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Shyju vs Shyju on 18 February, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

MONDAY ,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940

Mat.Appeal.No. 725 of 2011

AGAINST THE ORDER IN OP 177/2009 of FAMILY COURT, THODUPUZHA
DATED 23-07-2011

APPELLANTS/RESPONDENTS 1 AND 3:

1 SHYJU,
S/O SREEDHARAN, AGED 35, RESIDING AT PARACKAL
HOUSE, ELLUMPURAM KARA, MUTTOM VILLAGE,
THODUPPUZHA TALUK.

2 LEELA P.K.
W/O SREEDHARAN, AGED 59, RESIDING AT PARACKAL
HOUSE, ELLUMPURAM KARA, MUTTOM VILLAGE,
THODUPUZHA TALUK.

BY ADVS.
SRI.K.C.CHARLES
SRI.M.POLY MATHAI
SRI.VIMAL K.CHARLES

RESPONDENTS/PETITIONER/2ND RESPONDENT:
1 NISHA, W/O SHAIJU, AGED 32,
RESIDING AT THANNICKAL HOUSE,, KARIPPILANGADU
KARA, ARAKKULAM VILLAGE, THODUPUZHA, TALUK-
683773.
Mat.Appeal No.725/11

-:2:-

2 SREEDHARAN AGED 62 YEARS
RESIDING AT MADATHIKKUNNEL HOUSE,
C/O CHUVAPPUNKAL BUILDING NEAR PANCHAYATH
OFFICE,MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA
TALUK-683773.

BY ADVS.
SMT.R.PRIYA
SRI.M.B.SANDEEP

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
15.01.2019, THE COURT ON 18.02.2019 DELIVERED THE FOLLOWING:
Mat.Appeal No.725/11

-:3:-

JUDGMENT

Shaffique, J.

This appeal is filed by respondents 1 and 3 in OP

No.177/2009 of the Family Court, Thodupuzha. The facts of the

case are as under and the parties are described as shown in the

OP.

2. The petitioner is the wife. She married the 1 st

respondent on 10/2/2002 as per Hindu religious rites and

ceremonies. At the time of marriage, according to her, she had 76

grams of gold ornaments. She also received one pair of ear rings

weighing 8 grams and two rings each weighing 4 gram as

wedding gift from her relatives. The 1st respondent was given a

gold chain weighing 16 grams. She alleges that after 4 months of

the marriage, the 3rd respondent has taken all her gold ornaments

and kept it in her custody. Six months after the marriage, the 1 st

respondent started behaving differently demanding dowry

directly and indirectly. A child was born in the wedlock on

15/1/2003. The child was given gold chain weighing 12 grams, 2

bangles each weighing 4 grams and one pair of anklet weighing
Mat.Appeal No.725/11

-:4:-

12 grams by the petitioner’s parents. After the birth of the child,

they again demanded dowry of `3 lakhs. When the demand

became intolerable, petitioner’s father transferred 50 cents of

land to her on 9/3/2004. Again there was a demand to transfer 11

cents of property and accordingly, on 14/10/2004, petitioner’s

father transferred 11 cents of property and a building in her

name. Even thereafter, she was being harassed. She had to

prefer a compliant to the police u/s 498A of I.P.C. The first

respondent also filed OP No.218/2006 before this Court and

during counselling, it was decided to reside together. On account

of the settlement, they did not prosecute the criminal complaint

u/s 498A of I.P.C. and the respondents were acquitted in the said

case. Thereafter, she alleged that the attitude of the first

respondent again changed and he started demanding more

money. Petitioner’s father paid `50,000/- on 30/3/2007 to the first

respondent, which again was appropriated by him. It is alleged

that, first respondent deserted the petitioner and her daughter on

1/12/2007. She therefore filed the above petition seeking return

of 17½ sovereigns of gold ornaments and `50,000/-.

3. Respondents in their counter denied the allegations.
Mat.Appeal No.725/11

-:5:-

According to the respondents, parents of the petitioner had

stated that they were not in a position to give any gold or money.

They were only conducting a small tea shop and they agreed to

give her 50 cents of property in future as the family share. The

financial background of the petitioner was very poor when

compared to that of the respondent. He also denied the

allegation that she was provided with gold chain weighing 16

grams and that the 3rd respondent had taken all the gold

ornaments. He also denied demand for dowry or receipt of

`50,000/- or ill-treatment on the petitioner.

4. The 2nd respondent filed a separate written statement

again denying the allegations. Petitioner was examined and PW1

and a witness was examined as PW2. The 3 rd respondent was

examined as RW1 and the 1st respondent was examined as RW2.

Exts.A1 to A2 and Exts.B1 to B4 were the documents that were

relied upon.

5. The Court below after analysing the evidence directed

the 3rd respondent to return 15½ sovereigns of gold ornaments or

its equivalent value of `2,66,600/- and the 1st respondent is

directed to return gold chain weighing 2 sovereigns to the
Mat.Appeal No.725/11

-:6:-

petitioner or its equivalent value of `34,400/- and respondents 1

and 3 were directed to pay `50,000/- with interest at 6% per

annum. It is aggrieved by the aforesaid order that the appeal has

been filed.

6. Court below believed the version of PW1 supported by

her father’s evidence, who was examined as PW2. On facts, the

contention urged by the respondents was that the entire

ornaments for the marriage were given by the first respondent.

The Family Court took note of the fact that there is no such

pleading in the counter filed by respondents 1 and 3 and a new

case had been developed stating that 3rd respondent had

purchased the gold ornaments and handed it over to the

petitioner. RW2 in his evidence also stated that the petitioner was

not having any gold ornaments. When contradictory contentions

had been stated in the box by RW1 and RW2 regarding the

purchase of gold ornaments which had been clearly taken note of

by the Family Court, there is justification on the part of the Family

Court to have rejected the testimony of RW1 and RW2. It was

found that the contention of RW1 and RW2 that they had

purchased gold ornaments to the petitioner and handed over
Mat.Appeal No.725/11

-:7:-

before the marriage was wrong and cannot be inferred. Family

Court therefore felt that the version of the petitioner wife is

believable and accordingly granted a decree.

7. The only infirmity which we notice from the decree is

that even according to the petitioner/wife, the parents have given

her 76 grams of gold ornaments. She received as gift another 16

grams which makes it 92 grams. The Family Court had granted a

decree for return of 15½ sovereigns of gold ornaments along with

another gold chain weighing 2 sovereigns, which was given to the

1st respondent. The Family Court took into account the 12 gram

gold chain, two bangles each weighing 4 grams and an anklet

weighing 12 grams given to the child. The property given to the

child as gift by the parents cannot be claimed by the petitioner

and therefore decree against the 3rd respondent for return of gold

ornaments has to be confined to 9½ sovereigns instead of 15½

sovereigns. There is no dispute regarding the decree for return of

2 sovereigns of gold by the 1st respondent.

8. In Ext.A1 marriage register of SNDP Sakha duly signed

by the parties, the gold ornaments have been stated as 76 grams

(9½ sovereigns).

Mat.Appeal No.725/11

-:8:-

9. The Family Court had believed the version of the

petitioner supported by her father’s evidence that `50,000/- was

paid as parental share taking into account the fact that their

version is more believable. We do not find it necessary to

interfere with the said order.

In the result, this appeal is allowed in part modifying the

decree as under:-

(i) The 3rd respondent shall return to the petitioner 9½

sovereigns of gold ornaments or its value as fixed by the Family

Court instead of 15½ sovereigns of gold ornaments.

(ii) In all other respects, the decree shall stand confirmed.

(iii) No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

Rp JUDGE

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