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Rajan.N.P vs Rajan.N.P on 9 July, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941

Mat.Appeal.No.711 of 2013

AGAINST THE JUDGMENT IN OP 84/2012 of FAMILY COURT,
MUVATTUPUZHA DATED 10-09-2013

APPELLANT:RESPONDENT :-

RAJAN.N.P.,
AGED 48 YEARS,
S/O.LATE PADMANABHAN NAIR,
NJAVANIKKATT HOUSE, VENDUVAZHY NORTH,
KOTHAMANGALAM.P.O., ERNAKULAM DISTRICT.

BY ADVS.
SRI.T.M.RAMAN KARTHA
SMT.O.A.NURIYA
SRI.JOSEPH RONY JOSE

RESPONDENT:PETITIONER :-

LATHA RAJAN,
AGED 42 YEARS,
D/O.NARAYANAN NAIR,
KOOTTUNGAL HOUSE, ELANGAVAM KARA,
VARAPETTY VILLAGE,
KOTHAMANGALAM TALUK. PIN-686 691.

BY ADVS.
SRI.K.N.CHANDRABABU
SRI.K.DHANESH KUMAR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
04.07.2019, THE COURT ON 09.07.2019 DELIVERED THE
FOLLOWING:
Mat.Appeal No.711/2013

..2..

JUDGMENT

N.Anil Kumar, J.

This appeal is against the judgment and decree of

the Family Court, Muvattupuzha in O.P.No.84/2012 in so

far as it allows the respondent to recover gold ornaments

weighing 17.5 or its market value from the appellant. The

parties to this appeal are the respondent and the

petitioner respectively in O.P.No.1900/2009 before the

Family Court, Ernakulam which was transferred to the

Family Court, Muvattupuzha and renumbered as

O.P.No.84/2012. Parties and proceedings are hereinafter

referred to according to their status in the court below

unless otherwise stated.

2. Facts in brief are herein below:-

Petitioner and respondent belong to Hindu Nair

Community and their marriage was solemnized on

14.6.1992 at Chottanikkara Devi Temple in accordance
Mat.Appeal No.711/2013

..3..

with the custom prevailing among the community. At the

time of marriage, petitioner was adorned with 17.5

sovereigns of gold ornaments. Besides, an amount of

Rupees one lakh was also given to the respondent. In the

wedlock, two sons were born to them. Consequent to

severe marital dispute, the petitioner and the children

were residing for some time separately with the help of

the society under the name and style ‘Thanal’. Now the

petitioner is residing with her brother. The petitioner

claims an amount of Rs.1,92,500/- as the market value of

17.5 sovereigns of gold ornaments and a sum of Rupees

one lakh from the respondent.

3. In the counter filed, the respondent contends

that at the time of marriage there was a promise to

deposit Rs.75,000/- in the name of the petitioner before

the Service Co-operative Bank, Varapetty. According to

him, 13 sovereigns of gold ornaments were purchased and
Mat.Appeal No.711/2013

..4..

the balance amount was in deposit. When the petitioner

left his house, she had taken 98 gms. of gold ornaments

and Rs.60,000/- with her.

4. The respondent filed O.P.No.85/2012 seeking

custody of the minor children under Sections 7, Section10 and Section17

of the Guardians and SectionWards Act. He also filed a counter

claim seeking return of money. O.P.Nos.84 85/2012

were jointly tried and evidence was recorded in

O.P.No.84/2012. The evidence consisted of the oral

testimony of PW1 and Exts.A1 to A4 on the petitioner’s

side and RWs.1 to 7, Exts.B1 to B6 on the respondent’s

side. Ext.X1 was marked as Court Exhibit.

5. Admittedly, the petitioner is the legally wedded

wife of the respondent and the parties have been residing

separately since 1.12.2004. The petitioner as PW1

adduced evidence to show that at the time of marriage

she had 17.5 sovereigns of gold ornaments and a sum of
Mat.Appeal No.711/2013

..5..

Rupees one lakh was provided to the respondent as a

trustee. On the other hand, the respondent contends that

at the time of marriage she had only 13 sovereigns and no

amount was entrusted with him. Though the details of

the gold ornaments are not separately scheduled, in para

2 of the petition the details of the ornaments has been

separately stated. The respondent has raised a contention

that at the time of marriage, they had promised to deposit

Rs.75,000/- and by using this amount, 13 sovereigns

were purchased. According to PW1, there is no bill to

prove the purchase of gold ornaments. Ext.B1 series are

the photographs taken at the time of marriage. According

to PW1, the engagement was in May, 1992 and the gold

ornaments were given at her house. She has deposed that

there was a demand for 15 sovereigns and Rupees one

lakh out of which an amount Rs.50,000/- was given at the

time of engagement and the balance amount was given
Mat.Appeal No.711/2013

..6..

two days before the marriage. Considering the evidence

on record including Ext.B1 series, the lower court is of the

view that the petitioner had given 17.5 sovereigns of gold

ornaments to the respondent as a trustee. The court

below further negatived the claim of Rupees one lakh for

want of evidence. So far as regarding the claim of return

of money, the finding has become final and the appeal is

confined to return of gold ornaments only. On going

through the evidence tendered by RWs.1 to 7, it has no

nexus or connection with the alleged entrustment of

money. The respondent has raised a counter claim for an

amount of Rs.6,92,500/- which was disallowed by the

court below. The court below also dismissed the original

petition filed by the respondent seeking custody of the

minor children. On going through the evidence of RWs.1

to 7 it appears that the evidence is mainly pertaining to

the conduct of the petitioner. According to the respondent,
Mat.Appeal No.711/2013

..7..

as per Ext.B4 order in M.C.No.46/2005 maintenance was

denied to the petitioner on the ground that she is residing

separately without any valid reason. The respondent

denied paternity of the children. Hence the petitioner filed

I.A.No.167/2012 with a prayer to conduct DNA test to

ascertain whether the respondent is the biological father

of the two children. The said application was allowed by

the court below and Ext.X1 is the report from Rajiv

Gandhi Centre for Bio-Technology. As per Ext.X1 both the

children were born to the petitioner and the respondent.

6. On going through the oral evidence of RW1 to

RW7, we are satisfied that the evidence let in by the

respondent has no connection with the return of gold

ornaments sought for. The evidence tendered by RWs.3

and 5 that an amount of Rs.75,000/- was deposited by

the respondent and that the petitioner purchased the

ornaments out of the said amount lacks bonafides. Over
Mat.Appeal No.711/2013

..8..

and above, the respondent has failed in adducing evidence

to show that PW1 had taken 13 sovereigns of gold

ornaments when she left the place. In fact, RW1 has filed

a counter claim which was disallowed by the court below.

The fact that the respondent has not so far filed a petition

seeking divorce against the petitioner is an added

circumstance to hold that the contention advanced by the

respondent is only a pretext to avoid return of gold

ornaments to the petitioner.

7. In our view, the court below has meticulously

considered the pleadings and the evidence in the case and

has come to a conclusion that the respondent is obliged to

return the gold ornaments weighing 17.5 sovereigns

which allegedly were entrusted with the respondent at the

time of marriage. The court below, on appreciation of the

facts and circumstances of the case, allowed to recover

gold ornaments weighing 17.5 sovereigns or its market
Mat.Appeal No.711/2013

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value as on the date of passing the decree with 6%

interest from the date of original petition till the date of

realisation from the appellant.

8. It is well settled that in the appeal challenging

to set aside the judgment of the Family Court, the High

Court does not, in the absence of perversity upset factual

findings arrived at by the trial court. It is not for the

appellate court to re-analyse and reinterpret the evidence

on record in a case where the trial court has come to a

probable conclusion. On going through the impugned

judgment and other facts and circumstances of the case,

we are of the view that the findings arrived at by the trial

court are probable. Hence no interference is warranted.

In the result, the appeal is dismissed.

Sd/-

A.M.SHAFFIQUE, JUDGE

Sd/-

N.ANIL KUMAR, JUDGE
skj

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