This appeal against a Family Court judgment concerning return of matrimonial assets was dismissed. The High Court upheld the finding that the husband appropriated the wife's ornaments and money for property purchase, deeming the lower court's observation on the sale consideration price unerrable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 16TH DAY OF AUGUST 2017/25TH SRAVANA, 1939
Mat.Appeal.No. 659 of 2007
AGAINST THE JUDGMENT IN OP 389/2005 of FAMILY COURT, KOTTAYAM DATED 08-08-2007
APPELLANT/1ST RESPONDENT: ------------------------
MANOJ K.S., AGED 35, S/O P.V.SUKUMARAN, KARIPPURATHU HOUSE, ARPOOKARA(W)P.O., ARPOOKARA VILLAGE,KOTTAYAM.
BY ADVS.SRI.T.A.SHAJI SMT.T.V.NEEMA
RESPONDENT/PETITIONER:
JISHA.N., AGED 30, D/O N.K.NARAYANAN, NAGAMVELIL HOUSE, ARPOOKARA P.O., ARPPOKARA VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.AJEY THOMAS BY ADV. SRI.V.K.SUNIL
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 4.7.2017 THE COURT ON 16-08-2017, DELIVERED THE FOLLOWING:
A.M.SHAFFIQUE &
ANU SIVARAMAN, JJ.
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Mat.Appeal No.659 of 2007
= = = = = = = = = = = = = = = = = = = = Dated this the 16th day of August, 2017
JUDGMENT
Anu Sivaraman, J.
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he returned after two months of marriage. Subsequently, the petitioner joined as staff nurse in Sankar's Hospital at Kollam. The petitioner has also gone to Gulf to join the 1st respondent in November, 2002 and she obtained job as staff nurse in Saudi Arabia and worked there for 9 months. At the time of marriage the petitioner was given 55 sovereigns of gold ornaments by her father as her share. At Saudi Arabia the petitioner was tortured and humiliated by the 1st respondent. Her entire salary was taken by him and she was not allowed to spend any money out of it. Her monthly salary was Rs.20,000/-. On 04.04.2005 when she returned, she entrusted amounts of Rs.1,80,000/- and Rs.2,40,000/- to the 1st respondent, which was the salary obtained by her. The gold ornaments were kept in the locker at Syndicate Bank, Kottayam in the joint name of the petitioner and the 1st respondent, but later, the ornaments were taken by him. After the marriage the mother of the petitioner gave 10 sovereigns of gold ornaments to her and those ornaments were also taken by the 1st respondent and thus 64 sovereigns of gold ornaments has been appropriated by the 1st respondent for the
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purpose of purchasing a property on 30.04.2005. Pursuant to repeated demand of the respondents, the father of the petitioner gave Rs.1,50,000/- on 02.05.2005 to purchase the land. All these gold ornaments and the amounts were entrusted with the 1st respondent as trustee. The petitioner is entitled to get back 64 sovereigns of gold ornaments and an amount of Rs.1,50,000/- which were utilised by the respondents for the purchase of the property and Rs.4,40,000/entrusted to the 1st respondent as her salary with interest.
The respondents 2 to 4 are unnecessary parties. The statement that the 1st respondent has appropriated the amount and gold ornaments of the petitioner is absolutely false. The petitioner had come to Saudi Arabia in November, 2002 along with child aged 3 months with the family visa arranged by the 1st respondent spending his own money. She was living there in the care and protection of the 1st respondent. Since she was not in a position to work as staff nurse, she had not received
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any salary. The statement that she entrusted the salary with the 1st respondent for the work done in Saudi Arabia is absolutely false. The statement that the 1st respondent behaved cruelty towards the petitioner at Saudi Arabia and extorted her entire salary is absolutely false. The allegation that Rs.1,80,000/- and Rs.2,40,000/- was entrusted with the 1st respondent as her salary is absolutely false. The 1st respondent has spent Rs.1,00,000/- for the petitioner's course in Intravenous Therapy and she is liable to return that amount. The 1st respondent has purchased property at Arpookara spending Rs.6,50,000/- and it is his own money. The statement that 64 sovereigns of gold ornaments of the petitioner has been sold and Rs.1,50,000/- has been given by her father on 02.05.2005 for that purpose is absolutely false. Since the property has been purchased in the name of the 1st respondent alone, the father of the petitioner behaved with enmity towards him. The marital relationship was strained due to the unnecessary interference of her parents. On 12.05.2005 the petitioner and her father came to the house of the 1st respondent and took back all her dresses and other articles.
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The 1st respondent has given gold ornaments to the petitioner and she is liable to return the same. Rs.67,500/- has been given through the NRE account and she is liable to return that amount also. The petitioner is not entitled to get any amount or gold ornaments as claimed in the petition whereas she is liable to return Rs.1 lakh spent for Intervenous Therapy course and 25 sovereigns of gold ornaments purchased and given to the petitioner by the 1st respondent and also 16½ sovereigns of gold ornaments given to the child and an amount of Rs.55,000/- given through NRE account and Rs.19,892/remitted towards Insurance as counter claim. Respondents 2,3 and 4 also filed separate objection starting that they are unnecessary parties to the petition and they adopted the contention of the 1st respondent.
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8.The learned counsel appearing for the respondent, on the other hand, contended that the Family Court had specifically found from the evidence adduced by the wife that a property had been purchased by the husband for an amount of Rs.16,90,000/- and that the consideration was paid in full on the same date. B24 sale deed dated 04.05.2005 showing sale consideration of Rs.6,50,000/- was produced by the husband. The case of the husband was that an amount of Rs.4,50,000/had been withdrawn from his father's account towards the consideration of sale. It is therefore contended that the contention of the wife that her gold ornaments had been sold and appropriated by the appellant for the purchase of the property was rendered probable in view of the combined effect of the documents produced by the parties and the evidence tendered by PW4. It is contended that the entrustment of the money and gold ornaments having been proved, the Family Court was perfectly justified in directing the return of the monetary value of the gold ornaments entrusted as well as the money in view of the clear evidence adduced regarding the appropriation of the said money and gold by the husband.
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9.We have considered the contentions advanced. The original
petition was filed specifically alleging entrustment and appropriation of money and gold ornaments. The specific case of the petitioner in the original petition was that her gold ornaments were sold and the proceeds were appropriated by the respondent-husband for purchase of a property in his own name. The petitioner had given evidence as PW1 in support of her contentions. PWs.2 to 5 were also examined by her. PW2 and 3 are her parents, who have deposed about the entrustment of the gold and the money. PW5 is the vendor in Exhibit B24 document, which was produced by the appellant. She states that the actual sale consideration of the property covered by B24 document was Rs.16,90,000/- and evidence was adduced to show that the said amount was deposited in her bank account on the day of the sale transaction. The appellant did not take the stand. His father and power of attorney holder was examined as RW1. Evidence was adduced to show that an amount of Rs.4,50,000/- was available in the father's account as remitted by the appellant. However, in view of clear evidence adduced by PW5 which could not be
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discredited in cross examination that the sale consideration of the property purchased on 04.05.2004 was Rs.16,90,000/-, the case set up in the original petition that the gold ornaments of the petitioner, which were in the custody of the appellant at the relevant time, has been sold and appropriated towards the consideration of the sale transaction is completely believable. From the evidence of PW1 to 3, the entrustment of the gold with the respondents stood proved. Moreover, Ext.A3 certificate was produced to show the source of funds for the handing over of the money. The Family Court relied on the evidence of PW1 to PW3 and the documentary evidence adduced to find that the entrustment of money also stood proved.
10.In view of the evidence adduced, we are of the opinion that the finding of the court below that the sale consideration of the property being much higher than what is stated in B24 document, the claim that the money and the gold ornaments had been appropriated by the respondents stood proved cannot be faulted.
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In the result, the appeal fails and is accordingly dismissed.
Sd/- A.M.Shaffique, Judge
sd/- Anu Sivaraman, Judge
sj
2 issues framed by the court
Whether the Family Court's finding that the husband appropriated the wife's gold ornaments and money for property purchase was sustainable in evidence.
Whether the husband's counter-claim for return of expenses incurred on the wife and child was maintainable.
Manoj K.S.
Jisha.N.
A.M.Shaffique
Anu Sivaraman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
