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Ajimol P.R vs Anju Satheesh on 5 November, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941

Mat.Appeal.No.747 OF 2013

AGAINST THE JUDGMENT AND DECREE IN OP NO.1518/2011 OF FAMILY
COURT, KOTTAYAM

APPELLANT/ PETITIONER:

AJIMOL P.R.,
W/O.ANJU SANTHEESH, AGED 33, D/O.RAJU, PAPANAMCHIRA
(KARITHADATHIL) HOUSE, ATHIRAMPUZHA P O, PEROOR
VILLAGE, KOTTAYAM-686562

BY ADV. SRI.MATHEW PHILIP EDAPPALLIL

RESPONDENTS/ RESPONDENTS:

1 ANJU SATHEESH,
AGED ABOUT 36, S/O.P P SATHEESHAN, PAPALAYIL HOUSE,
KARAPUZHA P O, VELOOR VILLAGE, KOTTAYAM, PIN-686003

2 P.P. SATHEESAN,
AGED ABOUT 65, RETIRED POLICE HEAD CONSTABLE,
S/O.POOVAN, PAPALAYIL HOUSE, KARAPUZHA P O, VELOOR
VILLAGE, KOTTAYAM, PIN-686003

3 BEENA SATHEESHAN,
AGED ABOUT 56, W/O.P.P.SATHEESHAN, PAPALAYIL HOUSE,
KARAPUZHA P O, VELOOR VILLAGE, KOTTAYAM, PIN-686003

4 AJI SATHEESH,
AGED 33,S/O.P.P.SATHEESHAN, PAPALAYIL HOUSE,
KARAPUZHA P O, VELOOR VILLAGE, KOTTAYAM, PIN-686003

R1 BY ADV. ADV.K.A .HASSAN ADV.JULIA PRIYA RESHMY FOR
CAVEATORS
R1-2 BY ADV. SMT.JULIA PRIYA RESHMY
R1-4 BY ADV. ADV.K.A .HASSAN ,ADV.JULIA PRIYA RESHMY
FOR CAVEATORS

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
30.10.2019, THE COURT ON 05.11.2019 DELIVERED THE FOLLOWING:
M.A. No.747/2013

-:2:-

Dated this the 5th day of November, 2019

J U D G M E N T

T.V.ANILKUMAR J.

Petitioner, the wife in O.P. No. 1518 of 2011

before the Family Court, Kottayam, challenges the

impugned order dated 12.07.2013 by which it

dismissed her original petition in part. The
respondents in the original petition are husband,

his parents and brother. She claimed in the

original petition return of her gold ornaments,

parental share, the household utensils and in the

alternative the value thereof and also return of

her degree certificates with alternate relief for

compensation. The court below by the impugned order

allowed the petitioner to recover Rs.50,000/- from

the respondents towards parental share in lieu of

Rs.5,00,000/- claimed and another amount of

Rs.50,000/- towards compensation for causing loss

to her degree certificates.

2. O.P.No.1518 of 2011 was tried along with

O.P.No.1284 of 2011 filed by the 1 st respondent,

husband for dissolution of their marriage, taking

up the latter petition as the main case. Short
M.A. No.747/2013

-:3:-

facts in the pleadings presented by the parties

before the court below are narrated below:

3. Appellant was married to the 1st respondent

on 13.11.2005. Parties are members of Cheramar

community. Appellant is a graduate in B.Sc. and

B.Ed. Her case is that on 23.10.2005, when the

engagement was conducted, her father entrusted an
amount of Rs.5,00,000/- with the respondents 1 to 3

as her parental share on an understanding that the

amount would be kept in trust for her. At the

marriage, she was adorned with 19½ sovereigns of

gold ornaments. In addition to this, household

utensils worth Rs.63,550/- were also presented to

her soon after the marriage. But without her

consent, the parental share given for her benefit

was utilised by the respondents 1 to 3 for

renovating their building. On 02.03.2009, when she

returned from school where she was working as

Teacher, she was brutally manhandled by respondents

1 to 3 compelling her to part with her gold

ornaments to the 3rd respondent, the mother-in-law

for pledge. She resisted the demand but finally

her husband forcibly took a three sovereign bangle
M.A. No.747/2013

-:4:-

and gave to his mother. The 3rd respondent soon

thereafter snatched away a thali chain also which

she was wearing. These ornaments were not returned

by the respondents.

4. When the 1st respondent caught ill, he went

along with the appellant to her parental house on

20.11.2010 and stayed there till 04.12.2010 under
medical advice of a doctor who treated him. When

he left for her house, he locked the almirah in

which the gold ornaments and her other belongings

were kept and entrusted the key with co-

respondents. After a short stay, he left her on

04.12.2010, promising to take her shortly back to

the matrimonial house, but it did not materliase.

He telephoned on 15.09.2011 asking her to reach the

matrimonial house on 24.09.2011 and on the day when

she arrived, she was brutally manhandled for which

a crime was registered by West Police Station,

Kottayam, under Section 498A of the Indian Penal

Code.

5. The gold ornaments scheduled as item No.1

in the original petition and weighing 21½

sovereigns and her valuable certificates were
M.A. No.747/2013

-:5:-

stated to be in the almirah. The dresses belonging

to her as well as the household utensils presented

to her by the parents are other assets which were

said to be in possession of the respondents.

Therefore, she wanted all these items of assets to

be recovered from respondents or in the alternative

their equivalent value as claimed in the original
petition. She also wanted the respondents to be

directed to return an amount of Rs.5,00,000/-

received as her parental share.

6. The respondents filed joint objection

denying all the allegations raised against them and

contended that the gold and cash amount as claimed

by the appellant were not entrusted with them. It

was stated that at the time of the engagement on

23.10.2005, only an amount of Rs.50,000/- was

entrusted and it was later returned also to the

father of the appellant when he was in urgent need

of money. It was denied that the appellant was

adorned with 19½ sovereigns of gold ornaments at

the time of marriage. It was contended that only a

few household utensils were brought to the house of

the respondents and they were still available in
M.A. No.747/2013

-:6:-

their house. There was no occasion for renovating

the house of the respondents with the alleged money

entrusted with them. There was no incident on

02.03.2009 as alleged by the appellant and no gold

ornaments of the appellant were taken by the

respondents on the day. In fact, the appellant

deserted the husband in month of January,2009 and
later did not return to the matrimonial house at

all. On 24.09.2011, it is stated that, when she

trespassed into the house, police were called and

she was removed from the house with police aid. The

degree certificates or other valuables belonging to

the appellant were never taken by the respondents

and they were not available in the house also.

Same denial was made with respect to dress

materials also, which she alleged having been kept

in the house. On the whole, the respondents sought

all the reliefs claimed in the original petition to

be turned down.

7. The court below on the side of the appellant

examined PWs.1 to 7 and marked Exts. A1 to A3 and

RWs.1 to 6 on the side of the respondents and

admitted Exts.B1 to B18 in evidence on their side.
M.A. No.747/2013

-:7:-

Commission report submitted by the RW.2, Advocate

Commissioner was admitted in evidence as Ext.C1 and

C1(a).

8. The court below after the considering the

entire evidence and circumstances on record came to

a conclusion that the appellant was not entitled to

any order for return of gold ornaments, since she
failed to prove that her ornaments were ever

entrusted with the respondents. Rejecting her

claim that she possessed 19½ sovereigns and also a

few more sovereigns gifted by her parents, the

court below held that the evidence on record did

not satisfy that she had more than 10 sovereigns of

gold ornaments, as borne out from the marriage

register itself. As regards entrustment of

Rs.5,00,000/- towards parental share, it was held

that appellant’s claim was not convincing and

Rs.50,000/- admitted by the respondents as received

from her father was later returned to him, when he

was in need of money. An Advocate commissioner, who

was deputed to visit the matrimonial house and

prepare inventory of household articles belonging

to the appellant and also her dresses scheduled in
M.A. No.747/2013

-:8:-

the original petition, after visit of the house on

14.12.2011, reported in Ext.C1 that her utensils,

the dresses and clothes taken from the house were

handed over to the appellant on proper

acknowledgement of receipt obtained from her.

Finding that the appellant was satisfied with what

was received under Ext.C1(a) list prepared by RW2,
the court below did consequently not proceed to

grant any reliefs in that respect. We also find

that her claims stand satisfied in so far as they

were made for recovery of household articles and

her costumes. Even otherwise also, there is no

evidence to prove that she had any other items of

dresses and household articles kept in the

matrimonial home other than those ascertained and

reported by the Commissioner in Exts.C1 and C1(a).

9. As regards her claim for issue direction to

the respondents to return the degree certificates,

the court below found that she was entitled to

compensation of Rs.50,000/-, since she was deprived

of job opportunities on account of loss caused to

the original degree certificates. This part of the

order granting compensation to appellant is not
M.A. No.747/2013

-:9:-

under challenge at the instance of the respondents.

That order has become final and conclusive and is

binding on the respondents.

10. The only two questions that hereafter

survive to be considered in this appeal is,

whether (1) the appellant’s claim for return of

petition scheduled 21½ sovereigns of gold
ornaments as item No. 1 and (2) the claim for

return of parental share of Rs.5,00,000/- alleged

to have been entrusted with the respondents are

true and genuine.

11. The court below was not prepared to

accept the case of the appellant that the

respondents ever appropriated her gold ornaments

since, according to it, she failed to prove by any

convincing evidence that ornaments were entrusted

with the respondents. The total weight of gold

ornaments as scheduled in item No.1 in the

original petition amounts to 21.5 sovereigns and

the value thereof claimed in the alternative is

Rs.4,67,400/-. In any view of the matter, the

whole claim for gold as such appears to be not

tenable on the very face of it. She testified as
M.A. No.747/2013

-:10:-

RW.1 that she was adorned with 19½ sovereigns of

gold ornaments at the time of marriage and after

marriage, her parents gave a few more ornaments as

their gift to their daughter. Even assuming that

she had aggregate 21½ sovereigns of gold ornaments

also, going by her own averments in the original

petition, her claim for ornaments scheduled as
Item No.1 in the original petition cannot be held

to be genuine and sustainable. In paragraph No.5

of the original petition she narrated an incident

that occurred as on 02.03.2009, in which

respondents 1 to 3 were alleged to have mentally

and physically harassed her demanding gold for

pledge and the 1st respondent/her husband took away

a bangle of three sovereigns from the almirah,

where she was keeping her ornaments, under his

mother/the 3rd respondent’s insistence. There is

further averment that as part of the incident, the

3rd respondent snatched away a thali chain also

which she was wearing. And in paragraph No.6 of

the original petition, she further alleged that on

20.11.2005 while she along with 1st respondent was

leaving for her parental home for a short stay in
M.A. No.747/2013

-:11:-

connection with a treatment for his illness under

advice of a Doctor attached to Matha Hospital, she

was wearing two bangles, earrings, one ring and a

thali, after keeping the remaining ornaments

locked in the almirah. There is no statement

anywhere in the pleadings or her evidence as to

the exact weight of the ornaments which she had
been wearing besides a bangle of three sovereigns

and a thali chain alleged to have been taken by

the 3rd respondent. By all means, therefore, if at

all she had kept any ornaments in the almirah,

they could only fall far short of 21.5 sovereigns

claimed as item No.1 scheduled in the Original

Petition.

12. There is serious dispute between parties

as to the actual weight of gold ornaments which

the appellant was wearing at the time of marriage.

She claimed to have been adorned with 19 ½

sovereigns where as the respondents claimed that

she had only 10 sovereigns which she always

possessed with her. Ext.A1 copy of marriage

register kept in the office of Akhila Kerala

Chermar Hindu Mahasaba, Changanachery and Ext.B1
M.A. No.747/2013

-:12:-

kept with Kerala Hindu Cheramar Association were

produced before the court below. The office

bearers of both the unions were examined as

witnesses in court. The registers were signed by

the spouses as well as their parents. It is

entered in these registers that the bride was

given 19.5 sovereigns of gold ornaments. But on a
closer look at the relevant entry in the

registers, correction made in the weight of

ornaments could be noticed. This correction was

brought out through witnesses who sought to prove

the documents.

13. According to the appellant, the true weight

was 19.5 sovereigns whereas according to the

respondents, the original entry showed only 10

sovereigns. The respondents sought to contend and

also to prove that a general practice continues to

exist among Cheramar Hindus to the effect that

cash amount given to the bridegroom is converted

into equivalent value of gold and added to the

actual sovereigns of gold ornaments and

consequently what the marriage Registers

ordinarily reflect is not the actual weight of the
M.A. No.747/2013

-:13:-

ornaments. This practice seems to be followed by

the community as is evident from the testimonies

of the office bearers of the caste associations

examined before the court. Anyhow, the court below

after appreciating the whole evidence came to a

definite finding that the bride had been adorned

only with 10 sovereigns of gold ornaments. Be
that as it may, the core question that emerges in

the case on hand is with respect to the

entrustment of the ornaments. According to the

court below, there was nothing to prove that the

ornaments belonging to the appellant were

entrusted with the respondents.

14. Going by the case of the appellant, as

is evident from the allegations made in the

Original Petition, one would find it hard to come

across any specific allegation that till

04.12.2010, there was ever any entrustment of

ornaments with the respondents. The mention of

an incident alleged to have taken place on 2.3.09

in which she alleges to have been manhandled,

itself would imply that the ornaments were in her

sole custody kept under her lock and key.
M.A. No.747/2013

-:14:-

Otherwise, there appears no point in her alleging

that she was manhandled by the respondents

compelling her to part with all ornaments of her

to the 3rd respondent mother-in-law for pledging.

She averred in the original petition that her

husband took a bangle weighing three sovereigns

without her consent from her almirah and gave it
to his mother. This impliedly brings out a self

assertive statement that she alone held custody

of her ornaments. There is serious doubt as to

whether the incident of harassment alleged itself

was true or not. The 1st respondent has denied

this incident in his oral evidence as PW1.

Whatever that may be, there has been no definite

allegation to the effect that she ever entrusted

ornaments with the respondents.

15. Of course, she set up a case that on

04.12.2010, when she and her husband left for her

parental home, her ornaments were locked in the

almirah by her husband and the key was then

handed over to the other respondents. It is not

specifically mentioned to which of the

respondents, the key was handed over by the
M.A. No.747/2013

-:15:-

husband. This allegation has been denied by the

respondents and according to them, after she left

the house in the month of January, 2009, she had

never been back to the matrimonial home. In

Ext.C1 report the Advocate Commissioner stated

that he opened the almirah with the key given by

the respondents and after the almirah was opened
and the articles available taken out, key was

handed over to the appellant. This may be a

circumstance to indicate that the respondents

might have been holding custody of almirah and

all whatever contained therein.

16. But the larger question is still whether

the respondent have kept any gold ornaments

claimed to be belonging to her when she alleges

that her husband locked almirah and handed over

the key to other respondents on 4.12.2010.

According to the court below, there is serious

doubt as to the reliability of her verbal

assertion that she had left for parental house

along with the 1st respondent after keeping the

ornaments in the almirah on 21.12.2010,

especially when she was allegedly a victim of
M.A. No.747/2013

-:16:-

manhandling at the hands of the respondents on a

previous occasion. It is difficult to believe

the version of the appellant that she would ever

have left the ornaments in the almirah and

allowed her husband to keep them under his lock

and key, especially when, according to her, he

was very cordial enough in accompanying her to
the parental house for treatment under the

medical advice of the doctor. It is insensible to

assume that a husband in such an amicable

atmosphere would ever have taken the risk to

leave the ornaments in his house and entrust the

key with the co-respondents, especially when his

wife had no faith in her in-laws residing in the

matrimonial home.

17. The court below after appreciating the

evidence and circumstances of the case, in our

view, rightly found that appellant failed to

prove by reliable evidence that the ornaments

were entrusted with any of the respondents and

further the case set up by her was improbable

also. The Advocate Commissioner was not able to

find out from the almirah any gold ornaments,
M.A. No.747/2013

-:17:-

except some imitation ornaments. In the absence

of convincing evidence to substantiate the

appellant’s case, we hold that there is nothing

which can justify our interference with the

finding of the court below in this respect.

18. There is no dispute between parties with

regard to the entrustment of parental share and
the core dispute centers only around the amount

of money alleged having been paid to the

respondents. According to the appellant, her

father entrusted an amount of Rs.5 lakhs with the

respondents 1 to 3 on 23.10.2005 in connection

with the engagement conducted at the house of the

respondents. On the other other hand, according

to the respondents only an amount of Rs.50,000/-

was paid by her father and received by them. The

only two witnesses examined on the side of the

appellant to prove entrustment of cash are her

father who is RW4 and a money lender-RW6 who

helped him by advancing a loan amount of Rs.3

lakhs. Appellant being a bride, did not

participate in the engagement ceremony and is not

a direct witness to the payment of amount. Even
M.A. No.747/2013

-:18:-

then she said that she had seen her father taking

cash amount of Rs.5 lakhs in a school bag for

proceeding to the house of the respondents on the

date of engagement ceremony. RWs.4 and 6 spoke in

uniform voice that Rs.5 lakhs were entrusted with

respondents 1 to 3 on 23.10.2005 in a ceremony

arranged in their rented house.

19. In order to prove the source from where

the money was raised, appellant examined RW5 also

who is an advocate of Kottayam Bar under whom her

father had been working as an advocate clerk.

Besides these testimonies on record, RW4 produced

Ext.B2 loan token issued from Service Co-

operative Bank, Ettumanoor, which shows that his

wife had raised a loan of Rs.50,000/- on

22.1.2005 in connection with the marriage of

appellant after encumbering 5 cents of land in

her name. This appears to be true and there is no

reason to disbelieve RW4’s evidence in this

respect at all. RW4 produced Ext.B4 cash cheque

dated 21.10.2005 to prove that he had received

donation of Rs.10,000/- drawn on ICICI Bank,

Kottayam Branch, from a senior lawyer at Kottayam
M.A. No.747/2013

-:19:-

Bar by name Mr.C.N.Balakrishnan Nair in

connection with the engagement ceremony of his

daughter. But there is no reliable and

independent evidence other than RW4 himself to

show that the cheque was issued to RW4 since copy

of Ext.B4 shows that it was only a cash cheque.

20. The appellant produced Ext.B5 sale deed
by which her father sold 4½ cents in her name.

RW4 said that property was sold for an amount of

Rs.6,60,000/- and prior to the said sale, he had

received from the Vendee an advance amount of

Rs.1 lakh on 19.9.2005 for the purposes in

connection engagement ceremony. But there is

nothing to show that there existed any oral or

other agreement as on 19.9.2005 since there is

neither any reference about the agreement in

Ext.B5 sale deed nor evidence of Vendee or any

witness proving that any advance amount was paid

before the execution of sale deed, was brought on

record.

21. RW6 who is cited as a direct witness to

payment of cash to the respondents said that he

too helped RW4 by lending an amount of Rs.3 lakhs
M.A. No.747/2013

-:20:-

after taking Ext.B3 promisory note in his name as

on 21.10.2005. The promisory note contains an

endorsement that the amount was repaid and the

transaction was closed as on Ext.B5 date itself.

But it is quite possible that a document like

Ext.B3 could be easily brought into existence at

any time to project a past loan transaction by
way of collusion between a purported debtor and

creditor. RW5 is an advocate of Kottayam Bar who

came and said that on 21.10.2005, he helped PW4

by advancing a loan amount of Rs.1½ lakhs towards

conduct of marriage of his daughter. According to

the respondents, the evidence let in by the

appellant to prove the above sources of funds is

quite artificial and therefore not reliable.

22. The respondents on the other hand,

examined PW2 a marriage broker and PW7 the

paternal uncle of the 1st respondent as direct

witnesses to prove that parental share entrusted

was only Rs.50,000/-. PW1, the 1st respondent also

said that what was paid towards parental share

was only Rs.50,000/-. PW3, a member of Akhila

Kerala Hindu Cheramar Maha Sabha who claimed to
M.A. No.747/2013

-:21:-

be one of the participants in the ceremony, said

that he too witnessed payment of only

Rs.50,000/-. PW7 testified that he being the

paternal uncle of PW1, attended the function

where he witnessed appellant’s father entrusting

PW1 with cash amount of Rs.50,000/-. Immediately

he handed down the amount to PW7 who then passed
it over to the 2nd respondent-father.

23. On going through the rival evidence let

in by the parties as regards the source from

where the money was allegedly raised by the

appellant’s father, it appears that the evidence

on the side of the respondents is more probable

than that of the appellant. Even assuming that

there was sufficient source available with the

appellant’s father to raise the amount, it is

doubtful as to how he could have raised a large

amount of Rs.5 lakhs very urgently before the

date of the engagement ceremony. The total amount

raised by RW4 as proved by evidence of witnesses

was Rs.6,10,000/-. He himself admitted that he

had to spend an amount of Rs.2 lakhs towards

marriage expenses. If this could be true, the
M.A. No.747/2013

-:22:-

balance available with him must be far

insufficient for payment towards parental share

as claimed by him. Further, it is quite natural

that some more amount may have been required for

purchasing gold out of the total amount raised as

loan.

24. Therefore by all means, the probability is
in favour of respondents’ case that they were

given only Rs.50,000/- as parental share. The

court below also accepted their case as being

trustworthy but disbelieved their case that the

amount received was paid back to RW4 himself when

he demanded the amount for meeting his urgent

needs. Agreeing with the court below, we also

maintain the same view that there is no

convincing evidence on record to prove that

Rs.50,000/- was paid back to the father of the

appellant on any subsequent occasion. In short,

the finding in the impugned order that the

respondents are liable to return Rs.50,000/- to

appellant does not require any interference and

it is therefore confirmed.

M.A. No.747/2013

-:23:-

In the result, the impugned order of the

Family Court, Kottayam, dated 12.7.2013 is

confirmed and the appeal is dismissed without

costs.

Sd/-

A.M.SHAFFIQUE,JUDGE
Sd/-

T.V.ANILKUMAR,JUDGE
DST/ami //True copy//

P.A.To Judge

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