appellants herein. The respondent, who

is the daughter-in-law of the 1st appellant and sister-in-law of

other appellants, filed that O.P for recovery of 50 sovereigns of

gold ornaments, which she had allegedly entrusted with the

husband of the 1st appellant, for the marriage of the 3rd appellant.

The Family Court decreed that O.P directing the appellants to

return Rs.4,50,000/- being the value of 50 sovereigns of gold

ornaments with 6% interest per annum from the date of O.P till

realisation. Aggrieved by the said judgment and decree, the

appellants preferred this appeal.

2. The respondent is the wife of one Mr.Sreejith, who is the

son of the 1st appellant and brother of appellants 2 and 3. The

marriage between the respondent and Mr.Sreejith was solemnised

on 09.04.2000. At the time of marriage, 50 sovereigns of gold

ornaments were given from her family. On 16.04.2000, marriage

of the 3rd appellant was solemnised. Since her father

Sri.Bhaskaran was having some financial problems, he asked the

respondent to give away her 50 sovereigns of gold ornaments for

giving to the 3rd appellant for her marriage. Accordingly, the

respondent gave her entire 50 sovereigns of gold ornaments to

the 3rd appellant, on the assurance that the ornaments would be

returned within three months. But they did not keep their word.

Meanwhile, Sri.Bhaskaran passed away. The appellants ill-treated

the respondent, and compelled her to leave her matrimonial

home. So, she shifted her residence to a rented house, along with

her husband. She issued a lawyer notice asking the appellants to

return her gold ornaments. But they were not amenable. So she

filed the above O.P for recovery of her 50 sovereigns of gold

ornaments or its market value from the appellants.

3. The appellants/respondents contested the case

challenging the jurisdiction of the Family Court as well as the

alleged entrustment of 50 sovereigns of gold ornaments, pleaded

by the respondent. The parties went on trial by examining PWs 1

to 5 and marking Exts.A1 to A3 from the side of

petitioner/respondent, and examining RWs 1 and 2 and marking

Ext.B1 from the side of appellants/respondents. After evaluating

the facts and evidence, the Family Court decreed the O.P allowing

the petitioner/respondent to recover Rs.4,50,000/- being the

value of 50 sovereigns of gold ornaments with 6% interest per

annum from the date of petition till realisation from the

respondents/appellants jointly.

4. The appellants are assailing the impugned judgment and

decree mainly on three grounds;

i) The Family Court had no jurisdiction to entertain

O.P No.860 of 2008, as parties to the marriage were

not in the party array.

ii) The respondent/wife was not having 50 sovereigns

of gold at the time of marriage.

       iii)     No gold ornaments were entrusted by the

                petitioner/respondent with the     respondents/

                appellants.

5. Now let us have a scrutiny of the available facts and

evidence, in the light of the grounds urged by the appellants, to

assail the impugned judgment and decree.

6. Learned counsel for the appellants contended that the

husband of the respondent is not in the party array, and there is

evidence to show that still they are leading their marital life. Since

one of the parties to the marriage has not been joined in the suit,

and there is no marital dispute between them, it cannot be said

that it is a dispute coming under Section 7(1) of the Family Courts

Act. But, the case of the respondent/wife is that, she was given

50 sovereigns of gold ornaments from her family at the time of

marriage, and the entire gold ornaments were entrusted with her

father-in-law, as he requested the same to conduct the marriage

of his daughter, the 3rd appellant. So, the receipt of gold

ornaments as her paternal share, and entrustment of gold

ornaments with her in-laws as a trust, are essentially a

'circumstance arising out of marital relationship' and so, the

dispute is squarely coming under explanation (d) to Section 7(1)

of the Family Courts Act.

7. In Leby Issac vs. Leena M. Ninan and others reported

in 2005 (3) KLT 665, a Division Bench of this Court held that, if a

petition is filed before Family Court for an order or injunction 'in

circumstances arising out of a marital relationship', such petition

is maintainable before the Family Court. The inclusion of the word

'circumstances' in the relevant provision is quite significant and it

must have been done to include all such circumstances,

surrounding, preceding and closely following a marital

relationship, i.e. the principal event of marriage and the

eventualities surrounding the same. So, there cannot be any

dispute with respect to the fact that, the entrustment of gold

ornaments received by the bride from her family and entrusted

with the in-laws as a trust, is a 'circumstance arising out of a

marital relationship' and hence, the O.P is maintainable before the

Family Court.

8. Now the next question to be considered is whether the

respondent was having 50 sovereigns of gold ornaments at the

time of marriage.

9. PW1, the respondent/wife, relied on Ext.A1 marriage

certificate to say that she was having 50 sovereigns of gold

ornaments at the time of marriage. She admitted that, herself

and her husband Sri.Sreejith were classmates and their marriage

was a love marriage, though it was subsequently arranged by

their families. Ext.A1 marriage certificate is challenged by the

appellants as it was not entered in the marriage register kept in

book form in SNDP Branch No.710. PW1 gave testimony to the

effect that the then Secretary of Alappuzha SNDP registered their

marriage at Thalassery. PW2, the Secretary of SNDP Branch

No.710 deposed that Ext.A1 is not part of the marriage register

book maintained in SNDP. But, according to her, when SNDP

marriages are conducted in distant places, they used to take

separate detachable sheets to register the marriage, and after

entering the details in the format, it will be kept compiled in the

office. Anyhow, marriage between the respondent and her

husband were registered with SNDP, and it shows that the bride

was wearing 50 sovereigns of gold ornaments at the time of

marriage. That document is seen signed by the father of the bride

as well as the bridegroom, and their signature is not disputed by

either parties. So, we need not doubt about the genuineness of

that document, and we have to go by the entry in that register, to

hold that the bride was wearing 50 sovereigns of gold ornaments

at the time of marriage.

10. The next question to be considered is whether 50

sovereigns of gold ornaments, which the bride was wearing at the

time of marriage, was entrusted with the appellants. PW1, the

wife, would say that her marriage was on 09.04.2000. On

16.04.2000, the marriage of the 3 rd appellant was solemnised.

According to her, since father of the 3 rd appellant Sri.Bhaskaran

had some financial problems, he requested her, two days prior to

the marriage of his daughter, to hand over her entire 50

sovereigns of gold ornaments for the marriage of the 3 rd appellant,

assuring that it would be returned within three months. Curiously

enough, her husband was not a witness to that transaction. Her

case is that her husband was working in a construction company

and often he was outside Kerala. But it is to be noted that, if

Sri.Bhaskaran demanded her gold ornaments two days prior to the

marriage of the 3rd appellant, it might have been on 14.04.2000.

It was the 6th day of marriage of the respondent with Mr.Sreejith.

In all probability, on the 6th day of marriage, Mr.Sreejith might not

have gone out of station in connection with his construction work

especially when two days after that, marriage of his sister was

going to happen. Moreover, when a newly married lady was asked

to give her entire gold ornaments for the marriage of her sister-in-

law, definitely, there might have been some discussion with her

parents or at least with her husband.

11. It is quite strange that on the 6 th day of marriage, the

respondent gave her entire gold ornaments to her father-in-law,

for the marriage of her sister-in-law. The respondent was not able

to say the details of the gold ornaments entrusted with

Sri.Bhaskaran when she was cross examined by the appellants.

Though her case is that the gold ornaments were entrusted with

Sri.Bhaskaran on the 6th day of her marriage, on the assurance

that it would be returned within three months, there is nothing to

show that she demanded her gold ornaments from Sri.Bhaskaran,

till his death in the year 2001. She sent Ext.A2 lawyer notice to

the appellants only on 02.07.2008 and filed the O.P on

26.08.2008. She admitted before court that, in consultation with

her husband and with his consent, she filed the O.P.

12. PW3 and PW4 are the relatives of husband of the

respondent. PW3 would say that the respondent was having 60

sovereigns of gold ornaments at the time of marriage. Even the

respondent had no such case in her pleadings or evidence.

Moreover, he would say that Sri.Bhaskaran had agreed to return

the gold by selling away his property. The respondent had no

such case in her pleadings. It has come out in evidence that PWs

3 and 4 are not in good terms with the appellants after the death

of Sri.Bhaskaran. PW5 is a friend of the husband of the

respondent. He also deposed about the mediation talk for giving

back the gold ornaments of the respondent. The testimony of

PWs 3 to 5 will clearly show that they are very close to the

respondent and her husband and they are not in good terms with

the appellants. RW1, the 3rd appellant, also stated that PWs 3 and

4 are not in good terms with them. So, their testimony is not

inspiring our confidence.

13. According to PW1, the 3 rd appellant was given 100

sovereigns of gold ornaments at the time of marriage, out of

which, she claims that 50 sovereigns were given by her. RW2 is

the husband of RW1. He would say that RW1 was having only 71

sovereigns of gold ornaments at the time of marriage. PW1 could

have called for the wedding photographs of the 3rd appellant, to

have a comparison with the wedding photographs of the

respondent, to show that the ornaments are one and the same.

But that was not attempted to by the respondent.

14. At the time of marriage of the 3rd appellant, PW1 was

wearing 15 sovereigns of gold ornaments as admitted by her

during cross examination. According to her, she had received 15

sovereigns of gold ornaments as gift from relatives at the time of

marriage. She had no such case in her pleadings. If her entire

gold ornaments were received by her father-in-law, there might

not have been any balance ornaments with her, to attend the

marriage of the 3rd appellant, that too, on the 7th day of her

marriage. Only to cover up that situation, she has improved her

case saying that she was wearing 15 sovereigns of gold

ornaments which she obtained as wedding gifts from relatives.

There is nothing to show that apart from 50 sovereigns of gold

ornaments mentioned in Ext.A1, she was having any other gold

ornaments with her when she reached her matrimonial home, or

even thereafter. If she is admitting that she was wearing 15

sovereigns of gold ornaments at the time of marriage of the

3rd appellant, it will go against her case that, her entire gold

ornaments were received by her father-in-law, two days prior to

the marriage of the 3rd appellant, as there is nothing to prove

gifting of gold ornaments to the respondent by her relatives, at

the time of marriage or thereafter.

15. Though the pleadings of the respondent is to the effect

that, her 50 sovereigns of gold ornaments were received by her

father-in-law, during cross examination, she would say that the

ornaments were entrusted with the 1st appellant-mother-in law.

Except the testimony of PW1, there is nothing to prove the

entrustment of gold ornaments either with Sri.Bhaskaran or with

the 1st appellant. The best witness, her husband did not come

forward, to support her case.

16. It has come out in evidence that there is a criminal case

registered against the respondent for assaulting appellants 1 and

2. There was criminal case filed by the respondent against the

appellants also. Learned counsel for the appellants produced copy

of judgment in CC No.398 of 2011 of Judicial First Class Magistrate

Court-II, Alappuzha, in which the appellants herein were the

accused and the respondent herein was the de facto complainant,

alleging offences punishable under Sections 420 and 498A read

with Section 34 of IPC. The appellants were found not guilty of

the offences alleged, and they were acquitted.

17. The husband of the respondent, who is the son of the

1st appellant and brother of appellants 2 and 3, is behind the

curtain, and he has not come forward either to support the

appellants or the respondent. The respondent would say that, she

filed the suit in consultation with her husband, and on getting his

consent. The gold ornaments of the respondent was allegedly

received by the father-in-law on 14.04.2000. The father-in-law

died in the year 2001. There is nothing to show that till 2008, the

respondent made any demand for her gold ornaments. The

judgment in CC No.398 of 2011 mentions about sale of the

property of Sri.Bhaskaran after his death, in which the husband of

the respondent also was a party. The respondent had no case

that Sri.Bhaskaran had agreed to return her gold ornaments, after

selling away his property. But PWs 3 and 4 gave evidence to the

effect that the gold ornaments of the respondent were agreed to

be returned after selling away the property of Sri.Bhaskaran. So,

in all probability, the husband of the respondent, dissatisfied with

the disposal of the property or dissatisfied with his share, might

have made his wife instrumental for filing the O.P, he himself

remaining behind the curtain, as if he had no information about

the transaction alleged by his wife.

18. On going through the entire facts and evidence, we are

not convinced about the entrustment of 50 sovereigns of gold

ornaments alleged by the respondent, either with late Bhaskaran

or with the appellants. So, the impugned judgment and decree of

the Family Court, Alappuzha is liable to be set aside.

In the result, this Mat.Appeal is allowed setting aside the

impugned judgment and decree. The parties shall suffer their

respective costs. Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

SOPHY THOMAS JUDGE smp