This matrimonial appeal challenges a Family Court order allowing recovery of 92 sovereigns of gold ornaments from respondents. The High Court examined evidence regarding the entrustment and alleged misappropriation of the ornaments by the respondent and others, finding the Family Court's judgment correct.
The appeal is dismissed with no order on costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941
Mat.Appeal.No.458 OF 2012
AGAINST THE ORDER/JUDGMENT IN OP 1311/2005 DATED 03-04-2012 OF FAMILY COURT,ERNAKULAM
APPELLANTS/RESPONDENTS 1 TO 3:
1 DEVARAJAN M.J., AGED 37 YEARS, M.J.VILLA, INTUC JUNCTION, BEHIND MAHILA SAMAJAM OFFICE, NETTOOR P.O., ERNAKULAM, REPRESENTED BY POWER OF ATTORNEY HOLDER, REETHAMMA JACOB, AGED 83 YEARS, WIFE OF LATE JOCOB JOSEPH, M.J.VILLA, INTUC JUNCTION, BEHIND MAHILA SAMAJAM OFFICE, NETTOOR P.O., ERNAKULAM - 682 304.
2 REETHAMMA JACOB AGED 83 YEARS WIFE OF LATE JOCOB JOSEPH, M.J.VILLA, INTUC JUNCTION, BEHIND MAHILA SAMAJAM OFFICE, NETTOOR P.O., ERNAKULAM - 682 304.
3 PUSHPAMMA M.R. AGED 52 YEARS WIFE OF LATE JOCOB JOSEPH, M.J.VILLA, INTUC JUNCTION, BEHIND MAHILA SAMAJAM OFFICE, NETTOOR P.O., ERNAKULAM - 682 304.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENTS/PETITIONERS & RESPONDENTS 4 & 5:
1 SMITHA STANLEY AGED 36 YEARS D/O.STANLEY PARASSERY HOUSE, MURIKKAM PADAM, AZHEEKKAL P.O., ERNAKULAM - 682 510.
2 BABY JOHN @ SUNNY JACOB AGED 54 YEARS WIFE OF LATE JOCOB JOSEPH, M.J.VILLA, INTUC JUNCTION, BEHIND MAHILA SAMAJAM OFFICE, NETTOOR P.O., ERNAKULAM - 682 304.
3 GLADIS T.A @ SHINY AGED 36 YEARS REETHAMMA JACOB, WIFE OF LATE JOCOB JOSEPH, M.J.VILLA, INTUC JUNCTION, BEHIND MAHILA SAMAJAM OFFICE, NETTOOR P.O., ERNAKULAM - 682 304.
R1 BY ADV. SRI.K.G.ANIL BABU R1 BY ADV. SRI.DENIZEN KOMATH R3 BY ADV. SRI.JOHNSON ABRAHAM R3 BY ADV. SRI.NELSON ABRAHAM
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26-022020, THE COURT ON 09-03-2020 DELIVERED THE FOLLOWING:
Mat.Appeal.No.458 OF 2012
3
JUDGMENT
Dated this the 9th day of March, 2020
Mary Joseph, J:
The appeal on hand is preferred against judgment dated 03.04.2012 of Family Court, Ernakulam in O.P. No.1311 of 2005. The Original Petition was filed by petitioners seeking for recovery of 92 sovereigns of gold ornaments or its equivalent value of Rs.5,00,000/-, Rs.1,00,000/- given to the respondent towards marriage expenses and Rs.5,00,000/- as compensation for spoiling her life, with interest.
respondent was solemnized on 02.06.2005 at St.Francis
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Assissi Cathedral at High Court Junction, Ernakulam. After the marriage the parties resided together as husband and wife at 1st respondent's house at Nettoor, Ernakulam. At the time of marriage, the 1st respondent was employed at Dhamam as a Sales Executive with a monthly salary of Rs.40,000/-. The petitioner was assured by him that a job would also be procured for her at Dhamam. The father of the petitioner was agreeable to pay gold ornaments worth Rs.5,00,000/- against the demand of the respondents for 101 sovereigns of gold ornaments prior to the marriage. Later the father of the petitioner provided 95 sovereigns of gold to her at the time of marriage. The above quantum of gold were given in addition to the usually worn gold ornaments and those obtained by the petitioner by way of gift from her relatives. Though the marriage expenses were agreed to be met, respondents did not do so and accordingly petitioner's father was constrained to spent Rs.38,381/- for the marriage reception and Rs.5,200/- towards expenses at the church. The petitioner who was taken to the matrimonial home was surprised to see
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that arrangements for reception ceremony were not made therein. After staying together for 14 days in the house of the respondents at Nettoor, she was taken by the 1st respondent to the office of KSFE, Manappad Branch, Thiruvananthapuram on 13.06.2005, where 3rd respondent, the sister of 1st respondent was working. There, the 1st respondent entrusted the 3rd respondent a packet containing 92 sovereigns of gold ornaments after making the petitioner convinced that those will be kept in a locker there safely. The petitioner was also intended to keep the gold ornaments in a locker and therefore, she did not express any displeasure to the proposal made. Later on, some suspicion came to her mind about the act of respondents and thereupon she enquired about it. Despite giving any valid explanation, she was asked to remain silent. Thereafter the 3rd respondent made her to sign in some printed forms on the impression that she has to subscribe a chitty with KSFE. On the way back home, the petitioner enquired the 1st respondent, what they have done with the ornaments. The 1st respondent did not give any cogent
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Mat.Appeal.No.458 OF 2012
answer. Much later, she came to know that the gold ornaments were pledged at KSFE by the 3rd respondent and a Fixed Deposit of Rs.1,70,000/- was made by the 3rd respondent in favour of the 1st respondent and later on the said amount was withdrawn by him. The 1st respondent left for Damam without furnishing his address there to the petitioner. She was denied regular contact with the 1st respondent over phone. Later on , the mobile phone was taken from her by respondents 2 to 4 and thus denied her access to the 1st respondent in total. The petitioner came to know then about the criminal cases pending against respondents 2 and 4 and the shifting of their residence to Nettoor for the reason. The factum that the house at Nettoor was a rented one was also suppressed by respondents from her. On a fine day, the petitioner realised from the hospital wherein the 2nd respondent was admitted for treatment that the latter's name was Retnamma and not Reethamma as informed to her. The name Retnamma was furnished to the office of KSFE, while withdrawing the deposits. The petitioner has also realised
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Mat.Appeal.No.458 OF 2012
then the falsity in the information given at the time of marriage that the respondents were Latin Catholic. The respondents actually belong to Hindu community and for contracting the marriage alone they misrepresented themselves to be Latin Catholic. The petitioner was denied contact with her parents also. On 18.09.2005 she was forced to leave the matrimonial home and thereupon filed a complaint before Panangad Police Station against the respondents alleging fraud and cheating. Crime No.398/2005
was registered against them on its basis. Thereafter the petitioner was constrained to file the Original Petition on hand raising claim for recovery of gold ornaments weighing 95 sovereigns worth Rs.5,00,000/- given to her by her parents and misappropriated by the respondents.
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with the petitioner on 02.06.2005 and his employment at Dhamam at the relevant time. He denied the allegation that the petitioner and the 1st respondent had resided together at Nettoor after the marriage. According to him, they resided at Thiruvananthapuram and visited the house at Nettoor as guests only for two-three occasions. He has denied the plea of the petitioner that on 13.06.2005, she was taken to the office of KSFE where the sister of 1st respondent was working. According to the 1st respondent, Rs.30,000/- was given to him by the father of the petitioner towards marriage expenses and the petitioner was never ill treated by him as stated by her. According to him, the parents of the petitioner visited the rented house of 3rd respondent at Nettoor on 18.09.2005 and requested to take her to the parental home. Later on , she was sent alongwith them and the averments of the petitioner that the respondents have driven her out of the matrimonial home forcibly is devoid of any truth. It is contended by the 1st respondent that a gold Thali Chain weighing 86 grams and a bracelet of three sovereigns were given by him to the
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petitioner at the time of marriage and a 'Thadavala' of 5 sovereigns purchased from Josco Jewellery, Ernakulam was given to her by the 3rd respondent. Accordingly, 18.7 sovereigns of gold ornaments in total was claimed as given to the petitioner by the respondents. According to the 1st respondent, the petitioner has no right to keep 18.7 sovereigns of gold ornaments given by respondents and therefore, is entitled to get recovery of those ornaments or its market value at the rate of Rs.800/- per gram. In that backdrop, a counter claim was also raised for Rs.1,20,000/towards the value of 18.7 sovereigns of gold ornaments. The Original Petition was also sought to be dismissed with costs.
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purchase a flat here when there is a probability for both of them to settle abroad.
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11
was not raised in particular regarding the entrustment of gold ornaments to respondents and appropriation of those by them. It is contended by the learned counsel that the Family Court has mulcted liability upon respondents 1 to 4 jointly without narrating the reasons for doing so. Interference with the impugned judgment is sought for the reasons.
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and those were entrusted to the 1st respondent and misappropriated by him. Accordingly, he pleaded for maintaining the judgment under challenge.
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Therefore purchase of gold ornaments to the extent claimed as possessed by PW4 is established. Both PW4 and PW6 have tendered identical version that PW4 was taken by the 1st respondent to the Office of KSFE on 13.06.2005 accompanied by the 2nd respondent. According to them, prior to proceeding to Thiruvananthapuram, gold ornaments weighing 92 sovereigns belonging to PW4 were collected from her by the 1st respondent and kept in a carry bag. 1st respondent's sister is an employee of KSFE and the petitioner alongwith the 1st respondent were dropped at the office of KSFE and the 2nd respondent left for the house of the 3rd respondent. Under the guise that, the gold ornaments will be kept in a locker there, those were entrusted to 3rd respondent. The gold ornaments were weighed by the 3rd respondent and then the petitioner asked her the purpose of weighing. Both the 1st respondent and 3rd respondent warned her to keep silence.
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for their benefits. The oral evidence tendered by the petitioner as PW4 on the above counts were not controverted by the respondents successfully though attempted to do so by cross examining her elaborately.
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examined has opined that, ornaments of every nature are available in jewelleries in Kerala. It has come out from the evidence tendered by respondents that they failed to meet the marriage expenses from their pocket, but depended on the money given by PW6. That aspect undoubtedly indicate their poor financial background. It is all the more evident from the version of PW4 that when she was brought to the house of respondents after the marriage ceremony, for the purpose of reception, arrangements were not found as made. Only very few of the relatives of the respondents participated in the betrothal as well as marriage. Though RW1 had stated that Rs.30,000/- was given to PW6 for meeting the marriage expenses, no evidence to corroborate such a version is available. In the said circumstances, the 1st respondent's capacity to make a sum of Rs.1,70,000/- in fixed deposit at KSFE from his own pocket is doubtful. Though an attempt was made during examination to depose so, it turned incredible for want of any other evidence to support the same. Therefore, the version of RW1, the mother, as power of attorney holder
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16
of 1st respondent is only to be disbelieved. The 1st respondent
did not care to mount the box to support his version. Eventhough RW1 claims that the 1st respondent is employed abroad, she failed to procure and produce documents in evidence to establish his income. Though RW2 had stated during examination that the gold chain pledged is similar to the one possessed by her, she failed to establish her possession of a similar one, prior to pledging at KSFE.
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examination of RW1, the travel made to Thiruvananthapuram on 13.06.2005 by the 1st respondent and her accompaniment is admitted. When the 1st respondent failed to adduce any evidence to convince the court that deposit of Rs.1,70,000/stands in fixed deposit in his name was made from his own source of funds and especially when the evidence of PW4 and her witnesses on their claim appear trustworthy, we feel it appropriate to take a view in favour of the petitioner.
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respondent is established. Absolutely no explanation is forthcoming to establish that withdrawal by RW1 of the amount covered by fixed deposit receipts was with due authorisation from the 1st respondent. RW2 has signed Exts.B2 and A15 also. RW2 has also failed to furnish any explanation about the manner of withdrawal of the amount that stands in favour of the 1st respondent by RW1 before the date of maturity.
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petitioner, the involvement of all respondents in the transaction of pledging of gold ornaments at KSFE and participation in the withdrawal of the money in fixed deposit prior to its maturity is well discerned. In the circumstances, the Family Court is justified in mulcting the liability to return the gold ornaments or its equivalent value on all of them jointly. The appellant failed to draw any material flaw in the impugned judgment warranting interference.
The appeal fails and is dismissed. No order on costs.
Sd/-
A.M. SHAFFIQUE
JUDGE
Sd/-
MARY JOSEPH
JUDGE
ttb/22.02
3 issues framed by the court
Whether the Family Court erred in appreciating the evidence regarding entrustment and misappropriation of 92 sovereigns of gold ornaments by the respondent.
Whether there is material flaw warranting interference with the judgment directing joint return of gold ornaments or equivalent value by all respondents.
Whether the 92 sovereigns of gold ornaments belonging to the petitioner were misappropriated by the respondent and his family.
1 provisions across 1 enactments
DEVARAJAN M.J.
REETHAMMA JACOB
PUSHPAMMA M.R.
SMITHA STANLEY
BABY JOHN @ SUNNY JACOB
GLADIS T.A
A.M. SHAFFIQUE
MARY JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
