[Cites 9, Cited by 0]
Kerala High Court
John vs Daisy on 10 February, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
Mat.Appeal No.920 of 2018
and C.O.No.123 of 2025 1
2026:KER:10536
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 10TH DAY OF FEBRUARY 2026 / 21ST MAGHA, 1947
MAT.APPEAL NO. 920 OF 2018
AGAINST THE JUDGMENT DATED 26.04.2018 IN OP NO.883 OF 2015
OF FAMILY COURT, IRINJALAKUDA
APPELLANTS/RESPONDENTS:
1 JOHN
AGED 44 YEARS
S/O. CHITTILAPPILLI POZHOLI PARAMBAN THOMAS,
OORAKAM DESOM, PULLUR VILLAGE, MUKUNDAPURAM TALUK,
PRESENT ADDRESS, 110 SUSEELA CO-OPERATIVE HOUSING
SOCIETY LTD, LOKAMANYATHILAK ROAD, VASEERA, OPP.
DONBOSCO BOYS, BORIVALLI, WEST MUMBAI 400091,
NOW RESIDING AT FLAT NO.304, 3RD FLOOR,
SHREE ASHTAVINAYAK CHS LTD, PLOT NO.16, RDP 01,
ABOVE STATUS HOTEL, GORAI, BORIVALLI WEST, MUMBAI
2 SHEEBA THOMAS
AGED 60 YEARS
W/O THOMAS, OORAKAM DESOM, PULLUR VILLAGE,
MUKUNDAPURAM TALUK PRESENT ADDRESS 110 SUSEELA CO-
OPERATIVE HOUSING SOCIETY LTD,
LOKAMANYATHILAK ROAD, VASEERA. OPP. DONBOSCO BOYS,
BORIVALLI. WEST MUMBAI- 400091 NOW RESIDING AT FLAT
NO.304, 3RD FLOOR, GORAI SHREE ASHTAVINAYAK CHS LTD
PLOT NO.16, R.D.P 01, ABOVE STATUS HOTEL,
GORALI, BORIVALI WEST MUMBAI- 400091
BY ADVS.
SRI.T.N.MANOJ
SHRI.ABHILASH M.J.
Mat.Appeal No.920 of 2018
and C.O.No.123 of 2025 2
2026:KER:10536
RESPONDENT/PETITIONER:
DAISY
AGED 34 YEARS
D/O. MANJALI VEETIL DAVIS,
VENDOR DESOM, AMBALLUR VILLAGE,
MUKUNDAPURAM TALUK, PIN - 680733
BY ADV SRI.K.S.BHARATHAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
28.01.2026, ALONG WITH CO.123 OF 2025, THE COURT ON 10.02.2026
DELIVERED THE FOLLOWING:
Mat.Appeal No.920 of 2018
and C.O.No.123 of 2025 3
2026:KER:10536
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 10TH DAY OF FEBRUARY 2026 / 21ST MAGHA, 1947
CO NO. 123 OF 2025
AGAINST JUDGMENT DATED 26.04.2018 IN MAT.APPEAL NO.920 OF
2018 OF HIGH COURT OF KERALA
CROSS OBJECTOR/RESPONDENT:
DAISY
AGED 34 YEARS
D/O MANJALI VEETIL, DAVIS VENDOR DESOM,
AMBALLUR VILLAGE, MUKUNDAPURAM TALUK,
PIN - 680733
BY ADVS.
SRI.K.S.BHARATHAN
SRI.AADITHYAN S.MANNALI
SRI.ALPHIN ANTONY
JISHNU P.P.
SMT.RADHIKAKRISHNA
RESPONDENTS/APPELLANTS:
1 JOHN
AGED 44 YEARS
S/O CHITTILAPPILLI POZHOLI PARAMBAN THOMAS,
OORAKAM DESOM, PULLUR VILLAGE, MUKUNDAPURAM TALUK,
PRESENT ADDRESS: 110 SUSEELA CO-OPERATIVE HOUSING
SOCIETY LTD, LOKAMANYATHILAK ROAD, VASEERA,
OPP.DONBOSCO BOYS, BORIVALLI, WEST MUMBAI, NOW
RESIDING AT FLAT NO: 304, 03RD FLOOR, GORAI SHREE
ASHTAVINAYAK CHS.LTD; PLOT NO:16, R.D.P-01, ABOVE
Mat.Appeal No.920 of 2018
and C.O.No.123 of 2025 4
2026:KER:10536
STATUS HOTEL, GORAI,
BORIVALI - WEST. MUMBAI, PIN - 400091
2 SHEEBA THOMAS
AGED 60 YEARS
W/O THOMAS, OORAKAM DESOM, PULLUR VILLAGE,
MUKUNDAPURAM TALUK, PRESENT ADDRESS: 110 SUSEELA CO-
OPERATIVE HOUSING SOCIETY LTD, LOKAMANYATHILAK ROAD,
VASEERA, OPP. DONBOSCO BOYS, BORIVALLI, WEST MUMBAI-
400091, NOW RESIDING AT FLAT NO: 304, 03RD FLOOR,
GORAI SHREE ASHTAVINAYAK CHS.LTD; PLOT NO:16, R.D.P-
01, ABOVE STATUS HOTEL, GORAI,
BORIVALI - WEST. MUMBAI
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 28.01.2026, ALONG WITH MAT.APPEAL NO.920 OF 2018, THE
COURT ON 10.02.2026 DELIVERED THE FOLLOWING:
Mat.Appeal No.920 of 2018
and C.O.No.123 of 2025 5
2026:KER:10536
JUDGMENT
[Mat.Appeal No.920 OF 2018, C.O.No.123 OF 2025]
Muralee Krishna S., J.
The respondents in O.P.No.883 of 2015 on the file of the
Family Court, Irinjalakkuda, filed this Mat. Appeal under Section
19 of the Family Courts Act, 1984, challenging the judgment dated
26.04.2018 passed in that original petition. C.O.No.123 of 2025 is
the cross objection filed by the respondent-petitioner in
O.P.No.883 of 2015. For convenience of reference, the parties are
referred to in this judgment in their status as in Mat. Appeal
No.920 of 2018.
2. The respondent is the legally wedded wife of the 1st
appellant. Their marriage was solemnised on 09.11.2005 at St.
Mary's Church, Vendore in Amballur Village, as per the customs
and ceremonies prevailing in their community. According to the
respondent, at the time of marriage, her family members gifted
her 35 sovereigns of gold ornaments. After marriage, the
respondent and the 1st appellant resided together in the house of
one George, who is the uncle of the 1st appellant. The respondent
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contends that during their joint living, the appellants ill-treated
her physically and mentally, stating that she is not good-looking
and also demanded her to bring more money and gold from her
house. According to the respondent, she entrusted the 35
sovereigns of gold ornaments received by her from her family
members to the 1st appellant as a trustee. However, the appellants
misused those gold ornaments.
2.1. The respondent further pleaded in the O.P that the
matrimonial relationship between herself and the 1st appellant was
not cordial. On several occasions, she was locked up in a room
without providing food, etc. When the ill treatment became
intolerable, the respondent told the appellants that she would
inform her parents, and then the appellants forcefully took her to
Bombay, where the appellants are residing. From Bombay also she
met ill-treatment from the appellants. On 13.02.2007, demanding
the respondent to bring more money and gold from her house,
she was forcefully taken to Thrissur, her native place, in a train
and thereafter, the respondent has been residing with her parents.
The 1st appellant deserted her, and after 13.02.2007, the
appellants did not enquire about her well-being. Though the
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respondent demanded back her gold ornaments, the appellants
were not ready to return the same. Therefore, the respondent filed
the original petition before the Family Court under Section 7 of the
Family Court Acts, 1984, seeking the return of 35 sovereigns of
gold ornaments or their value from the appellants.
3. The appellants herein-respondents entered appearance
before the Family Court and filed a joint written statement dated
05.07.2016 denying all the averments in the original petition.
According to the appellants, the respondent had only below 10
sovereigns of gold ornaments at the time of marriage. She had
not entrusted those gold ornaments to the 1st appellant. It is
pleaded in the written statement filed by the appellants that on
13.02.2007, the respondent came back to her native place for the
purpose of attending an examination. At that time, she had taken
all her gold ornaments with her. Now, the respondent has obtained
divorce from the 1st appellant and married another person. She is
residing with her 2nd husband at present. It is further contended
in the written statement that the respondent filed a false case
against the appellants before the Irinjalakkuda Police, alleging an
offence under Section 498A of the IPC, and the said case was tried
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before the Judicial First Class Magistrate Court, Irinjalakkuda, as
C.C.No.1361 of 2008, wherein the appellants were acquitted.
4. On the basis of the pleading, the Family Court framed
the following issues for adjudication;
"1. Whether, petitioner had received 35 sovereigns of gold
ornaments from her parents as gift at the time of marriage?
2. Whether, she had entrusted her gold ornaments with
respondents and they misused the same?
3. Is petitioner entitled to a decree of return of 35 sovereigns of
gold ornaments or its market value from respondents?
4. Relief and cost."
5. From the side of the respondent, she gave oral
evidence as PW1 and two witnesses were examined as PWs 2 and
3. Exts.A1 to A4 documents were marked from the side of the
respondent. From the side of the appellants, the 2nd appellant gave
oral evidence as RW1, and Ext.B1 document was marked. After
hearing both sides and on appreciation of the evidence on record,
the Family Court allowed the original petition by directing the 1 st
appellant to return 35 sovereigns of gold ornaments to the
respondent within six months from the date of judgment, failing
which, the respondent is authorised to recover the market value
of 35 sovereigns of gold ornaments as on the date of judgment
with 6% interest per annum from the date of the original petition,
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till realisation from the 1st appellant and his assets by due process
of law.
6. Being aggrieved, the appellants-respondents in the
original petition filed Mat. Appeal No.920 of 2018. Aggrieved by
the non-granting of the realisation of the market value of the gold
ornaments as on the date of realisation, the respondent-petitioner
in the original petition filed C.O.No.123 of 2025. The said cross
objection was filed with a delay of 2080 days, and the same was
condoned by this Court as per the order dated 06.10.2025 in
C.M.Application No.1 of 2025.
7. Heard the learned counsel for the appellants and the
learned counsel for the respondent.
8. The learned counsel for the appellants would submit
that the judgment of the trial court is a cryptic one, which was
passed without proper analysis of the evidence on record. In fact,
the appellants have denied the claim of the respondent that she
had 35 sovereigns of gold ornaments at the time of marriage.
According to the appellants, the respondent was having only 10
sovereigns of gold ornaments at the time of marriage, which she
had taken with her while returning to her native place from
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Bombay on 13.02.2007. No documentary evidence was produced
by the respondent before the trial court to substantiate her claim
that she had 35 sovereigns of gold ornaments. However, the trial
court by merely relying on the oral evidence of PWs 1 to 3, which
are also contradictory and unreliable, arrived at a conclusion that
the respondent had 35 sovereigns of gold ornaments. So also,
there is no evidence to show that the respondent had entrusted
her gold ornaments to the 1st appellant as claimed by her. The
learned counsel invited our attention to various portions of the
pleadings in the original petition and in the depositions of PWs 1
to 3, in support of his arguments.
9. On the other hand, the learned counsel for the
respondent would submit that the evidence of PWs 1 to 3, if
appreciated as a whole, it will be sufficient to hold that the
respondent was having 35 sovereigns of gold ornaments out of
which 20 sovereigns purchased from a jewellery prior to marriage
and 15 sovereigns were gifted to her by her relatives at the time
of marriage. These gold ornaments were entrusted to the 1st
appellant immediately on the next day of marriage, and he
misused the same. Therefore, there is no illegality in the finding
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of the trial court regarding the entrustment of the gold ornaments.
However, the trial court ought to have directed the 1 st appellant
either to return the gold ornaments or their value as on the date
of returning the same and not as on the date of the judgment.
10. The point that arises for consideration in this Mat.
Appeal and in the Cross Objection are;
(i) Whether the trial court went wrong in holding that the
respondent-petitioner had 35 sovereigns of gold ornaments at the
time of marriage, and she had entrusted the same to the 1 st
appellant as a trustee, and he had misused the same?
(ii) Whether the trial court ought to have ordered the appellants
to return the market value of 35 sovereigns of gold ornaments as
on the date of realisation, as contended in the cross objection?
(iii) Whether the impugned judgment is liable to be set aside or
modified, as prayed for?
11. We have appreciated the rival arguments addressed at
the Bar and perused the pleadings on record. We have also
appreciated the evidence on record. When the respondent claims
that she had 35 sovereigns of gold ornaments at the time of
marriage and entrusted the same to the 1st appellant, the
appellants are denying the same, contending that she had only
below 10 sovereigns of gold ornaments at the time of marriage
and she carried them with her while returning to her parental
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house from the matrimonial home. Before re-appreciating the rival
pleadings and evidence adduced by the parties, it is relevant to
note some of the judgments of this court on the point.
12. In Abubakkker Labba v. Shameena K. B [2018 (3)
KHC 219], this Court held thus;
"11. In the case of the claim of return of movables, more
specifically, money and gold ornaments, which were allegedly
given to the wife in connection with the marriage, from the
parents of the husband, there cannot be a constructive or
presumptive entrustment, without actual physical delivery of the
same to them and it must be specifically pleaded and proved by
sufficient evidence, by the claimant wife. Merely on the evidence
that the bride had worn gold ornaments, at the time of marriage,
it cannot be held that the ornaments, which were worn at the
time of marriage, were entrusted with the father and mother of
the bridegroom. Unless there is sufficient evidence from the wife,
to prove the entrustment of gold ornaments with the parents of
the husband, after the marriage, the parents of the husband
cannot be held liable to return the same. Normally there cannot
be a joint entrustment of money or gold ornaments with three
persons, the husband and his parents, without disclosing the
mode of entrustment or the identity of the person to whom the
money or gold ornaments were actually handed over.
The absence of specific pleadings and sufficient evidence to prove
the manner in which the entrustment of money and gold
ornaments were made with the parents of the husband will be
fatal, to the claim for returning the same by them."
[Underline supplied]
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13. In Binitha v. Hareendran [2023 KHC OnLine 99],
this Court held thus;
"20. This Court considered the question as to upon whom is the
burden of proof in a petition claiming the return of gold ornaments
given to the bride at the time of the marriage in Pankajakshan
Nair v. Shylaja and Another [2017 (1) KHC 620 : 2017 (1) KLJ
739 : 2017 (1) KLT SN 85 : ILR 2017 (1) Ker. 951]. The Court
observed as follows: it is quite natural that once the marriage is
over and the bride has come to the house of the in - laws, there
is the possibility of the ornaments being entrusted to the elders
as trustees for keeping the articles during the subsistence of
marriage. There is a duty cast on the defendants to disprove this
fact and also to prove the fact it was taken by the plaintiff at the
time she left the house. What the Court held is about the
possibility of things being happened, and not of any presumption
available in law.
21. This Court considered the question as to when it can be said
that there is entrustment in a suit for recovery of money and gold
said to have been given at the time of marriage in Abubakkker
Labba and Another v. Shameena K. B. and Another[2018
(3) KHC 219 : 2018 (3) KLT 196 : ILR 2018 (3) Ker. 252 : 2018
(3) KLJ 398]. In that, the claim was to return money and gold
ornaments that were allegedly given to the wife in connection
with the marriage. Claim against the parents of the husband was
the question posed before the Court. It was held that there cannot
be a constructive or presumptive entrustment, without actual
physical delivery of the same to the parents of the husband and
it must be specifically pleaded and proved by sufficient evidence,
by the claimant wife. Merely on the evidence that the bride had
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worn gold ornaments, at the time of marriage, it cannot be held
that the ornaments, which were worn at the time of marriage,
were entrusted to the father and mother of the bridegroom.
22. In Binod v. Sophy[2019 KHC 5624 : 2019 (4) KLJ 128 : 2019
(4) KLT SN 22] this Court took the view that the wife while making
a claim for gold ornaments will have to prove the entrustment of
gold ornaments.
23. In Rajesh P. P. and Another v. Deepthi P. R. [2021
(4) KHC 242 : 2021 KHC OnLine 426 : 2021 (3) KLJ 663 : AIR
2021 Ker. 184 : 2021 (4) KLT 455 : ILR 2021 (4) Ker. 143] it was
held, it is a customary practice in our country, particularly in our
state, among all the communities, that parents would gift gold
ornaments to their daughters at the time of marriage as a token
of love. Indian parents start making jewellery for their daughters
from their birth to make sure that they have enough golden
jewellery for their marriage. Thus, it would be unrealistic for a
Court to insist on documentary evidence regarding ornaments
that had changed hands at the time of marriage. The Court can,
certainly, act upon oral evidence if it is found credible and
trustworthy. It is also quite common that when the bride moves
to the house of the groom after the marriage, she takes all her
ornaments and entrusts the same, except a few required for daily
wear, to her husband or in - laws for safe custody. Such
entrustment also could be established by the sole testimony of
the wife since, normally, no independent witness would be
available to witness the same. Once such entrustment is made, a
trust gets created. Being a trustee, the husband or his parents,
as the case may be, is liable to return the same.
24. In Leelamma N. P. v. M. A. Moni[2017 (3) KHC 340 : 2017
(3) KLT SN 13 : ILR 2017 (3) Ker. 101 : 2017 (3) KLJ 311] a
Division Bench of this Court held that once it is proved that gold
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ornaments were entrusted by the wife to the husband, the burden
is on the husband to prove, what happened to the gold
ornaments. It is further held that if it was taken by the wife when
she left the matrimonial home, the same has to be proved by the
husband."
14. In Muneera v. Mariyumma [2025 (1) KLT 687],
this Court held thus;
"22. Proof of entrustment is the key element in a claim for return
of gold ornaments and patrimony. The wife has to prove that the
gold ornaments were owned by her and they were entrusted to
the husband / in - laws and they failed to return it. Entrustment
refers to the act of placing the gold ornaments in the custody or
possession of the in - laws with trust and confidence. The
petitioner / wife must substantiate her claim by adducing
evidence of entrustment, failing which her claim will fail. In a legal
claim for return of gold ornaments by a wife against her in laws,
the primary issue often revolves around proving entrustment
namely the act of placing the ornaments in the custody or
possession of husband and in laws. This requires a detailed
analysis of the factual matrix, legal principles and evidentiary
requirements. Proving entrustment in a claim for return of gold
ornaments is a fact intensive process. The wife must present
cogent evidence of ownership, entrustment and the failure by the
respondent to return it. The success depends on the strength of
evidence and the credibility of witnesses."
[Underline supplied]
15. In the instant case, there are pleadings against
pleadings and oral evidence against oral evidence pertaining to
the quantity of gold ornaments possessed by the respondent and
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regarding the entrustment of the same to the 1st appellant as
claimed by the respondent. As per Section 101 of the Indian
Evidence Act, as it existed at the time of trial of this case, whoever
desires any court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove
that those facts exist. When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that
person. It is true that, according to the respondent, the
relationship between the 1st appellant and the respondent is a
fiduciary relationship, and hence the burden is on the appellants
to disprove the entrustment claimed by the respondent. But, in
terms of Section 101 of the Indian Evidence Act, the burden of
proving the fact rests on the party who substantially asserts the
affirmative issues and not the party who denies it. Therefore, the
burden of proving that the respondent had 35 sovereigns of gold
ornaments with her at the time of marriage is on her, and only if
the said fact is proved, the onus shifts to the appellants to disprove
otherwise or the burden to disprove the entrustment.
16. The respondent herein claims that she had 35
sovereigns of gold ornaments at the time of marriage. In her chief
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examination, she had stated that the 35 sovereigns of gold
ornaments were gifted to her by her family members. During
cross-examination she deposed that out of the aforesaid 35
sovereigns, 20 sovereigns of gold ornaments were purchased after
the betrothal ceremony and 15 sovereigns were gifted to her by
her relatives. When questions were put to PW1 regarding the bill
for the purchase of gold ornaments, she stated that the bill was
also handed over to the 1st appellant. But the pleadings to that
effect, except the claim of having 35 sovereigns of gold
ornaments, are conspicuously absent in the original petition.
17. In order to substantiate her claim that she had 35
sovereigns of gold ornaments, the respondent is relying on Ext.A1
Wedding Album and Ext.A2 C.D containing the photographs of the
marriage ceremony. We have perused Ext.A1 album containing the
photos of the bride and bridegroom, to appreciate the aforesaid
contention of the respondent that the photos would show that she
was wearing 35 sovereigns of gold ornaments. But on perusal of
the photos, in the light of the answers given by PW1 during her
cross-examination, we are of the view that it is impossible to
assess the weight of the gold ornaments worn by her at the time
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of her marriage. In the original petition, the respondent had
described the nature of the gold ornaments and their weight,
which, according to her, was handed over to the 1st appellant on
the next day of marriage. But during cross-examination of PW1, it
was brought out that some of the ornaments worn by her at the
time of marriage, as seen in Ext.A1 album, are imitation gold. In
such circumstances, it can only be said that by relying on Ext.A1
album and Ext.A2 C.D, a finding with regard to the weight of the
gold ornaments worn by PW1 at the time of marriage cannot be
arrived at.
18. It is also relevant to note that during cross-
examination, PWs 1 and 2 stated that the gold ornaments were
purchased between the betrothal ceremony and marriage, from a
jewellery shop. Then what prevented the respondent from
obtaining a duplicate copy of the bill from the jewellery concerned
or summoning the document pertaining to the same from the said
jewellery during trial is unexplained. Similarly, though the
respondent says that 15 sovereigns of gold ornaments were gifted
by her relatives, none of them were examined as witnesses before
the trial court. When the appellants in their written statement
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specifically denied the pleadings in the original petition that the
respondent was having 35 sovereigns of gold ornaments at the
time of marriage and took a specific contention that she had below
10 sovereigns of gold ornaments alone at the time of marriage, it
was the duty of the respondent to prove that she had 35
sovereigns of gold ornaments by adducing cogent evidence. The
trial court, without appreciating these facts, found this issue in
favour of PW1 with an observation that her husband did not mount
the box to adduce evidence, and nothing was brought out in the
cross-examination of PWs 1 to 3 to arrive at a conclusion that they
are telling a false story. When there are rival pleadings pertaining
to the quantity of gold ornaments possessed by PW1 at the time
of marriage, it was the duty of PW1 to prove her claim that she
had 35 sovereigns of gold ornaments by adducing sufficient
evidence, and the same has not done in the present case.
Therefore, we are of the opinion that the evidence adduced before
the trial court is insufficient to make out at least a probable case
that PW1 was having 35 sovereigns of gold ornaments at the time
of her marriage.
19. While coming to the entrustment of the gold ornaments
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pleaded by the respondent and stated in the evidence of PWs 1 to
3, the decision on that issue depends upon the proof pertaining to
the possession of 35 sovereigns of gold ornaments as discussed
above. Since the respondent failed to prove possession of 35
sovereigns of gold ornaments at the time of marriage, the
entrustment claimed by her to the 1st appellant also cannot be
accepted. Apart from the above, there are contradictions
pertaining to this entrustment in the depositions of PWs 1 to 3.
During the initial part of her cross-examination, PW1 stated that
she handed over 35 sovereigns of gold ornaments to the 1st
appellant, from her house, immediately on the next day of
marriage and out of those ornaments, some ornaments were
returned to her by the 1st appellant for daily use. However, in the
later part of her cross-examination, she stated that the 1st
appellant obtained the gold ornaments from her before leaving to
Bombay, stating that it is not safe to wear the gold ornaments
while travelling in a train to Bombay. It is also stated by PW1 in
her cross-examination that, after returning to Bombay, the
appellants misused the gold ornaments. To a question put to her,
she again stated that the gold ornaments were taken by the 1st
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appellant from the house of her uncle. In his evidence, PW2, the
father of PW1, stated that PW1 entrusted the gold ornaments to
the 1st appellant on the next day of marriage. In his cross-
examination, PW2 further stated that the gold ornaments were
entrusted to the 1st appellant by PW2 and not by PW1. PW3, the
uncle of PW1, stated that he witnessed the entrustment of the
gold ornaments to the appellants on the next day of marriage from
the house of PW2. According to this witness, except the nuptial
chain, all other gold ornaments were entrusted to the 1st
appellant, and he witnessed the 1st appellant placing the same in
a suitcase and locking the same. The evidence of PW3, if analysed,
would show that he is more loyal than the king. In short, the
evidence adduced from the side of the respondent by way of the
oral evidence of PWs 1 to 3 and the documentary evidence by way
of Exts.A1 to A4 is insufficient to hold that PW1 had 35 sovereigns
of gold ornaments at the time of marriage, and they were
entrusted to the 1st appellant as a trustee.
20. While coming to the contention of the respondent
regarding the non-examination of the 1st appellant, it is to be
noted that the appellants have filed a joint written statement
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before the trial court, and it is for and on behalf of the 1st appellant
as well, the 2nd appellant gave oral evidence as RW1. In such
circumstances, the non-mounting of the 1st appellant in the
witness box is insufficient to draw an adverse inference against
him.
21. From the side of the appellants Ext.B1 copy of the
judgment in C.C.No.1361 of 2008 on the file of the Judicial First
Class Magistrate, Irinjalakkuda, was tendered in evidence. During
the course of arguments, the learned counsel for the appellants
would point out that in that judgment, the allegations raised
against the appellants were found as unproved and hence the
appellants were acquitted of the offence under Section 498A of
IPC alleged against them. But from the evidence on record, we
notice that no questions were put to PWs 1 to 3 regarding their
deposition in that criminal case, except the marking of Ext.B1 from
the side of the appellants. Moreover, from the contents of Ext.B1
judgment, the same cannot be said as relevant in the instant case,
as provided under Section 43 of the Indian Evidence Act.
22. The upshot of the above discussion is that the
respondent-petitioner in O.P.No.883 of 2015 has failed to prove
2026:KER:10536
her case that she had 35 sovereigns of gold ornaments at the time
of marriage and entrusted the same to the 1st appellant as a
trustee, and he misused those gold ornaments. The trial court
failed to appreciate the evidence on record in a proper perspective,
which resulted in a wrong finding. Therefore, the impugned
judgment of the trial court is liable to be set aside. The points are
found accordingly.
In the result, this Mat. Appeal No.920 of 2018 is allowed by
setting aside the impugned judgment dated 26.04.2018 in
O.P.No.883 of 2015 on the file of the Family Court, Irinjalakkuda,
and the original petition stands dismissed. Consequently, the
C.O.No.123 of 2025 filed by the respondent-petitioner in
O.P.No.883 of 2015 stands dismissed. Considering the nature of
the dispute, the parties are directed to bear their respective costs.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
