[Cites 2, Cited by 0]
Kerala High Court
Arun A.A vs Shimna O.H on 16 December, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal Nos.740/2016, 986/2016 &
R.P.(FC)No. 401/2016
1
2025:KER:95120
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA, 1947
MAT.APPEAL NO. 740 OF 2016
AGAINST THE ORDER DATED 29.04.2016 IN OP NO.240 OF 2013 OF
FAMILY COURT,THRISSUR
APPELLANTS/RESPONDENTS 1 TO 3:
1 ARUN A.A., S/O ANEDATH ASOKAN,
POOVATHUR P.O, PAVARATTY, PIN-680508, NOW RESIDING AT
ALDHAMAN TYRES, P.O.BOX 116/217, SALALA, SULTHANATE
OF OMAN.
2 ASOKAN, S/O.ANEDATH ASOKAN
POOVATHUR P.O., PAVARATTY, PIN-680508.
3 ANITHA ASOKAN, W/O.ANEDATH ASOKAN
POOVATHUR P.O., PAVARATTY, PIN-680508.
BY ADV SHRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/PETITIONER AND 4TH RESPONDENT:
1 SHIMNA O.H., D/O ODATH HARIDAS
THAIKKAD, GURUVAYUR, NOW RESIDING AT CHITHIRA,
M.G.NAGAR, FIRST STREET, CHEMBUKKAVU -680 001.
2 AMBILY, W/O.KANNASSAM JAYADEESH
ELAVALLY VILLAGE, POOVATHUR, CHAVAKKAD, PIN-680 508.
* ADDL.R3 AJITH ANEDATH ASHOKAN, AGED 37 YEARS
S/O ANEDATH ASHOKAN, RESIDING AT POOVATHUR P O,
Mat.Appeal Nos.740/2016, 986/2016 &
R.P.(FC)No. 401/2016
2
2025:KER:95120
PAVARATTY PIN - 680508.
ADDL.R3 IMPLEADED AS PER ORDER DATED 16/12/2025 IN
I.A.NO.1/2025.
BY ADVS.
SHRI.M.DINESH
SRI.N.K.UNNIKRISHNAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
03.12.2025, ALONG WITH MAT.APPEAL.986/2016 & RF(FC)No.401/2016,
THE COURT ON 16.12.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.740/2016, 986/2016 &
R.P.(FC)No. 401/2016
3
2025:KER:95120
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESDAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA, 1947
MAT.APPEAL NO. 986 OF 2016
AGAINST THE ORDER DATED 29.04.2016 IN OP NO.1310 OF 2014
OF FAMILY COURT,THRISSUR
APPELLANT/PETITIONER IN THE ORIGINAL PETITION:
ARUN A.A
S/O. ANEDATH ASOKAN, POOVATHUR P.O., ELAVALLY
VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN- 680
508.
BY ADV SHRI.G.SREEKUMAR (CHELUR)
RESPONDENT/RESPONDENT IN THE ORIGINAL PETITION:
SHIMNA O.H.
D/O. ODAT HARIDAS, THAIKAD, GURUVAYUR, NOW RESIDING
AT CHITHIRA, M.G. NAGAR, FIRST STREET, CHEMBUKAVU,
PIN- 680001.
BY ADVS.
SHRI.M.DINESH
SRI.N.K.UNNIKRISHNAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
03.12.2025, ALONG WITH MAT.APPEAL NO.740/2016 AND CONNECTED
CASES, THE COURT ON 16.12.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.740/2016, 986/2016 &
R.P.(FC)No. 401/2016
4
2025:KER:95120
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TUESAY, THE 16TH DAY OF DECEMBER 2025 / 25TH AGRAHAYANA, 1947
RPFC NO. 401 OF 2016
AGAINST THE ORDER DATED 29.04.2016 IN MC NO.151 OF 2013 OF
FAMILY COURT,THRISSUR
REVISION PETITIONER/RESPONDENT:
ARUN.A.A.
S/O. ANEDATH ASOKAN, POOVATHUR P.O,
ELAVALLY VILLAGE, CHAVAKKAD TALUK,
THRISSUR DISTRICT, PIN 680 508.
BY ADV SHRI.G.SREEKUMAR (CHELUR)
RESPONDENTS/PETITIONERS:
1 SHIMNA O.H
D/O.ODAT HARIDAS, THAIKAD, GURUVAYUR,
NOW RESIDING AT CHITHIRA, M.G NAGAR,
FIRST STREET, CHEMBUKAVU,
THRISSUR 680 001.
2 MINOR AKSHATH
S/O.ARUN, REPRESENTED BY THE MOTHER GUARDIAN,
SHIMNA O.H, D/O. ODAT HARIDAS,
THAIKAD, GURUVAYUR,
NOW RESIDING AT CHITHIRA,
M.G NAGAR, FIRST STREET,
CHEMBUKAVU, THRISSUR 680 001.
Mat.Appeal Nos.740/2016, 986/2016 &
R.P.(FC)No. 401/2016
5
2025:KER:95120
BY ADVS.
SHRI.M.DINESH
SRI.N.K.UNNIKRISHNAN
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING
ON 03.12.2025, ALONG WITH MAT.APPEAL NO.740/2016 AND CONNECTED
CASES, THE COURT 16.12.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.740/2016, 986/2016 &
R.P.(FC)No. 401/2016
6
2025:KER:95120
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal No.740/2016, 986/2016 &
R.P.(FC)No.401/2016
= = = = = = = = = = = = = = = = = =
Dated this the 16th day of December, 2025
JUDGMENT
P.Krishna Kumar, J.
A common order passed by the Family Court, Thrissur
is under challenge at the instance of the husband and his
parents.
2. The wife filed O.P.No.240/2013 seeking recovery of
165 sovereigns of gold ornaments and ₹5,00,000/- from the
husband and his parents. She also instituted M.C.No.151/2013
claiming maintenance for herself and the child. The husband,
in turn, filed O.P.No.1310/2014 for divorce on the ground of
cruelty. By the impugned common order, the Family Court
allowed the petition filed by the wife and directed the
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
husband and his parents to return 165 sovereigns of gold
ornaments. The wife and the child were awarded monthly
maintenance at the rate of ₹7,500/- and ₹4,000/-
respectively. The petition for divorce was, dismissed.
3. The parties will hereinafter be referred to as
they are arrayed in O.P.No.240/2013. The marriage between
the petitioner and the first respondent was solemnized on
03.12.2007. A male child was born in the wedlock on
28.05.2009.
4. Let us first consider the allegations in
O.P.No.240/2013. According to the petitioner, at the time of
her marriage, her parents provided her with 150 sovereigns
of gold ornaments, out of which 145 sovereigns were
entrusted to respondents 1 to 3 as trustees, on her arrival
at the matrimonial home. Those ornaments were allegedly
pledged by respondents 1 to 3 on various occasions,
resulting in their eventual loss. After the birth of the
child, her relatives presented 20 sovereigns of gold
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
ornaments for the child, but those ornaments were also taken
away by the respondents. The respondents are alleged to have
pledged 60 grams of gold ornaments at South Malabar Gramin
Bank, Guruvayur Branch on 16.08.2012, 56 grams in the same
bank on 06.09.2012 and 97 grams at Indian Overseas Bank,
Guruvayur Branch on 08.09.2012. It is further alleged that
the respondents pledged her ornaments at other financial
institutions such as Guruvayur Gramin Bank, Service Co-
operative Bank, Chittattukara, Muthoot Finance, etc.
5. The respondents contend that all allegations,
except the factum of marriage and the birth of the child,
are false. The petitioner, according to them, had no means
to possess 165 sovereigns of gold ornaments. At best, she
might have had only 35 sovereigns. They further contend that
it was the petitioner who pledged her ornaments either by
herself or through others and appropriated the proceeds.
They also claim that the petitioner still retains the Thali
chain given by the first respondent, weighing 10 sovereigns.
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
6. The first respondent/husband filed the divorce
petition alleging that he was subjected to severe mental
cruelty from the inception of the marriage. He further
alleged that the petitioner started consuming liquor soon
after the marriage and followed a modern lifestyle which was
not acceptable to him. He also accused her of initiating a
false criminal case against him with the assistance of a
family friend who is a police officer. These allegations
were stoutly denied by the petitioner, who asserted that it
was the first respondent who ill-treated her.
7. Alleging that the first respondent had been
neglecting the petitioner and the child, the wife filed the
maintenance case seeking monthly maintenance of ₹10,000/-
each. She contended that she was unable to maintain herself
and that the first respondent was working abroad, earning a
monthly salary of ₹60,000/-. The first respondent denied
these assertions.
8. All the above cases were jointly tried and
disposed of by the Family Court in the manner aforesaid,
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
after evaluating the oral and documentary evidence. On the
side of the petitioner, PW1 to PW5 were examined and Exts.A1
to A22 series were marked. The respondents examined RW1 to
RW5 and marked Exts.B1 to B13. Exts.X1 to X15 series--
documents from various financial institutions--were also
received in evidence.
9. We have heard Sri. Sreekumar G. (Chelur), learned
counsel appearing for the appellants/respondents, and Sri.
N.K. Unnikrishnan, learned counsel appearing for the
respondent/petitioner.
10. The first question to be determined is whether
the petitioner is entitled to recover 165 sovereigns of gold
ornaments from the respondents.
11. Let us first consider whether the petitioner has
succeeded in proving her claim that she had 150 sovereigns
of gold ornaments at the time of her marriage. This
contention was stoutly denied by the respondents, who
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
asserted that she had no financial capacity to possess such
a quantity of gold and that, at best, she might have had
about 35 sovereigns. However, the petitioner produced Ext.A1
series -- the marriage photographs. The respondents did not
raise any objection to the marking of those documents. RW1,
the first respondent, conceded in his cross-examination that
the petitioner had all the gold ornaments seen in Ext.A1
series photographs at the time of marriage. The respondents
have also not contended that the ornaments reflected in
Ext.A1 are not gold ornaments. A perusal of those
photographs reveals that the petitioner had adorned herself
with gold ornaments in the quantity claimed by her at the
time of marriage.
12. Moreover, during the cross-examination of
RW1, it was suggested that the ornaments seen in the
photographs tally with the ornaments enlisted in the
schedule to the original petition, and he did not deny the
same. The relevant portion of his cross-examination reads as
follows:
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
"O.P.240/2013 ലലെ പടട്ടിക ഞഞാൻ നനഞാകട്ടി മനസട്ടിലെഞാകട്ടിയട്ടിടട്ടില. Photo
യട്ടിൽ കഞാണുന്ന ആഭരണങ്ങളളും പടട്ടികയട്ടിൽ പറയുന്ന ആഭരണങ്ങളളും tally
ലചെയളും എന്നന്ന് പറയുന്നു (Q). എനട്ടികറട്ടിയട്ടില (A)."
The oral evidence adduced by the petitioner also supports
her claim that she possessed 150 sovereigns of gold
ornaments at the time of marriage. In view of these facts,
it can safely be concluded that she had adorned 150
sovereigns of gold ornaments at the time of her marriage.
13. Her further claim that, when the child was born
on 28.05.2009, her family members gifted 20 sovereigns of
gold ornaments to the child, also stands established. She
deposed that 15 sovereigns were gifted by her parents and 5
sovereigns by her sister. There was no serious challenge to
this version during the cross-examination of PW1. RW1 also
did not dispute this aspect when Ext.A13 series, the
photographs of the child, were shown to him in cross-
examination. He stated as follows:
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
"എലന്ന കഞാണട്ടിച്ചതു കുടട്ടിയുലടെ photo ആണന്ന്. ഇതട്ടിൽ 2 കക ലചെയട്ടിനളും 20 ൽ പരളും
വളകളളും 2 മഞാലെ, അരഞഞാണളും എന്നട്ടിവ കഞാണുന്നു. PW1 ലന്റെ നചെച്ചട്ടി സസ്വർണ്ണമഞാലെ
ഇട്ടുലകഞാടുക്കുന്ന photo അനല? വവ്യക്തമല. അവർ ആഭരണളും പട്ടിടെട്ടിച
നട്ടിൽക്കുന്നതുനപഞാലലെ കഞാണുന്നു, (A13 series shown)."
14. The next point to be examined is whether the
petitioner has proved her allegation that, after her
marriage, the respondents obtained her ornaments and pledged
them on various occasions. In an attempt to discredit her
version, Sri. Sreekumar (Chelur), the learned counsel for
the respondents, pointed out the following:
(1) In paragraph 1 of the petition, the petitioner
alleged that out of 150 sovereigns, 145 sovereigns were
received by the respondents as trustees soon after the
marriage and were pledged by them. However, in
paragraph 4, she stated that during May 2010, the
respondents obtained all the gold ornaments from her
for the purpose of starting a fitness club. In
paragraph 5, she again stated that the remaining gold
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
ornaments were taken by respondents 1 to 3 and pledged
in various financial institutions. According to him,
these versions are inconsistent.
(2) The petitioner did not disclose in the petition
that the ornaments were kept in her bank locker after
marriage and later taken out on different occasions at
the instance of the respondents. She raised this case
only during trial.
(3) The petitioner specifically claims that all her
ornaments were pledged by respondents 1 to 3. But
Exts.X3, X4 and X7 series show that several ornaments
were pledged in the petitioner's own name.
(4) Ext.X9 shows that the petitioner jointly held along
with Vikas T.B., the husband of her sister another
locker at Punjab National Bank, Thrissur Branch, and
she had operated the locker even after marriage. This,
according to the respondents, supports their suggestion
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
that she utilised her ornaments to settle the debts of
the said Vikas T.B.
(5) Ext.X7 series further shows that the petitioner had
received back a chain (97 grams) which she had pledged.
15. It is true that the petitioner did not
specifically plead that the gold ornaments were kept in her
bank locker after the marriage and later removed at the
instance of respondents 1 to 3 for facilitating their
pledge. However, in her oral evidence, she explained that
she kept the gold in the locker at their behest. She also
stated that when the gold was initially deposited in the
locker after the marriage, respondents 1 and 3 accompanied
her. Her case is that even though the ornaments were kept in
the locker, they remained under the control of the
respondents.
16. Even though she did not plead that she was asked
to keep the ornaments in her locker, it is evident from the
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
records produced before the court that those ornaments were
actually pledged by respondents 1 to 3 in financial
institutions, as specifically stated in the petition. We
will examine those aspects in detail later. Suffice it to
say that the absence of a pleading regarding the ornaments
being kept in a locker does not appear to be of any
significant consequence.
17. So also, when the petitioner's pleadings as a
whole are analysed together with her oral and documentary
evidence, we do not find any reason to accept the contention
of the learned counsel for the respondents that they are
mutually destructive. Her case in the petition is that the
respondents received her ornaments immediately after the
marriage and later pledged them on various occasions for
different purposes. In paragraph 1, she stated as follows:
"വട്ടിവഞാഹസമയതന്ന് ഹർജട്ടികഞാരട്ടിയുലടെ മഞാതഞാപട്ടിതഞാകൾ ടെട്ടിയഞാരട്ടികന്ന് 150 പവൻ
സസ്വർണ്ണഞാഭരണങ്ങൾ നൽകട്ടിയട്ടിരന്നതഞാണന്ന് ........ നഷ്ടലപ്പെടട്ടിട്ടുള്ളതുമഞാകുന്നു."
Mat.Appeal Nos.740/2016, 986/2016 &
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18. Though it was argued that the statement in
paragraph 4 contradicts the petitioner's earlier averments,
we do not find merit in the said argument when the paragraph
is read contextually along with the earlier statements. In
paragraph 2, she stated that the child was born on
28.05.2009 and that her family gifted 20 sovereigns of gold
ornaments to the child. In paragraph 3, she stated that she
continued to reside in her parental home even beyond 90 days
from the birth of the child. Naturally, the gold gifted to
the child would then be in the petitioner's custody. It
appears that the reference in paragraph 4 to "all the gold
being taken" pertains to the ornaments of the child. In her
proof affidavit, she clarified that respondents 1 to 3 took
13 sovereigns of gold ornaments from her on that occasion.
19. In paragraph 5 of the petition, she specifically
stated that the remaining ornaments were taken by
respondents 1 to 3 and pledged at various financial
institutions. When paragraphs 4 and 5 are read together, no
real inconsistency emerges. Paragraph 5 reads as follows:
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
"ഹർജട്ടികഞാരട്ടിയുലടെ ബഞാകട്ടിയുണഞായട്ടിരന്ന സസ്വർണ്ണളും മുഴുവനളും 1 മുതൽ 3 കൂടെട്ടിയ
എതൃകകട്ടികൾ കൂടെട്ടി വഞാങ്ങട്ടിലകഞാണ്ടുനപഞായട്ടി. ആയതന്ന് 1 മുതൽ 3 കൂടെട്ടിയ
എതൃകകട്ടികൾ നചെർന്നന്ന് ഗുരവഞായൂർ ഗഞാമമീൺ ബഞാങന്ന്, സർവമീസന്ന് സഹകരണ ബഞാങന്ന്,
ചെട്ടിറഞാട്ടുകര പൂവത്തൂർ, മുത്തൂറന്ന് ഫട്ടിനഞാൻസന്ന് തുടെങ്ങട്ടിയ സ്ഥലെങ്ങളട്ടിൽ പണയളും
ലവച്ചട്ടിട്ടുള്ളതഞായട്ടി എതൃകകട്ടികളട്ടിൽ നട്ടിന്നന്ന് അറട്ടിയഞാൻ കഴട്ടിഞട്ടിട്ടുള്ളതഞാണന്ന്. 16-8-2012
നന്ന് സസൗതന്ന് മലെബഞാർ ഗഞാമമീൺ ബഞാങന്ന് ഗുരവഞായൂർ ബഞാഞട്ടിൽ 60 ഗഞാളും
സസ്വർണ്ണഞാഭരണങ്ങളളും 1,00,000 രൂപക്കുളും, 6-9-2012 ൽ സസൗതന്ന് മലെബഞാർ ഗഞാമമീൺ
ബഞാങന്ന് ഗുരവഞായൂർ ബഞാഞട്ടിൽ 56 ഗഞാളും സസ്വർണ്ണഞാഭരണങ്ങൾ 96,000 രൂപക്കുളും 8-9-
2012 ൽ ഇനവ്യൻ ഓവർസമീസന്ന് ബഞാങന്ന് ഗുരവഞായൂർ ബഞാഞട്ടിൽ 97 ഗഞാളും
സസ്വർണ്ണഞാഭരണങ്ങൾ 1,26,000 രൂപക്കുളും ഹർജട്ടികഞാരട്ടിയുലടെ നപരട്ടിൽ 3, 4
എതൃകകട്ടികളലടെ ആവശവ്യഞാർതളും പണയളും ലവച്ചട്ടിട്ടുണന്ന്."
20. It is evident that the petitioner has not
narrated events in chronological sequence. In paragraph 1,
she makes a general allegation that her ornaments were
pledged on different occasions; in paragraph 5, she gives
the specific particulars of such pledges. She has also
pleaded that some pledges were made in her name though for
the benefit of the respondents.
21. It is a matter of common experience that when a
bride arrives at her matrimonial home, she may not retain
exclusive control over her ornaments, especially when they
are substantial in quantity. Typically, such ornaments are
entrusted to the husband or his family members for
safekeeping. Even if later deposited in a bank locker in her
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
name, control may effectively remain with them. This is what
the learned counsel for the petitioner attempted to
establish through the documents on record. We shall now
examine whether the evidence supports such a circumstance in
the present case.
22. As per Ext.X14, the record of visits to the Safe
Deposit Vault at Punjab National Bank, Guruvayur Branch, the
petitioner operated her locker only once -- on 26.12.2007 --
after the marriage on 03.12.2007. Thus, the 150 sovereigns
of gold ornaments adorned at the time of marriage were not
kept in the locker for more than three weeks. As stated
earlier, Ext.X8 shows that the 1st respondent pledged 95
grams of gold within seven days after the marriage, though
RW1, in cross-examination, denied having pledged any gold.
Therefore, her version that soon after the marriage she
entrusted her ornaments to the husband and in-laws appears
highly probable.
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
23. PW1, the petitioner, deposed that she kept her
ornaments in the locker only because respondents 1 to 3
demanded it, and she was later compelled to withdraw them to
facilitate pledging on various occasions. Even when the
pledges stood in her name, they were, according to her, for
the benefit of the respondents. The following aspects
strengthen the probability of her version.
24. RW1 and RW2 admitted that various gold ornaments
were pledged by respondents 2 and 3 as per Exts.X1, X3 and
X4. Their explanation that those ornaments belonged to their
daughter is an afterthought -- there is no such case in their
pleadings or in their objections to O.P.No.240/2013.
Though they repeatedly denied ownership of the petitioner's
ornaments during evidence, when RW2 was specifically asked
about the ornaments allegedly owned by their daughter,
he conceded that she had only a chain and a
bracelet. He stated as follows:
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
"ആ സസ്വർണ്ണളും ഷട്ടിളുംനയുനടെതഞാനണഞാ ? (Q) അല (A). മകളലടെയുളും മകളലടെ
കുടട്ടിയുലടെതുമഞാണന്ന്. മകൾകന്ന് bank locker facility ഇല. മരമകനന്ന് locker ഉണന്ന്.
മകളലടെ സസ്വർണ്ണഞാഭരങ്ങൾ എവട്ടിലടെയഞാണന്ന് സൂകട്ടികഞാറന്ന് (Q) എലന്റെ പകൽ
തന്നട്ടിട്ടുനപഞായട്ടി (A). അതുവലര മരമകളലടെ locker ൽ വച്ചട്ടിട്ടുണഞായട്ടിരന്നു. 2007-08
ലെഞാണന്ന് മകൾ സസ്വർണ്ണളും എലന്ന ഏൽപട്ടിച്ചതന്ന്. മകൾ എത്ര പവൻ തന്നട്ടിരന്നു (Q)
അതന്ന് പറയഞാൻ കഴട്ടിയട്ടില (A). ഏലതഞാലക item ? (Q) ഒര കകലചെയട്ടിൻ, ഒര
മഞാലെ. 5 പഞാവശവ്യളും പലെട്ടിശ തമീർത്തു മഞാറട്ടിവച. പട്ടിലന്ന കട്ടിട്ടുന്നട്ടില. Bank ൽ നട്ടിങ്ങൾ
പണയളും വച്ചതട്ടിലന്റെ details ഹഞാജരഞാകട്ടിയതറട്ടിയുനമഞാ (Q) അറട്ടിയഞാളും (A). Shimna
ലകഞാടുത ഹർജട്ടിയട്ടിലലെ ആഭരണപ്പെടട്ടിക മനസട്ടിലെഞായട്ടിടട്ടില. ചെട്ടിറഞാറ്റുകര Service Co-
operative Bank ൽ പണയളും വച്ചതന്ന് X1 പകഞാരമുള്ള ആഭരണങ്ങളഞാണന്ന്. ആ
ആഭരണങ്ങൾ ഹർജട്ടികഞാരട്ടി ഹർജട്ടി പടട്ടികയട്ടിലലെ വട്ടിവരങ്ങളമഞായട്ടി നയഞാജട്ടിച
നപഞാകുന്നു ശരട്ടിയനല (Q) ശരട്ടിയല (A)"
25. However, Ext.X1 reveals that the ornaments
pledged at Chittattukara Service Co-operative Bank include:
(1) കകലചെയട്ടിൻ, (2) സഞാരട്ടിമഞാലെ, (3) കുടുകട്ടി, (4) പഞാലെകമഞാലെ, (5) വള (3), (6)
തടെവള (3), (7) പഞാദസരളും. It is therefore evident that the plea
that these ornaments belonged to the daughter is false. RW2
even went to the extent of contending that his daughter kept
her ornaments in the petitioner's locker -- again contrary to
the pleadings -- and despite the fact that the son-in-law had
his own locker.
26. Exts.X3, X4 and X7 series, when read along with
Exts.A1, A2 and A5 series and the schedule appended to the
petition, strongly indicate that the ornaments pledged were
indeed those of the petitioner. A comparison of the
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
documents shows that almost all ornaments pledged by
respondents 2 and 3 also appear in the pledges executed in
the petitioner's name. The specific weights of the items are
discernible from Exts.X1 to X7, and many of them tally with
the weights mentioned in the petition schedule. The
respondents have not pleaded nor stated in evidence that the
gold pledged by the petitioner belonged to them. Thus, it
can safely be concluded that the respondents pledged the
petitioner's ornaments.
27. Additionally, RW2 admitted in cross-examination
that Ext.X7 pledge documents were supported using the land
tax receipt of his own property. He further admitted that
when he redeemed pledged ornaments, the petitioner re-
pledged them on the same day, again using his tax receipt.
Thus, the contention of the petitioner that she pledged her
ornaments at the behest of respondents 1 to 3, for their
purposes, appears far more probable than the explanation
offered by the respondents.
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
28. Significantly, Exts.X1, X2, X5 and X6 series
reveal that respondents 2 and 3 pledged gold ornaments on
several occasions during the period from 28.10.2008 to
24.09.2012. This also makes the petitioner's case probable
that the respondents were in heavy debt and utilised her
ornaments to manage their day-to-day affairs.
29. It is important to note that the respondents had
set up a false defence, completely denying the petitioner's
case, including the quantity of ornaments and the specific
allegations regarding the pledges made by respondents 2 and
3 at the Chittattukara Service Co-operative Bank and the
South Malabar Gramin Bank. To support their contention that
the ornaments pledged belonged to respondent No.4, they
produced Ext.B10 agreement. The said agreement, though dated
28.10.2009, is written on stamp papers dated 02.11.2009.
This clearly indicates that the respondents attempted to
create false evidence. They prevaricated in their defence at
various stages, and RW2 even went to the extent of asserting
that one of the ornaments pledged by the petitioner belonged
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
to his daughter -- a contention wholly improbable and
unsupported by any pleading.
30. It was strenuously contended that Ext.X9 series
shows that the petitioner maintained a separate locker
jointly with her co-brother, and hence the respondents'
version that she utilised her gold ornaments for his
business purposes was more probable. The petitioner
countered this by stating that the locker facility was
availed many years prior to her marriage and was located at
Thrissur, whereas she lived at the matrimonial home at
Guruvayur with the respondents and hence had no occasion to
operate the said locker. According to her, the locker
facility was used by her co-brother mainly to manage the
gold ornaments of her sister Shiny, and her name was
included only because Shiny, due to pregnancy at that time,
could not frequently visit the bank.
31. Ext.X11, the Safe Deposit Vault opening page and
the record of operations, supports this explanation. The
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
vault was opened on 10.06.2005 in the name of Vikas T.B. and
the petitioner, Shimna O.H. The name of Shiny Vikas was
included only on 06.05.2008. The record of visits shows that
the petitioner operated the locker from 21.07.2006 to
24.07.2008. From 30.08.2008 onwards, it was operated
exclusively by Shiny Vikas. Thereafter, the petitioner
operated it only once -- on 08.08.2009. Almost all pledges by
respondents were made after 24.07.2008. Hence, there is no
merit in the respondents' contention.
32. It is further relevant to note that although the
petitioner could not prove the particulars of every pledge
made by respondents 1 to 3, she consistently pleaded that
they had pledged ornaments at other financial institutions,
including Muthoot Finance. She also pleaded that some
ornaments were sold.
33. In the above circumstances, there is no reason to
disbelieve the petitioner. The oral evidence on her side,
when viewed along with the documents discussed above,
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
substantially supports the findings of the Family Court that
the respondents misappropriated her ornaments. However,
Ext.X7 shows that the petitioner received back one gold
chain weighing 97 grams (approximately 12 sovereigns) on
11.10.2013, and she thereafter closed the loan account. The
petitioner does not assert that this chain was again
entrusted to the respondents. Further, considering her
family background and financial position, it is reasonable
to hold that she retained at least 15 sovereigns of
ornaments for personal use, though she claimed only 5
sovereigns. Therefore, the respondents are liable to return
only the balance ornaments. Accordingly, respondents 1 to 3
are bound to return 138 sovereigns of gold ornaments (165 -
(15 + 12) = 138).
34. This Court, in Syamini S. Nair & Ors. v.
Sreekant R. [2022 (3) KHC 145], held that the wife is
entitled to recover the value of the gold ornaments as on
the date of recovery and that even without a specific
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
prayer, the Family Court is duty-bound to award such relief
once entitlement is established.
35. The next question to be considered is whether the
first respondent is entitled to a decree of divorce.
According to him, the marriage has broken down due to
extreme cruelty allegedly inflicted by the petitioner. These
allegations were stoutly denied by the petitioner.
36. Nevertheless, it is not in dispute that the
parties have been living separately for more than 12 years.
The petitioner has not filed any petition for restitution of
conjugal rights. Several mediation attempts were made before
the Family Court and before this Court, but both parties
failed to resume cohabitation. In Samar Ghosh v. Jaya Ghosh
[(2007) 4 SCC 511], the Supreme Court observed that a
marriage becomes a mere legal fiction when there is
continuous separation and loss of the essential bond between
the spouses. The Court further held that where there is a
long period of separation, it may be concluded that the
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
matrimonial bond is beyond repair and dissolution should
follow.
37. As regards the award of maintenance at the rate
of ₹7,500/- to the petitioner and ₹4,000/- to the child, we
find no justification to interfere. Admittedly, the first
respondent is employed abroad, whereas the petitioner has no
employment. The amounts awarded are just sufficient for
their sustenance. Accordingly, the order is liable to be
upheld. However, the petitioner shall be entitled to
maintenance only until her remarriage.
38. In view of the above discussion, it can be
concluded as follows:
Mat.Appeal No.740/2016 is partly allowed. The
appellants are directed to return 138 sovereigns of gold
ornaments to the first respondent within one month from
today, failing which, the first respondent shall be entitled
to recover the value of 138 sovereigns of gold ornaments as
ordered by the trial court, from the appellants and their
assets.
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
Mat.Appeal No.986/2016 is allowed and the marriage
between the parties is dissolved by a decree of divorce.
R.P(FC) No.401/2016 is dismissed. No cost.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P.KRISHNA KUMAR
JUDGE
sv
Mat.Appeal Nos.740/2016, 986/2016 &
2025:KER:95120
APPENDIX OF MAT.APPEAL NO. 740 OF 2016
RESPONDENT'S ANNEXURES
ANNEXURE R1(A) CERTIFIED COPY OF THE JUDGMENT IN C.C.
NO.775/2014 OF THE COURT OF THE CHIEF
JUDICIAL MAGISTRATE, THRISSUR DATED
20.12.2019
