Dismissed

Boban Joseph & Others v. Ashly Eapen

Kerala HC20 Feb 2017Mat.Appeal/532/2008

Case brief

AI extract

What is this about?

Appeals challenging the Family Court decree in matrimonial cases involving divorce, return of alimony, and recovery of gold ornaments and joint deposits. This Court examined the evidence and found no error in the lower court's appreciation of probability and quantum of relief.

What did the court decide?

Allow O.P. 143/2006 for return of Rs.5 lakhs, 37 3/4 sovereigns gold, almirah, dresses, and recovery of Rs.5000 in default.

Boban Joseph & Others Vs Ashly Eapen — Matrimonial and Divorce | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

MONDAY, THE 20TH DAY OF FEBRUARY 2017/1ST PHALGUNA, 1938 Mat.Appeal.No. 532 of 2008 ( ) -------------------------------

¶5

AGAINST THE JUDGMENT IN OP 143/2006 of FAMILY COURT, KOTTAYAM DATED 31-03-2008

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APPELLANTS/RESPONDENTS:

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BOBAN JOSEPH, S/O.GEORGE JOSEPH, MANALEL HOUSE, PERUMPAIKADU P.O., KOTTAYAM - 28.

¶8

GEORGE JOSEPH, MANALEL HOUSE, PERUMPAIKADU P.O., KOTTAYAM - 28. 3. MRS.VALSALA JOSEPH, MANALEL HOUSE, PERUMPAIKADU P.O., KOTTAYAM-28.

¶9

BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE

¶10

RESPONDENT/PETITIONER:

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ASHLY EAPEN, D/O.K.E.EAPEN, CAPTAIN, 179, MILITARY HOSPITAL, KALIMPONG DISTRICT, WEST BENGAL.

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R1 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL

¶13

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2002-2017, ALONG WITH MA. 830/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.SHAFFIQUE, J &

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**K.RAMAKRISHNAN, J * * * * * * * * * * * * * *** Mat.Appeal Nos.532 of 2008 & 830 of 2009

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Dated this the 20^th day of February 2017

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J U D G M E N T

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Shaffique, J

¶19

These appeals are filed by the petitioner as well as the respondents in O.P.No.143/2006 of the Family Court , Kottayam (at Ettumanoor) challenging judgment dated 31/03/2008. The above original petition was heard along with O.P.No.142/2006 filed by the wife for divorce under Section 10 of the Indian Divorce Act. O.P.No.143/2006 has been filed by the wife for return of amount belonging to her and appropriated by her husband and his parents along with the gold ornaments. The Family Court, while granting divorce, allowed O.P.No.143/2006 permitting the petitioner/wife to realise an amount of Rs.5,00,000/- with interest @ 9% per annum from the date of suit and also to recover the value of 37¾ sovereigns quantified at Rs.3,50,000/- along with return of steel almirah and dresses and in default to realise Rs.5,000/-.

¶20

¶21

M.A.Nos.532/2008 & 830/2009

¶22

Both the parties are in appeal. Mat.A.No.830/2009 has been filed by the petitioner/wife and Mat.A.No.532/2008 has been filed by the husband and his parents, the respondents.

¶23

For easy reference, I am referring the parties as described in the original petition itself.

¶24

The short facts involved in the original petition reads as under:

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The marriage between the petitioner and the 1^st respondent was solemnised on 21/05/2000. At the relevant time, petitioner was employed as a Nursing Officer at Military Hospital, Jabalpur and the respondent in a private concern at Chennai. After marriage, they resided at their respective parental houses for two weeks. Thereafter they went to Chennai and resided together for one month. Petitioner thereafter went to Jabalpur and rejoined employment. Petitioner alleges that the respondent and his family members were ill-treating her from the initial days of marriage itself and they were complaining about the meager amount received from her family. Later, the 1^st respondent joined the petitioner at Jabalpur. It is alleged that the 1^st respondent used to ill-treat her during pregnancy. She had given birth to a

M.A.Nos.532/2008 &

830/2009

girl child on 25/03/2002. During May 2004, the family came back from Jabalpur. However, the 1^st respondent did not return keeping the child along with him. She had to go back to jabalpur alone. Whenever she made visit to Kerala in short intervals to meet the 1^st respondent and the child, she was being ill-treated During April 2005, when she had come she was not permitted to see the child which resulted in registering a case under Section 498A and 34 of I.P.C. which is pending consideration before the Judicial Magistrate of First Class, Ettumanoor as C.C.No.90/2005. It is stated that the petitioner and the child are presently residing at Darjiling where she is working and the child is studying in the nearby School. Petitioner and the 1^st respondent are living separately and though there were mediations, the matter was not settled.

¶30

It is contended that prior to the marriage, respondents insisted for an amount of Rs.5 lakhs towards her paternal share. Accordingly, Rs.2 lakhs in cash was entrusted to the respondents at the time when the marriage was fixed on 07/05/2000. Further, an amount of Rs.3 lakhs was also given as joint deposit in the name of the petitioner and the 1^st respondent. It is alleged that,

¶31

M.A.Nos.532/2008 & 4

¶32

830/2009

¶33

while the marriage was being arranged, respondents were demanding Rs.7 lakhs as paternal share. It was on intervention of the mediators that Rs.5 lakhs was paid. In addition to the aforesaid amount, she had ornaments weighing 67 sovereigns. It is further contended that out of Rs.3 lakhs, which was remaining in the joint account, at the compulsion of the 1^st respondent, Rs.2,50,000/- was withdrawn in the name of the 1^st respondent's sister Anu Joseph. The balance amount, with accrued interest of Rs.30,000/- amounting to Rs.80,000/-, was deposited in the name of the 1^st respondent. It is further contended that the 1^st respondent used to compel the petitioner to withdraw money from her earnings and the amount so collected would come to Rs.2,93,500/-. Out of the 67 sovereigns of gold ornaments, it is alleged that 37.6 sovereigns was taken by the 1^st and 3^rd respondents on the very next day of marriage, which the 3^rd respondent had kept in a locker in the Kottayam branch of the Canara Bank. Gold ornaments of 8.2 sovereigns was received by the petitioner as present which was also taken by the 3^rd respondent and kept in her custody. Hence altogether 46 sovereigns of gold belonging to the petitioner is in the custody of

¶34

M.A.Nos.532/2008 & 5

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830/2009

¶36

respondents 1 and 3. Petitioner therefore sought for recovery of Rs.7,93,500/- and also return of gold ornaments worth 46 sovereigns or its equivalent value of Rs.2,74,160/- with future interest.

¶37

Petitioner also contended that certain movables have

¶38

been given by the petitioner's family which are still with the respondents, for which a claim has been made for Rs.30,000/-.

¶39

The evidence consists of oral testimony of PWs 1 to 4

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on behalf of petitioner and RW1 on behalf of the respondents. Petitioner relied upon Ext.A1 to A8 and respondents relied upon Exts.B1 to B1(a).

¶41

The Family Court, while allowing the original petition restricted the claim for recovery of money upto Rs.5 lakhs and gold 37¾ sovereigns and quantified its value at Rs.3,50,000/-. Both parties are aggrieved by the judgment of the Family Court and hence they have preferred these appeals.

¶42

Heard the learned counsel appearing on either side.

¶43

It is the contention of the learned counsel for the petitioner that there is sufficient evidence to prove the entrustment of all the gold ornaments with the respondents which

M.A.Nos.532/2008 &

830/2009

fact has not been properly considered by the Family Court. Further, there is also evidence to indicate that the respondent had collected an amount of Rs.2,63,000/- from the petitioner and the Family Court had not appreciated the evidence in that regard properly. The learned counsel also placed reliance on two judgments of this Court. Jubairiya.M.K. v. Abusalih and Another [ 2013(2) KHC 304] wherein a Division Bench of this Court held that in civil cases, preponderance of probability is sufficient justification for coming to the conclusion that a fact is proved or disproved. That was a case in which demand was made for recovering the gold ornaments and the money paid, from the respondent. By appreciating the evidence, this Court held that when the oral evidence adduced by the petitioners are believable it can rely upon such portion of oral evidence for granting relief. Another judgment relied upon is Shinu.P.K. v. Dhanya Madhavan [2013(3) KHC 735] wherein it is held that the burden of proof lies on the person who is bound to prove the existence of any fact for obtaining a decree.

¶48

On the other hand, the learned counsel appearing for the respondent would argue that the Court below had rightly

M.A.Nos.532/2008 &

830/2009

refused certain reliefs as there was no evidence to substantiate the same and in fact, the decree now granted is not based on sufficient evidence.

¶53

In view of the fact that appeals are filed by either side, it has to be considered as to whether the finding by the Court below in O.P.No.143/2006 is justified and based on the evidence on record. There is no dispute about the fact that while deciding cases under Section 7 of the Family Courts Act, 1984, the parties claiming the properties will have to substantiate their claim and the burden of proof rests on them, and the evidence should be appreciated based on preponderance of probabilities. It is also trite that the oral evidence of the parties cannot be ignored unless it is found to be uncreditworthy. The claim in O.P.No.143/2007 was for an amount of Rs.11,27,660/-. The allegation is that a sum of Rs.2,00,000/- was entrusted to the respondents on 07/05/2000. A further amount of Rs.3,30,000/- was entrusted by way of deposit in the joint names of the petitioner and the 1^st respondent with KSFE Kottayam branch and a sum of Rs.2,93,500/- was paid by the respondents to the petitioner during the period between 18/12/2001 and 28/10/2004. It is also contended that at the time

M.A.Nos.532/2008

830/2009

of marriage, the petitioner was wearing 67 sovereigns of gold. Gold ornaments of 37.6 sovereigns was taken by respondents 1 and 3 on the very next day of the marriage which the 3^rd respondent had kept in her locker. That apart, gold ornaments of 8.2 sovereigns was received as present from the petitioner's parents and relatives to the minor child which was also taken by the 3^rd respondent and kept in her custody. In the written statement filed by the respondents, it is contended that after marriage, from August 2000 onwards, the 1^st respondent had shifted to Jabalpur and was residing with the petitioner in her quarters. They denied the receipt of money on 07/05/2000. It is contended that on the date of engagement of marriage, that is on 14/05/2000, petitioner's brother entrusted the 2^nd respondent with a Sugama pass book of KSFE, Kottayam. 1^st respondent was asked to go to the Bank with the pass book on 15/05/2000. On the said date, the petitioner's father had made arrangements for depositing Rs.3,00,000/- in the said account which was in the name of the petitioner and the 1^st respondent as the joint account holder. Though the respondents admit that the petitioner had some gold ornaments they were not aware of the exact quantity

¶59

M.A.Nos.532/2008 & 9

¶60

830/2009

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and according to them, it would only be around 50 sovereigns. Similarly, the respondents denied receipt of any other amount other than the amount available in the joint account of the parties. The respondents, however, submitted that, after the marriage, the petitioner had taken all her ornaments to Jabalpur. At the time of marriage, the respondents did not have a bank locker. When the petitioner came to the native place in the year 2004, she had only 36.680 grams of ornaments which was entrusted to the respondents. That apart, an almirah and some clothes are available with them, which they are willing to return. They also admit the fact that at the time of Baptism, respondents had given some ornaments to the child which was taken by the petitioner. An ornament given by the petitioner's parents was used by the petitioner as a chain. Further, it is contended that at the time of leaving the matrimonial home, petitioner had taken two rings having a weight of 8 grams and 4 grams respectively. A chain having a weight of 20 grams given by his mother, ear rings weighing four grams and a necklace weighing 25 grams given at the time of respondent's sister's marriage and other ornaments. In other words, the respondents have disputed the main

¶62

M.A.Nos.532/2008 & 10

¶63

830/2009

¶64

allegations in the original petition except the amount available in the KSFE account and 37 ¾ sovereigns of gold ornaments. The petitioner relied upon the evidence of PWs 1 to 4 and Exts.A1 to A8. Respondents relied upon RW1 and Ext.B1 certificate.

¶65

The first question to be considered is regarding the claim for Rs.7,00,000/-. PW1 is none other than the petitioner. She filed proof affidavit deposing to the facts of the case, as pleaded.

¶66

In cross-examination, it is stated that no amount was paid on 7^th and the said averment in the petition was a mistake. A sum of Rs.2,00,000/- was paid on 14^th . She further stated that she was suffering from physical harassment since 2000 which continued in the 3^rd week of January 2005 for which she had taken treatment from the Military hospital. She further stated that she had a deposit in DS O.P which was deducted from her salary. Rs.1,74,000/- was drawn from the said deposit in 2005. A question was asked whether the salary was withdrawn for her father's purpose, which she denied. She also denied the fact that her husband was not aware of it. Her husband had asked her about it and she told him that it was transferred to the account at

M.A.Nos.532/2008 &

830/2009

their native place. She says that the pass book is with her and the account is at SBI, Kanjikuzhy branch at Kottayam A question was asked whether SBI has any branch at Kanjikuzhy, for which she said she is not sure. In cross-examination she says that Rs.5,00,000/- was paid on 14^th . There was a controversy regarding the amount which was paid before engagement. When she was asked why Rs.2,00,000/- was paid initially since they did not have money, her answer was that she does not know. She had come one week before marriage. The ornaments were purchased from time to time and even during her younger days. It was purchased by her parents. A question was asked that, taking into account the fact that she had a job, no demand was made for money, which she denied. She stated that Rs.200,000/was given on 14^th . Certain questions were asked regarding the custom followed as to whether the money has been paid directly by her father or her uncle. Another question was asked in crossexamination that she did not wear any ornaments during her visit since she did not have sufficient ornaments, which was denied by her. In regard to Rs.2,93,500/- she was asked whether the money was given as loan and the answer was that it was received by

¶71

M.A.Nos.532/2008 & 12

¶72

830/2009

¶73

them from time to time and it was for the purpose of respondent's sister's marriage. She further deposed that the account maintained was either or survivor. She also admitted the fact that income of the respondent came in the joint account and the salary was below Rs.5,000/-. She also deposed that she received the chain from husband's house for which she paid Rs.35,000/-. There is a custom to give ornaments when the bride reaches the matrimonial home and she received the chain on the said date. She further says that on the date of marriage itself, the gold ornaments were taken by her mother-in-law and kept in a locker. After the marriage, she has not seen the gold ornaments. A question was asked that she was having gold ornaments that were entrusted to the respondents, which was also denied by her. A suggestive question was further asked that “you have on your own volition, entrusted the ornaments which were scheduled in the objection”, her answer was “no”. She further deposed that the children's ornaments as per the schedule is not kept in her possession. She admits that there is no bill for purchase of gold and she does not remember from where it was purchased. When a suggestive question was asked, that the respondent was willing

M.A.Nos.532/2008 &

830/2009

to give Rs.2.5 lakhs and Rs.80,000/-, her answer was that, more money is payable which is more than Rs.11 lakhs.

¶78

PW2 is the brother of the petitioner's mother. He filed an affidavit stating that Rs.2,00,000/- was paid on 14/05/2000 and Rs.3,00,000/- was transferred to the respondent's account on 15/5/2000. In cross-examination, he deposed that the money was taken from the bank. Money was counted by respondent's mother's brother. The money was not taken from the bank on the said date. They received Rs.50,000/- as loan from him and including the said amount Rs.2,00,000/- was paid. He got back the money which he had paid. PW3 is the father of the petitioner. He filed proof affidavit stating that the engagement was on 07/05/2000. Betrothal on 14/05/2000 and marriage was on 21/05/2000. On 04/05/2000, respondent's father demanded Rs.7,00,000/- and he informed him that he cannot pay more than Rs.5 Lakhs. Rs.2 Lakhs was paid at the time of betrothal and Rs.2,98,000/-was deposited in an account of KSFE. He also stated that at the time of marriage he has given 67 sovereigns of gold. In cross-examination, he deposed that 67 sovereigns of gold was purchased within a period of one year, last of which was

¶79

M.A.Nos.532/2008 & 14 830/2009

¶80

purchased one month before the marriage. Other expenditure would have come to Rs.50,000/- He said that he does not know how much money was spent for purchasing dress. A question was asked whether they have taken Rs.2,25,000/- from the bank account for the marriage expenses, his answer was in the negative. He says that he had Rs.2,25,000/- in his account.

¶81

PW4 is the brother of PW3. He had filed an affidavit stating that before the marriage, there was a demand for Rs.7 lakhs and they agreed to pay Rs.5 lakhs. He also intervened to mediate the dispute between the couple. In cross-examination, it is deposed that Rs.7 lakhs was demanded, he told that Rs.5 lakhs was paid which the 2^nd respondent had agreed. Suggestion was that he was deposing to help the petitioner, which he denied.

¶82

As evidence of RW1, he filed a proof affidavit narrating the very same contentions he had raised in the written objection. In cross-examination, he says that Rs.2 lakhs was not entrusted on 14/5/2000, only a passbook was entrusted. To the question that they have fixed Rs.5 lakhs as share money he denied the same. He says that he does not know as to how much sovereigns, his wife was wearing. According to him, she told him that she was

M.A.Nos.532/2008

830/2009

having 35 sovereigns. He denied the fact that he had taken any gold ornaments from her.

¶88

The Family Court, after having considered the evidence on record, observed that the respondents admittedly entrusted Rs.2 lakhs, but denied payment of Rs.3 lakhs in cash. Though the respondents admitted that 99 grams of gold ornaments was available with her, they denied the entrustment of the balance. In regard to payment of Rs.2 lakhs, the evidence consists of oral testimony of PWs 1, 2 and 3. The Court below found that there is no reason to disbelieve PWs1 to 4 and therefore the denial of respondents regarding payment of 2 lakhs is not admissible. In regard to gold ornaments also it was observed that gold ornaments of 37¾ sovereigns were appropriated by the respondents and there is no evidence to show that 8¼ sovereigns given to the child were appropriated by the respondent. The contention that the respondent had taken the gold ornaments of the petitioner and kept in a locker is believed. According to RW1 a locker was opened in the name of the mother in 2001. The Court below therefore came to a conclusion that only 37¾ sovereigns of gold has been appropriated by the respondent. In

¶89

M.A.Nos.532/2008 & 16

¶90

830/2009

¶91

regard to the claim for Rs.2,93,500/- it was found that those amounts were spent when they were living together as husband and wife for which no claim can be raised. In regard to other claims, the court below directed payment of Rs.5,000/-.

¶92

The short question to be considered in this case is whether the Family Court had committed any error in appreciating the evidence on record. After having gone through the evidence of either parties, we do not find that the Family Court had committed any error in taking a decision in this case. Learned counsel appearing for the respondent submits that there is no evidence to prove entrustment of Rs.2 lakhs. Though it was originally contended that the amount demanded was Rs.7 Lakhs and Rs.2,00,000/- was paid on 14/05/2000, that itself would show that the allegation regarding the said payment was absolutely baseless. But, it has been explained by PWs 1 to 3 that Rs.2,00,000/- was paid on 14^th , there is no reason to disbelieve that and therefore the said finding of the Court below cannot be rejected.

¶93

Further, as far as the payment of Rs.3 lakhs is concerned, there is no dispute about the same which the

M.A.Nos.532/2008 &

830/2009

respondent agrees to repay also. On an appreciation of the facts and circumstances, we do not find perversity in the judgment warranting interference of this Court at the advanced stage.

¶98

As far as gold ornaments are concerned, the only evidence available is in regard to entrustment of 37¾ sovereigns of gold. There is no evidence for purchasing gold. According to the petitioner, gold was purchased over a period of time, whereas according to PW3, her father, some gold was purchased long back and some gold immediately. The photographs produced shows that she was wearing some gold ornaments, According to the respondent, it might be imitation and not actual gold. He further admits that some ornaments belonging to the petitioner weighing 99 grams was with them. It is, taking into consideration the rival contentions, that the Family Court had arrived at a conclusion that 37¾ sovereigns of gold might have been entrusted. Since the petitioner had quantified the value of gold ornaments, she is not entitled to get more than the amount quantified by her at a particular rate which Court had granted. Hence there is no merit in the submission made by the counsel for the petitioner/wife that she is entitled to get present day value of

¶99

M.A.Nos.532/2008 & 18

¶100

830/2009

¶101

gold and that cannot be accepted. Further, if the petitioner did not quantify the amount, then Court has to quantify the same at the time of passing the decree taking the value of the gold as on that date. But in this case, the petitioner herself has, in the alternate, claimed the value of gold ornaments at a particular date. So she is not entitled to claim more than the amount as value of gold ornaments which was found to be appropriated and liable to be refunded by the respondents.

¶102

It is trite that Courts can act only on preponderance of probabilities and when viewed in that angle, we do not find any error in the judgment warranting interference. The Family Court was justified in directing payment of the amounts, as stated above.

¶103

These appeals are dismissed.

¶104

(sd/-)

¶105

(A.M.SHAFFIQUE, JUDGE)

¶106

(sd/-)

¶107

(K.RAMAKRISHNAN, JUDGE)

¶108

jsr

Boban Joseph & Others v. Ashly Eapen

Case brief

What is this about?

What did the court decide?

Boban Joseph & Others v. Ashly Eapen

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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