Kerala High Court
Sethulakshmi vs Pradeep Kumar on 17 January, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
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Mat.Appeal No.316/2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 17TH DAY OF JANUARY 2025 / 27TH POUSHA, 1946
MAT.APPEAL NO. 316 OF 2016
OP NO.196 OF 2013 OF FAMILY COURT, PALA
APPELLANT/PETITIONER:
SETHULAKSHMI, D/O MADHU, VALIYAPURAKKAL HOUSE, MEENACHIL
P.O., KOTTAYAM DIST.
BY ADVS.
SRI.PIRAPPANCODE V.S.SUDHIR
SRI.JELSON J.EDAMPADAM
SRI.TOMY CHACKO
RESPONDENTS/RESPONDENTS 1-3:
1 PRADEEP KUMAR, S/O VASU, PUTHENPURAYIL HOUSE, PONNAKAYAM
P.O., NEAR BADHANIYA RETREAT CENTRE, THIRUVAMBADI,
KOZHIKODE DIST.-673 603
2 VASU, PUTHENPURAYIL HOUSE, PONNAKAYAM P.O., NEAR BADHANIYA
RETREAT CENTRE, THIRUVAMBADI, KOZHIKODE DISTRICT, PIN - 673
603
3 SUKUMARI, W/O.VASU, PUTHENPURAYIL HOUSE, PONNAKAYAM P.O.,
NEAR BADHANIYA RETREAT CENTRE, THIRUVAMBADI, KOZHIKODE
DISTRICT, PIN - 673 603
BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 15.01.2025,
THE COURT ON 17.01.2025 DELIVERED THE FOLLOWING:
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Mat.Appeal No.316/2016
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JUDGMENT
SHOBA ANNAMMA EAPEN, J.
Challenging the decree dated 17.12.2015 in OP No.196 of 2013
of the Family Court, Pala, dismissing the claim of the wife for
return of 41.5 sovereigns of gold ornaments, an amount of
₹50,000/- and movables worth ₹44,100/-, the wife has come up in
appeal.
2. The marriage between the appellant/wife and the first
respondent/husband was solemnized on 08.02.2006 and a child was
born in their wedlock. According to the appellant, when the
marriage was fixed, the respondents were given ₹50,000/- as
patrimony. It was claimed that on the date of marriage, she was
wearing 43 sovereigns of gold ornaments, and further, her father
had gifted to the first respondent a gold chain weighing 3
sovereigns and a ring weighing one sovereign. It was further
claimed that in the matrimonial home, the third respondent/mother
of the first respondent kept 37.5 sovereigns of gold ornaments in
her custody. It was alleged that the appellant was subjected to
cruelty by the respondents and she was deserted on 25.09.2009.
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Thereafter, the appellant demanded return of gold ornaments, money
and the value of movables.
3. The first respondent/husband contended that the appellant
was wearing only 30 sovereigns of gold ornaments and the amount of
₹50,000/- was deposited in her name, which was subsequently
withdrawn for her educational purpose. It was further contended
that he had not treated her with cruelty and had not taken her
gold ornaments. The Family Court, after elaborate consideration of
the issue, dismissed the original petition filed by the wife.
4. We have heard Sri.Pirappancode V.S.Sudheer, learned
counsel for the appellant; and Smt.R.Bindu (Sasthamangalam),
learned counsel for the respondents.
5. The following issue arises for consideration:
Whether the Family Court rightly dismissed the claim for
return of gold ornaments, money and value of movables?
6. As regards the claim for return of gold ornaments, the
appellant, who was examined as PW1, deposed that the respondents
misappropriated her gold ornaments. In paragraph 9 of the original
petition, the appellant had stated that she had entrusted 37.5
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sovereigns of gold ornaments to the third respondent as a trustee.
The appellant further stated that she had retained two bangles,
weighing one sovereign each, out of the 43 sovereigns of gold
ornaments she had. She relied on Ext.X1 Marriage Certificate and
Ext.A2 photos to prove that she was wearing 43 sovereigns of gold
ornaments at the time of marriage. On a perusal of Ext.X1 marriage
certificate, it is seen that the appellant was given 344 grams
equivalent to 43 sovereigns of gold ornaments at the time of
marriage. The appellant, while examined as PW1, has deposed that
though the gold ornaments were entrusted to the third respondent,
the same were not returned to her. The father of the appellant,
who was examined as PW3, had testified that 40 sovereigns of gold
ornaments were given to his daughter at the time of marriage and
when she came back, she had brought only the 'Thali' chain, two
bangles and a pair of studs. Though the appellant had stated that
the gold ornaments were entrusted to the third respondent, there
was no proper explanation as to the misappropriation of gold
ornaments by the respondents. The Family Court rejected the claim
for return of gold ornaments only on the basis that, other than
the version of the appellant that the respondents have
misappropriated the gold ornaments, there were no other materials
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to support her case.
7. The parties were living together after the marriage. As
held by this Court in Pankajakshan Nair v. Shylaja & Ors. [2017
(1) KHC 620], when the husband and wife live together, it is only
probable that the valuables of the wife will be entrusted to the
husband for safe custody, and when the plea of the husband is that
the wife took back the gold ornaments, it is for the husband to
prove the same. We are in respectful agreement with the view
expressed in Pankajakshan Nair (supra). In the present case, it is
the case of the appellant that the gold ornaments were entrusted
to the third respondent as a trustee. It is worth mentioning that
though there is a specific allegation that the gold ornaments were
entrusted to the third respondent, she kept away from the witness
box.
8. A Division Bench of this Court, in Leelamma N.P. v.
M.A.Moni [2017 (3) KHC 340], held that once it is proved that gold
ornaments and amount was entrusted by the wife to the husband,
then the burden is on the husband to prove as to what happened to
the gold ornaments and if it is taken by the wife when she left
the matrimonial home, the same has to be proved by the husband. It
was for the respondents to prove that the wife had taken away
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whatever gold ornaments she had, when she left the matrimonial
home.
9. Regarding the quantity of gold ornaments, though Ext.X1
reveals that the appellant was wearing 43 sovereigns of gold
ornaments, while examined as PW1, she testified that she had
entrusted only 37.5 sovereigns of gold ornaments. The finding of
the Family Court that evidence regarding misappropriation was
lacking, does not appear to be reasonable. Hence, we hold that the
appellant is entitled for return of 37.5 sovereigns of gold
ornaments or its present market value from the respondents.
10. The next claim is regarding return of an amount of
₹50,000/- alleged to have been given to the respondents during the
marriage fixation ceremony held on 13.11.2005. According to the
first respondent, no money was handed over to him and the amount
of ₹50,000/- was deposited in the name of the appellant and the
same was used for her educational purpose. While the appellant was
examined as PW1, she had admitted in cross-examination that the
amount of ₹50,000/-, which was given by her father, was deposited
by her and the first respondent in the Thiruvambadi Bank. She also
testified that thereafter, she had withdrawn ₹20,000/- and later,
₹10,000/- was deposited by her in the same account and the
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remaining ₹10,000/- was deposited in the account of the first
respondent. Further, she deposed that the remaining ₹40,000/- in
the account was also withdrawn by her. She added that it was
jointly withdrawn by her and the first respondent and that, out of
₹50,000/-, only ₹1,000/- was taken by her for her educational
purpose.
11. Admittedly, other than the oral evidence, there is
nothing to prove that the amount was deposited in the joint name
of the appellant and the first respondent. The appellant admits
that the amount was withdrawn. However, no reliable evidence was
forthcoming regarding the fact that the amount was handed over to
the first respondent and he had misappropriated the same. The
finding of the Family Court that the amount must have been spent
for the educational expenses of the wife, is probable. The Family
Court has rightly rejected the claim for return of ₹50,000/- by
the respondents. We do not find any reason to interfere with the
said finding of the Family Court.
12. Lastly, as regards the value of movables, the learned
counsel for the appellant submits that since no proper evidence
has been produced to prove the value of the movables, the
appellant is giving up the claim for the same.
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Accordingly, the appeal is partly allowed. The appellant/wife
is entitled for recovery of gold ornaments weighing 37.5
sovereigns or its present market value from the respondents and
their assets, both movables and immovables. As regards all other
aspects the decree stands confirmed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
