IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Mat.Appeal.No. 78 of 2007() --------------------------- OP.634/2002 of FAMILY COURT, KOTTAYAM .................... PETITIONER/RESPONDENTS: ----------------- 1. T.N.PRAKASH, S/O.THANKAPPAN, NADUVILEYIL VEETTIL, THAILMARAVUM KARA, WEST OTHARA P.O., KUTTOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. Rep. By its power of attorney holder V.K.Thankamma, -do- -do- 2. V.K.THANKAMMA, W/O.THANKAPPAN, NADUVILEYIL VEETTIL, THAIMARAVUM KARA, WEST OTHARA P.O., KUTTOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.C.ABRAHAM RESPONDENT/ PETITIONER: ------------------- SHERLY.P.BOSE, D/O.P.G.VASUDEVAN, SUMALAYATHIL VEETTIL, PAKKIL P.O., PAKKIL KARA, NATTAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, ALONG WITH MAT.APPEAL NO. 422 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ---------------------------------- MAT.APPEAL NOS.78 & 422 OF 2007 ----------------------------------- Dated this the 24th day of September, 2008 JUDGMENT Raman,J. Both the appeal arise out of the same judgment rendered by the Family Court in O.P.No.634/2002 filed by the wife (the appellant in Mat Appeal No.422/2007). That O.P. was filed for return of gold ornaments and other utensils. The Family Court by its judgment dated 31st October, 2006 partly allowed the claim and a decree was given in favour of the petitioner-wife to realise 412 grams of gold ornaments or its value of Rs.3,00,000/- with 6% interest from the date of decree from respondents 1 and 2 and also allowed an amount of Rs.1,000/- by way of cost. The Family Court however did not grant any decree for the value of the fridge and washing machine and other utensils said to have been purchased by the wife. Hence, the appeal filed by the wife is with regard to the disallowance of the claim. Mat. Appeal No.78/2007 was filed by -2- MAT.APPEAL.Nos.78 & 422/2007 the husband against the decree as granted by the Family Court, Ettumanoor. 2. We have heard both sides. 3. The marriage was solemnized between the parties on 19/10/2001. The 2nd respondent in the O.P. is the mother and other respondents are the sisters of the lst respondent-husband. It was the contention of the petitioner before the Family Court that 412 grams of gold ornaments as her share in the family property was given at the time of her marriage. 24 grams of gold chain were also given to her by her brother. The gold rings weighing one sovereign each were given to respondents 1 and 2 by the petitioner-wife. Later, when the parents of the petitioner visited the house, they brought a fridge and washing machine and those items are also in the house of the respondents. Gold ornaments were taken by the respondents stating that they can be kept in the bank locker safely. Alleging cruelty on the part of the husband ever since the date of marriage and contending that they lived together only for a period of 13 -3- MAT.APPEAL.Nos.78 & 422/2007 days, after which he left for Dubai, a petition for divorce was filed, which was eventually granted, against which no appeal has been filed and it has become final. The petitioner became pregnant alleged to be from the Ist respondent. But the lst respondent doubted the chastity of the petitioner. He requested her to abort the pregnancy; but did not yield. There were other allegations also that the lst respondent came to her house in a drunken state and man- handled her and other family members. Respondents 3 to 6, who are the sisters of the lst respondent, remained ex parte. In the objection filed by Respondents 1and 2, they denied the entrustment of gold ornaments with them, though the marriage is admitted. It is also admitted that at the time of marriage the petitioner was wearing some gold ornaments. They also denied the allegation of cruelty and the statement that various other utensils like fridge, washing machine etc, were brought by the father of the petitioner to their house. They contended that they are not liable to return any gold ornaments or other articles as claimed by the petitioner. -4- MAT.APPEAL.Nos.78 & 422/2007 4. The evidence consists of the oral testimony of Pws.1 to 5 and Rws.1 and 2 and marked Exts.A1 to A11 and X1 to X3. Petitioner, who has filed a proof affidavit before the court below, averred that 412 grams of gold ornaments were given by her father and that her brother had also given 24 grams of gold chain. Two gold rings were also given to respondents 1 and 2. Ext.A1 is the copy of the marriage register and Ext.A2 is the marriage certificate issued by the Grama Panchayat. Ext.A3 series are the wedding photos with negative. Ext.A4 is the bill of Rs.18,158/- for the purchase of fridge and washing machine and Ext.A5 to A7 are the receipts issued by the Electricity Board Employees Co-operative Society evidencing the closure of fixed deposit with the Society for the purpose of conducting the marriage. Ext.A8 is a copy of the complaint filed by the petitioner before the Superintendent of police, Kottayam, wherein it was claimed that 56 ½ sovereigns of gold ornaments were appropriated by the husband and his family members. Ext.A9 to A11 are F.I.R., F.I. statement and charge sheet -5- MAT.APPEAL.Nos.78 & 422/2007 in the criminal case. In the cross-examination PW-1 stated that the gold ornaments were purchased from the Josco Jewellery, Kottayam and the bills were not kept. The evidence on record especially Ext.A1 marriage register and also the evidence of Exts.X1 and X2 would show that even in the marriage certificate the fact that she was wearing 412 grams of gold ornaments is recorded. Though it is disputed that the gold ornaments actually were not 412 grams as stated, the evidence on record would show otherwise. PW-4 the Secretary of the Pallom SNDP Sakha has produced Ext.X3 which would show that at the time of marriage 412 grams of gold ornaments were given to the bride by her parents. He also gave evidence that in case of any dispute regarding the weight of gold, it would be weighed then and there. PW-5, the Secretary of the SNDP Sakha, also proved the entries in the marriage register and the signature therein. Therefore, there is ample evidence, which was accepted by the court below, to show that at the time of marriage the petitioner was given 412 grams of -6- MAT.APPEAL.Nos.78 & 422/2007 gold ornaments. So however, her claim that 24 grams of gold ornaments were subsequently given by her brother and two rings were presented to her were not proved by evidence and the court below did not grant any decree for the value of these gold ornaments. But as respect 412 grams of gold ornaments, the specific case of respondents 1 and 2 was that these gold ornaments whatever it be had been kept by her and not entrusted to them. Curiously enough they examined a plumber working in the house, who stated that at the time when she was taken to her house by her father the gold ornaments were also taken by him. This statement made by the plumber is hardly believable to be true. It is not possible to believe that a plumber, who was working in the house, would have knowledge about the gold ornaments stated to have been taken by her father. The specific case of the petitioner was that gold ornaments were entrusted with her husband and mother- in-law for the purpose of keeping the same in the bank locker. Respondents 1 and 2 had no case that there was no such locker -7- MAT.APPEAL.Nos.78 & 422/2007 taken by them. If as a matter of fact these gold ornaments were kept by herself, while she was in the matrimonial house, respondents 1 and 2 could have adduced evidence to show that she was keeping those ornaments in a particular almirah and that she had been wearing those gold ornaments when her parents took her to their house. It must be remembered that her visit to her parental house was only for a short stay before matrimonial dispute was raised. Normally a person after the marriage unless a festival occasion or any other occasion arises, would keep the gold ornaments in the bank locker. Therefore, there is nothing to disbelieve the version of the petitioner that these gold ornaments were entrusted with the husband and mother-in-law for keeping the same in the bank locker. If so, it is for the respondents 1and 2 to adduce evidence showing that there is no locker in their name or that subsequently the gold ornaments were taken from the locker. At any rate, the court below, after appreciation of the evidence on record, came to the conclusion that 412 grams of gold ornaments were with -8- MAT.APPEAL.Nos.78 & 422/2007 respondents 1 and 2. In the absence of any contra evidence, we do not find that the said finding is in any way perverse or liable to be interfered with. 5. In the circumstances, we find that the decree passed by the court below based on the evidence on record does not call for any interference by this Court. Accordingly, we dismiss the Mat. Appeal No.78/2007 filed by respondents 1 and 2. 6. As regards Mat.Appeal No.422/2007, it is in evidence on record that fridge and washing machine were purchased by the petitioner and her parents. Of course, it was purchased for being used by the petitioner and her husband and other members residing in the matrimonial house. But there was no demand for return of the fridge and washing machine at any time and it is only later that such utensils were required to be returned. In the circumstances, though the value of the fridge and washing machine are stated to be an amount of Rs.18,000/-, at this distance of time the same value could not be directed to be paid. Accordingly, we direct that an -9- MAT.APPEAL.Nos.78 & 422/2007 amount of Rs.10,000/- (Rupees ten thousand) shall be paid by the appellants in Mat.Appeal No.78/07 towards the value of fridge and washing machine. Regarding the other utensils the claim is rightly rejected by the court below on which no interference is called for. 7. In the result, the decree passed by the court below is partly modified and a decree for an additional amount of Rs.10,000/- (Rupees ten thousand) is granted towards the value of the fridge and washing machine in favour of the petitioner (appellant in Mat.Appeal No.422/2007). In all other respects, the decree is confirmed. Mat. Appeal No.422/2007 is disposed of as above. P.R.RAMAN, Judge. T.R.RAMACHANDRAN NAIR, Judge. kcv. -10- MAT.APPEAL.Nos.78 & 422/2007