IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 MFA.No. 29 of 2002(A) --------------------- OP.267/2000 of FAMILY COURT,KOZHIKODE .................... APPELLANT/RESPONDENT -------------------- P.M.SUNIL KUMAR S/O.K.KUTTAPPAN NAIR, AGED 32 YEARS, RESIDING AT PARAMBATH HOUSE, KODAKKATT PARAMBU, MANALTHAZHAM,P.O.GOVINDAPURAM, VALAYANAD AMSOM DESOM,KOZHIKODE. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR RESPONDENT/ETITIONER ------------------- BINDU ALIAS BINDITHA,D/O.MADHAVAN NAIR, AGED 27 YEARS, RESIDING AT PULIYARATHARA HOUSE, P.O.VELLIPARAMBA,VELLIPARAMBU AMSOM DESOM, KOZHIKODE. ADV. SRI.N.JAMES KOSHY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = M.F.A. NO. 29 OF 2002 = = = = = = = = = = = = = = = DATED THIS, THE 18TH DAY OF NOVEMBER, 2008. J U D G M E N T Raman, J. Appellant is the respondent in O.P. 267/2000 on the file of the Family Court, Kozhikode - a petition filed by his wife for return of gold ornaments. The case set up by the respondent herein is that she married the appellant on 9.3.1997, that after marriage they were residing together and a child was born in that wedlock, that at the time of marriage, the respondent was provided with 15 sovereigns of gold ornaments out of which 13 sovereigns were taken away by the appellant, that she delivered a premature child, that the appellant denied the paternity of the child and deserted her, that the appellant filed O.P. 23/1998 to declare the marriage null and void which was allowed, (though the appeal therefrom was pending at the time of the original petition, it is admitted that the same has been dismissed subsequently), that though there was a mediation talk and the appellant agreed to return the gold ornaments, he did not do so and hence she filed the MFA 29/ 2002 :2: original petition. 2. The appellant in his counter affidavit, denied the allegations. According to him, his wife was pregnant even at the time of marriage which he did not know and hence he filed the original petition for nullity of the marriage, that there was no agreement to return the gold ornaments as stated by the wife, that he had not taken anything belonging to his wife and that when she left the house of the appellant, she took all her belongings with her. 3. The evidence in the case consists of the oral testimony of PWs 1 to 4 on the side of the petitioner/respondent and RW.1 on the side of the respondent/appellant. Exts.A1 to A5 were also marked in the case. It was found by the court below that after the marriage the respondent was residing in the house of the appellant. She gave evidence as PW.1. PWs 2 to 4 were also examined in support of her case. According to PW.1, at the time of marriage, she had 15 sovereigns of gold ornaments. Ext.A1 is also produced which is a slip issued by the goldsmith to prove the gold ornaments she had at the time of marriage. Ext.A2 series are the wedding photographs and Ext.A3 series the negatives. In the absence of any dispute, from Exts.A2 and A3 series, the court below found that the MFA 29/ 2002 :3: respondent/petitioner was wearing about four gold chains, a number of bangles and gold rings at the time of marriage. PW.2 is the mother of PW.1 who also deposed that 15 sovereigns were given to her daughter at the time of marriage. The Goldsmith was also examined in the case as PW.4. Pw.3 is the uncle of PW.1 who also deposed in tune with the case set up by PW.1. Therefore, the court below found that the respondent/petitioner had 15 sovereigns at the time of her marriage. In the absence of any contra evidence, we agree with the finding of the court below regarding the quantity of the gold ornaments she was having at the time of marriage. 4. Then the question is whether the gold ornaments were entrusted to the appellant. In this regard, the definite case of the respondent was that she left for delivery directly from the matrimonial house on 19.10.1997 on which day she was admitted in the Medical College Hospital, Kozhikode. This was accepted by the court below and held that it is unlikely that a person, who was admitted in the hospital when she was residing in the matrimonial home, would have carried all the gold ornaments also with her. But the very same court had found while granting a decree for nullity of marriage, that respondent/petitioner had gone to her parental house from the matrimonial house on 15.8.1997 and delivery took place only on MFA 29/ 2002 :4: 21.10.1997. Therefore, there is an apparent contradiction in the finding rendered by the court below regarding the date on which she left the matrimonial house. The finding is that she left the matrimonial house on 15.10.1997, which finding was accepted by this court in appeal and has become final. However this aspect was not brought to the notice of the court below while rendering the judgment in the present case. At any rate, it is also improbable to think that the respondent had been admitted in the hospital for delivery from the matrimonial house. It must be remembered that this is her first delivery and in the normal course she would have gone to her parental house and from there she might have admitted in the hospital. So also it probablises that she had left the house on 15.8.1997 and after a stay in her own parental house, she was admitted in the hospital later, on 19.10.1997 and delivered on 21.10.1997. If so, the reasoning of the court below that she would not have carried the gold ornaments with her since she directly went to the hospital for delivery from the matrimonial house is improbable and contrary to the evidence in the case. No other evidence is adduced to show the entrustment of gold ornaments with the appellant. Accordingly, we find that the entrustment of the gold ornament with the appellant is not proved by any cogent evidence in the case. If so, MFA 29/ 2002 :5: no decree for return of gold ornaments would have granted. In the result, we set aside the decree passed by the court below ad allow this appeal. However, in the circumstances, there will be no order as to costs. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/- MFA 29/ 2002 :6: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. M.F.A. NO. 29/2002 J U D G M E N T 18TH NOVEMBER, 2008.