IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 MFA.No. 422 of 2001(B) ---------------------- OP.615/1996 of FAMILY COURT,THRISSUR .................... APPELLANT(S)/1ST RESPONDENT: -------------- SUREYAKUMAR, AGED 39, S/O. THANDAYAMPARAMBIL RAGHAVAN, PERUMBADAPPU DESOM, CHANDRAPPINNI VILLAGE, KODUNGALLUR TALUK. BY ADVS. SRI.V.CHITAMBARESH(SR. COUNSEL) SMT.V.RENJU SRI.T.C.SURESH MENON SRI.KRISHNA PRASAD. S SRI.SHAMIER MARICKAR SMT.M.R.VALSA VAKKOM N. VIJAYAN RESPONDENT(S)/PETITIONER & RESPONDENTS 2 TO 4: --------------- 1. SINDHU, AGED 28, DAUGHTER OF KOSSERY PADMANABHAN, KADAVIL LANE, CHEMBUKKAVU VILLAGE, THRISSUR TALUK. 2.DEVAYANI, AGED 72, W/O. THANDAYAMPARAMBIL RAGHAVAN, PERUMBADAPPU DESOM, CHANDRAPPINNI VILLAGE, KODUNGALLUR TALUK (DELETED) 3.LETHA, D/O. THANDAYAMPARAMBIL RAGHAVAN, PERUMBADAPPU DESOM, CHANDRAPPINNI VILLAGE, KODUNGALLUR TALUK AND WIFE OF V.V. SUDHAKARAN, VALATHU HOUSE, P.O. KANATTUKARA, THRISSUR. 4.T.R. MOHAN RAJ, S/O.THANDAYAMPARAMBIL RAGHAVAN, AMRUTHENDU, CHERUMOOK, TEMPLE ROAD, CHEMBUKKAVU, THRISSUR ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 THE NAME OF THE SECOND RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 22.7.2005 IN I.A. NO.2040/05 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/01/2009 ALONG WITH MFA NO. 701 OF 2001, THE COURT ON 19.2.2009 DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 3737 OF 2001 IN M.F.A. NO. 422 OF 2001. DISMISSED 19.2.2009 Sd/- (P.R. RAMAN, JUDGE) Sd/-(C.T. RAVIKUMAR, JUDGE) P.R. RAMAN & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.F.A. NOS. 422 & 701 OF 2001 --------------------------------------------------------- Dated this the 19th day of February, 2009 JUDGMENT Ravikumar, J. The Family Court, Thrissur jointly considered and passed orders in O.P. Nos. 615 of 1996 and 616 of 1996 as per common judgment dated 30.12.2000. The wife was the petitioner in both the said petitions and as per the judgment in O.P.No.616 of 1996, her marriage with the respondent was dissolved by a decree of divorce. O.P. No.615 of 1996 was a petition for recovery of gold ornaments or the value thereof and also for realisation of Rs.2,00,000/- By the impugned judgment, O.P. No.615 of 1996 was decreed against the husband and his sister, the first and third respondents respectively in the said Original Petition. M.F.A. No.422 of 2001 is filed by the first respondent - husband and M.F.A. No.701 of 2001 is filed by his sister, the third respondent. The parties to the appeals are hereinafter referred to in accordance with their status in M.F.A. No.422 of 2001. Hence, the appellant in M.F.A. No.701 of 2001 is referred to hereinafter as the third respondent in this judgment. 2. The first respondent - wife filed O.P. No.615 of 1996 against the M.F.A. NOS.422& 701/2001 2 appellant for return of 80 sovereigns of gold ornaments described in the A schedule or its corresponding value of Rs.2,80,000/- with 18% interest thereon. She also prayed for a decree for the return of Rs.2,00,000/- received by the second respondent, mother of the appellant and also 10 sovereigns of gold bangles, a chain worth 8 sovereigns and 2 1/2 sovereigns of thadavala or their corresponding value of Rs.71,750/- from the third respondent. She filed the said Original Petition contending as hereunder: Herself and the appellant are Hindus and their marriage was solemnized as per the Hindu rites and customs on 8.4.1995. The appellant had been operating bus service by name Navarathna Travels. At the time of the marriage, she was given 100 sovereigns of gold ornaments and Rs.2,00,000/- for purchasing a car and the said amount set apart for purchasing a car was kept in custody by her father. After a few days of the marriage, the appellant required her to get the said amount kept by her father as he was badly in need of money. He promised that the amount would be deposited, later, in her name. At the instance and insistence of the appellant, they went to her parental home and on 19.4.1995, an amount of Rs.1,50,000/- was received from her father and on the next day, i.e., on 20.4.1995, they received Rs.50,000/- more from him. The entire amount of Rs.2,00,000/- was received by the second respondent. According to M.F.A. NOS.422& 701/2001 3 her, the appellant is a spendthrift and he has squandered all her gold ornaments. He pledged her gold ornaments in his name as also in the name of his friend, Sadanandan and that in order to save the entire gold ornaments from being squandered, on the suggestion of the third respondent, 10 sovereigns of gold bangles, a chain worth 8 sovereigns and 2 1/2 sovereigns of thadavala were entrusted with her. It was thereafter that she had to leave the matrimonial home due to compelling circumstances. According to the first respondent, despite specific request through notice, the gold ornaments and the amount described in A to C schedule were not returned by the appellant and respondents 2 and 3. It was in the said circumstances that she approached the Family Court and filed O.P. No.615 of 1996. 3. The appellant and the second respondent had jointly filed a counter in the said Original Petition refuting all the allegations. During its pendency, the second respondent died. Besides specifically denying the receipt of gold ornaments and the amount of Rs.2,00,000/-, they contended that the first respondent was having some mental problems. According to the appellant, he did not pledge any of the gold ornaments belonging to the first respondent, whilst he pledged only some of the gold ornaments belonging to his sisters. The appellant also claimed Rs.25,00,000/- from M.F.A. NOS.422& 701/2001 4 the first respondent herein as compensation for the ill treatment and torture. The third respondent also specifically denied entrustment of gold ornaments weighing 20 1/2 sovereigns with her. According to her, there was no necessity for her to ask the first respondent to hand over her gold ornaments and in fact, no gold ornaments were handed over to her. The petitioner had filed a replication answering the counter claim and also answering the allegations made against her. Based on the contentions on either side, the Family Court formulated the following points for consideration: i. Whether the petitioner is entitled to get a decree for realisation of A, B & C scheduled properties? ii. Whether the counter petitioner is entitled to get a decree for the realisation of Rs.1,00,000/- thali chain studded with diamond stone? iii.Whether the counter petitioner is entitled to get compensation as prayed for? iv.What is the order as to costs? 4. After careful consideration of the evidence adduced, both oral and documentary, the Family Court found that the first respondent/petitioner is entitled to get return of her gold ornaments worth 80 sovereigns from the appellant and also to recover an amount of M.F.A. NOS.422& 701/2001 5 Rs.2,00,000/- from the assets of the second respondent. It was also found that she is also entitled to get Rs.71,750/-, viz. the value of 20 1/2 sovereigns of gold ornaments from the third respondent. Accordingly, a decree was passed in O.P. No.615 of 1996. It is against the said judgment and decree in O.P. No.615 of 1996 that the above appeals have been preferred. 5. The third respondent herein raised the question as to the maintainability of O.P. No.615 of 1996 as against her on the ground that the Family Court lacked jurisdiction. It is contended that it is not a proceeding between the parties to the marriage with respect to the properties of the parties or either of them as contemplated under Section 7 (1)(c) of the Family Courts Act. The third respondent further contended that there is no allegation in the petition that the gold ornaments described in B schedule were entrusted with her as directed by the husband of the first respondent/petitioner. So also, there was no allegation in the petition that she had entrusted the ornaments to the third respondent to hand over the same to the appellant herein as an agent. It is, therefore, contended that in the absence of such contentions, the subject matter will not come under Section 7(1)(c) of the Act to give jurisdiction to the Family Court to decide the dispute. M.F.A. NOS.422& 701/2001 6 6. Admittedly, the appellant was the husband of the first respondent/petitioner and the third respondent is one of the sisters of the appellant/husband. The contentions of the first respondent/petitioner is that the third respondent took possession of 20 1/2 sovereigns of gold ornaments under the pretext that she would keep it safely to save it from being squandered by the appellant and that the said entrusted gold ornaments were part of the 100 sovereigns of gold ornaments given to her at the time of marriage. A scanning of the said facts in the light of the related provisions of law and the relevant decisions is required to ascertain whether the dispute falls within the jurisdiction of the Family Court. Section 7(1)(d) is relevant for the purpose of deciding the issue involved in this case. It reads thus: "7.Jurisdiction.--(1) Subject to the other provisions of this Act, a Family Court shall.- xx xx xx xx xx xx (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship." 7. The object and intendment of the Family Courts Act. is to try and settle family matters arising out of marriages of the parties expeditiously. M.F.A. NOS.422& 701/2001 7 Properties given to a bride at the time of marriage really belong to her. Later, it may reach the hands of her husband and/or his close relatives. Strained relation with the husband may, later, prompt her to make demand for the return of such properties. Upon the failure to return such properties belonging to her, she could approach the Family Court having jurisdiction against the husband or such of the relative who retain her belongings. Going by the pleadings in this case, it is evident that the subject matters of litigation are gold ornaments and an amount of Rs.2,00,000/- claimed to have been given to the first respondent/wife at the time of marriage. The mere fact that the claim for return of gold ornaments and the amount of Rs.2,00,000/- is not exclusively made against the husband or in other words, such a claim is also made against the husband's mother and sister will not and cannot change the nature of the litigation so as to oust the jurisdiction of the Family Court. In short, the induction of a close relative of one of the spouses or even a third party cannot change the nature of a litigation and oust the jurisdiction of the Family Court, if the subject matter of the litigation is the property belonging to one of the spouses and if it can be said to be a claim 'in circumstances arising out of marital relationship'. Such a suit/claim is maintainable before the Family Court under clause (d) of the Explanation to Section 7(1) of the Family Courts Act. We are fortified in our view by the decision of this Court reported in Suprabha M.F.A. NOS.422& 701/2001 8 v. Sivaraman, 2006(1) K.L.T. 712. In the circumstances, we are unable to uphold the contention of the third respondent regarding maintainability of O.P. No.615 of 1996 before the Family Court and we find that the subject matter involved in this case falls within the jurisdiction of the Family Court. 8. We may now proceed to consider the above appeals on merits. M.F.A. No.422 of 2001 is filed by the husband. To substantiate her claim, the first respondent herein had adduced both oral and documentary evidence. On her side, she was examined as PW.1 besides PWs.2 to 8. Exts.A1 to A12 were also marked on her side. Exts.C1 and C2 were marked as court exhibits and Exts.X1 to X8 were marked as third party documents. 9. PW.1, the first respondent herein had deposed in conformity with her contentions in the Original Petition. It is her case that the appellant herein had been a spendthrift and he had squandered her gold ornaments. Exts.X3 series and X5 series are the receipts regarding the pledging of gold ornaments by the appellant respectively with Welfare Investment and Loans, Thriprayar and Nattika Furka Co-operative Rural Bank. Exts.X3 and X5 series would reveal that during the relevant point of time, the M.F.A. NOS.422& 701/2001 9 appellant had pledged gold ornaments with the said institutions and the weight and nature of most of the gold ornaments tally with the descriptions given by the first respondent as gold ornaments taken from her by the appellant for pledging. PW.7 is a goldsmith. He deposed that he had made gold ornaments worth 68 sovereigns using old gold ornaments. He also stated that he was made to weigh the gold ornaments intended to be given in marriage including those made by him. He recollected that the gold ornaments weighed more than 100 sovereigns. This would corroborate the version of PW.1 that about 70 sovereigns of gold ornaments were made using old gold ornaments and that in connection with her marriage, 15 sovereigns were purchased from Josco Jewellers and another 15 sovereigns from Ayodhya Jewellers. PW.8 who is the father of the first respondent had also deposed to the effect that at the time of the marriage of the first respondent, she was given 100 sovereigns of gold ornaments. According to the first respondent, the receipts pertaining to the said purchases were handed over to one Yamuna who is the younger sister of the appellant's mother. Despite this specific allegation, neither the appellant nor the third respondent chose to bring the said Yamuna to the box to refute the same. The date of marriage between the appellant and the first respondent is 8.4.1995 and 5.7.1995 is the date of their separation. The pledging covered by Exts.X3 series and Ext.X5 series M.F.A. NOS.422& 701/2001 10 were effected by the appellant between 8.4.1995 and 5.7.1995 except the one which was made immediately after their separation. 10. PW.3 is the Manging Partner of Welfare Investment and Loans, Thriprayar. He would depose that the appellant used to pledge gold ornaments in his institution. Ext.B1 is the notice issued to the appellant from this institution on 8.7.1997 which would reveal that the appellant was not able even to redeem the pawning created by him on 28.11.1994. It would show that during the subsistence of the marriage, he was not able to pay Rs.12,000/- to redeem the said pawning. Exts.B2, B3 and B4 are relevant pages of the ledger relating to the pledgings made by the appellant with Christian Union Fund, East Fort, Thrissur. Based on the said documents, the appellant contended that even prior to his marriage, he used to pledge gold ornaments and that he was already in possession of sufficient gold ornaments for pledging. He would also depose that it was his sisters and mother who had helped him to get money in that manner. However, it cannot be believed that even after the marriage, they continued to give him gold ornaments for pledging when his wife had brought enough gold ornaments. That apart, as already stated, the weight and descriptions of the gold ornaments pledged and those described by the first respondent as her belongings tally. The Family M.F.A. NOS.422& 701/2001 11 Court had relied on Ext.A6 letter written by PW.8, the father of the first respondent to the second respondent as a reflection of the sentiments of a father and considered it as a corroboratory piece of evidence. Though the appellant endeavoured to show that the gold ornaments pledged did not belong to the first respondent, it was only a feeble attempt. In fact, the evidence of PWs.1, 7 and 8 and the documentary evidence taken together would substantiate the claim of the first respondent as against the appellant. In short, there is nothing to interfere with the finding of the Family Court with respect to the claim for return of gold ornaments by the first respondent from the appellant. In the circumstances, M.F.A. No. 422 of 2001 fails and it is liable to be dismissed. 11. M.F.A. No.701 of 2001 is filed by the third respondent, sister of the appellant/husband. It is the claim of the first respondent that she had entrusted 20 1/2 sovereigns of gold ornaments with the third respondent. It cannot be believed as such for the reason that even according to the first respondent, the appellant had pledged about 80 sovereigns of gold ornaments which belonged to her. According to her, she was given only 100 sovereigns of gold ornaments at the time of marriage. That apart, Ext.A6 letter, which was taken as a corroboratory piece of evidence by the Family Court, contains the recital to the effect that the entire gold M.F.A. NOS.422& 701/2001 12 ornaments belonging to the first respondent were pledged by the appellant. Even according to the appellant, his sisters including the third respondent used to give him their gold ornaments for pledging. If that be so, it cannot be believed that the third respondent would accept the gold ornaments from the first respondent in order to save it from being pledged by the appellant. No believable or reliable evidence has been adduced by the first respondent to substantiate her case against the third respondent. Therefore, the Family Court should not have relied solely on the version of PW.1, the first respondent to arrive at a conclusion that the third respondent had taken into possession 20 1/2 sovereigns of gold ornaments and, therefore, liable to return the same. In this context, it is relevant to note that even the evidence of PW.8 did not lend support to the claim of the first respondent in this regard. In respect of a claim for return of gold ornaments, one cannot be found entitled for the same merely for the asking. The claimant has a duty to establish the same, though not in the same degree as is required in criminal proceedings. In this case, the evidence as against the third respondent falls much short of the same. In the absence of such evidence, the Family Court should not have granted a decree in favour of the first respondent as against the third respondent to the extent it permitted the first respondent to realise from the third respondent an amount of Rs.71,750/- with 12% interest from 8.5.1996 till M.F.A. NOS.422& 701/2001 13 the date of realisation. In the circumstances, the decree of the Family Court dated 30.12.2000 in O.P. No.615 of 1996 to the extent it directed the third respondent herein, who is the appellant in M.F.A. No.710 of 2001, to pay to the first respondent Rs.71,750/- with 12% interest from 8.5.1996 till the date of realisation is liable to be set aside. 12. The first respondent has also obtained a decree for realisation of Rs.2,00,000/- with 12% interest from 8.5.1996 till the date realisation from the assets of the second respondent, the mother of the appellant and third respondent. Ext.A1 series would go to show that the lion part of the said amount has been withdrawn by PW.8 from his accounts. According to the first respondent, along with the amount withdrawn from the bank, PW.8 had given her the amount which he already had with him and that it was in that manner, the amount demanded by the appellant, viz. Rs.2,00,000/- was raised and handed over to the appellant and the first respondent when they went to the house of PW.8. The recital in Ext.A6 would reveal that an amount of Rs.2,00,000/- was handed over to the appellant. The case of the first respondent is that after obtaining the said amount from her father, the amount was actually received from them by the second respondent who is none other than the mother of the appellant. The first respondent has succeeded in sustaining the said claim. The documentary evidence as also M.F.A. NOS.422& 701/2001 14 the oral testimony of PW.8 lend support to her claim. Therefore, the Family Court has rightly held that the first respondent can realise the said amount of Rs.2,00,000/- with interest from the assets of the second respondent. However, we feel that the rate of interest granted by the Family Court at 12% is on the higher side. We are inclined to reduce the same to 6%. In the result, M.F.A. No.422 of 2001 is dismissed. M.F.A. No.701 of 2001 is allowed. The decree passed by the Family Court dated 30.12.2000 in O.P. No.615 of 1996 is set aside to the extent it permitted the petitioner/first respondent herein to realise from the third respondent an amount of amount of Rs.71,750/- with 12% interest from 8.5.1996 till the date of realisation. The rate of interest at 12% granted by the Family Court on Rs.2,00,000/-, the amount realizable from the assets of the second respondent is reduced to 6%. In all other respects, the decree passed by the Family Court in O.P. No.615 of 1996 is confirmed. In the circumstances, the parties shall bear their respective costs. (P.R. RAMAN) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.F.A. NOS.422& 701/2001 15 P.R. RAMAN & C.T. RAVIKUMAR, JJ. M.F.A.NOS.422 & 701/2001 JUDGMENT 19th February, 2009. M.F.A. NOS.422& 701/2001 16