Dismissed

Renjith Kumar B. v. Girija Devi

Kerala HC11 Feb 2013Mat.Appeal/14/2008

Case brief

AI extract

What is this about?

In a matrimonial appeal against a family court decree directing the return of gold and money, the Kerala High Court held that the respondent’s claim was substantiated by her witnesses and the contradictory cross-examination evidence of the appellants, confirming the lower court’s decision to dismiss the appeal.

What did the court decide?

The appeal was dismissed; the lower court’s judgment and decree confirming the return of gold and money were upheld.

Renjith Kumar B. Vs Girija Devi — Matrimonial and Divorce | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE P.D.RAJAN

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MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934

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Mat.Appeal.No. 14 of 2008 ( )

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----------------------------AGAINST THE ORDER/JUDGMENT IN OP.118/2006 of FAMILY COURT, KOTTARAKKARA DATED 19-10-2007

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APPELLANT(S)/RESPONDENTS:

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1. RENJITH KUMAR B., AGED 31 YEARS, S/O. BHASKARAN PILLAI, RESIDING AT BHASKARA VILASAM THURUTHIKARA P.O., KUNNATHOOR EAST(VIA) KOLLAM DISTRICT.

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2. BHASKARAN PILLAI, AGED 61 YEARS, S/O. VELAYUDHAN PILLAI (LATE), RESIDING AT BHASKARA VILASAM, THURUTHIKARA P.O. KUNNATHOOR EAST (VIA), KOLLAM DISTRICT.

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BY ADVS.SRI.P.T.DINESH SMT.REKHA VASUDEVAN

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RESPONDENT(S)/PETITIONER:

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GIRIJA DEVI, D/O. SUMANGALA, GEETHA BHAVAN, MUTHUPILAKKADU KIZHAKKU, SASTHAMCOTTA KUNNATHOOR VILLAGE, KOLLAM DISTRICT.

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R,R1 BY ADV. SRI.PHILIP T.VARGHESE R,R1 BY ADV. SRI.THOMAS T.VARGHESE R, BY ADV. SMT.JAYASREE MANOJ(CONCILIATOR/MEDIATOR) R, BY ADV. SMT.LAKSHMY SHENOY(CONCILIATOR/MEDIATOR

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal.No. 14 of 2008

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APPENDIX

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APPELLANTS' EXHIBITS

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ANNEX-I: COPY OF THE MEDICAL CERTIFICATE DATED 29-12-2007 BY DR. K.N. SYAMAPRASAD MD, DM, SENIOR CONSULTANT, NEUROLOGIST OF SREE NARAYANA TRUST MEDICAL MISSION SANKAR INSTITUTE OF MEDICAL SCIENCE AND RESEARCH CENTRE, KOLLAM.

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TRUE COPY

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PA TO JUDGE.

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PIUS.C. KURIAKOSE &

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P.D. RAJAN, JJ.

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Mat Appeal No.14 of 2008

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Dated this the day of February, 2013

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JUDGMENT

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P.D.Rajan,J.

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Appellants are respondents 1 and 2 in O.P.No.118/2006 of the Family Court, Kottarakkara and the respondent is the petitioner in the above O.P., which was filed for realising Rs.2 lakhs and 101 sovereigns of gold or its market value at the rate of Rs.5,93,880/-. The lower court decreed the suit in part and aggrieved by that order, the appellants preferred this appeal. The brief facts are as follows:

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On 6.12.2004, the first appellant married the respondent at Panikkath Auditorium as per hindu religious rites and both of them resided together at their matrimonial house. At the time of marriage, 101 sovereigns of gold ornaments were given to the respondent and Rs.2 lakhs entrusted with the 2^nd appellant. The gold ornaments were subsequently entrusted to the 1^st appellant's mother. They were misappropriated without

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the knowledge and consent of the respondent and they purchased a vehicle in the name of the 2^nd appellant's name. While residing together, the 1^st appellant demanded more amount as dowry and ill-treated the respondent both mentally and physically. Their relationship became strained and the respondent was evicted from her matrimonial home and the mediation and settlement were also failed. In the above circumstances, the respondent approached the court below for getting gold and money.

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In the court below, the respondent's husband (1st appellant) denied the above facts, inter alia he contended that the respondent gave only 54 sovereigns of gold ornaments at the time of marriage and also gave 6 sovereigns of gold as chain and ring and total gold ornaments worth only 60 sovereigns. On 23.11.2005 at 4.30 p.m., the respondent left her matrimonial home with 30 sovereigns and on 21.11.2004, the amount of Rs.2 lakhs agreed, was not given to the appellants. There is no misappropriation of gold ornaments and the purchase of the vehicle was with his money. All

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properties of the parents of the respondent were sold earlier and this petition was filed only to extract money from the appellants.

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Both parties adduced oral and documentary evidence in the court below. The respondent's evidence consists of PW1 to PW4 and Exts.A1 to A4. Appellants' evidence consists of the oral testimony of CPW1 to CPW4 and Exts.B1 to B3. The learned lower court, after sifting and weighing the evidence on record, decreed the suit in part directing the appellants to return 2 lakh rupees and 556.490 grams of gold ornaments to the respondent within two months from that day, failing which the respondent can realise its value of Rs.4,08,267/- from the appellants and their assets. Aggrieved by that, the appellants preferred this appeal.

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The learned counsel appearing for the appellants contended that the lower court has not properly appreciated the evidence on record and without considering the legal principles the case was decreed. No evidence has been adduced by the respondent to substantiate her pleadings. The

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respondent has failed to prove that she gave 101 sovereigns of gold ornaments at the time of marriage. Ext.A1, photograph is not sufficient to prove her claim. Ext.A1 shows that the gold ornaments are not more than 54 sovereigns. The evidence of PW1 is inconsistent with the evidence of PW2. Exts.B1 to B3 are sufficient to prove the contention advanced by the appellant. In the absence of specific evidence regarding the claim, the appellants pray to set aside the lower court order.

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The learned counsel appearing for the respondent strongly resisted the above contention and contended that the evidence of PW1 to PW4 and Exts.A1 to A4 are sufficient to prove the case. The lower court considered all the legal principles and the suit was decreed on the basis of evidence. No reasons are highlighted by the appellants to interfere with the impugned order of the lower court.

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In the light of the above arguments, the only point arises for consideration is as to whether the respondent has

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proved that she gave 101 sovereigns of gold ornaments and Rs.2 lakhs at the time of marriage and if so, the judgment and

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decree passed by the lower court is sustainable in law.

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There is no dispute regarding the marriage between the 1^st appellant and the respondent, which was solemnised on 6-12-2004 at Painkkath Auditorium, Bharanikkavu as per hindu religious rites. The specific case of the respondent (petitioner in the lower court) was that, at the time of her marriage, 101 sovereigns of gold ornaments and Rs. 2 lakhs

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were given to the appellants. To substantiate that contention, she was examined as PW1 in the lower court and in cross examination nothing has been brought out by the appellants to discredit the respondent's evidence, which was supported by PW2 to PW4. She also produced Exts.A1 to A4 in the court below to prove the marriage and the quantity of gold ornaments at the time of marriage. But, the appellants totally denied the above contention and examined CPW1 to CPW4.

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We are not reiterating the oral testimony of PWs 1 to 4. It is clear from the evidence of PW1 that she purchased

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the gold ornaments from Puthoor Pranavam Jewellery. At the time of her sister's marriage 80 sovereigns of gold were given

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by her parents and she is ready and willing to bring the photographs. PW1 and her family are living upon the income derived from agriculture including rubber plantation, but, she is unable to calculate the actual income derived from it. Even after detailed cross examination, nothing has been brought out to discredit the evidence of PW1. But, at the time of cross examination of CPW1, he admitted that he gave 101 sovereigns of gold ornaments at the time of his sister's marriage. He admitted this status of his family at the time of marriage equal to that of PW1(ഹര�� കക�യ�ട�യ�� എട�യ�� വ�ട�ക�ര�ട� status ഒരര category യ�ല ട��നത�ണ�.) This presume that when a marriage is solemnized by the parties belonging to equal status, they will maintain the dignity of the family at the time of marriage. This amounts to an implied admission made by the appellants with regard to the money and family status at the time of marriage and this admission is the best evidence against the appellants. What is admitted by the appellants to be true must be presumed to true unless the contrary is shown. Even though CPws 1 to 4 are examined in

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the court below, we are of the opinion that the evidence of CPW1 and CPW2 are inconsistent about the quantity of gold. The admission made by the appellants at the time of cross examination can be used as evidence against them when strengthens and makes the respondent's case more probable.

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The facts tendered by the witnesses were analysed by the learned Family Court and there is legal reason to reject the portion of the claim of PW1 in the absence of documentary evidence to prove the quantity of gold. The mere admission of a fact made by a party at the time of cross examination is a good proof against him. The evidence given by him throughout his cross examination must be appreciated as a whole and certain portions of it cannot be appreciated unconnected with other part of his statement. What he had stated spontaneously cannot be split up as stated by the counsel appearing for the appellants. No other reasons are highlighted before us to conclude that the lower court erred in appreciating the evidence.

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Therefore, the decree and judgment passed by the

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lower court are only to be confirmed.

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In the result, the finding of the lower court is confirmed. We do not find any merit in this appeal and accordingly, the same is dismissed.

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PIUS.C.KURIAKOSE,JUDGE

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P.D. RAJAN, JUDGE.

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acd

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Renjith Kumar B. v. Girija Devi

Case brief

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Renjith Kumar B. v. Girija Devi

Case brief

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