Partly allowed

Arun Mathew v. Roshin Maria Babu

Kerala HC21 Feb 2019Mat.Appeal/995/2009

Case brief

AI extract

What is this about?

The High Court partially allowed this matrimonial appeal. It set aside the Family Court's decree for the recovery of gold ornaments due to lack of proof regarding their entrustment after marriage. The court upheld the decree for recovery of Rs.5,00,000/- as the evidence of its receipt was sufficient.

What did the court decide?

The appeal partially allowed. Decree for restitution of Rs.5,00,000/- with interest sustained. Decree for return of 45.6 sovereigns of gold ornaments set aside.

Arun Mathew Vs Roshin Maria Babu — Matrimonial and Divorce | 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. 995 of 2009

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AGAINST THE JUDGMENT DATED 13.7.2009 IN OP 256/2006 of FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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APPELLANT/1ST RESPONDENT:

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ARUN MATHEW, AGED 28 S/O.M.V.MATHUKUTTY, KARUVELIL HOUSE NO.32/1869 A, NETHAJI ROAD, MAMANGALAM, EDAPPALLY, KOCHI, REPRESENTED BY HIS SISTER AND POWER OF ATTORNEY, HOLDER ANU MATHEW.

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BY ADV. SRI.B.JAYASANKER

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RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3:

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1 ROSHIN MARIA BABU, AGED 27 YEARS, D/O.THOMAS BABU, KAITHAYIL HOUSE, KANJIKUZHI, MUTTABALAM VILLAGE,KOTTAYAM TALUK,, KOTTAYAM (DIST)

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2 M.V.MATHUKUTTY AGED 62 YEARS KUUVELIL HOUSE, NO.32/1869 A, NETHAJI ROAD, MAMANGALAM ,EDAPPALLY,KOCHI-24.(DIED) LR'S RECORDED

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3 P.C.MARIYAKUTTY, AGED 56 YEARS W/O.MATHUKUTTY OF KUUVELIL HOUSE NO.32/1869 A, NETHAJI ROAD, MAMANGALAM, EDAPPALLY, KOCHI-24.

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*ADDITIONAL 4TH RESPONDENT IS IMPLEADED

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*ADDL.R4 ANU MATHEW, AGED 42 YEARS, D/O.MATHUKUTTY OF KARUVELI HOUSE, NO.32/1869 A, NETHAJI ROAD, MAMANGALAM EDAPPALLY, KOCHI - 24.

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*ADDL. 4TH RESPONDENT IS IMPLEADED AS THE LEGAL HEIR OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 02.08.2018 IN IA 2678/18.

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Mat.A.No.995/2009

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*THE APPELLANT AND 3RD RESPONDENT AND THE PERSON IMPLEADED THROUGH IA 2678/18 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 02.08.2018 VIDE MEMO(C.F. NO.3668/18) IN MAT.APPEAL NO.995/09.

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BY ADVS. SRI.V.N.SASIDHARAN K.S.MANU (PUNUKKONNOOR) SRI.N.B.SUNIL NATH SRI.S.K.HARISH

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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.995/2009

JUDGMENT

SHAFFIQUE, J

This appeal is filed by the 1^st respondent in O.P.No.256/2006 of the Family Court, Kottayam at Ettumanoor. The petition filed by the 1^st respondent seeking recovery of gold and money has been decreed by the Family Court. The appellant contends that there was neither entrustment of gold ornaments or money and therefore he has no obligation to pay any amount. The decree passed by the Family Court is therefore erroneous and liable to be set aside.

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The short facts of the case are as under and the parties are described as shown in the original petition unless otherwise stated:

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The petitioner/wife married the 1^st respondent as per the christian religious ceremonies on 06.7.2003. According to the petitioner, prior to the marriage there was a marriage settlement on 29.06.2003 on which date the petitioner's parents had given Rs.5,00,000/-, being her parental share to the 1^st respondent. That apart, there was an offer to give her 364.730 grams of gold ornaments. The marriage was solemnized on 6.07.2003 and at the relevant time she was wearing the aforesaid gold ornaments.

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It is her case that after the marriage, the relationship between the couple was cordial and they were living in the house of the 1^st respondent and her house for about one year. The 1^st respondent/husband got an employment abroad which was arranged

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Mat.A.No.995/2009

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by her relatives by expending amounts for his Visa, travel etc. He left to gulf on 13.09.2004 and got an employment there. She contended that after leaving to gulf he lost interest in the petitioner and he did not come back. Though several attempts were made for mediation, nothing useful happened and ultimately it was decided to separate. She submitted that her parental share of Rs.5,00,000/- and gold ornaments were not given back and therefore she made the aforesaid claim. Respondents 1 and 3 filed separate written statement. The 2^nd respondent remained ex-parte. The 1^st respondent contended that he had not received any amount and he had not appropriated any of her gold ornaments. The 3^rd respondent took up a contention that the petition is an outcome of a collusion between the petitioner and the 1^st respondent. She also denied the entrustment of gold ornaments or money. She also had a contention that she had not seen the petitioner at all, as the marriage was not to their agreement.

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Before the Family Court, on behalf of the petitioner PW1 to PW3 were examined and Exts.A1 to A25 were marked. On the side of the respondent RW1 and RW2 were examined and Ext.B1 was marked. The Family Court after considering the evidence on record found that sufficient evidence was adduced to prove the claim and accordingly granted a decree against respondents 1 and 2. It was found that the 3^rd respondent has no obligation to discharge the aforesaid liability.

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The learned counsel for the appellant submits that in so far

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Mat.A.No.995/2009

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as entrustment of gold or money had not been proved in the case and the evidence adduced on the side of the petitioner was not helpful for granting a decree, the Family Court committed serious error in granting a decree. It is submitted that the 2^nd respondent, father of the 1^st respondent did not even attend the marriage. The contention of the petitioner was that money and gold ornaments were entrusted to the respondents. Neither the 2^nd respondent nor the 3^rd respondent attended the marriage and they were on loggerheads and they were having several cases between them including matrimonial issues.

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As far as her contention of entrustment of Rs.5,00,000/- is concerned, the Family Court believed the version of PW1 and PW2, father of PW1. According to them, the money was entrusted to the 2^nd respondent, father of the 1^st respondent. At the time when the marriage was settled on 29.6.2003, the 2^nd respondent remained exparte and the 1^st respondent did not even enter the box. On his behalf one witness had been examined. It is his sister and power of attorney holder. He had no case that she was present at the time when marriage was settled. In such a situation when evidence of PW1 and PW2 clearly indicated payment of Rs.5,00,000/- at the time when the marriage was settled, in the absence of any contra evidence the Family Court was justified in granting a decree. Hence we don't think it necessary to interfere in the said judgment.

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As far as the claim for return of gold ornaments are

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Mat.A.No.995/2009

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concerned, the appellant's contention is that he was not entrusted with any such gold ornaments. The photographs produced in the case shows that the petitioner has sufficient quantity of gold ornaments. Of course, the actual quantity cannot be discerned from the photographs. But there is no reason why we should disbelieve the version of the petitioner, especially when the respondents does not have a case as to what exactly is the quantity of gold she had at the time of the marriage. The next question is whether the said gold ornaments were entrusted to the respondents at any time after the marriage.

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The contention raised by the petitioner was that gold ornaments were given to the respondents on 29.6.2003, which is the date of marriage settlement. In fact, there is no such custom to give the gold ornaments to the bride groom or his parents at the time when the marriage settlement takes place. Even according to the petitioner, in evidence she was wearing the gold ornaments at the time of marriage and the photographs also depicts that she was wearing the gold ornaments. Apparently, there is no pleading in her petition as to when the gold ornaments were entrusted to her husband or his parents or whether they had take it away forcibly. In the absence of any such material, we don't think that the petitioner can stake a claim for return of gold ornaments. Only in a case where entrustment of gold ornaments is proved that direction can be given to return gold ornaments. In the case on hand, after the marriage though it is stated

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Mat.A.No.995/2009

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that they were living together for about one year, the petitioner had not stated anywhere as to when the gold ornaments were entrusted to her husband or his parents. Whereas her contention is that he had left to Gulf on 13.09.2004 and thereafter he did not come back. She does not have a case that prior to 13.9.2004 her gold ornaments were taken away. In the said circumstances, the Family Court was not justified in granting a decree for return of gold ornaments. We are of the view that the finding of the Family Court to that extent is liable to be set aside.

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In the result, the appeal is allowed in part, while sustaining the decree for return of Rs.5,00,000/- with interest, we set aside the decree for return of 45.6 sovereigns of gold ornaments or its equivalent value. The decree amount shall be recovered from the 1^st respondent and the assets of the 2^nd respondent in the hands of the legal heirs. No costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

True copy

JUDGE

P.A. To Judge.

Arun Mathew v. Roshin Maria Babu

Case brief

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Arun Mathew v. Roshin Maria Babu

Case brief

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