Allowed

Jenu Daniel v. Varghese Thomas

Kerala HC6 Aug 2018Mat.Appeal/5/2011

Case brief

AI extract

What is this about?

This matrimonial appeal concerns a claim for the return of Rs. 2 lakhs and 19.75 sovereigns of gold ornaments allegedly misappropriated by the respondents after the appellant's marriage. The High Court allowed the appeal, setting aside the Family Court's dismissal due to flaws in the evidence appreciation regarding the cash and the admissibility of the marriage album supporting the jewelry claim.

What did the court decide?

Return of Rs. 2 lakhs with 6% interest and 19.75 sovereigns of gold ornaments or their present value from respondents 1 and 2.

Jenu Daniel Vs Varghese Thomas — Matrimonial and Divorce | Kerala HC (2018)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940

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Mat.Appeal.No. 5 of 2011

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AGAINST THE JUDGMENT DATED 13.9.2010 IN OP NO.758/2009 OF THE FAMILY COURT, THIRUVALLA

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APPELLANT/PETITIONER

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JENU DANIEL, D/O.DANIEL, AGED 26 YEARS, KINARUVILA BAIJU BHAVAN, PERINGANADU.P.O, ADOOR.

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BY ADVS.SRI.BECHU KURIAN THOMAS SRI.A.C.EAPEN SRI.ROSHEN.D.ALEXANDER

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RESPONDENTS/RESPONDENTS:

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VARGHESE THOMAS, S/O.THOMAS, AGED 38 YEARS, KOCHUVEETTIL,MUTTOM.P.O., THUMPAMON,REPRESENTED BY GUARDIAN AND NEXT FRIEND PAPPACHAN, S/O.THOMAS, RESIDING AT KOCHUVEETTIL, MUTTOM.P.O., THUMPAMON - 689 502.

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PAPPACHAN,S/O.THOMAS, RESIDING AT KOCHUVEETTIL, MUTTOM.P.O., THUMPAMON - 689 502.

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RACHEL THOMAS,W/O.THOMAS, RESIDIN AT KOCHUVEETTIL, MUTTOM.P.O., THUMPAMON- 689 502.

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R1 AND R2 BY ADVS. SRI.KRISHNADAS P. NAIR SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR SMT.GIA MATHAI KANDATHIL

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.M.Shaffique & P. Somarajan, JJ.

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---------------------------------------------------Mat. Appeal No.5 of 2011 (C)

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---------------------------------------------------Dated this the 6^th day of August, 2018

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JUDGMENT

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P. Somarajan, J.

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Aggrieved by the order, dated 13.9.2010, rejecting a claim for Rs.2 lakhs and return of gold ornaments which comes to 19.75 sovereigns in O.P.No758 of 2009 on the file of the Family Court, Thiruvalla, the petitioner/wife came up with this appeal against her husband and two in-laws.

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The specific case advanced by the petitioner/wife is that her marriage with the first respondent was solemnized as early as on 30.4.2007 at St.Mary's Orthodox Church, Thumpamon. They are having a child in that wedlock, born on 16.8.2008. It is her further case that her consent for the marriage was obtained suppressing the mental ailment of the first respondent/husband and after the birth of the child she could not live with him. According to her, an amount of Rs.2 lakhs was entrusted with the second respondent who is the elder brother of the first respondent/husband, which was misappropriated by him for his personal purpose. It is averred that 25

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Mat. Appeal No.5 of 2011 (C)

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sovereigns of gold ornaments were given to her at the time of marriage, out of which 19.75 sovereigns of gold ornaments were taken away by the second and third respondents. Third respondent is none else her mother-in-law.

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Initially the second respondent was made as a party to the petition as the next friend of the first respondent as first respondent was not having sound state of mind to defend the proceedings. Later on, the first respondent appeared in person and sought permission to engage an advocate, which was permitted. There on, he filed the written statement along with the other respondents and contested the application.

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The petitioner gave oral evidence as PW1. Her uncle who attended the marriage was also examined as PW2. From the side of respondents, first respondent gave oral evidence as CPW1. His elder brother also gave oral evidence as CPW2.

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On consideration of the evidence tendered through CPW1 and CPW2 and the documentary evidence, the lower court had rejected the claim of the petitioner and ultimately, the application was dismissed. Aggrieved by the said dismissal, the wife came up with

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Mat. Appeal No.5 of 2011 (C)

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this appeal.

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We have gone through the order passed by the lower court. The oral evidence tendered by an independent witness, PW2, the uncle of PW1, who witnessed the entrustment of an amount of Rupees two lakhs as on the date of betrothal was rejected by the lower court by stating that the father and mother of the petitioner were not examined. No other reason was advanced by the Family Court for rejecting the oral evidence tendered by PW2 who is admittedly a near relative of PW1. It is seemed to be so strange that the Family Court has not even gone into the details of the oral evidence tendered by PW2 in order to test his credibility. On the other hand, the evidence of PW2 was rejected simply on the reason that the father and mother of the petitioner were not examined. We are of the view that it is too dangerous to have such an interpretation or appreciation of the evidence tendered by one of the witnesses to the case in hand. On the other hand, going through the oral evidence tendered by PW2 it can be seen that it really inspires confidence as he is one of the persons who attended the betrothal of the petitioner and the first respondent which was solemnized in a church. It is true that

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Mat. Appeal No.5 of 2011 (C)

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normally it may not be known to the bride whether it was given by her brother or her father or mother or through any near relative. What is required is whether any amount was given by her parents either at the time of marriage or at the time of betrothal. It may be through the eldest member of the family of the bride and it may be given to the eldest member of the family of the bridegroom but the entrustment is by the parents of the bride to the hands of her husband and no other presumption is permissible when marriage was conducted in accordance with the prevailing customs. What is required is whether there is actual entrustment of the amount by the parties concerned and when there is a witness examined by the petitioner who had witnessed the alleged transaction and when it inspires confidence it can be safely accepted in a case of family dispute. Further, the oral evidence tendered by CPW1 assumes importance at this juncture as he pleaded only ignorance regarding the alleged entrustment. There is no specific denial regarding entrustment of Rupees two lakhs by CPW1 while in box. He being the husband should know whether any amount was received as on the date of betrothal from the side of bride and if it was received, he is

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Mat. Appeal No.5 of 2011 (C)

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liable to answer for the same as the entrustment was for and on behalf of the bride. He cannot plead ignorance of any amount alleged to have been entrusted as on the date of betrothal or at the time of marriage. The oral evidence tendered by CPW2 has to be understood in the said circumstances. He had admitted that at the time of marriage his father was not alive. As such, he being the elder member of the family had taken a prominent role both in the betrothal and in the marriage. If that be so, it would definitely show and give some sanctity to the oral evidence tendered by PW1 that actually the amount of Rupees two lakhs was entrusted with the second respondent and none else. The oral evidence tendered by PW2 has to be understood and appreciated in the light of admissions and the prevailing customs. So, we are not in a position to reject the oral evidence tendered by PW1 and PW2. It has to be accepted and the first respondent/husband and the second respondent/elder brother who had received the amount under trust are actually responsible to answer for the amount which was entrusted to the second respondent at the time of betrothal.

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Mat. Appeal No.5 of 2011 (C)

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On coming into the gold ornaments, the specific case

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advanced by the petitioner is that she was given 25 sovereigns of gold ornaments at the time of marriage. An album was produced before the Family Court before the conclusion of trial. But, it was rejected by the Family Court simply saying that it was produced at the fag end of the trial. We are not in a position to accept the reasoning given by the Family Court. The Family Court had not taken into consideration or had not gone through the said album at least to satisfy itself whether she was wearing sufficient gold ornaments at the time of marriage. The oral evidence tendered by CPW1/husband and CPW2/his elder brother would sufficiently show that she was wearing some gold ornaments at the time of marriage. The album would sufficiently show the extent of gold ornaments worn by her at the time of marriage. The oral evidence tendered by PW2 and PW1, the petitioner, has to be appreciated in the light of evidence adduced by producing album containing photographs of marriage. Her specific case is that though she was given 25 sovereigns of gold ornaments, out of which 19.75 sovereigns of gold ornaments were taken away and misappropriated by the respondents.

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Mat. Appeal No.5 of 2011 (C)

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We are of the view that the very contention raised by the petitioner claiming only 19.75 sovereigns of gold out of the 25 sovereigns is having some elements of truth and when it is read along with the album produced, we are of the view that the oral evidence tendered by the petitioner can be safely accepted. Hence, the judgment and decree of the Family Court rejecting her claim are liable to be set aside. We do so by decreeing return of an amount of Rupees two lakhs with interest at 6% from the date of petition till the date of realization and also return of 19.75 sovereigns of gold ornaments or its present value from respondents 1 and 2 jointly and severally and charged upon their assets.

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The appeal is allowed accordingly.

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Sd/A.M. Shaffique Judge

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sd/P. Somarajan Judge

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ahz/

Jenu Daniel v. Varghese Thomas

Case brief

What is this about?

What did the court decide?

Jenu Daniel v. Varghese Thomas

Case brief

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What did the court decide?

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