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
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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
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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
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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
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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
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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,
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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
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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
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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
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