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
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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
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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
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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.
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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
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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
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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).
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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