Kerala High Court

Syam Kumar M vs Sindhu J on 27 October, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

Mat.Appeal No.1026/2019

                                       1

                                                              2025:KER:79661

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                       &

                THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

      MONDAY, THE 27TH DAY OF OCTOBER 2025 / 5TH KARTHIKA, 1947

                          MAT.APPEAL NO. 1026 OF 2019

       AGAINST THE JUDGMENT DATED 09.08.2019 IN OP NO.1151 OF 2014

OF FAMILY COURT,THIRUVANANTHAPURAM

APPELLANT/PETITIONER:

              SYAM KUMAR M
              AGED 52 YEARS
              S/O.R.MANOHARAN NAIR, VJRA-29, JAWAHAR LANE,
              VELLAYAMBALAM, THIRUVANANTHAPURAM-695010.


             BY ADVS.
             SRI.P.C.HARIDAS
             SHRI.V.A.AJAI KUMAR



RESPONDENT/RESPONDENT:

              SINDHU J.,
              D/O.N.SANKARAN NAIR, AGED 48 YEARS,
              'LEKSHMI', KRRA-73, MUDAVANMUGHAL,
              KESHAV DEV ROAD, POOJAPPURA,
              THIRUVANANTHAPURAM-695012.


              BY ADV SRI.RAJESH P.NAIR


      THIS    MATRIMONIAL     APPEAL   HAVING   COME   UP   FOR   HEARING   ON
22.10.2025, THE COURT ON 27.10.2025 DELIVERED THE FOLLOWING:
 Mat.Appeal No.1026/2019

                                         2

                                                                  2025:KER:79661



                  SATHISH NINAN & P. KRISHNA KUMAR, JJ.
                  = = = = = = = = = = = = = = = = = =
                        Mat.Appeal No.1026 OF 2019
                  = = = = = = = = = = = = = = = = = =
                Dated this the 27th day of October, 2025

                                    JUDGMENT

P.Krishna Kumar, J.

In a petition filed by the appellant under Section 13 of

the Hindu Marriage Act for a decree of divorce, the respondent

raised a counterclaim seeking recovery of gold ornaments and

money, and also claiming maintenance for herself and for the

two children. By the judgment impugned in this appeal, the

Family Court, Thiruvananthapuram dismissed the petition for

divorce but decreed the counterclaim, directing the appellant

to return 992 grams of gold ornaments or its value, and to pay

₹8,000/- per month as maintenance to the respondent and

₹5,000/- each to the two children.

2. Though the appeal is preferred against the findings

in the original petition as well as the counterclaim,

during the course of hearing, the learned counsel

2025:KER:79661

submitted that the appellant is not pressing the appeal

insofar as it pertains to the dismissal of the divorce

petition. No arguments were addressed challenging the order

granting maintenance to the respondent and the children.

Therefore, we confine our discussion to the issues relating

to the claim for return of gold ornaments.

3. The marriage between the appellant and the

respondent was solemnized on 29.08.1994. In her counterclaim,

the respondent contended that she was given 992 grams of gold

ornaments by her parents at the time of marriage. Except 8

sovereigns retained by her, the remaining ornaments were

allegedly entrusted to the appellant, who later pledged and

sold the same. She also sought recovery of ₹6,00,000/-,

alleging that the appellant received that amount from her

father.

4. In the written statement to the counterclaim, the

appellant denied the allegations and contended that, at the

time of marriage, the respondent adorned less than 70

sovereigns of gold ornaments, as evident from the photographs.

He further contended that all such ornaments were kept in the

custody of the respondent's father in a locker, as the

2025:KER:79661

appellant was working in different places and had frequent

transfers.

5. The evidence consists of the oral testimony of PW1,

PW2, CPW1 to CPW3 and Exts.A1 to A5 and B1 to B5. Upon

evaluation of the evidence, the trial court allowed the

counterclaim with respect to gold ornaments and maintenance,

but rejected the claim for money.

6. We have heard Sri. P.C. Haridas, learned counsel for

the appellant, and Sri. Rajesh P.Nair, learned counsel for the

respondent.

7. Placing reliance upon the decision of the Hon'ble

Apex Court in Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel

[2021 (6) KLT 57 (SC)], the learned counsel for the appellant

contended that when a petition is filed under the Hindu

Marriage Act ("the Act", for short), a counterclaim can be

raised only for a relief provided under the Act and not

otherwise, as is evident from the scheme of Section 23A of the

Act. Hence, the trial court ought not to have entertained the

counterclaim for recovery of gold ornaments and money, it is

urged. It is further submitted that though this contention was

not raised before the Family Court, the same is a pure

2025:KER:79661

question of law and hence can be raised at this stage.

8. The above contention is strongly opposed by the learned

counsel for the respondent. According to him, if the appellant

had raised such a contention at the appropriate stage, the

respondent could have filed a separate petition and sought

adjudication of the claim along with the divorce petition, and

thus he should not be permitted to raise such a contention

belatedly.

9. Having considered the rival submissions, we are not

persuaded to accept the above challenge raised by the

appellant. As rightly pointed out by the learned counsel for

the respondent, the appellant did not raise any question

regarding maintainability of the counterclaim before the

Family Court. The appellant participated in the proceedings

without demur and allowed the respondent to lead evidence in

support of the counterclaim, participated in the trial. Having

submitted to jurisdiction, contested the matter and invited an

adverse finding on merits, he cannot now be permitted to raise

such objection for the first time in appeal to prejudice the

respondent. Significantly, the appellant does not dispute the

jurisdiction of the Family Court to adjudicate upon the

2025:KER:79661

reliefs claimed; his grievance is only that such relief ought

to have been sought through an independent petition rather

than a counterclaim. Had the objection been taken at the

earliest stage, the respondent could have easily cured the

alleged defect. There is no inherent lack of jurisdiction.

Hence, the appellant is estopped from raising such objection

at this stage.

10. The next issue to be considered is whether the

respondent is entitled to recover 992 grams of gold ornaments

from the appellant. Referring to Royson Mathew v. Minimol K.

[2020 (3) KHC 307], the learned counsel for the appellant

contended that the pleadings in the counterclaim are totally

insufficient to sustain a highly belated claim invoking

Section 10 of the Limitation Act. We find no merit in this

submission as well. In the counterclaim, the respondent

pleaded that the gold ornaments gifted to her were entrusted

to the appellant and were pledged and sold by him, and only 8

sovereigns remained with her. In the counterclaim, the

respondent pleaded as follows:

2025:KER:79661

"The following gold ornaments as shown in the list below gifted to the counter petitioner was pledged and sold by the petitioner. Only 8 sovereigns of gold ornaments are now with the counter petitioner. Total of the list to be given back comes to 992 grams. This was given at the time of the marriage ceremony.

xxxx

In the circumstances of the petition for divorce and allied guardian and ward petition, the petitioner is bound to discharge his obligation to return the gold ornaments entrusted to the petitioner and pledged or sold by the petitioner during the period of about last 19 years."

Although the pleadings are not elaborate, they

sufficiently indicate the nature of the claim and enabled the

appellant to fairly contest the matter. Therefore, it

cannot be said that the appellant suffered prejudice on

account of any insufficiency in pleadings.

11. In Sheela K.K. v. N.G. Suresh [2020 (5) KHC

455], a Full Bench of this Court held that when a wife

entrusts her property to the husband, a trust is created and

the husband is bound to return the same. If he fails to do so,

the wife can seek recovery at any time by invoking Section 10

of the Limitation Act, which prescribes no period of

limitation for such a claim. The court observed as follows:

2025:KER:79661

"In this case, the Division Bench of this Court approved Swapna's case (supra). In the above case, on a detailed analysis of the relevant provisions including S.10 of the Limitation Act and the provisions of the Trusts Act, overruling an earlier judgment in Annamma v. Thressiamma (AIR 1972 Ker.

170), it was held that there is a creation of trust in respect of stridhanam property and therefore S.10 applies. Paragraphs 28 to 30 are relevant, which reads as under:

"28. It is profitable to note that the trusts are divided into two broad classifications, viz., simple trust and special trust, according to the nature of the duty imposed on the trustee. A simple trust is a trust in which the trustee is a mere repository of the trust property, with no active duties to perform. Such a trustee is called a passive or, more frequently, a bare trustee see Underbill's Law of Trusts and Trustees. In a case where A devised property to B in trust for C there is a simple trust, as the only duty which B has to perform is to convey the legal estate to C if so requested. Here B is a passive or bare trustee. This trust is also an express trust. We are of opinion that in the case of payment by a father of a girl to the prospective father in law or the prospective husband is a simple trust. The only duty of the husband to convey the legal estate of the property to the girl. Though it is a simple trust, it is an express trust and we are of opinion that the specific purpose denoted in S.10 of the Limitation Act can be understood in a meaningful way that the only duty of the husband or the father in law is to convey the legal estate of the trust property to the beneficiary, the girl (wife), if so requested. So the conditionality of the specific purpose specified in the Act is satisfied."

xx xx xx

6. It is settled law and as laid down in the judgments aforesaid, when the wife entrusts with the husband any property belonging to her, a trust is created and the husband is bound to return the same to his wife. If the same is not returned, the wife

2025:KER:79661

has a right to demand the same by filing a suit or as in the present case, file an application before the Family Court or take other necessary steps under the relevant statutes in force. When S.10 of the Limitation Act indicates that there is no limitation for initiating any such action, in the absence of any other statute providing for a limitation, the trustee cannot take a contention that he shall not return the trust property on account of any period of limitation. The question posed is, when the relationship between the parties gets deranged and results in divorce, whether the trust gets extinguished and the divorced wife would be entitled to invoke S.10 of the Limitation Act and file a suit at her will and pleasure at any point in time."

The above principle has been consistently followed by the

courts, and therefore, the reliance made by the appellant on

Royson Mathew (supra) is misplaced, as the issue before the

Court in that case was entirely different. While the

counterclaim for recovery of gold ornaments was partly

allowed, the claim for recovery of money was rejected by the

Court due to insufficient pleadings to show the formation of a

trust within the meaning of Section 10. Certain observations

were made by the Court in the context of the allegation that

the wife had remitted money to the husband's account while

working abroad. A mere deposit of money into an account, by

itself, may not be sufficient to infer that it was given with

an intention to create a simple trust in perpetuity.

2025:KER:79661

Entrustment of gold ornaments by the wife to the husband soon

after the marriage is different, as the intention to create

such a trust is inferable from the very nature of the

transaction.

12. Let us now examine the evidence in this case. The

entrustment of 992 grams of gold ornaments is attempted to be

proved mainly through the oral testimony of RW1, the

respondent, and RW3, her father. No documentary evidence is

produced to prove the purchase of ornaments. As regards the

quantity of gold ornaments adorned by the respondent at the

time of marriage, the appellant himself admitted in the

written statement to the counterclaim that she had less than

70 sovereigns of gold ornaments. Though he later attempted to

deviate from this position during trial by asserting that she

had only 50 sovereigns, the photographs produced by both sides

clearly demonstrate that the respondent had approximately 70

sovereigns of gold ornaments at the time of marriage, which

aligns with the appellant's earlier admission. While Exts.B3

and B4 photographs were produced by the respondent, the

appellant produced Ext.A2 series photographs.

2025:KER:79661

13. The respondent initially claimed that she had 992

grams of gold ornaments. However, during cross-examination,

she clarified that she had adorned only 896 grams of gold

ornaments, but she separately possessed an additional 96 grams

of gold coins. When asked to produce supporting documents, she

conceded that no documents were available with her. The

relevant part of the cross-examination is as follows:

"കലലല്യാണതത്തിനന് വവേണത്തി ഇത്രയയും സസ്വർണയും വേല്യാങത്തിച്ചു എനന് കല്യാണത്തിക്കുന എനന്തെങത്തിലയും വരേഖകൾ വകല്യാടതത്തിയത്തിൽ ഹല്യാജരേല്യാകത്തിയത്തിട്ടുവണല്യാ ?

(A) ഇല്ല നമല്യാതയും 992 gm സസ്വർണതത്തിനന്റെയയും വരേഖകൾ petitioner നന്റെ കകയത്തിൽ ആണന്"

No further evidence was adduced to substantiate the claim that

she possessed 992 grams of gold ornaments. Even though the

learned counsel for the respondent argued that the entrustment

of gold coins is undisputed, the appellant has specifically

challenged that claim as well. Her father, examined as RW3,

also failed to provide independent proof. Although he asserted

that the ornaments were purchased from Alappat Jewellery, East

Fort, no records were summoned to establish the purchase. In

such circumstances, we are constrained to hold that the

respondent had only 70 sovereigns of gold ornaments at the

2025:KER:79661

time of her marriage.

14. As to entrustment, we find no difficulty in

accepting the respondent's version. Her testimony withstood a

detailed cross-examination. Her version is corroborated by her

father, RW3. In contrast, the appellant has no consistent case

in the above matter. He raised a specific contention in his

written statement that all the gold ornaments brought by the

wife were kept in the locker of her father. It reads as

follows:

"At the marriage ceremony the counter petitioner adorned only less than 70 sovereigns at the time of marriage as evidenced from the photograph produced. Subsequent to marriage all the ornaments were kept in the custody and possession of the counter petitioner's father's locker as the petitioner was working at different places with frequent transfers as averred in paragraph 6 of the plaint."

Despite raising such a specific contention, the appellant did

not put any such question to RW3 or RW1 while they were

examined. He also did not attempt to summon any bank records.

Therefore, the evidence of RW1 and RW3 is more credible than

that of PW1, in respect of entrustment of gold.

15. In view of the above, it is fair and reasonable

2025:KER:79661

to hold that the respondent entrusted her gold ornaments to

the appellant after her marriage, and thus he is bound to

return it. She has admitted in her pleadings that she retains

8 sovereigns with her. It is only probable that she must have

been having at least 10 sovereigns with her for her regular