IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 Mat.Appeal.No. 20 of 2008() ------------------------------------ OP.650/2001 of FAMILY COURT,ERNAKULAM .................... APPELLANT/ PETITIONER --------------------------------------- SINDHU.P.A., D/O.THANKAPPAN, AGED 34, SINDHU.P.A., D/O.THARAKAPPAN, AGED 31, PUTHIYEDATH HOUSE, EDAYAR P.O., KOOTHATTUKULAM, ERNAKULAM DIST. BY ADV. SRI.G.KRISHNAKUMAR SRI.M.K.MURARI RESPONDENT(S): RESPONDENT ----------------------- ------------------------ VIJIDHARAN.P.K. @ VIJI, S/O.KRISHNAKUMAR KUTTY, PARATHAZHATHU HOUSE, VILANGOOR, CHENNAYI PARA P.O., PEECHI, THRICHUR DIST. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, THE COURT ON 24/02/2011 DELIVERED THE FOLLOWING: tss R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- MAT Appeal No.20 of 2008 ------------------------------------------- Dated this the 24th February, 2011 JUDGMENT Surendramohan, J. This is an appeal filed by the wife challenging an order dated 9.4.2007 of the Family Court, Ernakulam in O.P.No.650 of 2001. The husband is the sole respondent. 2. O.P.No.650 of 2001 was filed by the petitioner/wife for the recovery of 25 sovereigns of gold ornaments and an amount of Rs.96,700/- from the respondent-husband. The claim of the wife was resisted by the husband. After trial, the Family Court held the wife entitled to recover only an amount of Rs.61,000/- with interest thereon at the rate of 9% per annum. The claim of the wife for recovery of gold ornaments was found against. The wife has filed the present appeal challenging the said order. 3. The marriage of the appellant and the respondent was solemnized on 12.7.1998. After marriage, they lived together only for a period of 22 days. Thereafter, the MAT Appeal No.20 of 2008 2 appellant left for Saudi Arabia, where she was working. She returned to India in December 1998. After her return, she was working at the Medical Trust Hospital, Ernakulam and at the Star Hospital, Valancherry. According to the appellant, her life with the respondent was not at all happy. She was always ill treated. The respondent was interested only in the salary of the appellant, all of which he appropriated. Though she became pregnant, the respondent wanted the same to be aborted. For the purpose, he took her to the Co-operative Hospital, Thrissur and also to Dr.Rajalakshmi Janardhanan who conducts a hospital by name Raji Nursing Home. However, medical opinion was to the effect that since the pregnancy was already five months old, an abortion would be dangerous to the mother. Consequently, no abortion could be conducted. Thereupon, the respondent started ill treating the appellant, both physically and mentally. He also appropriated 25 sovereigns of gold ornaments that the appellant had at the time of her marriage. She left her marital home and started living separately on being brutally assaulted by the respondent. She has been living MAT Appeal No.20 of 2008 3 separately ever since. On the above averments, she sought the recovery of her gold ornaments and cash. 4. The petition was contested by the respondent denying all the allegations of the appellant. However, he admitted the marriage between the parties as well as the paternity of the male child born to the appellant on 23.3.2001. According to the respondent, it was the appellant who was responsible for the matrimonial discord. He alleged that, the appellant never showed any love or affection towards him or his family members. Though the respondent wanted her to get a job in a hospital near his house, she wanted to reside only in a big city and not in a rural area. He denied that he had ill treated the appellant, as alleged. According to him, the appellant had taken away all her gold ornaments when she was taken to the hospital during the fifth month of her pregnancy. He also denied that he had appropriated any amount that the petitioner had earned as her salary. 5. Both parties adduced evidence. On the side of the appellant, Exts.A1 to A10 documents were marked and she was examined as PW1. The respondent produced and MAT Appeal No.20 of 2008 4 marked Exts.B1 to B4 documents on his side and examined himself as RW1. 6. On an appreciation of the rival contentions of the parties in the light of the evidence on record, the court below found that there was no reliable evidence in the case to warrant a conclusion that the respondent had appropriated 25 sovereigns of gold ornaments that belonged to the appellant. The court also found that the appellant was entitled to recover only an amount of Rs.61,000/- from the respondent. Accordingly, the claim of the appellant was decreed in part entitling her to recover an amount of Rs.61,000/- from the respondent with interest thereon at the rate of 9% per annum. 7. According to Mr.G.Krishnakumar, the learned counsel for the appellant the order of the court below is wrong and unsustainable to the extent, it has disallowed the claim of the appellant. According to the counsel, Ext.A3 certified copy of relevant page of the marriage register shows that about 17 sovereigns of gold ornaments were given to the appellant at the time of her marriage. He has also relied on Ext.A8 (series) photographs to contend that, MAT Appeal No.20 of 2008 5 during her marriage ceremony, the appellant was wearing a number of gold ornaments which would certainly establish that her claim was genuine. It is also contended that except for one gold ring and one Karimanimala, all her ornaments were misused by the husband. According to the counsel, it is not in dispute that the spouses had lived together only for a period of twenty two days after their marriage. The appellant had left for Saudi Arabia thereafter and had returned only during December 1998. It is pointed out that she would have had no occasion to take her gold ornaments to Saudi Arabia and would in all probability have only left them with her husband. According to the respondent, she took away her ornaments when she was taken to her house for her delivery. It is contended that the said averment could not be believed and there is no evidence to support the same. Since Ext.A3 mentions about the gold ornaments weighing a little less than 18 sovereigns, a decree should have been passed at least for the value thereof. 8. Though notice has been served on the respondent, he has not entered appearance. We have heard the counsel MAT Appeal No.20 of 2008 6 for the appellant in detail. We have also perused the records of the case and considered the contentions of the appellant, anxiously. 9. As already noticed, there is no dispute that the marriage between the appellant and the respondent was solemnized on 12.7.1998 and that a male child was born out of the wed lock on 23.3.2001. Initially, the parties cohabited only for a period of 22 days, after which, the appellant left for Saudi Arabia. She returned only in December 1998. Thereafter, she worked at the Medical Trust Hospital, Ernakulam and also at the Star Hospital, Valancherry. It is the case of the petitioner that she was wearing 25 sovereigns of gold ornaments at the time of her marriage and that all the above ornaments were appropriated by the respondent. Ext.A3 extract of the marriage register is relied upon by the appellant to contend that since the weight of the ornaments mentioned therein would be a little less than 18 sovereigns, she has established that at least 18 sovereigns of gold ornaments were in her possession at the time of her marriage. Reliance is also placed on Ext.A8 (series) photographs to MAT Appeal No.20 of 2008 7 contend that an estimation of the weight of the ornaments worn by her at the time of her marriage would clearly establish that her case is true. The case of the respondent is that all the ornaments that she had, were taken away by the appellant when she was taken to her parental house for delivery. 10. It is, no doubt, true that Ext.A3 extract of the marriage register refers to the gold ornaments possessed by the appellant which would come to a little less than 18 sovereigns. Ext.A8 (series) photographs only show that various items of gold ornaments were worn by the appellant at the time of her marriage. However, there is nothing on record to show that the ornaments of the appellant were entrusted to the respondent at any time. As rightly noticed by the court below, in Ext.A4 complaint submitted by the appellant and her father to the Kizhakombu Branch of the SNDP Yogam, there is absolutely no mention of any gold ornaments. The complaint has been made seeking intervention of the SNDP Yogam for settlement of the disputes between the appellant and the respondent. In Ext.A4, though reference has been made to the dowry as MAT Appeal No.20 of 2008 8 well as the salary of the appellant, which were allegedly entrusted with the respondent, there is no reference to any gold ornaments. The conspicuous absence of any reference to the gold ornaments in Ext.A4 casts very serious doubts on the veracity of the claim made by the appellant. Though the counsel for the appellant was at considerable strain to explain the situation by pointing out that the reference in Ext.A4 to the ‘property obtained’ as dowry from her house would include gold ornaments also, we are not convinced. If as a matter of fact, the gold ornaments had been entrusted to the respondent as alleged, that would certainly have found a prominent place in Ext.A4. We hold that the omission to make any mention about gold ornaments in Ext.A4 is fatal to the case of the appellant. Since there is absolutely no evidence to warrant a conclusion that any gold ornament was entrusted to the respondent by the petitioner, the Family Court was right in declining the relief for the return of gold ornaments. We confirm the said finding of the Family Court. 11. Though the monetary claim of the petitioner was for an amount of Rs.96,700/-, as rightly found by the Family MAT Appeal No.20 of 2008 9 Court, the documentary evidence does not support the entire claim. The evidence on record shows entrustment of only an amount of Rs.61,000/- on various occasions. Exts.A9 and A10 documents account for only a total amount of Rs.61,000/-. In the absence of any evidence to support the claim of the appellant, we do not find any ground to interfere the order appealed against. The challenge against the order of the Family Court, Ernakulam in O.P.No.650/2001, therefore, fails. 12. In the result, this appeal is dismissed without costs. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/