husband in part, by the Family Court. Challenging the
2. The marriage between the parties was solemnized
on 15.02.2004. The claim in the original petition is for
an amount of ₹ 3,04,000/-. The claim is under various
3. According to the petitioner-wife, at the time of
marriage an amount of ₹ 50,000/- was entrusted to the
husband as "Aacharam". So also, the petitioner was
provided with 20 sovereigns of gold ornaments. That
apart, as was required by the husband, an extent of 8
cents of property was settled by the petitioner's father
in her name. The petitioner was also provided with an
almirah worth ₹ 3,000/-. An amount of ₹ 75,000/- was
spent towards marriage expenses. A child was born in the
wedlock. The petitioner's relatives presented gold
ornaments weighing 2 sovereigns to the child. The
petitioner alleges that the gold and money were
misappropriated by the respondents-husband and his
mother. It is accordingly that the original petition was
filed, for money.
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4. The respondents in their objections denied the
claim of payment of 'Aacharam'. It was also contended
that the petitioner did not have any gold ornaments with
her. The allegation that 8 cents of property was settled
in the name of the petitioner by her father as was
demanded by the husband, was also denied. The alleged
misappropriation of money and gold was also denied.
5. The Family Court upheld the petitioner's claim
for 'Aacharam', the value of 20 sovereigns of gold, and
the Almirah. The claims with regard to marriage expenses
and value of ornaments gifted to the child were
negatived. So also, the decree was confined against the
husband. There is no appeal by the petitioner-wife.
6. In spite of service of notice on the respondent-
wife there is no appearance.
7. We have heard the learned counsel for the
appellant.
8. The learned counsel for the appellant took us
exhaustively through the entire evidence on record. The
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learned counsel would submit that there are
contradictions in the evidence of the petitioner as PW1
and the evidence of PW3 who is the owner of the
jewellery shop which is crucial and was overlooked by
the Family Court. The learned counsel for the appellant
would submit that, while the petitioner-wife claims that
20 sovereigns was purchased from the shop of PW3,
according to PW3 only 14 sovereigns of gold was
purchased from him. Moreover, there is no document
evidencing such purchase. Though PW1 would claim that no
photograph or video recording of the marriage was taken,
PW3 would depose otherwise. Such photographs could have
been produced by the petitioner to prove that she was
adorned with any gold ornaments at the time of marriage.
Learned counsel would also submit that, going by the
details of the gold ornaments as deposed by PW1, the
total quantity is only approximately 18 sovereigns. This
would indicate that the very claim that she had 20
sovereigns of gold ornaments is false. He also argued
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that, though it is stated in the original petition that
the respondents had sold the gold ornaments of the
petitioner, as PW1 she would depose that only half the
quantity was sold and the remaining half was pledged.
Learned counsel would further submit that PW1 has
admitted that after the parties started residing
separately the petitioner constructed a house in her
property. The source for the same remains undisclosed;
it could only be by sale of the gold ornaments. Though
"Acharam" is claimed to have been paid by availing a
mortgage loan, no document evidencing the same has been
produced. Hence it is only to be negatived. In the
circumstances as above, the Family Court went wrong in
granting a decree in favour of the petitioner, it is
argued.
9. Firstly we may point out that, the contention of
the appellant that it is the case of the petitioner that
20 sovereigns of gold ornaments was purchased from the
shop of PW3, is not correct. All that the petitioner has
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pleaded and deposed is only that she was provided with
20 sovereigns of gold ornaments at the time of marriage.
PW3 the owner of the jewellery shop deposed that only 14
sovereigns was purchased from him. He also deposed that
a further quantity of six sovereigns which was brought
to him was weighed by him.
10. While it is true that there is contradiction
between the evidence of PWs.1 and 3, if photographs were
taken or video recording was done at the time of
marriage, PW1 saying that it was not taken and PW3
making a statement otherwise, it was open for the
respondent to produce the photographs if any taken, to
prove that the petitioner was not wearing any gold
ornaments at the time of marriage. Such a course was not
resorted to. When the petitioner as PW1 has asserted
that no photographs were taken and on the failure of the
respondent to produce any photographs, the statement of
PW3 is only to be ignored.
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11. Ext.X1 is the marriage register maintained at
the Jama-Ath of the respondents. At serial number 10 of
the certificate, with regard to the details of the
assets given at the time of marriage it is written, "20
പവൻ സസ്വർണണ, 50,000/- രൂപ ആചചാരണ, 8 സസനന്റ് വസ
സസ്ത്രീധനണ". However, the said writing is seen scored of.
The present Secretary of the Jama-Ath was examined as
PW2. He has deposed that, in the Jama-Ath there is no
such practice of writing the details of assets and it is
therefore that the said writing was scored of. He has
deposed that such information was gathered from the then
Secretary. That PW2 is the present Secretary of the
respondent's Jama-Ath, is not disputed. There is no
reason why he should come forward to depose in favour of
the petitioner. At any rate no reason is suggested as to
why he should depose in favour of the petitioner.
12. According to the appellant, admittedly PW1
constructed a house after separate residence from the
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first respondent-husband. It must have been constructed
by utilising the gold ornaments of the petitioner, it is
contended. Here it is to be borne in mind that, it is
the definite case of the respondent both in the
objections and in the proof affidavit that, the
petitioner did not have any gold ornaments at all. That
apart, it is the case of the petitioner that she was
taken to her parental house by the respondents on
12.06.2005. Hence there would not be any occasion for
the petitioner to carry her gold ornaments with her.
Obviously, to circumvent the said situation, the
respondent has attempted to put forward a case that the
petitioner had left on her own on 05.06.2006 carrying
all her articles and gold with her and at that time only
the youngest sister of the first respondent, aged 14
years, was at home. However, this is contradictory to
the suggestion made to PW1 that on 05.06.2005 the
petitioner's brother and one Anas came home and the
petitioner left with them. The relevant deposition reads
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thus :-
"12-06-2004-ൽ ആണന്റ് ഞചാൻ വസ്ത്രീടട്ടിൽ പപചായതന്റ്. എസന്നെ 2--ചാണ
എതട്ടിർകകട്ടിയചാണന്റ് വസ്ത്രീടട്ടിൽ എതട്ടിച്ചതന്റ്. 5-6-2005 ൽ
സപഹചാദരനണ അനസണ കൂടട്ടി വന്നെന്റ് നട്ടിങ്ങസളെ കൂടട്ടിസകചാണന്റ്
പപചായതചായട്ടി എതട്ടിർകകട്ടികൾ പറയുന. (Q) ശരട്ടിയല്ല (A)."
Such a case was attempted to be set up to make it appear
that whatever gold ornaments the petitioner had, were
taken away by her when she went home. As noted above,
such a case cannot be accepted.
13. With regard to the contention that the
petitioner had constructed a house after she started
living separately from the husband, the petitioner to
pointed questions had answered that the cost of
construction was less than ₹ 5 lakhs and that she got
₹ 50,000/- from the Panchayat and had availed a loan of
₹ 1.5 lakhs. With regard to the balance consideration no
question was put to her eliciting any answer. Taking
advantage of the same, it is sought to be contended that
the balance amount was raised by sale of the ornaments.
As noticed earlier such a contention does not lie in the
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mouth of the husband for the reasons already given
above.
14. Now coming to the contention that there is lack
of evidence to prove that ₹ 50,000/- paid as 'Acharam'
by creating a mortgage, the petitioner has specifically
stated that the loan was availed from the Service Co-
operative Bank, Kizhuvilam. While it is true that no
documents to evidence the same was produced, the payment
of such amount as 'Acharam' is noted in Ext.X1
mentioned. Hence the said contention is of no avail.
15. Coming to the contention that the petitioner,
as PW1, could give the specifics with regard to only
18.5 sovereigns of gold ornaments and not the entire 20
sovereigns, we do not think that the same is of any
consequence when no further question in the said regard
was put to the witness. In fact, PW1 having narrated the
details of the ornaments would lend credence to her
claim. The fact that PW1 deposed that half the quantity
of gold ornaments was sold by respondents while the
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remaining was pledged, which is not in tune with her
plea that the gold ornaments were sold, we are of the
opinion that it is only to be understood that it is the
case that the gold was misappropriated by the
respondents.
16. The Family Court which had the opportunity to
watch the demeanor of the witnesses found the evidence
of PWs.1 to 3 to be reliable and acceptable. Sufficient
material is not placed before us to dislodge the
finding.
17. It is seen that the Family Court has granted
interest at the rate of 12% per annum. The relief
claimed in the original petition reads thus :-
"(A) A decree allowing the petitioner to realise an amount of Rs.
3,04,000/- (Rs. Three lakhs and four thousand only) from the
respondents and their assets."
Pertinently, there is no claim for interest. However,
the Family Court has granted interest at the rate of 12%
p.a from the date of petition. Considering the
prevailing rate of interest in banking transactions, we
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are of the opinion that, even though there is no
specific claim for interest, the petitioner could be
granted a decree for realisation of money with interest
at the rate of 6% per annum from the date of petition
which, in the facts and circumstances would be just and
reasonable.
Resultantly, the appeal is allowed in part. The
judgment of the Family Court will stand modified in so
far as it relates to the rate of interest, which will
stand re-fixed at 6% per annum. In all other respects
the impugned judgment will stand affirmed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
