Kerala High Court
Asha K.Thomas vs Anil Naian @ Nainan P.Cheriyan on 27 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
MAT.APPEAL NO.76 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 45/2019 OF FAMILY COURT,
PALA
APPELLANT/RESPONDENT IN THE OP:
ANIL CHERIAN POLACHIRACKAL @ ANIL NAINAN
AGED 37 YEARS
S/O. NINAN CHERIAN, EMPLOYED AS ADMINISTRATION
OFFICER, AND DOMICILED IN KUWAIT,
ADDRESS FOR SERVICE,
POLACHIRACKAL HOUSE, KOTTAMURICKAL P.O.
CHANGANACHERRY, KOTTAYAM 686 105.
BY ADVS.
SRI.S.K.BALACHANDRAN
SMT.N.D.DEEPA
RESPONDENT/PETITIONER IN THE OP:
ASHA K.THOMAS
D/O. K.K. THOMAS AND EMPLOYED AS NURSE, RESIDING AT
KANJIRATHUMMOOTTIL HOUSE, PAMPADY P.O. PAMPADY,
KOTTAYAM 686 502.
BY ADV SRI.ALEX.M.SCARIA
SMT.SHERLY MOL THOMAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH Mat.Appeal.86/2020 AND CONNECTED
CASES, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
MAT.APPEAL NO. 86 OF 2020
AGAINST THE ORDER/JUDGMENT in OP 45/2019 OF FAMILY COURT,
PALA
APPELLANT/RESPONDENT IN THE OP:
ANIL CHERIAN POLACHIRACKAL @ ANIL NAINAN
AGED 37 YEARS
S/O NINAN CHERIAN,EMPLOYED AS ADMINISTRATION
OFFICER AND DOMICILED IN KUWAIT.
ADDRESS FOR SERVICE:
POLACHIRACKAL HOUSE,
KOTTAMURICKAL P.O,
CHANGANACHERRY,KOTTAYAM 686105
BY ADVS.
SRI.S.K.BALACHANDRAN
SMT.N.D.DEEPA
RESPONDENT/PETITIONER IN THE OP:
ASHA K THOMAS
AGED 33 YEARS
D/O K.K THOMAS AND EMPLOYED AS NURSE.
RESIDENCE-KANJIRATHUMMOOTTIL HOUSE,PAMPADY P.O
KOTTAYAM 686502.
BY ADVS.
SRI.ALEX.M.SCARIA
SMT.SARITHA THOMAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH Mat.Appeal.168/2020 AND CONNECTED
CASES, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
MAT.APPEAL NO. 168 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 46/2019 OF FAMILY COURT,
PALA
APPELLANT/PETITIONER:
ASHA K.THOMAS
AGED 29 YEARS
D/O.THOMAS, KANJIRATHUMMOOTTIL HOUSE, PAMPADY P.O.,
PAMPAD KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, PIN-
686 034, REPRESENTED BY HER POWER OF ATTORNEY
HOLDER K.K.THOMAS, S/O.LATE K.M.KURUVILA, AGED 62
YEARS, RESIDING AT KANJIRATHUMOOTTIL HOUSE, PAMPADY
P.O., KOTTAYAM DISTRICT-686 502.
BY ADVS.
ALEX.M.SCARIA
SMT.SARITHA THOMAS
RESPONDENTS/RESPONDENTS:
1 ANIL NAIAN @ NAINAN P.CHERIYAN
AGED 34 YEARS
S/O.NINAN CHERIYAN, POLACHIRACKAL HOUSE, KOTTAMURI
P.O., KOTTAMURI KARA, THRIKKODITHANAM VILLAGE,
CHENGANACHERRY TALUK, KOTTAYAM DISTRICT-686 105.
2 NAINAN CHERIYAN,
AGED 67 YEARS
POLACHIRACKAL HOUSE, KOTTAMURI P.O., KOTTAMURI
KARA, THRIKKODITHANAM VILLAGE, CHANGANACHERRY
TALUK, KOTTAYAM DISTRICT-686 105.
Mat.Appeal No.76 of 2020 & conn. cases 4
3 RACHEL NAINAN,
AGED 70 YEARS
W/O.NINAN CHERIYAN, POLACHIRACKAL HOUSE, KOTTAMURI
P.O., KOTTAMURI KARA, THRIKKODITHANAM VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686 105.
BY ADVS.
SMT.SHERLY MOL THOMAS
SRI.S.K.BALACHANDRAN
SMT.N.D.DEEPA
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH CO.73/2020, MAT.APPEAL 76/2020 AND
CONNECTED CASES, THE COURT ON 27.07.2022 DELIVERED THE
FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
CO NO. 73 OF 2020
AGAINST THE ORDER/JUDGMENT IN O.P 46/2019 OF FAMILY COURT,
PALA AND CONNECTED WITH MAT.APPEAL 168/2020
CROSS OBJECTORS/RESPONDENTS IN OP:
1 ANIL CHERIAN POLACHIRACKAL @ ANIL NAINAN,
S/O.NINAN CHERIAN, AGED 37 AND CURRENTLY RESIDENT
AT BUILDING No.135, POLACHIRACKAL HOUSE,
KOTTAMURICKAL.P.O, THRICKODITHANAM, CHANGANACHERRY,
KOTTAYAM, KERALA - 686 105.
2 RACHEL NINAN,
W/O.NINAN CHERIAN, AGED 74, REPRESENTED BY ANIL
CHERIAN POLACHIRACKAL, AND RESIDING AT BUILDING
NO.135, POLACHIRACKAL HOUSE, KOTTAMURICKAL.P.O.,
THRICKODITHANAM, CHANGANACHERRY TALUK, KOTTAYAM,
KERALA - 686105.
BY ADV.
SMT.SHERLY MOL THOMAS
RESPONDENT/PETITIONER IN OP:
ASHA K.THOMAS
D/O.THOMAS, AGED 34 YEARS, AND HAVING RESIDENCE AT
KANJIRATHUMMOOTTIL HOUSE, PAMPADY P.O, PAMPADY
KARA, PAMPADY VILLAGE, KOTTAYAM, KERALA - 686 502.
BY ADV ALEX.M.SCARIA
THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON
05.07.2022, ALONG WITH Mat.Appeal.168/2020 AND CONNECTED
CASES, THE COURT ON 27.07.2022 DELIVERED THE FOLLOWING:
Mat.Appeal No.76 of 2020 & conn. cases 6
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
-------------------------------------------------
Mat.Appeal Nos.76, 86 & 168 of 2020 &
Cross Objection 73 of 2020
-----------------------------------------------
Dated this the 27th day of July, 2022
JUDGMENT
Sophy Thomas, J.
The husband is the appellant in Mat.Appeal Nos.76 and 86 of
2020, and the cross objector in C.O No.73 of 2020. The wife is the
appellant in Mat.Appeal No.168 of 2020 and the respondent in the
other proceedings.
2. The wife filed O.P No.45 of 2019 for a decree of divorce,
and O.P No.46 of 2019 for recovery of patrimony, before the Family
Court, Pala. The Divorce O.P was decreed in her favour, against
which the husband preferred Mat.Appeal No.76 of 2020. Her O.P
for recovery of patrimony as well as the counterclaim by the
husband for recovery of a gold chain were dismissed, against which
the husband filed Mat.Appeal No.86 of 2020 and the wife filed
Mat.Appeal No.168 of 2020. Apart from that, the husband filed a
cross objection opposing Mat.Appeal No.168 of 2020 filed by the
wife.
Mat.Appeal No.76 of 2020 & conn. cases 7
3. O.P Nos.45 and 46 of 2019 were tried together by the
Family Court, Pala. After formulating necessary issues, the parties
went on trial. PWs 1 to 3 were examined and Exts.A1 to A8 series
were marked from the side of the wife and DWs 1 and 2 were
examined and Exts.B1 to B48 were marked from the side of the
husband. After analysing the evidence in a cursory manner, the
Family Court decreed O.P No.45 of 2019 dissolving their marriage,
and dismissed O.P No.46 of 2019 rejecting her claim for patrimony
in toto and also dismissed the counterclaim put forward by the
husband. Hence the parties have come up with the above appeals,
and cross objection.
4. Now let us have a reappraisal of the facts and evidence to
find out whether there was any illegality or impropriety in the
judgment impugned, warranting interference by this Court.
5. The wife shall be referred as the appellant and the
husband shall be referred as the respondent hereinafter.
6. The appellant filed O.P No.45 of 2019 for dissolution of her
marriage on the ground of matrimonial cruelties. Her marriage with
the respondent was solemnised on 03.06.2013. They went for a
honeymoon trip on 12.06.2013 and even according to the
respondent, they lived together, only upto 03.07.2013. So, their
marital relationship lasted for just one month, and it ended up with
their honeymoon.
7. The case of the appellant is that, the respondent was cruel
in his nature and behaviour and he was never a loving or caring
husband. He was an addict to porn videos and he had no interest in
leading a normal marital life with the appellant. He was interested
in gay sex. He was always watching obscene videos in his
bedroom. During their train journey to Jaipur from Udaipur, an
altercation occurred between them, and the respondent pushed her
forcibly, and luckily she did not fall from the train. She stopped her
journey and returned to her work place. She is so sure that, if she
had continued with him, it would have been dangerous to her life.
8. The respondent opposed her contentions and according to
him, he was a very loving and caring husband and he never ill-
treated his wife. At the same time, he is admitting the unhappy
incident that occurred in their train journey during their
honeymoon trip. He is admitting that, they parted their ways on
03.07.2013 i.e. just after one month of their marriage. DW2, the
mother of the respondent, also supported him saying that, there
was no ill-treatment towards the appellant and the couple were
very happy after their marriage. Admittedly, the appellant came
back to her matrimonial home on 20.08.2013. But she returned to
her paternal house on 08.11.2013. According to the respondent,
Mat.Appeal No.76 of 2020 & conn. cases 9
he belongs to a very rich and reputed family and he is well
educated and a loving husband. If that be so, in normal course, no
wife will abandon her matrimonial life, that too just after one
month of the marriage.
9. Before hearing the appeals, we also attempted for an
amicable settlement to find out whether the parties could be
reconciled to resume their marital relationship. But it did not work
out as the appellant was adamant in her stand that she could not
continue with him without fear of life. When a wife complains
about the cruel nature of her husband, we cannot expect any
evidence to corroborate her testimony as to the nature, attitude
and behaviour of her husband inside their bedroom. The appellant
alone is the person competent to say about their private life, and
even the family members may have only hearsay information from
them. So, sufficient weightage has to be given to the statement of
the appellant, who lived with the respondent just for 30 days.
10. The appellant is very much scared of continuing her
marital relationship with the respondent, and according to her, her
life itself will be in danger if she continues to live with him. The
couple lived together just for one month and they are living
separate for about ten years spoiling their youthful years engaged
in litigations. Obviously, their relationship is dead and we could see
Mat.Appeal No.76 of 2020 & conn. cases 10
no chances of reconciliation between them, so as to lead a
meaningful married wife. But, at the same time, the respondent is
not willing for a joint petition for divorce, to dissolve their marriage
free of any stigma.
11. In Beena vs. Shino G.Babu (2022 (2) KLT 139), this
Court held that, when both the parties are unable to lead a
meaningful matrimonial life due to inherent differences of opinion,
and one party is willing for separation and the other party is
withholding consent for mutual separation, that itself would cause
mental agony and cruelty to the spouse who demands separation.
The purpose of marriage is to hold matrimonial ties lifelong,
respecting mutual obligations and rights. If the court is able to
form an opinion that due to incompatibility, the marriage failed,
and one of the spouses was withholding consent for mutual
separation, the court can very well treat that conduct itself as
cruelty. If one of the spouses is refusing to accord divorce on
mutual consent after having convinced of the fact that the marriage
failed, it is nothing but cruelty to spite the other spouse. No one
can force another to continue in a legal tie and relationship if the
relationship deteriorated beyond repair. The portrayal of such
conduct through manifest behaviour of the spouse in a manner
understood by a prudent, as 'cruelty' is the language of the lawyer
Mat.Appeal No.76 of 2020 & conn. cases 11
for a cause before the court. There is no useful purpose served in
prolonging the agony any further and the curtain should be rung at
some stage.
12. In Samar Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511),
the Apex Court held that "once the parties have separated and
separation has continued for a sufficient length of time, and one of
them has presented a petition for divorce, it can well be presumed
that the marriage has broken down. The court, no doubt, should
seriously make an endeavour to reconcile the parties; yet, if it is
found that the breakdown is irreparable, then divorce should not be
withheld. The consequences of preservation in law of the
unworkable marriage which has long ceased to be effective are
bound to be a source of greater misery for the parties".
13. The respondent though flatly denied all the allegations of
cruelties levelled against him, he never confronted the appellant
with respect to those allegations during cross examination. His
cross examination was mainly confined to the monetary aspects.
Since the case put forward by the appellant regarding matrimonial
cruelties was not even challenged during her cross examination, it
is only to be accepted, and the judgment impugned is only to be
confirmed.
14. The Family Court totally rejected the monetary claims of
Mat.Appeal No.76 of 2020 & conn. cases 12
the appellant by dismissing O.P No.46 of 2019. Her case was that,
her father entrusted Rs.10 lakh with the respondent and his
parents on 26.05.2013 during engagement ceremony. PW2, the
father of the appellant, availed loan of Rs.10 lakh from Pampady
Service Co-operative Bank and that amount was entrusted with the
respondent and his parents as deposed by him. Ext.A2 pass book
of PW2 substantiates that fact. PW3, the mother of the appellant,
also corroborated that testimony. The Family Court rebutted the
contention of the respondent that, the parents of PW1 had no
source of income to pay Rs.10 lakh towards her patrimony. But, at
the same time, for want of pleadings as to when, where and whom,
the amount was entrusted, her claim was rejected.
15. In O.P No.46 of 2019, in paragraph 3, it was specifically
pleaded that, Rs.10 lakh was entrusted with the respondents in
connection with the engagement ceremony by the father of the
appellant. It was quite a strange and unfortunate finding by the
Family Court, 'that the amount can be physically given to only one
person and normally there cannot be a joint entrustment of money,
and hence the version that the amount was given to respondents 2
and 3 can only be said to be vague'. Time and again the Apex
Court has reminded that, the pleadings should receive a liberal
construction and no pedantic approach should be adopted to defeat
Mat.Appeal No.76 of 2020 & conn. cases 13
justice on hair splitting technicalities.
16. The respondent has got a case that on 26.05.2013, he
was not available in his house and he had gone to the house of his
friend. The definite case of the appellant is that, the amount was
entrusted on the date of engagement, and so it is too much for the
respondent to contend that, on the date of his own engagement,
he was not available in his house, and he had gone to the house of
his friend.
17. The respondent and his mother were categoric in saying
that, they never received any patrimony from the father of the
appellant. According to them, they were financially rich and the
appellant belonged to a poor family. In the argument notes filed by
the respondent, in paragraph 7.3(j), it is submitted that since PWs
2 and 3 admitted that the money was given to parents of the
respondent, DW1 has not taken the money, and he cannot be held
liable for it. It is conventional in Christian marriages to entrust
patrimony amount of the bride with the bridegroom, his parents, or
even with the uncles. It is entrusted for the bride as a trust to be
used for her benefit, and the recipients are bound to keep it in trust
for her and they are liable to return the same as and when
demanded. We cannot expect any documentary evidence to prove
such transactions, and we have to analyse human conduct in the
Mat.Appeal No.76 of 2020 & conn. cases 14
touchstone of ground realities. Probabilities, presumptions and
surrounding circumstances are to be looked into, to reach a
conclusion as to whether a fact alleged is proved with
preponderance of probabilities.
18. The appellant was a Nursing Tutor in Udaipur at the
time of marriage. Her mother was a Staff Nurse working in Saudi
Arabia for 17 years and she retired as Head Nurse from District
Hospital, Kottayam. Her father was working as Supervisor/Warden
of an Orphanage drawing monthly salary. Her parents were having
landed properties extending more than 1 Acre as evidenced from
Ext.A8 series tax receipts. Moreover they had availed a loan of
Rs.10 lakh to give patrimony to their daughter. So, their source of
income was sufficiently proved. The engagement ceremony was on
26.05.2013 and the loan was availed on 04.05.2013. There is
nothing to show that, the said amount or any portion of it was
utilised for purchasing her gold ornaments. When PWs 1 to 3
proved the source of Rs.10 lakh and categorically deposed before
court the entrustment of that amount with the respondent or even
with his parents, we have to hold that the entrustment is
sufficiently proved, and it doesn't matter who among them received
it on hand. The testimony of DWs 1 and 2 were not sufficient
enough to impeach the testimony of PWs 1 to 3 regarding
Mat.Appeal No.76 of 2020 & conn. cases 15
entrustment of patrimony or to disprove Ext.A2 document.
19. Now regarding the gold ornaments, the case of the
appellant is that, she was given 62 sovereigns of gold ornaments
for her marriage, and apart from that, a chain weighing 2.5
sovereigns was given to the bridegroom from her family. Ext.A3
wedding photograph will show the ornaments worn by her at the
time of marriage. Ext.A4 series are the bills for purchasing gold
ornaments from Josco Fashion Jewellers, Kottayam, dated
28.05.2013. It is true that the bills are in the name of the parents
and uncle of the appellant. PW2, the father of the appellant,
deposed that as told by the jewellery people, three separate bills
were prepared, may be for the purpose of saving tax. PW3, the
mother of the appellant, was working in Saudi Arabia for 17 years
and according to her, she had brought gold ornaments from Saudi
for her daughter, and those ornaments were exchanged at the time
of marriage. Ext.A4 series bills also will prove that old gold was
exchanged for purchasing new ornaments. The total price of gold
ornaments purchased on that day was Rs.10,79,420/- and after
adjusting the price of old gold exchanged, the balance amount
given in cash was only Rs.1,46,000/-. So much so the respondents
cannot have a case that, with the alleged patrimony of Rs.10 lakh,
gold ornaments were purchased for her marriage. PWs 1 and 2
Mat.Appeal No.76 of 2020 & conn. cases 16
deposed that they had bid two chitties, and they had savings from
salary and agricultural income to meet the marriage expenses, and
only to pay the patrimony, PW2 availed the bank loan. There is no
reason to disbelieve their testimony.
20. The total quantity of gold ornaments purchased on
28.05.2013 was 361.53 gms equivalent to 45.19 sovereigns. The
case of the appellant is that, she was having total 62 sovereigns of
gold ornaments. But there is nothing to show that apart from the
gold ornaments purchased as per Ext.A4 series bills, she was
having any other old gold ornaments with her, at the time of
marriage. Moreover, PWs 2 and 3 deposed before court that PW1
was wearing new gold ornaments at the time of marriage. Anyhow
there is evidence to show that 45.19 sovereigns of gold ornaments
were purchased immediately before her marriage which includes a
chain weighing 2½ sovereigns. That might have been the chain
given to the respondent from her family which is proved by Ext.A5
photograph and admitted by the respondent. The respondent could
not prove that the said chain was returned to the appellant at any
point of time. So, we have to find that including the chain given to
the respondent, 45.19 sovereigns of gold ornaments were given
from her family.
Mat.Appeal No.76 of 2020 & conn. cases 17
21. The appellant is admitting that, she was keeping 4.5
sovereigns with her for her daily use. So the balance entrusted for
safe custody in locker, with the respondents might have been only
40.69 sovereigns.
22. Now let us see whether the appellant could prove the
entrustment of gold ornaments with the respondent and his
parents.
23. The respondent and his mother admitted before court
that, after marriage except for one or two days in her paternal
house, the appellant was residing at her matrimonial home. DW2
categorically stated in her proof affidavit that after marriage,
except on 6th and 7th of June, the appellant was residing with the
respondent at his home till they proceeded for honeymoon trip on
12.06.2013. So, practically, the appellant was staying at her
matrimonial home, and therefore, there was no chance for her to
take her ornaments back to her paternal house, before they
proceeded for their honeymoon trip.
24. The defence of the respondent regarding the gold
ornaments is manifold. DWs 1 and 2 are admitting that, the
appellant was wearing ornaments at the time of marriage, but they
do not know whether it was gold or silver. Deviating from the
pleadings, the respondent put forward a new case that on the very
Mat.Appeal No.76 of 2020 & conn. cases 18
next day of marriage, father of the appellant reached his house,
and took all her gold ornaments with him. It is a story difficult to
be swallowed without a pinch of salt. There was no probability for
a father to reach the matrimonial home of her daughter, on the
very next day of marriage to take back all the gold ornaments
given to her from her family in connection with the marriage. Since
the couple left for their honeymoon trip on 12.06.2013 i.e. just
after seven days of their marriage, that too from their matrimonial
home, normally the ornaments might have been entrusted with the
parents-in-law or it might have been kept safe in a bank locker.
The respondent has no case that the appellant or her family had a
bank locker and the ornaments were kept in that locker before they
proceeded for their honeymoon trip. Since the respondent was
also available with the appellant, he might have been well aware of
the arrangements made for keeping her gold ornaments safe,
before they proceeded for their honeymoon. We cannot expect
that the couple will go for their honeymoon trip to North India
wearing 40-45 sovereigns of gold ornaments.
25. The respondent has got another case that, the gold
ornaments of the appellant were returned to Josco jewellers and
the amount was received back, for which no evidence is
forthcoming. Even DW2 has no case that, when the appellant
Mat.Appeal No.76 of 2020 & conn. cases 19
returned to her matrimonial home on 08.11.2013 along with her
father, she had taken her entire gold ornaments with her. What
DW2 has stated is that, when the appellant returned, she had
taken the 2½ sovereigns of gold chain given to the respondent, and
also the 4 sovereign chain given to her by DW2.
26. When the parties are aware of the true state of affairs,
suppressing that fact, they are taking the court for a ride, to guess
many things. Many matters have to be considered and decision has
to be taken on disputed questions of fact, on the touchstone of
probabilities. It would be unreasonable and irrational for a court to
look for documentary evidence in matrimonial issues to prove a
particular fact. We have to analyse the oral evidence of parties and
their witnesses, and decision has to be taken based on
preponderance of probabilities. As we have already stated, the
respondent has no specific case regarding the gold ornaments of
the appellant. At one point, he was even disputing the
genuineness of the gold ornaments. Yet another point, he would
say that, on the very next day of marriage, her entire gold
ornaments were taken away by her father. But, the available facts
will show that, there was every probability for the appellant to
entrust the gold ornaments with the respondent and his parents
before she went out for honeymoon trip just after seven days of
Mat.Appeal No.76 of 2020 & conn. cases 20
her marriage. So, the respondent and his parents are answerable
to the gold ornaments of the appellant entrusted with them.
27. Going by the documents and evidence, the gold
ornaments entrusted with the respondent and his parents might
have been only 40.69 sovereigns and they are liable to return the
same to the appellant in specie or its market value as on the date
of payment.
28. Regarding the counterclaim of the respondent, DW2 says
that, a gold chain weighing 4 sovereigns was given by her to the
appellant. They are relying on Ext.B8 photograph to prove the
same. But, at the same time, DWs 1 and 2 categorically stated
that, no gold ornaments were given to the appellant either by the
respondent or his parents. In the light of such a statement, there
cannot be a decree for recovery of any gold ornaments from the
appellant. So, the dismissal of the counterclaim by the Family Court
is justified.
29. The appellant has put forward a claim for movables
worth Rs.75,100/-, which forms dress materials worth Rs.40,000/-
and the remaining are furniture, lamp, mattress etc. Since there is
evidence to show that on 08.11.2013, the appellant went back to
her paternal house on her own, along with her father, she might
have taken her dress items with her. She has no case that she was
Mat.Appeal No.76 of 2020 & conn. cases 21
forcibly driven out, or she had an expectation of coming back to
her matrimonial home. So normally she might have taken back her
dress with her, when she returned to her paternal house, along
with with her father. Regarding the furniture, the respondent totally
denied her claim. At the same time, he has got a case that, after
they separated, parents of the appellant reached his house on
26.11.2013 and took away all her belongings. There is no challenge
or contra evidence adduced from the side of the appellant. So, her
claim for movables is liable to be rejected.
In the result, above cases are disposed of as follows:
(i) Mat.Appeal Nos.76 of 2020, 86 of 2020 and Cross
Objection 73 of 2020 are dismissed.
(ii) Mat.Appeal No.168 of 2020 is allowed in part, setting
aside the impugned judgment and granting a decree
in favour of the appellant as follows:
(a) The respondents are directed to return
Rs.10 lakh to the appellant within three
months from today and in default she can
recover the same from the respondents and
their assets with interest @ 6% per annum
from the date of default till realisation.
Mat.Appeal No.76 of 2020 & conn. cases 22
(b) The respondents are directed to return 40.69
sovereigns of gold ornaments to the appellant
within three months from today and in default,
she can recover its market value as on the date
of payment, from the respondents and their
assets.
The Mat.Appeals and the Cross Objection are disposed of
accordingly, without any order as to costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
