Allowed

Prabhakaran v. Sreekala S.K.

Kerala HC12 Sept 2018Mat.Appeal/164/2016

Case brief

AI extract

What is this about?

This matrimonial appeal challenges a Family Court decree ordering respondents to return gold ornaments allegedly entrusted by the wife. The High Court held that evidence, including a letter from the husband, disproved the wife's claim of entrustment. The appeal was allowed, and the lower court's decree was set aside.

What did the court decide?

Set aside the judgment and decree of the Family Court in O.P.No.352/2013 and dismissed the original petition filed by the respondent/petitioner.

Prabhakaran Vs Sreekala S.K. — Matrimonial and Divorce | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

¶4

¶5

THE HONOURABLE MR.JUSTICE R.NARAYANA PISHARADI

¶6

WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940

¶7

Mat.Appeal No.164 of 2016

¶8

(AGAINST THE JUDGMENT DATED 11.12.2015 IN OP No.352/2013

¶9

OF FAMILY COURT, MAVELIKKARA)

¶10

APPELLANTS/RESPONDENTS:

¶11

1 PRABHAKARAN, S/O.RAJAN, EDAYILE VEEDU, KANNAMANGALAM VILLAGE, KADAVOOR MURI.

¶12

2 RAJAN, EDAYILE VEEDU, KANNAMANGALAM VILLAGE, KADAVOOR MURI.

¶13

3 RUGMINI, EDAYILE VEEDU, KANNAMANGALAM VILLAGE, KADAVOOR MURI.

¶14

BY ADVS. SRI.MATHEWS JACOB (SR.) SMT. PREETHI R. NAIR SRI.P.JACOB MATHEW

¶15

RESPONDENT/PETITIONER:

¶16

SREEKALA S.K., W/O. PRABHAKARAN, EDAYILE VEEDU, KANNAMANGALAM VILLAGE, KADAVOOR MURI, NOW RESIDING AT SOBHANA MANDIRAM, CHEPPADU VILLAGE, KANICHANALLOR MURI - 690 318.

¶17

BY ADV. SRI R.RAJASEKHARAN PILLAI FOR CAVEATOR

¶18

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON 12.09.2018 DELIVERED THE FOLLOWING:

¶19

Mat.Appeal No.164 of 2016

¶20

¶21

JUDGMENT

¶22

R. Narayana Pisharadi, J

¶23

The appellants are the respondents in O.P.No.352/2013 on the file of the Family Court, Mavelikkara. The respondent is the petitioner in that case.

¶24

2. The parties shall be hereinafter referred to as they figure in O.P.No.352/2013 in the Family Court.

¶25

3. The petitioner filed the original petition in the Family Court against her husband and his parents for granting a decree for return of 43.500 sovereigns of gold ornaments allegedly entrusted with them and in the alternative, a decree for realisation an amount of Rs.11,45,000/- being the value of the ornaments. An amount of Rs.1,00,000/- was shown in the 'B' schedule of the original petition as the money received from the petitioner by her husband but no decree was sought for realisation of that amount. The petitioner also sought a decree for realisation of the movables belonging her in the custody of her husband and his parents. But, the original petition did not contain the details of the movables. The petitioner further sought a decree for realisation of an amount of Rs.5,00,000/as compensation from her husband and his parents for the mental and

¶26

Mat.Appeal No.164 of 2016

¶27

physical agony caused to her by them.

¶28

4. The respondents filed counter statement in the original

¶29

petition denying the allegations raised against them by the petitioner.

¶30

5. During the trial of the case, PW1 to PW3 were examined and Exts.A1 to A3 documents were marked on the side of the petitioner. RW1 was examined and Exts.B1 to B6 documents were marked on the side of the respondents. After appreciating the evidence adduced by the parties, the Family Court found that the petitioner is entitled to get a decree for return of 33.500 sovereigns of gold ornaments from the respondents or Rs.6,70,000/- as the market value of the gold ornaments. The other claims made by the petitioner were not allowed by the Family Court. Aggrieved by the decree passed against them, the respondents have preferred this appeal.

¶31

6. The petitioner has not filed any appeal or cross objection.

¶32

7. The marriage between the petitioner and the first

¶33

respondent was on 21.7.1996. The specific case of the petitioner is that she had 43 sovereigns of gold ornaments at the time of the marriage but the quantity of the gold ornaments was recorded in the marriage register as 40 sovereigns only. There is also a plea that when the petitioner was welcomed to her matrimonial house, she gave

¶34

¶35

Mat.Appeal No.164 of 2016

¶36

two bangles weighing one sovereign each to the mother and the grandmother of the husband. It is alleged in the original petition that one week after the marriage, the first respondent asked the petitioner to hand over to him the gold ornaments except the thali chain, one pair of ear studs and two bangles and that she gave all those gold ornaments to him. It is also alleged that her husband then entrusted the gold ornaments with his parents.

¶37

8. The petitioner has to prove two aspects to get a decree in her favour, (i) the quantity of gold ornaments she had with her at the time of the marriage and (ii) entrustment of the gold ornaments with the husband and the quantity of gold ornamants so entrusted.

¶38

9. The petitioner was examined as PW1. She has stated in the affidavit filed in lieu of examination-in-chief that she had 43 sovereigns of gold ornaments at the time of the marriage. She has also stated that the quantity of the gold ornaments was shown as only 40 sovereigns in the marriage register.

¶39

10. In the counter statement filed by the respondents, they have no specific case with regard to the quantity of gold ornaments which the petitioner had with her at the time of the marriage. The first respondent, the husband of the petitioner, was examined as RW1. He has not given any evidence with regard to the quantity of gold

¶40

¶41

Mat.Appeal No.164 of 2016

¶42

ornaments which the petitioner had at the time of the marriage.

¶43

11. Ext.A3 is the copy of the relevant page of the marriage register kept in the Sree Narayana Dharma Paripalana Yogam. The quantity of the gold ornaments, which the petitioner had at the time of her marriage, is recorded as 40 sovereigns in Ext.A3 document. This is a fact admitted by the petitioner. The marriage register was produced in the court by the Secretary of the Yogam. He was examined as PW2 and the register was proved.

¶44

12. In the aforesaid circumstances, on the basis of the evidence of PW1 and the entries contained in Ext.A3 document, it is safe to conclude that the petitioner had 40 sovereigns of gold ornaments at the time of her marriage.

¶45

13. The petitioner alleged that when she was welcomed to the matrimonial house, she gave two bangles each weighing one sovereign to the mother and the grandmother of her husband. However, when examined as PW1, her evidence is that she gave one bangle each weighing one sovereign to the mother and the grandmother of the husband. The petitioner had filed an application against the respondents in the Judicial First Class Magistrate's Court, Haripad under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Ext.B1 is the copy of the aforesaid application. The

¶46

¶47

Mat.Appeal No.164 of 2016

¶48

recital in that application is that she gave one bangle weighing 1.500 sovereigns each to the mother and the grandmother of the husband. Therefore, it can be seen that the petitioner has got no consistent case regarding the quantity of the gold ornaments given to the mother and the grandmother of her husband. Moreover, it appears that those ornaments were given to them by the petitioner as a gift. In these circumstances, the petitioner is not entitled to get a decree for return of the gold ornaments given to the mother and the grandmother of her husband.

¶49

14. The specific plea of the petitioner in the original petition is that after one week of the marriage, the first respondent asked her to hand over all the gold ornaments except the thali chain, one pair of ear studs and two bangles to him and that she gave all those ornaments to him. The marriage of the petitioner with the first respodnent was on 21.7.1996. When examined as PW1, the petitioner has given evidence that it was on 28.7.1996 that she gave the gold ornaments to the husband. She has also stated in the cross examination that she did not see the gold ornaments thereafter.

¶50

15. Ext.A2 is the letter dated 5.4.1997 written and sent by the

¶51

first respondent to the petitioner. When examined as RW1, the first respondent has admitted that Ext.A2 letter was sent by him to the

¶52

Mat.Appeal No.164 of 2016

¶53

¶54

petitioner.

¶55

16. Ext.A2 letter was projected as the trump card of the petitioner in the trial court to prove entrustment of the gold ornaments by her with her husband and his parents. But, in the ultimate analysis, Ext.A2 letter turns out to be a document which would cut the root of the case set up by the petitioner against the respondents.

¶56

17. In Ext.A2 letter dated 5.4.1997 written by the first respondent to the petitioner, he had specifically asked the petitioner not to take the gold ornaments to her house when she goes to her house for her delivery. He had asked her to entrust the gold ornaments with his father. In fact, Ext.A2 letter contains so many recitals regarding the gold ornaments belonging to the petitioner. The letter also reveals that the first respondent had intention to pledge the gold ornaments of the petitioner and to buy 10 cents of property using the money.

¶57

18. Ext.A2 letter would show that the gold ornaments were in the possession of the petitioner till the date on which she went to her house for delivery. When examined as PW1, the petitioner has not disputed the correctness of the contents of Ext.A2 letter. She has also not given evidence that, the recital in Ext.A2 letter that she

¶58

¶59

Mat.Appeal No.164 of 2016

¶60

was in possession of the gold ornaments at the time when she went to her house for delivery, is not true. She has also not given evidence that as per the demand made by the husband in Ext.A2 letter, she entrusted the gold ornaments with his father.

¶61

19. PW1 has specifically stated in the cross examination that she entrusted the gold ornaments with the first respondent on 28.7.1996 and thereafter, she did not see them till the date of giving evidence before the court. However, Ext.A2 letter produced by the petitioner herself would show that the gold ornaments were in her possession when she went to her house for delivery. As noticed earlier, there is no evidence that she entrusted the gold ornaments with the father of her husband pursuant to the demand made by her

¶62

husband in Ext.A2 letter. There is also no such plea in the original petition.

¶63

20. In the aforesaid circumstances, we find that Ext.A2 letter sent to the petitioner by her husband would disprove her case that she entrusted the gold ornaments with her husband one week after the marriage. There is neither plea nor evidence that she entrusted the gold ornaments with her husband or his parents on any subsequent

¶64

date. It follows that the finding of the lower court regarding the entrustment of gold ornaments by the petitioner with her husband

¶65

¶66

Mat.Appeal No.164 of 2016

¶67

cannot be sustained. It further follows that the judgment and the decree passed by the lower court also cannot be sustained.

¶68

Consequently, we allow the appeal and set aside the judgment and decree passed by the Family Court in O.P.No.352/2013 and dismiss the original petition filed by the respondent/petitioner. The parties

¶69

shall suffer their respective costs throughout.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

¶75

JUDGE

¶76

Prabhakaran v. Sreekala S.K.

Case brief

What is this about?

What did the court decide?

Prabhakaran v. Sreekala S.K.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Akshara.a Vs Rohin S.Raveendran

Suresh Babu Vs Sajina

Sushama Vs the Circle Inspector of Police

Divya J.Nair Vs S.K.Sreekanth

Mathew Jose Vs Jessy Joseph

Aidron Olivera Vs State of Kerala