Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS.JUSTICE SOPHY THOMAS TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 MAT.APPEAL NO.688 OF 2013 AGAINST THE ORDER/JUDGMENT IN OP 688/2013 OF FAMILY COURT, ATTINGAL ----- APPELLANT/S: VANITHA.V.S., AGED 26 YEARS, D/O. LATE SAILAJA VARIJAKSHAN, V.S.COTTAGE, KEDAKULAM, VARKALA IN AYIROOR VILLAGE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM. BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENT/S: ANILKUMAR, AGED 35 YEARS, S/O. LATE KUNJUPILLAI, KALLUVILA, VADAKKATHIL, NEDUMPANA P.O., NEDUMPANA VILLAGE, KOLLAM DISTRICT, PIN-691576. BY ADVS. SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G. SRI.G.P.SHINOD THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2021, ALONG WITH Mat.Appeal.755/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal Nos.688 & 755/2013 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, MAT.APPEAL NO. 755 OF 2013 AGAINST THE ORDER/JUDGMENT IN OP 688/2013 OF FAMILY COURT, ATTINGAL APPELLANT/S: ANILKUMAR, AGED 41 YEARS, AGED 41 YEARS, S/O.LATE KUNJU PILLAI, KALLUVILA VADAKKATHIL,NEDUMPANA (PO), NEDUMPANA VILLAGE, KOLLAM DISTRICT. BY ADVS. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G. RESPONDENT/S: VANITHA.V.S., AGED 32 YEARS, AGED 32 YEARS,D/O.LATE SAILAJA VARIJAKSHAN, V.S.COTTAGE, KEDAKULAM, VARKALA, AYIRROR VILLAGE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM DISTRICT BY ADVS. SRI.K.SATHEESH KUMAR SRI.K.SATHEESH KUMAR SRI.T.A.UNNIKRISHNAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2021, ALONG WITH Mat.Appeal.688/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mat.Appeal Nos.688 & 755/2013 3
JUDGMENT
[Mat.Appeal Nos.688/2013, 755/2013]
A.Muhamed Mustaque, J.
These appeals arise from the judgment in O.P.No.688/2013
on the file of the Family Court, Attingal. We refer the parties by their name for brevity and convenience. Vanitha, the wife of Anil Kumar approached the Family Court, Attingal, with the petition for recovery of gold ornaments and money from Anil Kumar. She set out her claim under three different heads. The first claim was for the recovery of 65 sovereigns of gold ornaments. It is alleged by her that these gold ornaments have been misappropriated by Anil Kumar. The second claim was for the return of Rs.1,00,000/- as pocket money given at the time of marriage. The third claim was for the return of Rs.3,00,000/- paid by the father of Vanitha to Anil Kumar.
2. The Family Court allowed the recovery of 20 sovereigns of gold ornaments or its market value and also to Mat.Appeal Nos.688 & 755/2013 4 recover Rs.1,00,000/- from Anil Kumar.
3. Anil Kumar filed M.A.No.755/2013 challenging the decree as above. Not being satisfied with the decree as above, Vanitha filed M.A.No.688/2013.
4. We have heard the learned counsel on both sides. We shall advert to each claim separately.
5. The claim for gold ornaments: According to Vanitha, she had 57 sovereigns of gold
ornaments given to her by her parents at the time of marriage. The marriage was solemnised on 31/1/2002. Her case was that after the marriage, 8 sovereigns of gold ornaments were given to Anil Kumar and his mother by the father of Vanitha. It was the case of Vanitha that within one year of marriage, Anil Kumar collected the entire gold ornaments including her Thali chain and sold the same. It is also alleged by her that the entire sale proceeds were utilised by Anil Kumar for his personal needs. Anil Kumar denied the entrustment of gold ornaments and also
Mat.Appeal Nos.688 & 755/2013 5
misappropriation of the gold ornaments. Anil Kumar was running a tutorial college prior to his marriage. As seen from the proceedings, after the marriage, he became a process server in the Judicial Department. Though there was no evidence as to the quantum of gold ornaments available with Vanitha, the Family Court, after referring to the photographs and also the status of the parties came to the conclusion that Vanitha might have possessed 65 sovereigns of gold ornaments as alleged by her. However, the Family Court was not persuaded to believe the entire gold ornaments were entrusted and misappropriated by Anil Kumar. The Family Court, however, found that Anil Kumar had taken away 20 sovereigns of gold ornaments and utilised for his needs. Absolutely, there was no discussion on these aspects in the impugned judgment. It is to be noted that no reason was assigned by the Family Court to hold that only 20 sovereigns of
gold ornaments were sold and utilised by Anil Kumar. There was no specific allegation in the petition in regard to the nature Mat.Appeal Nos.688 & 755/2013 6
of entrustment, date etc. Except the bald allegations in the petition, no specific instance of entrustments have been mentioned in the petition. It is to be noted, it was stated in the petition that the gold ornaments were sold and the entire proceeds were utilised by Anil Kumar for his personal needs. If Vanitha knew about the sale of such gold ornaments, she should have alteast enquired about the place where the gold ornaments were sold. She could have also mentioned the year in which the gold ornaments were sold. We need not disturb the finding in regard to the quantum of gold ornaments possessed by Vanitha. But at the same time, in the absence of any specific allegations in regard to entrustment, the court could not have entered into a mere guesswork and awarded the recovery of 20 sovereigns of gold ornaments. The preponderance of probability would arise when there is atleast some evidence on record to show entrustment. In the absence of any evidence adduced in regard to the same, we may not be justified in accepting that finding.
Mat.Appeal Nos.688 & 755/2013 7 Therefore, we have no hesitation to hold that the decree granted to recover 20 sovereigns of gold ornaments by Anil Kumar is legally and unsustainable. Accordingly, we set aside the decree as above.
6. Payment of pocket money of Rs.1,00,000/-:- It is the specific case of Vanitha that at the time of
marriage, her father handed over Rs.1,00,000/ towards pocket money to Anil Kumar. That amount is liable to be returned. Anil Kumar denied the receipt of such amount. The Family Court found the discrepancies in the chief examination and the cross examination. According to the Family Court, in the chief examination, Vanitha stated that her mother handed over the amount and in the cross-examination, she stated that her father gave the amount and the mother was not alive at the time of marriage. It is the admitted case that her mother passed away in
1997. We perused the chief examination. We find that though initially it was mentioned as the mother, it was corrected as the Mat.Appeal Nos.688 & 755/2013 8
father. We, therefore, find no discrepancy in the testimony of Vanitha. We cannot ignore the fact that such kind of handing over the money exist in some part of the state. There cannot be any direct evidence regarding payment of such amount.
7. Vanitha’s father was in the gulf country. The oral
testimony of Vanitha cannot be totally ignored and discarded. The Family Court committed a mistake in finding that there was a discrepancy in the oral testimony. We have no hesitation to accept the oral testimony of Vanitha in regard to payment of Rs.1,00,000/- as pocket money at the time of marriage. We set aside the impugned decree to the extent and allow the recovery of Rs.1,00,000/- as pocket money given at the time of marriage.
8. The claim for Rs.3,00,000/-. According to Vanitha, her father had paid Rs.,3,00,000/ on
different occasions. It was in order to meet certain financial obligations of Anil Kumar. To establish this, she has produced Ext.A2 series of letters. The authorship of the letters has been Mat.Appeal Nos.688 & 755/2013 9
denied by Anil Kumar. Since there was a dispute regarding ownership of the letters, the Family Court insisted for his handwriting in open court. In compliance with the direction, 'handwriting' was taken in open court. This has been marked as Ext.C1. On a comparison of Ext.A2 series and Ext.C1, the Family Court came to the conclusion that Ext.A2 series of letters were written by Anil Kumar. Ext.A2 series of letters were requesting money from Vanitha’s father. However, no exact amount has been mentioned in Ext.A2 series of letters. The Family Court on guesswork, ordered a decree of Rs,1,00,000/- as against the
claim of Rs.3,00,000/-. It is to be noted that Ext.A3 is the document showing the transfer of Rs.25,000/- to Anil Kumar’s Account. According to Anil Kumar, the said amount was sent for the benefit of his own family and not for his personal use. But the Family Court, taking note of Ext.A2 series of letters, did not accept the explanation of Anil Kumar. However, the Family Court, at the same time was also not prepared to accept the
Mat.Appeal Nos.688 & 755/2013 10
claim of payment of Rs.3,00,000/-. In modest calculation, the Family Court arrived at a conclusion that atleast Rs.1,00,000/- could have been paid. We cannot ignore the finding of the Family Court in this regard. Anil Kumar is withholding the information with his knowledge. Ext.A2 series is found to be genuine and the Family Court made a comparison. The probability of the case of payment of atleast Rs.1,00,000/- is more, we need to accept that finding. We, therefore, affirm the finding.
In such circumstances, both appeals are partly allowed as above. We modify the impugned judgment as follows: The claim for the recovery of gold ornaments is dismissed. The impugned judgment, accordingly, is set aside to the extent as above. The claim for recovery of Rs.1,00,000/- as pocket money is allowed. We also sustain the order of the Family Court to recover Rs.1,00,000/- as against the claim of Rs.3,00,000/-. We direct Anil Kumar to pay the total amount of Rs.2,00,000/- Mat.Appeal Nos.688 & 755/2013 11 within a period of three months. On default, this amount can be recovered together with interest at 6% from the date of default till realisation. Sd/- A.MUHAMED MUSTAQUE JUDGE Sd/- SOPHY THOMAS JUDGE ln