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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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