Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941 Mat.Appeal.No.924 OF 2015 AGAINST THE ORDER DATED 15.07.2015 IN OP 1142/2010 DATED 15-07-2015 OF FAMILY COURT, MALAPPURAM APPELLANTS/RESPONDENTS: 1 RAMACHANDRAN AGED 39 YEARS S/O.GOPALAN, KIZHAKKETHIL HOUSE, P.O.THAZHEKKODU (WEST), THAZHEKKODU AMSOM DESOM, VIA PERINTHALMANNA, MALAPPPURAM DISTRICT 2 VASANTHA AGED 59 YEARS W/O.GOPALAN, KIZHAKKETHIL HOUSE, P.O.THAZHEKKODU (WEST), THAZHEKKODU AMSOM DESOM, VIA PERINTHALMANNA, MALAPPPURAM DISTRICT BY ADVS. SRI.P.G.SURESH SRI.V.HARISH SRI.RAJAN VISHNURAJ SRI.G.SUDHEER (THURAVOOR) RESPONDENT/PETITIONER: BINDU AGED 29 YEARS D/O.KRISHNAN, VADASSERIPPURATH HOUSE, PULAKKACHOLA, KOMBAM, PO.KODAKKAD, ARIYOOR AMSOM, VADASSERIPPURAM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT 678 583. R1 BY ADV. SRI.P.JAYARAM THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.08.2019, ALONG WITH OP (FC).344/2018), THE COURT ON 29.10.2019 DELIVERED THE FOLLOWING: O.P.(FC) No. 344/2018 :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941 OP (FC).No.344 OF 2018 E.P. NO.46/2015 IN OP 1142/2010 OF FAMILY COURT, MALAPPURAM PETITIONER/S: 1 RAMACHANDRAN AGED 42 YEARS, S/O.GOPALAN, KIZHAKKETHIL HOUSE, P.O.THAZHEKKODU (WEST),THAZHEKKODU AMSOM DESOM, VIA-PERINTHALMANNA,MALAPPURAM DISTRICT. 2 VASANTHA AGED 62 YEARS, W/O.GOPALAN,KIZHAKKETHIL HOUSE, P.O.THAZHEKKODU (WEST),THAZHEKKODU AMSOM DESOM, VIA-PERINTHALMANNA,MALAPPURAM DISTRICT. BY ADVS. SRI.P.G.SURESH SMT.ASWATHY KRISHNAN SRI.G.SUDHEER (THURAVOOR) RESPONDENT/PETITIONER/DECREE HOLDER: BINDU AGED 29 YEARS, D/O.KRISHNAN,VADASSERIPPURATH HOUSE, PULAKKACHOLA,KOMBAM, P.O.KODAKKAD, ARIYOOR AMSOM,VADASSERIPPURAM DESAM, MANNARKKAD TALUK,PALAKKAD DISTRICT - 678 583. R1 BY ADV. SRI.P.JAYARAM THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 27.08.2019, ALONG WITH Mat. Appeal.924/2015, THE COURT ON 29.10.2019 DELIVERED THE FOLLOWING: O.P.(FC) No. 344/2018 :3:
JUDGMENT
Annie John,J.
The appellants, the husband and the mother-in-law of the respondent herein, are the respondents in O.P. No. 1142 of 2010
on the files of the Family Court, Malappuram. The aforesaid Original Petition was filed seeking return of gold ornaments and utensils given in connection with the marriage and the money advanced for the treatment of the father-in-law and also for the past and future maintenance from the appellants. The respondent claimed the value of 21 sovereigns of gold ornaments and utensils and an amount of Rs.30,000/- given for the treatment of the father-in-law of the respondent. She has also claimed Rs.6,000/- per month as past and future maintenance.
2. The appellant entered appearance before the court below
and filed their written objection. The respondent was examined as PW1 and Exts.A1 and A2 were marked on her side. On the side of the appellants, the first appellant was examined as RW1 and Exts.B1 to B4 were marked on their side.
3. The court below, after evaluating the entire evidence, as
per judgment dated 15.07.2015 allowed the Original Petition permitting the respondent to realise Rs.3,40,950/- from the appellants being the value of gold ornaments shown in the 'B' schedule and the utensils shown in the 'C' schedule with 6% O.P.(FC) No. 344/2018 :4: interest per annum thereon from the date of filing of OP till payment. It was also ordered that the first appellant is liable to pay Rs.90,000/- towards past maintenance and to pay Rs.3,500/- per month from the date of filing of the OP. Highly aggrieved by the same, the Mat. Appeal is filed.
4. The marriage between the first appellant and the
respondent was conducted on 06.02.2002 as per the Hindu religious rites and ceremonies. At the time of marriage, the first appellant was employed abroad and he had come on leave for the marriage. It was also stated that 21 sovereigns of gold ornaments and utensils as detailed in the OP were given to the respondent in connection with the marriage and she had taken the entire ornaments and utensils to the matrimonial home. She has also stated that their life at the initial stage was very happy and thereafter, the respondent and the family members began to ill- treat and harass the respondent in several ways demanding more money and gold from her stating that she is not a suitable match. Thereafter, the first appellant managed to take the entire gold ornaments for his personal needs on the promise that he will return her with new ornaments after joining the employment in Gulf. The first appellant has gone to Gulf country on 24.03.2002 after selling all her gold ornaments. Even thereafter, the first appellant used to threaten the respondent over phone demanding more money and
O.P.(FC) No. 344/2018 :5: gold ornaments. The second appellant, her daughter and other family members were also making similar harassment. Later, the respondent's father had provided Rs.30,000/- for the treatment of the father of the first appellant, who was a cancer patient and who subsequently succumbed to death. Subsequent to that, a telephonic conversation was received from a lady stating that she was married by the first appellant. On 27.07.2018, while the respondent was laid up with headache, she was brutally assaulted by the respondent and other family members and therefore, the respondent has forced to leave the matrimonial home. According to the respondent, she was not given the maintenance by the appellant.
5. The first respondent has contended that he was working as an interior designer in Gulf country and was earning Rs.5,00,000/- per month and he has not provided any maintenance amount after the respondent left the matrimonial home. A minimum of Rs.6000/- per month is necessary to meet her requirements. The appellants have also not returned the gold ornaments, utensils or cash taken by them.
6. The appellants have filed separate account statements
denying the demand and payment of gold or money in connection with the marriage, payment of Rs.30000/- to meet the treatment expenses, the charges of harassment and matrimonial cruelty and O.P.(FC) No. 344/2018 :6: the liability of the first respondent for payment of maintenance. According to the appellants, the respondent was having only 6 sovereigns of gold ornaments. Later, it was stated that she is having 10 sovereigns of gold ornaments and that a few utensils and the ornaments were taken by her while she was leaving the
matrimonial residence. The first appellant has given a bangle weighing 1 ¼ sovereigns of gold and a thali chain weighing 3 sovereigns of gold at the time of marriage as per the custom.
According to the first appellant, he was in jail for some period on account of some employment disputes with the sponsor and the parents of the first appellant used to attend the needs and requirements of the respondent. When the parents of the respondent came to the house of the appellants to attend a funeral, the respondent went along with them promising to return after a
few days. Thereafter, the respondent never returned to the matrimonial home and she refused to attend the telephonic calls of the first appellant. The learned counsel for the appellants contends that there was no justification on the part of the respondent in claiming the gold ornaments as well as the other amount from the appellants.
7. The definite case of the respondent is that the appellants have misappropriated 21 sovereigns of gold ornaments and utensils. In order to prove the case, the respondent has produced O.P.(FC) No. 344/2018 :7:
the purchase bill, which was marked as Ext.A2. Ext.A2 is a plain paper where the details of rate and weight of some gold ornaments were entered. In fact, the paper does not contain the name of the husband or that of the jeweller, who issued the document. The learned counsel for the appellants argued that no relevance can be placed upon Ext.A2 document and during cross examination of RW1, it could be seen that there is no serious challenge against the
genuineness of the document. In Jubairiya v. Abu Salih 1, it is held
that in matrimonial cases, it is difficult to get the documentary evidence to prove the payment of gold which is unavoidable to the marriage ceremonies and the Judges are bound to see the ground realities of the human conduct in their day to day life. In fact, the respondent is a poor lady. The respondent has produced Ext.B2
judgment rendered in a complaint filed by the respondent under
Section 498 A of IPC by the Judicial First Class Magistrate-I, Perinthalmanna to prove that the inconsistency of her evidence and that of her father is not a ground to accept the evidence of the
appellants. Moreover, the mode of appreciation of evidence is different in criminal cases as well as matrimonial cases. The appellants have no consistent case regarding the quantity of gold ornaments the respondent was in possession of. They have stated in one occasion as 6 sovereigns and in another occasion as 10 sovereigns. On the strength of the oral evidence adduced by the 1 2013(2) KLT Suppl. 28 (Ker.)
O.P.(FC) No. 344/2018 :8: respondent, the Family Court has allowed the application as prayed for. During cross examination, PW1 has stated that her father is a coolie worker. She has admitted that she has filed a complaint before the Judicial First Class Magistrate Court, Perinthalmanna
regarding the taking of gold ornaments by the appellants. She relied on Exts.A2 bills; but she has not cared to examine the jeweller who has issued Ext.A2. She has also stated that she was wearing the entire gold ornaments at the time of marriage. She was wearing 6 bangles at the time of marriage. According to her, she did not know where the gold ornaments were sold. There was a suggestion on the part of the appellant that the respondent was wearing only six sovereigns of gold ornaments at the time of marriage. According to the respondent, the appellant has gifted a
big bangle to her and subsequently it was taken by the first appellant. During cross examination, the respondent has submitted that she was wearing 21 sovereigns at the time of marriage. While she has given deposition before the learned Magistrate in C.C. No.
ornaments purchased by her family. She has also deposed that the property belongs to the mother had been pledged for getting the amount for purchasing the gold ornaments. It is also stated that she has not stated before the police or the Magistrate regarding the pledging of the property belongs to her mother. She has further
O.P.(FC) No. 344/2018 :9:
deposed that at the time of marriage, there was no talk about the gold ornaments and her money. She did not know where the first appellant has sold the gold ornaments and that she has subjected to cruelty only after the first appellant has gone to the gulf country. According to her, she has left the matrimonial residence in July, 2008 and she has filed the complaint after one year and three months. Again, she has stated that “ഭർത വ ന ടൽ വര തത ക ണ വ ടൽ ഉപദവ ഉണ യതക ണമ ണ പര ത ക ടത ത.” Further, she has stated that after the marriage, she has not taken the entire gold ornaments to the matrimonial residence. She has specifically stated that at the time of marriage when she has gone to the matrimonial residence,
she was wearing 6 bangles, one show chain, ear ring etc. Now she has got another case that the entire gold ornaments belong to her was misappropriated by the appellant. She was having six bangles, each having 4 ½ grams i.e., 3 ¼ sovereigns, a show chain having 32 grams i.e., 4 sovereigns, a necklace having 12 grams i.e., 1 ½ sovereigns, an anklet having 20 grams and an ear-stud having 8
grams. According to the respondent, the total quantity of gold ornaments which she was wearing would come to 108 grams and that will tantamount to 13.5 sovereigns. The appellants have not given any evidence rebutting the same. The case advanced by the respondent that she was having 21 sovereigns of gold ornaments at the time when he has gone to her matrimonial residence is not
O.P.(FC) No. 344/2018 : 10 : correct from the description in Ext.B3. As per the evidence of the respondent, the total weight of gold ornaments which she had at the time of marriage was 108 grams which would come to 13.5 sovereigns. Therefore, she is entitled to get only 13.5 sovereigns of gold ornaments from the first appellant.
8. There is no challenge regarding the other reliefs granted in
the impugned judgment. It is admitted by the first appellant that she has not paid any amount as maintenance to the respondent and he has not challenged the quantum of maintenance fixed by the Family Court. We are notx inclined to interfere with the findings entered by the court below regarding the quantum of maintenance fixed. So, the order granting the past and future maintenance by the Family Court is hereby confirmed.
9. In the result, the Mat. Appeal is allowed in part directing that the respondent is entitled to get only 13.5 sovereigns of gold ornaments or its equivalent market value.
10. Challenging the order of attachment and the conducting
of auction in the Execution Petition filed by the appellants in the Mat. Appeal before the Family Court, Malappuram in E.P. No. 46 of 2015 in O.P. No. 1142 of 2010, the OP(FC) has been filed. According to the petitioners, the property of the petitioners having an extent of 1 acre and 25 cents with a building therein having worth around more than Rs.1,00,00,000/- has been placed for sale
O.P.(FC) No. 344/2018 : 11 :
to realise a meager amount of Rs.6,80,499/-. The petitioner prays for setting aside Ext.P4 auction notice dated 02.07.2018 in E.P. No. 46 of 2015 in O.P. No. 1142 of 2010. Since we have modified the impugned order, we hereby set aside the proceedings in Ext. P4 auction notice. Further, it is submitted that the entire maintenance allowance has been paid off. The first petitioner is entitled to prove this fact and the Execution Court can proceed with the EP on the
strength of the modified judgment. Accordingly, the O.P(FC) is disposed of. sd/- K. HARILAL, JUDGE. sd/-ANNIE JOHN, JUDGE. Rv O.P.(FC) No. 344/2018 : 12 : APPENDIX OF OP (FC) 344/2018 PETITIONERS' EXHIBITS: EXHIBIT P1. THE TRUE COPY OF THE ORDER DATED 20.06.2016 IN I.A.NO.3278/2015 IN MAT. APPEAL NO.924/2015 OF THIS HONOURABLE COURT. EXHIBIT P2. THE TRUE COPY OF THE ORDER IN E.A.NO.20/2018 E.P.NO.46/2015 DATED 02.05.2018 ON THE FILE OF THE HONOURABLE FAMILY COURT, MALAPPURAM. EXHIBIT P3. THE TRUE COPY OF THE ORDER OF THIS HONOURABLE COURT IN I.A. NO.338/2017 IN MAT. APPEAL NO.924/2015 DATED 10.03.2017. EXHIBIT P4. THE TRUE COPY OF THE AUCTION NOTICE DATED 02.07.2018 ISSUED BY THE HONOURABLE FAMILY COURT, MALAPPURAM IN E.P.NO.46/2015 IN O.P.NO.1142/2010. RESPONDENT'S EXHIBITS: NIL /True Copy/ PS TO JUDGE. RV