Kerala High Court
Mano C Varghese @ Mano Charuvil ... vs Sunu Anie Thomas on 27 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
MAT.APPEAL NO. 474 OF 2016
AGAINST THE ORDER/JUDGMENT IN OPDIV 929/2011 OF FAMILY
COURT, THIRUVALLA
APPELLANTS/RESPONDENT NO.1 TO 3:
1 MANO C VARGHESE @ MANO CHARUVIL VARGHESE
S/O.C.K.VARGHESE, AGED 35 YEARS, RESIDING AT
CHARUVIL MANU VILLA, KUMARAMPEROOR
THEKKEKARA MURI, KUMPALAMPOIKA PO,
VADASSERIKARA VILLAGE, RANNY TALUK,
PATHANAMTHITTA, REPRESENTED BY P.A.HOLDER
2ND APPELLANT, C.K.VARGHESE.
2 C.K.VARGHESE
S/O.KOSHY, AGED 64 YEARS, RESIDING AT
CHARUVIL MANU VILLA, KUMARAMPEROOR
THEKKEKARA MURI, KUMPALAMPOIKA PO,
VADASSERIKARA VILLAGE, RANNY TALUK,
PATHANAMTHITTA.
3 ALICE VARGHESE
W/O.C.K.VARGHESE, AGED 56 YEARS, RESIDING AT
CHARUVILL MANU VILLA, KUMARAMPEROOR
THEKKEKARA MURI, KUMPALAMPOIKA PO,
VADASSERIKARA VILLAGE, RANNY TALUK,
PATHANAMTHITTA.
BY ADV SRI.MANU RAMACHANDRAN
RESPONDENT/PETITIONER:
** SUNU ANIE THOMAS
AGED 31 YEARS, D/O.K.P.THOMAS,
RESIDING AT KARACKATTU, KUNNAM MURI,
VECHOOCHIRA PO, CHETTACKKAL VILLAGE,
RANNY TALUK, PATHANAMTHITTA.
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 2
** IT IS RECORDED THAT SUNU ANIE THOMAS, THE RESPONDENT IS
REPRESENTED BY HER POWER OF ATTORNEY HOLDER SMT.K.N.SOSAMMA,
W/O.K.P THOMAS, AGED 75 YEARS, KARACKATTU HOUSE, KUNNAM
MURI, CHETHACKAL VILLAGE, RANNI TALUK, PATHANAMTHITTA
DISTRICT AS PER ORDER DTD.23/5/19 VIDE MEMO DATED 10/4/19.
BY ADVS.
SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
06.06.2023, ALONG WITH CO.93/2022, THE COURT ON 27.06.2023
DELIVERED THE FOLLOWING:
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945
CO NO.93 OF 2022 IN MAT.APPEAL 474 OF 2016
AGAINST THE ORDER/JUDGMENT IN O.P 929 OF 2011 OF FAMILY
COURT, THIRUVALLA
CROSS OBJECTION: RESPONDENT IN MAT.APPEAL/PETITIONER:
SUNU ANIE THOMAS
AGED 37 YEARS
D/O. K.P. THOMAS, KARACKATTU, KUNNAM MURI,
CHETHAKKAL VILLAGE, VECHOOCHIRA PO, RANNI
TALUK, PATHANAMTHITTA DISTRICT., REPRESENTED
BY HER POWER OF ATTORNEY HOLDER: K.N.
SOSAMMA, AGED 75 YEARS, W/O. K.P. THOMAS,
KARACKATTU HOUSE, KUNNAM MURI, CHETHAKKAL
VILLAGE, VECHOOCHIRA PO, RANNI TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.
JACOB P.ALEX
JOSEPH P.ALEX
RESPONDENTS:APPELLANTS IN MAT.APPEAL/RESPONDENTS:
1 MANO C VARGHESE @ MANO CHARUVIL VARGHESE,
S/O. C.K. VARGHESE, AGED ABOUT 41 YEARS,
CHARUVIL MANU VILLA, KUMARAMPEROOR THEKKEKARA
MURI, VADASSERIKARA VILLAGE, KUMPALAMPOIKA PO,
PIN 689 661 RANNI TALUK, PATHANAMTHITTA
DISTRICT. REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER: C.K. VARGHESE, S/O. LATE KOSHY, AGED
ABOUT 70 YEARS, CHARUVIL MANU VILLA,
KUMARAMPEROOR THEKKEKARA MURI, VADASSERIKARA
VILLAGE, KUMPALAMPOIKA PO, PIN 689 661, RANNI
TALUK, PATHANAMTHITTA DISTRICT (2ND
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 4
RESPONDENT)
2 C.K. VARGHESE,
S/O. LATE KOSHY, AGED ABOUT 70 YEARS, CHARUVIL
MANU VILLA, KUMARAMPEROOR THEKKEKARA MURI,
VADASSERIKARA VILLAGE, KUMPALAMPOIKA PO, RANNI
TALUK, PATHANAMTHITTA DISTRICT. PIN 689 661
3 ALICE VARGHESE,
W/O. LATE C.K. VARGHESE, AGED ABOUT 61 YEARS,
CHARUVIL MANU VILLA, KUMARAMPEROOR THEKKEKARA
MURI, VADASSERIKARA VILLAGE, KUMPALAMPOIKA PO,
RANNI TALUK, PATHANAMTHITTA DISTRICT. PIN 689
661
BY ADV MANU RAMACHANDRAN
THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON
06.06.2023, ALONG WITH Mat.Appeal.474/2016, THE COURT ON
27.06.2023 DELIVERED THE FOLLOWING:
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 5
A.MUHAMED MUSTAQUE &
SOPHY THOMAS, JJ.
--------------------------------------------
Mat.Appeal No.474 of 2016
&
Cross Objection No.93 of 2022
--------------------------------------------
Dated this the 27th day of June, 2023
JUDGMENT
Sophy Thomas, J.
The above Mat.Appeal and cross objection arise out of the
judgment in O.P No.929 of 2011 on the file of Family Court,
Thiruvalla. The wife/original petitioner filed cross objection and
the husband and in-laws/respondents filed Mat.Appeal No.474 of
2016.
2. O.P No.929 of 2011 was filed by the wife for recovery of
money and gold entrusted with the husband and his parents. As
per judgment dated 05.10.2015, the Family Court, Thiruvalla
decreed that O.P in part. Against the relief granted in the decree,
the respondents filed Mat.Appeal No.474 of 2016, and against the
relief declined, the wife filed cross objection.
3. The brief facts necessary for the appeal and cross
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 6
objection could be stated as follows:
The marriage between the 1st appellant and the respondent
was solemnised on 07.07.2007 at St.Andrew's CSI Church,
Kumplampoika in accordance with Christian rites and ceremonies.
The betrothal was on 02.07.2007, and an amount of Rs.3 lakh
was entrusted with the appellants, and at the time of marriage,
she was given 35 sovereigns of gold ornaments. Those
ornaments were entrusted with the appellants shortly after the
marriage ceremony. The parties lived in Pune as well as in Kuwait
after the marriage. During that period, the husband withdrew
Rs.40,000/- per month from her Bank Account, and sent it to the
account of his parents. For purchasing a property, as directed by
the husband, she availed loan of Rs.10 lakh and it was transferred
to the account of the husband. But, he did not purchase any
land, and misappropriated that amount. She had purchased 15
sovereigns of gold ornaments while working in Kuwait and the
husband handed over those ornaments also to his parents. So,
she filed the O.P for recovery of 50 sovereigns of gold ornaments
and cash worth Rs.42,96,400/- with interest.
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 7
4. The appellants/respondents opposed that petition
denying entrustment of gold or receipt of money from the wife.
5. The Family Court formulated necessary issues and
thereafter the parties went on trial. PWs 1 to 6 were examined
and Exts.A1 to A9 were marked from the side of the wife. RWs 1
to 4 were examined and Exts.B1 to B3 were marked from the side
of the husband. Exts.X1 to X6 were also marked as witness
exhibits.
6. On analysing the facts and evidence, the Family Court
found that, there was nothing to prove entrustment of gold
ornaments or to prove withdrawal of amounts from the Bank
Account of the wife using her ATM card. So, the O.P was decreed
in part, allowing the wife to realise Rs.3 lakh given as patrimony
and Rs.10 lakh given to the husband for purchasing landed
property. Aggrieved by the decree, the husband and parents filed
Mat.Appeal and the wife filed cross objection.
7. Now let us see whether there is any illegality, irregularity
or impropriety in the impugned judgment and decree warranting
interference by this Court.
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 8
8. Heard learned counsel appearing for the appellants and
learned counsel appearing for the respondent/cross objector.
9. Regarding the patrimony amount of Rs.3 lakh entrusted
with the husband and his parents, Exts.X1 and X2 documents
were relied on by the Family Court which clearly show withdrawal
of Rs.2 lakh on 18.06.2007, and Rs.1 lakh on 22.06.2007, by the
parents of the wife. The oral testimony of PWs 1 to 4 also
substantiated that fact. The testimony of RW1, RW3 and RW4
regarding non receipt of any patrimony was found unbelievable.
When the betrothal ceremony is in an auditorium, it is usual
custom that the proposed bridegroom and relatives visit the
house of the girl to plan the marriage. Here the case of RW1 was
that he sat in the car without entering her house, and that itself
will speak against his genuineness. There is nothing to discard
the evidence of PWs 1 to 3 that Rs.3 lakh was entrusted with the
husband and his parents as her patrimony on the date of
betrothal. So, that finding need not be interfered with.
10. Regarding the entrustment of gold, the case of the wife
was that, shortly after the marriage ceremony, her entire 35
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 9
sovereigns of gold ornaments were entrusted with the husband
and his parents. It is not a believable story. Moreover, she has
not specified when and where those gold ornaments were
entrusted or with whom it was entrusted. Exts.A3 and A4
documents produced by the wife shows purchase of only
43.79 gms of gold, which comes to 5½ sovereigns. She was
relying upon Ext.A5 photographs to show that, she was having 35
sovereigns of gold. The photographs are not sufficient to prove
the quantity of gold. If at all we admit that she was having 35
sovereigns of gold, there is nothing to show that, it was entrusted
with the husband or his parents.
11. Regarding the 15 sovereigns of gold ornaments alleged
to have been purchased by the wife while she was in Kuwait, no
evidence is forthcoming to support her case. Moreover, there is
nothing to show that, she entrusted those gold ornaments with
the husband, and the husband, in turn entrusted it with his
parents. So, regarding the claim of 50 sovereigns of gold
ornaments, the wife failed to prove her case. So, the rejection of
that claim by the Family Court is only to be confirmed.
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 10
12. Regarding ATM withdrawal of Rs.15,20,000/-, the case
of the wife is that, the husband withdrew Rs.40,000/- per month
from her Bank Account and sent it to his parents. She produced
Exts.A2 and A2(a) certified extract of her account with Ahli United
Bank, Kuwait and Ext.X3 certified extract of the ledger account of
the husband with Federal Bank, Kumpalampoika branch. Learned
Family Court Judge found that, the husband was working in
Kuwait even prior to the marriage and he was sending amounts to
his parents. There were no entries in the Bank Account of the
husband corresponding to the withdrawal of amounts from the
account of the wife. So, her case that, every month he was
withdrawing Rs.40,000/- from her Bank Account was disbelieved.
13. The case of the husband is that, the wife was
withdrawing amounts from her account for her own purposes.
But, the husband admitted during cross examination that, on
09.06.2008, Rs.51,187/- was credited to his account from the
account of the wife. Another Rs.75,000/- on 21.06.2008 and
Rs.50,000/- on 04.07.2008 were also credited to his account and
he had withdrawn the same. As he admitted that those amounts
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 11
were sent by the wife and he received the same, he is liable to
return that amount to the wife. Learned Family Court Judge did
not give any reason for not allowing that amount to the wife, even
after finding that the husband admitted that those amounts were
sent by the wife. So the wife is entitled to get that amount from
the husband.
14. Regarding receipt of Rs.10 lakh from the wife under the
guise of purchasing property, the husband admitted that,
Rs.10,25,000/- was received in his account. But, according to
him, it was sent by his friends. But, Ext.A2 ledger and Ext.X3
extract of the bank account of the husband were sufficient to
show that, the said amounts were sent to his account by the wife.
Further, it has come out in evidence that, the parents of the
husband took ten fixed deposits of Rs.1 lakh each on withdrawing
that amount from the account of the husband. So, the Family
Court is justified in awarding Rs.10 lakh to the wife being the
amount sent by her to the account of her husband on 10.05.2011.
So, no interference is warranted in the impugned judgment and
decree of the Family Court except modifying the decree amount
Mat.Appeal No.474 of 2016 & C.O 93 of 2022 12
by adding Rs.1,76,187/- sent by the wife and admitted to have
been received by the husband on 09.06.2008, 21.06.2008 and
04.07.2008 respectively.
15. So, the Mat.Appeal is liable to be dismissed and the
cross objection is liable to be allowed in part, by enhancing the
decree amount from Rs.13 lakh to Rs.14,76,187/- by adding
Rs.1,76,187/- also.
In the result, the Mat.Appeal is dismissed and the cross
objection is allowed in part, modifying the decree to the extent
that the cross objector/wife is entitled to recover Rs.14,76,187/-
(Rupees Fourteen lakh seventy six thousand one hundred and
eighty seven only) from the respondents and their assets, with
9% interest per annum from the date of petition till realisation.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
SOPHY THOMAS
JUDGE
smp
