Dismissed

Praveen Kumar N. Prabha v. Preena G.

Kerala HC3 Oct 2023Mat.Appeal/108/2021

Case brief

AI extract

What is this about?

High Court of Kerala dismissed an appeal against a Family Court decree ordering the return of gold ornaments and a motorcycle. The court held that despite an agreement clause waiving dowry claims, the waiver could not be strictly correlated to specific ornaments, and the appellants failed to prove their return.

What did the court decide?

The appeal was dismissed; the Family Court decree directing the return of gold and motorcycle was affirmed.

Praveen Kumar N. Prabha Vs Preena G. — Matrimonial and Divorce | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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TUESDAY, THE 3RD DAY OF OCTOBER 2023 / 11TH ASWINA, 1945

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MAT.APPEAL NO. 108 OF 2021

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AGAINST THE ORDER/JUDGMENT OP 580/2016 OF FAMILY COURT, MAVELIKKARA APPELLANT/RESPONDENTS IN OP:

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1PRAVEEN KUMAR N. PRABHA
AGED 42 YEARS, S/O. PRABHAKARAN,
PRABHA NIVAS, PERINGALA MURI, MULAKKUZHA VILLAGE,
CHENGANNUR TALUK, ALAPPUZHA DISTRICT - 689 122

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2V. N. RADHAMMA
AGED 64 YEARS, W/O. PRABHAKARAN,
PRABHA NIVAS, PERINGALA MURI, MULAKKUZHA VILLAGE,
CHENGANNUR TALUK, ALAPPUZHA DISTRICT - 689 122

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3 PRABHAKARAN

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AGED 69 YEARS, S/O. NARAYANAN,
PRABHA NIVAS, PERINGALA MURI, MULAKKUZHA VILLAGE,
CHENGANNUR TALUK, ALAPPUZHA DISTRICT - 689 122.

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BY ADVS.
P.G.JAYASHANKAR
KUM.P.K.RESHMA (KALARICKAL)
SHRI.S.RAJEEV

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RESPONDENT/PETITIONER IN OP:

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PREENA G.

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AGED 37 YEARS, D/O. PRABHAKARAN,CHOLANDETH KIZHAKKATHIL,
PERINGALA MURI, KAYAMKULAM VILLAGE, KARTHIKAPPALLY TALUK,
ALAPPUZHA DISTRICT - 690 502.

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BY ADVS.

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M.R.NANDAKUMAR(CAVEATOR)
S.L.SYLAJA

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON

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03.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MAT.APPEAL NO. 108 OF 2021

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JUDGMENT

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Amit Rawal, J.

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Present appeal is directed against the judgment and decree dated 03.11.2020 in O.P.No.580/2016 seeking recovery of the gold ornaments and motorcycle entrusted to the 1^st appellanthusband in connection with the marriage performed on 05.05.2005.

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Succinctly the facts in brief are that the marriage between the 1^st appellant-husband and respondent–wife, as per the Hindu rites was performed on 05.05.2005. At the time of marriage, 135 sovereigns of gold ornaments and a motorcycle worth Rs.50,000/- (Rupees fifty thousand only) was given. Both the husband and wife started living together in Delhi on account of nature of their work. One girl child was born in the wedlock. In March 2014 respondent–wife went missing necessitating the father-in-law of the 1^st appellant and father of the respondent–wife to lodge a complaint to the Delhi Police. Delhi Police, on investigation, gave a report that she was found to be missing.

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MAT.APPEAL NO. 108 OF 2021

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Respondent-wife purported to have taken an ex parte decree of divorce against the husband. After the missing report, an agreement dated 11.03.2014 Ext.B1 was entered into between the 1^st appellant and the father-in-law that the father-in-law would not press for any return of the gold ornaments and custody of the girl child would remain with appellant- husband.

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In 2016, respondent-wife preferred the petition aforementioned, on the allegation that the gold ornaments specifically entrusted were not returned despite demanded by giving a reference of the ex parte divorce petition.

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Appellants arrayed in the petition as respondents appeared and admitted the marriage but denied the allegations regarding harassment, il-treatment and also the entrustment. It was alleged that the gold ornaments were in the custody of the respondent-wife. Father and mother of the appellant ie., father-inlaw and mother-in-law of the respondent-wife, had given a sum of Rs.9 lakh for purchase of a flat in Delhi. The amount was transferred to the bank account and a sum of Rs.3 lakhs was given to the respondent–wife through one Anil who was the neighbour

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MAT.APPEAL NO. 108 OF 2021

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and Rs.56,000/- (Rupees fifty six thousand only) was sent through the father of the respondent–wife. Besides the aforementioned amount, a loan of Rs.10 lakhs was also obtained for purchasing the flat and appellant-husband stood as guarantor. There was an agreement to sell the flat and pay a sum of Rs.8 lakhs from the sale proceeds to the 1^st appellant. However, respondent-wife eloped with one Pradeep and left the child with the father. Respondent–wife, her father along with the 1^st appellant sold 48 sovereigns of gold ornaments to a Jweller, Alappuzha. Since the parties were at variance the Trial Court framed the following

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issues:

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1. Whether the petitioner obtained 131 sovereigns of gold ornaments and a motorcycle as alleged in the petition?

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1. Whether the petitioner is entitled to get back 131 sovereigns of gold ornaments and the motorcycle as claimed?

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1. Relief and Cost.

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Respondent–wife in support of her case examined four

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MAT.APPEAL NO. 108 OF 2021

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witnesses PW1-Preena.G., PW2-Muraleedharan, PW3-Prasad and PW4-M.N.Rajan. 1^st Appellant-husband examined three witnesses RW1-Praveen Kumar (himself) RW2-Neethulekshmi, RW3S.Prabhakaran ie. appellant No.3 the father of the 1^st appellant. Respondent–wife brought on record Ext.A1 wedding album, Ext.A2 photographs of the baby and Ext.A3 copy of the petition submitted by the wife before the National Commission for Women, New delhi. Appellant brought on record documents Ext.B1 agreement dated 11.03.2014 executed between the 1^st appellant and father of the respondent-wife and Ext.B2 complaint filed before the police station. Ext.X1 marriage register produced by S.N.D.P Sakhayogam Branch No.345, Ext.X2 marriage register produced by S.N.D.P Sakhayogam Branch No.64, Ext.X3 (series) (6 sheets) copy of loan ledger in respect of Prabhakaran from Agricultural Development Bank, Chengannur branch and Ext.X4 (series) loan application and connected documents were marked as third party documents.

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Trial Court on the basis of the evidence found the entrustment and held that the 1^st appellant–husband was the

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MAT.APPEAL NO. 108 OF 2021

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custodian of 131 sovereigns of gold ornaments and directed to return the same or pay sum of Rs.28,55,800/- (Rupees twenty eight lakhs fifty five thousand eight hundred only) towards its value with a further direction to return the Hero Honda motorcycle or to pay sum of Rs.50,000/- (Rupees fifty thousand only) towards its value.

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Learned counsel appearing on behalf of the appellants

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in support of the memorandum of appeal raised the following grounds:

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(i) Family Court has not taken into consideration the contents of the agreement dated 11.03.2014 Ext.B1 entered into between the 1^st appellant and father of the respondent-wife particularly Clause No.D. In view of the terms and conditions of the agreement dated 11.03.2014 no doubt the appellant-husband had admitted the entrustment of 131 gold ornaments but it was also mentioned that on demand from the respondent-wife or father-in-law, it would be returned along with the bike. But the trial court failed to take into consideration the documents of the loan obtained for purchase of the flat in the joint name.

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MAT.APPEAL NO. 108 OF 2021

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(ii) As per Clause D of the agreement, father of the respondent was bound down that they would not press for return of the dowry given as gift to their daughter during the marriage and would render assistance for disposal of the apartment purchased in the joint name after obtaining loan from financial institution.

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(iii) The photographs in the absence of negatives on examination of photographer cannot be read into evidence. All the gold ornaments were taken by the father-in-law and wife and they sold to Joyalukkas Jewellery Alappuzha. The dowry allegedly given was in the possession of the respondent.

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(iv) Non-production of bank documents for entrustment of Rs.3 lakhs for purchase of flat cannot be fatal as other documents revealed that loan was taken for purchase of flat, thus there is an abdication and perversity.

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On the other hand, learned counsel for the respondentwife submitted that agreement Ext.B1 relied upon by the 1^st appellant no doubt proves the entrustment of the gold ornaments. In other words, the 1^st appellant-husband had dominion over the

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MAT.APPEAL NO. 108 OF 2021

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same. But there is no pleading of the date and month of the return of the same. Father cannot be bound down viz. claim of the respondent-wife/daughter qua the return of gold ornaments. Not only the contents, but the entire document was denied by the father. No effort was made to prove the signatures of the father through the testimony of handwriting expert. Thus 1^st appellant failed to discharge onus. As per the contents of Clause B of the agreement husband had undertaken to return the bike but not the gold ornaments. Even the bank statement with regard to transfer of Rs.3 lakhs in the bank account of the respondent-wife has also not seen in the light of the day. All these weighed in the mind of the court while passing the decree. There is no illegality and perversity in the order and prayed for dismissal of the appeal.

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We have heard the learned counsel for the parties and appraised the paper book.

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The relevant contents of the agreement Ext.B1 requires to be extracted hereinbelow:

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A) Both the parties do not want the child to remember her childhood as something that her parents spent quarrelling and going to courts for separation instead of

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MAT.APPEAL NO. 108 OF 2021

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taking care of her welfare. The second party being the father of the child's mother, is willing to give the custody to the child's father, as being aware of the fact that her father would be more important in her life than her grandfather in view of the physical abilities and emotional dependencies. As the child's mother had already decided her future with some other person and apparently there is no hope for any positive results/directions coming from her part, this agreement is being made to spare the minor child from any kind of emotional damage as a result of the ruined relationship between her parents. In this instance, a comprehensive proposal has come out between the two parties agreeing the custody ship of the child with her father, the first party. Hence, viewing only the welfare of this minor child, the parties being her father and grandfather, are voluntarily and mutually agreeing to the following terms:

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a) The first party is willing to take the custody of the minor child Nivedita, aged 6+ years, born out of the wedlock. He also undertakes the entire responsibility of bringing up the said child.

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b) The second party may willingly make gifts to this minor child when the time comes for her marriage.

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c) On account of the death of the first party, the minor child would inherit 50% of the property registered in his name.

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d) The family of the First party is willing to transfer a property of 15 cents in the name of the First party that would be treated as reserved for no other purposes but for the welfare of the minor child. She will be entitled to the complete possession of the said property on attaining the

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MAT.APPEAL NO. 108 OF 2021

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age of majority.

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e) With effect from this date the first party would never approach his wife or any of her relatives for any kind of assistance, be it monetary, physical or mental, especially with regard to taking care of the child.

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f) There would be absolute visitation rights for the mother and her parents if required by them, on prior intimation. She/they may meet the child provided she does not exhibit any kind of cruel or non-admissible behaviour towards the child.

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These proposals /suggestions are reasonable settlement proposal proposed by both the parties to the best of natural guardian intentions and subsequent impact.

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B) During the marriage between the first party and the daughter of the second party solemnized on 05.05.2005 the second party had given 135 sovereigns of gold and a bike. On demand from the second party, the first party is willing to return the bike that was given to him on account of this marriage.

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C) The expenses towards purchase of all furniture viz. sofa sets, double bed, dining table, TV Stand and dressing table and other items like TV, fridge, washing machine, RO water system, in their new apartment at 109/1, 305 Naharpore, Sector 7, Rohini, Delhi were entirely borne by the first party. The second party hereby agrees to return all the said belongings whenever demanded for by the First Party.

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MAT.APPEAL NO. 108 OF 2021

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D) The second party ensures that he would not demand for the return of dowry given as gift to his daughter during their marriage. However, this clause ceases to exist in the event of disposal of the apartment in 109/1, 305 Naharpore, Sector 7, Rohini, Delhi, the reason being equal contribution of cash by the second party while purchasing the same.

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E) During the registration of the house at 109/1, 305 Naharpore, Sector 7, Rohini, Delhi, the First Party and his wife had borrowed some gold ornaments from a lady known to them named Valsala. The said belongings were mortgaged at Muthoot Finance for Rs. 70,000. As on this date, neither the ornaments have been returned to Valsala, nor the loan amounting to Rs.1,00,000/- has been repaid and settled.************

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F) The second party agrees to refrain himself and/or any member of his family or relatives or friends from filing any petition or complaint against the first party and/or his parents, before any institution or Court in any of the matters contradicting the above terms.

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Both the parties hereby agree that every clause mentioned in this agreement are mutually discussed and arrived on their free will. Hence, this settlement agreement is voluntary. There had been no undue influence, coercion or external consideration to arrive at these terms.”

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As per clause B husband had admitted the entrustment

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MAT.APPEAL NO. 108 OF 2021

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of 135 sovereigns of gold and a bike but had, on demand, only agreed to return bike. The question which arises is whether Clause D can be read in conjunction with Clause B whereby the father had given up the claim with regard to the dowry ornaments. We do not agree with the argument for the reason that dowry articles could not be correlated with specific 135 ornaments as they contain other movables which have not been specified itemwise. Appellant-husband miserably failed to proof return of the same by asking the question in cross examination or answered in the petition by specifying a particular date and month. Since the respondent-wife had already left the matrimonial home way back in 2014 and had obtained ex parte divorce, it cannot be expected that after that 1^st appellant-husband would have returned the gold ornaments without receipt. In fact, the entrustment is proved from the contents of the agreement relied upon by the appellants and denied by the respondent. Bank account of appellant No.3Prabhakaran,-father of the appellant-husband has also not seen in the light of the day to prove that amount Rs.3 lakh was transferred to the account of the respondent–wife. In the absence of return,

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MAT.APPEAL NO. 108 OF 2021

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the entrustment and dominion over the same has been proved. In our view, the findings of the Trial Court are based upon the appreciation of evidence, there cannot be misreading or misapplication for, for pressing Clause No.D, appellant was required to take the assistance of a handwriting expert. Having failed to do so only Clause B of agreement can be read into being emphatically relied in support of the stand/objections taken before the Family Court.

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For the reason aforementioned, we do not find any illegality and perversity in the judgment and decree of the family court. Writ appeal sans merit, accordingly dismissed.

Sd/-

AMIT RAWAL

JUDGE

Sd/-

C.S. SUDHA

JUDGE

nak

Praveen Kumar N. Prabha v. Preena G.

Case brief

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Praveen Kumar N. Prabha v. Preena G.

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