Allowed

Raji Raju v. Kuriakose Shinedas and Others

Kerala HC21 Feb 2019Mat.Appeal/579/2010

Case brief

AI extract

What is this about?

In this matrimonial appeal, the High Court set aside the Family Court's order rejecting a claim for recovery of gold ornaments and money. The court held the petitioner's evidence regarding the payment of 35 sovereigns and sums totaling Rs. 4,50,000 was credible and passed a decree for their return.

What did the court decide?

The 1st respondent to return 35 sovereigns of gold ornaments or their present value, and to pay the petitioner Rs. 4,50,000 with 6% interest per annum.

Raji Raju Vs Kuriakose Shinedas and Others — Maintenance and Alimony | Kerala HC (2019)

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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 A.M.BABU

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THURSDAY, THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940

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Mat.Appeal.No. 579 of 2010

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AGAINST THE ORDER IN OP 341/2009 of FAMILY COURT,KOZHIKODE DATED 05-05-2010

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APPELLANT/PETITIONER:

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RAJI RAJU, AGED 31 YEARS, D/O.RAJU.P.F,RITHAM,3/1339,GANDHI ROAD, KACHERI AMSOM DESOM,KOZHIKODE TALUK.

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BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA

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RESPONDENTS/RESPONDENTS:

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1 KURIAKOSE SHINEDAS, AGED 36 YEARS, S/O.SAVIAR MATTATHIL,MATTATHIL HOUSE,, MANALIPADAM,THRIPUNITHARA,VADAKKEKOTTA,KOCHI.

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2 JOSEPHEENA @ GERLI, AGED 70 YEARS W/O.SAVIOR,MATTATHIL HOUSE,, MANALIPADAM,THRIPUNITHURA,VADAKKEKOTTA,KOCHI.

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3 SAVIOR MATTATHIL,AGED 72 YEARS S/O.KURIAKOSE,MATTATHIL HOUSE,, MANALIPADAM,THRIPUNITHURA,VADAKKEKOTTA,KOCHI.

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BY ADV. SRI.T.K.RAJESHKUMAR

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Mat.A.No.579/2010

JUDGMENT

SHAFFIQUE, J

This appeal has been filed by the petitioner in O.P.No.341/2009 of the Family Court, Kozhikode. Her claim for return of gold ornaments and money had been rejected by the Family Court against which this appeal has been filed.

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The petitioner/appellant and the 1^st respondent herein got married on 21.2.2001 as per the christian religious rites and ceremonies. According to the petitioner, though there was a demand for 50 sovereigns of gold ornaments and Rs.8,00,000/- as parental share, since the petitioner's family was not in a position to give such gold ornaments and money as parental share, they agreed to give 35 sovereigns of gold ornaments and an amount of Rs.6,00,000/- and the same was paid to the respondents at the time of betrothal. At the time of marriage she was wearing 35 sovereigns of gold ornaments. Two children were born in the wedlock. During the course of marital life, since respondents demanded more money, an amount of Rs.1,00,000/was paid on 15.7.2002 and a further amount of Rs.50,000/- was paid on 20.5.2004. Since the business of the 1^st respondent's family collapsed, they appropriated all the money and gold ornaments she had. Thereafter when attempts were made to physically and mentally torture her, she had to leave her matrimonial home with children. According to her she was thrown out of the matrimonial home on

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Mat.A.No.579/2010

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30.11.2006 and thereafter she is residing at her parental house. Claiming the parental share which was given to her, she sought for recovery of the same. The above original petition was heard along with a petition for divorce filed by her as O.P.No.340/2009 which was allowed by the Family Court.

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Before the Family Court common evidence was taken and on the side of the petitioner PW1 to PW4 were examined and reliance was placed on Exts.A1 to A5. The 1^st respondent was examined as RW1 and Ext.B1 was marked on his side.

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The main contention urged by the learned counsel for the appellant was that there was sufficient evidence to prove payment of money and that she had 35 sovereigns of gold ornaments. Reference is made to Ext.A2 which is a copy of the annual statement of contribution towards the PF account in the name of the petitioner's father who is an employee of the All India Radio (AIR). Ext.A2 shows that during 2011 an amount of Rs.3,00,000/- was withdrawn from his account. Ext.A3 certificate issued by the Calicut Co-operative Urban Bank Limited would show that two fixed deposits of Rs.50,000/- each in the name of the petitioner was withdrawn on 9.7.2002 and 29.5.2004. Similarly, fixed deposit of Rs.50,000/- in the name of the petitioner's father was also withdrawn on 9.7.2002. The learned counsel submits that this would prove that they had sufficient amount for effecting the

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Mat.A.No.579/2010

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payment claimed in the original petition. For paying Rs.6,00,000/-, in addition to the Rs.3,00,000/- which had been withdrawn from the PF of petitioner's father, money was collected from the relatives as well. It is further submitted that the respondents did not have a specific case. According to the respondents, the petitioner's father did not have the financial capacity to raise such an amount and they neither denied the quantity of gold ornaments the petitioner had at the time of marriage. They only denied the fact of appropriation of the gold ornaments and receipt of the amount.

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As evident, the petitioner was examined as PW1. PW2 is a goldsmith who had clearly given evidence stating that he had made 35 sovereigns of gold ornaments on behalf of the petitioner and the petitioner's family had given old gold ornaments which was utilised for making fresh gold ornaments for the petitioner. Ext.A4 is the receipt issued by PW2 which would indicate the type of ornaments he had made for the petitioner. PW3 is the father of the petitioner. He had also given evidence clearly stating the amount given at the time of betrothal and also amount given during the matrimonial life and the source of funds were also proved by him. PW4 is the uncle of the petitioner who also supported the version of the petitioner. He had also stated that he had given Rs.50,000/- as loan at the time of marriage of the petitioner. As against the aforesaid evidence, the 1^st

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Mat.A.No.579/2010

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respondent alone had been examined as RW1 who had denied all these facts.

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Primarily on a perusal of the pleadings in the petition and the statement of the respondents, there is no specific denial about the quantity of gold ornaments the wife had at the time of the marriage. Whereas the 1^st respondent had denied having appropriated the same. But when PW1 had categorically stated that the respondents have appropriated the gold ornaments, which is supported by the oral testimony of PW3, we are of the view that the Family Court did not properly considered the evidence on record.

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The question is whether the version of the petitioner is believable or not. Respondents' contention is that the petitioner's family do not have the financial capacity to give such quantity of gold ornaments or the money. But this contention has been belied when evidence has been adduced on behalf of the petitioner. Petitioner's father is an employee of AIR and Ext.A2 is the statement of his Provident Fund account which would show that in the year 2001, i.e, during the time when marriage took place, Rs.3,00,000/- was withdrawn from his account. Their contention was that money along with other amount received from the relatives were utilised for the payment of Rs.6,00,000/-. Further it is also in evidence that the FD amount which was in the name of the petitioner and her father was

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Mat.A.No.579/2010

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withdrawn during 2002 and 2004 which accounts for the payment of Rs.1,50,000/- during the aforesaid period. Therefore, we are of the view that there is evidence to prove that the petitioner's family was having the capacity to raise Rs.4,50,000/- with them at the time of marriage. Hence, the contention of the respondents that the petitioner's family did not have the financial capacity to pay such amount is absolutely wrong and has been stated only for the purpose of denying the obligation to pay the appropriated amount.

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Taking into consideration the said factual aspect, we have no hesitation to hold that the contention urged by the petitioner is more probable than the contention urged by the respondents. However, taking into account the fact that that petitioner was capable to prove the source of Rs.3,00,000/- given as on the date of marriage and Rs.1,50,000/- during the marital relationship, a direction can be issued to return the said amount with interest. It is also not in dispute that the business of the respondents has collapsed during the marital life and in that process he had been demanding more money and therefore there is every possibility that her gold ornaments were also utilised and invested in the business.

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In the result, we are of the view that the Family Court completely erred in rejecting the claim of the petitioner. The Family Court ought to have granted a decree at least for return of gold ornaments and a sum

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Mat.A.No.579/2010

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of Rs.4,50,000/-. Therefore, the appeal is allowed as under:

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The judgment in O.P.No.341/2009 of the Family Court is set aside

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and a decree is passed as under:

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I) The 1^st respondent shall return to the petitioner 35 sovereigns of gold ornaments or its present value.

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II) The petitioner is permitted to recover from the respondents an amount of Rs.4,50,000/- with interest at the rate of 6% per annum from the date of petition till realisation.

No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

True copy

JUDGE

P.A. To Judge.

Raji Raju v. Kuriakose Shinedas and Others

Case brief

What is this about?

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Raji Raju v. Kuriakose Shinedas and Others

Case brief

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