In a matrimonial appeal, the High Court dismissed the husband's challenge to a family court decree ordering him to return dowry gifts. The court rejected arguments that pleadings were defective and upheld the trial court's finding that money and ornaments were entrusted to the husband.
The appeal was dismissed; no costs.
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
THE HONOURABLE MR.JUSTICE K.HARILAL &
THE HONOURABLE MR. JUSTICE A.M.BABU
FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939
AGAINST THE ORDER/JUDGMENT IN OP 424/2001 of FAMILY COURT, KOTTAYAM DATED 19-06-2006
APPELLANT(S)/APPELLANT/RESPONDENT.
JOHNSON JOSE @ MATHEW, AGED 30, S/O.JOSEPH, OLICKAL HOUSE, MANALUMKAL,, AKALAKUNAM VILLAGE, KOTTAYAM.
BY ADVS.SRI.BABU CHERUKARA SRI.P.A.SALIM
RESPONDENT(S)/PETITIONER.:
1. LOVELY THOMAS @ ROSE, AGED 23 YEARS, D/O.THOMAS, KALLUMKAMAKKEL THIDANADU.
2. MARIAM, W/O.JOSEPH, AGED 70, OLICKAL HOUSE, MONALUMKAL,, AKALAKUNNAM VILLAGE.
R,R2 BY ADV. SRI.V.R.ARUN R,R1 BY ADV. SRI.BECHU KURIAN THOMAS R,R1 BY ADV. SRI.ROSHEN.D.ALEXANDER
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.HARILAL & A.M.BABU, JJ.
MAT.APPEAL No.126 of 2007
--------------------------- Dated this the 2nd day of March, 2018
JUDGMENT
A.M.Babu, J.
While the marriage was subsisting, the wife filed two petitions. One was for divorce. That was allowed. No appeal is filed by the husband who is now the ex-husband. The other petition was filed by the wife against the husband and his mother for return of money and gold ornaments. It was allowed partly against the husband. The wife did not file appeal against the decree she suffered. The husband is in appeal against the decree passed against him.
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against him. His contentions are stated below: No money was entrusted with him. The first respondent had only 4 sovereigns of gold ornaments. The rest of the ornaments she wore at the time of the marriage were gold plated ornaments. The appellant did not take or appropriate any money or gold ornament of the first respondent or the child.
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counsel submitted that there were two respondents in the original petition, but the allegation was that the entrustment was with the 'respondent'. The emphasis is that singular is used without indicating to whom it refers to. It is also submitted that the defective pleadings had been expanded and developed at the trial. The expansion or development was that evidence was given to the effect that the amount was handed over to the appellant by the uncle of the first respondent. For these reasons, according to the learned counsel, the first respondent was not entitled to a decree for money.
Upon fixing the marriage, the petitioner was given an amount of Rs 25,000/- as her share from her father's property in cash which was entrusted with the respondent believing as the trustee of the
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amount.
182), the High Court said that a party could not improve his case
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by producing witnesses at subsequent stage in evidence to give details and names of sub-tenants. That was a case where subletting was alleged without stating who the sub-lessee was. That is not the situation in the present case. Here, the first respondent did not give evidence that the money was entrusted with any person other than the appellant.
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and had led evidence thereon. It is also held that such expansion is permissible only in exceptional cases. In the present case, there has been no such expansion of the pleadings. Material facts were pleaded. But a mistake was committed by stating that the entrustment was with the 'respondent'. The appellant cannot magnify the said small defect to demolish the entire case of the first respondent. In this context it is apposite to refer to the decision of a full bench of this court. The decision is Pottarath Kunhammi vs Varikkapulakkal Abdullakutty (2015 (1) KHC 684) . The full bench holds that if the court finds that no prejudice has been caused to the opposite side, it is not proper to deny relief on the ground of defect in pleadings. The said decision of the full bench is apt in the present situation.
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get over the facts elicited in cross-examination. We do not find anything to disbelieve the evidence of PW1, particularly the evidence elicited in cross-examination.
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requesting to receive a document. The document sought to be received is the relevant page of the loan ledger maintained in the said bank. According to the learned counsel, PW2 lied in court that she had no account in the said bank. We do not see any valid reason stated in I.A.No.842/2018 to receive evidence in appeal. It was possible to obtain the said document before trial. We are not satisfied of any of the conditions contained in order 41 rule 27 of C.P.C for reception of additional evidence. We therefore dismiss I.A.No.842/2018. But it should not go without notice that PW2 did not deny the maintenance of an account in the said bank. PW2 did not say that she had no account in that bank. What she stated was only that she did not mortgage any property to obtain a loan from that bank and that no recovery proceedings were initiated against her. So we do not find any reason, much less the reason stated by the learned counsel, to disbelief PW2.
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sd/-
K.HARILAL, JUDGE
sd/-
A.M.BABU, JUDGE
sks/vgd/3.3.2018.
3 issues framed by the court
Whether a decree for return of matrimonial gifts should be dismissed due to alleged defect in pleadings.
Whether the trial court's finding of fact regarding entrustment of money and jewelry should be interfered with on appeal.
Whether the appellants' claim of defective pleading justifies setting aside the family court decree.
Colour shows how this judgement treated each authority
Kanhaiya Lal vs Hari SinghDistinguished¶44
AIR 1996 Rajasthan 182 · Who else cites this
Nalini Sunder vs G.V.SundarDistinguished¶45
AIR 2003 Karnataka 86 · Who else cites this
Bachhaj Nahar vs Nilima MandalExplained¶46
AIR 2009 SC 1103 · Who else cites this
Pottarath Kunhammi vs Varikkapulakkal AbdullakuttyFollowed¶46
2015 (1) KHC 684
Johnson Jose @ Mathew
Lovely Thomas @ Rose
Mariam
K.Harilal
A.M.Babu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
