Partly allowed

Radhika.T v. Sajeevan.H

Kerala HC2 Apr 2018Mat.Appeal/632/2008

Case brief

AI extract

What is this about?

This matrimonial appeal challenged a Family Court decree regarding recovery of gold ornaments. The High Court modified the decree, increasing gold valuation from Rs. 4,000 to Rs. 5,000 per sovereign and affirming recovery of Rs. 25,000 with interest, despite rejecting the claim for 45 sovereigns.

What did the court decide?

Modified decree for realization of 30 sovereigns of gold ornaments at Rs. 5,000 per sovereign and Rs. 25,000 with 6% interest.

Radhika.T Vs Sajeevan.H — Maintenance and Alimony | 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 K.HARILAL &

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THE HONOURABLE MR. JUSTICE A.M.BABU

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MONDAY, THE 2ND DAY OF APRIL 2018 / 12TH CHAITHRA, 1940

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Mat.Appeal.No. 632 of 2008

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AGAINST THE JUDGMENT DATED 03-09-2005 IN OP 981/2003 of FAMILY COURT, THIRUVALLA

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APPELLANT/PETITIONER:

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RADHIKA.T, ELAYASSERIL VEEDU, PERINGINADU.P.O, KUNNATHOOKARA, ADOOR.

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BY ADVS.SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN

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RESPONDENTS/PETITIONERS:

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1. SAJEEVAN.N, PALANTHARAYIL VEEDU, THUVAYOOR NORTH, NALLIMUZHAL.P.O,(FORMERLY, SAJEEVAN.W.ROOM NO.18),BHAMARMAPATELCHAL, NEAR GANESH MANDIR, THURBA POST,, NAVI MUMBAI-400 705.

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2. NARAYANA, F/O.SAJEEVAN, D0. DO.

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R1 & R2 BY ADV. SRI.BABU CHERUKARA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-04-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL & A.M. BABU,JJ. = = = = = = = = = = = = = = = = = Mat. Appeal No.632 of 2008(B)

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- - - - - - -- - - - - - - - - - - - - - Dated this the 2^nd day of April, 2018

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J U D G M E N T

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K. Harilal, J.

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The appellant is the wife of the 1^st

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respondent. She is the petitioner in Original Petition No.981 of 2003 on the files of the Family Court, Thiruvalla and the respondents are the respondents therein. The 2^nd respondent is the father of the 1^st respondent. This appeal is filed against the judgment and decree passed in the aforesaid Original Petition, rejecting her claim for recovery of 45 sovereigns of gold ornaments and allowing her to recover 30 sovereigns of gold ornaments or 1,20,000/- as its value and 25,000/-. The parties are referred to as in the Original Petition.

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Mat. Appeal No.632 of 2008(B)

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-: 2 :-

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The brief facts of the case are summarised

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as follows:

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The marriage between the petitioner and the 1^st respondent was solemnized on 28.05.2000. At the time of marriage, she was given 42 sovereigns of gold ornaments and in addition to that she got five sovereigns of gold ornaments as gifts. On the next day of the marriage, the respondents had taken possession of all the ornaments of the petitioner, except two bangles and thali chain under the pretext of keeping it in locker. Later, the respondents told the petitioner that the ornaments were sold away by them to meet their personal needs. Thereafter, the 2^nd respondent has demanded 2,00,000/- towards the share of the petitioner and on that demand she was ill-treated by the respondents. On getting information about the said demand, the petitioner's father had given 25,000/- to the respondents by taking loan from LIC.

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Mat. Appeal No.632 of 2008(B)

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-: 3 :-

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Thereafter, they again started to ill-treat the petitioner on demand of more amount and the ill-treatment on demand of amount became unbearable, the petitioner was forced to leave the matrimonial home. Thus, the petitioner and the 1^st respondent are living separately from 03.09.2002 onwards. According to the petitioner, she is entitled to get 45 sovereigns of gold ornaments or its value and `25,000/- with interest.

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The respondents jointly filed counterstatement, admitting the marital relationship. But, they denied the averment that the petitioner was given 45 sovereigns of gold ornaments at the time of marriage. According to them, the petitioner was given 30 sovereigns of gold ornaments at the time of marriage and subsequently the petitioner's father has given `25,000/- to the respondents, without any demand from them. It is further stated that they

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Mat. Appeal No.632 of 2008(B)

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are willing to hand over the value of 30 sovereigns

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of gold ornaments and `25,000/- to the petitioner.

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On the aforesaid rival pleadings, both

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parties adduced evidence and after considering the evidence on record, the Family Court passed the impugned judgment and decree, allowing the petitioner to realise 30 sovereigns of gold ornaments or its value of 1,20,000/- and 25,000/from the respondents. The findings whereby the Family Court passed the above judgment and decree, are challenged in this appeal.

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Heard the learned counsel for the

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appellant.

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On a close reading of the pleadings, it could be seen that the matter in dispute revolves

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around the entitlement of 15 sovereigns of gold

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Mat. Appeal No.632 of 2008(B)

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-: 5 :-

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ornaments. According to the petitioner, she is

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entitled to recover 45 sovereigns of gold ornaments or its value and 25,000/- from the respondents. The respondents themselves in their counterstatement admitted that they are in possession of 30 sovereigns of gold ornaments and they are liable to return it and 25,000/- which was given to them by

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the father of the petitioner is also liable to be returned. In view of the admitted facts, the question to be considered in this appeal is, whether the Family Court is justified in denying 15 sovereigns of gold ornaments to the petitioner? The petitioner has prayed for the recovery 45 sovereigns of gold ornaments and the respondents have admitted that they were in possession of 30 sovereigns of gold ornaments and the same is returnable to the

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Mat. Appeal No.632 of 2008(B)

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petitioner.

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In order to prove granting of 45

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sovereigns of gold ornaments at the time of marriage, the petitioner was examined as PW.1 and her father was examined as PW.2. Going by the chief-examination of PW.1, it is stated that the respondents have taken away the entire gold ornaments except thali chain, and two bangles. But, in cross-examination, she deposed that the respondents have taken away entire gold ornaments, except one anklet, four bangles, thali chain, one necklace, one ring and two ear studs and those ornaments are of 6½ sovereigns. Coming to crossexamination, she further deposed that the necklace

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was 2½ sovereigns, four bangles were of 23 sovereigns and out that she was in possession of

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Mat. Appeal No.632 of 2008(B)

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-: 7 :-

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four bangles. The anklet was of 2½ sovereigns and she did not know the weight of the rings. Thus, in cross-examination, she has admitted the possession

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of gold ornaments having about 10 sovereigns.

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On a close reading of the pleadings and evidence, it discernible that the petitioner has no consistent case with respect to the gold ornaments. In other words, pleadings and evidence are mutually destructive and no reliance can be placed on the pleadings or evidence of the petitioner.

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Coming to the evidence of PW.2, the father

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of PW.1, his evidence with respect to the weight of

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each item of gold ornament is different from the description and weight of each item given by PW.1.

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Apart from the oral evidence of PWs.1 and 2, there is no evidence to prove the total weight of the gold

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Mat. Appeal No.632 of 2008(B)

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ornaments, which was given to the petitioner at the time of marriage. After analysing the evidence of PW.2, the Family Court observed that the evidence of PW.2 is not at all reliable. According to PW.1, she was given bangles and necklace for her use. But, according to PW.2, the petitioner was in possession of 2 sovereigns of gold ornaments only.

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On the other hand, the respondents have given evidence consistent with the pleadings that they are in possession of 30 sovereigns of gold ornaments and they are ready and willing to return 30 sovereigns of gold ornaments and `25,000/-. The petitioner failed to shatter the evidence of RW.1 in cross-examination. In the above view of the

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evidence given by the petitioner and the respondents, the Family Court is justified in

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Mat. Appeal No.632 of 2008(B)

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relying on the evidence of the respondents and rejecting the evidence of PWs.1 and 2.

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The petitioner further contended that the value of gold ornaments fixed by the Family Court is too low, when comparing with the market value of the gold ornaments prevailed during the year 2004-05. Going by the impugned judgment, it is seen that the Family Court has fixed the value of gold ornaments at 4,000/- per sovereign. We are informed, on reference to the statistics of the market price of gold ornaments during 2004-05, that the market price of gold during the year 2004-05 is 4,550/-. Having regard to the expenses incurred for making gold as gold ornaments, we fix the market value at `5,000/per sovereign. In the above view, the petitioner is given a modified decree for realising 30

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Mat. Appeal No.632 of 2008(B)

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sovereigns of gold ornaments or its value at the

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rate of 5,000/- per sovereign and 25,000/- with 6%

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interest from the date of Original Petition till realisation from the respondents and their assets. It is made clear that 6% interest is applicable to

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`25,000/- and value of gold ornaments.

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This appeal is allowed in part.

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K. HARILAL, JUDGE

Sd/-

A.M. BABU, JUDGE

DST

//True copy//

P.A. To Judge

Radhika.T v. Sajeevan.H

Case brief

What is this about?

What did the court decide?

Radhika.T v. Sajeevan.H

Case brief

What is this about?

What did the court decide?

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