Allowed

Samuel John, v. Jolly Samuel

Kerala HC4 Dec 2023Mat.Appeal/449/2019

Case brief

AI extract

What is this about?

High Court of Kerala disposed of two matrimonial appeals against a Family Court judgment concerning marital financial disputes, allegations of property misappropriation, and claims based on custom. The court allowed the husband's appeal and dismissed the wife's cross appeal.

What did the court decide?

Judgment and decree of Family Court in O.P.No.1208 of 2015 set aside; Husband's appeal allowed; Wife's cross appeal dismissed.

Samuel John, Vs Jolly Samuel — Matrimonial and Divorce | Kerala HC (2023)

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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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 4TH DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945

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MAT.APPEAL NO. 449 OF 2019

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AGAINST THE JUDGMENT DATED 22.03.2019 IN OP NO.1208/2015 OF FAMILY

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COURT, MAVELIKKARA

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APPELLANTS/RESPONDENTS:

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1SAMUEL JOHN,
AGED 44 YEARS
S/O. P V JOHN KUTTY, GILGAL VILLA NO. 6,
KOONAMMAVUKARA, VARAPUZHA, ERNAKULAM

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2JOHNKUTTY PV,
AGED 75 YEARS
GILGAL VILLA NO.6, KOONAMMAVUKARA, VARAPUZHA,ERNAKULAM.
BY ADVS.
M.B.SANDEEP
SMT.R.PRIYA
SMT.K.P.SREEJA
SRI.M.J.KIRANKUMAR
SRI.AMAL STANLY

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RESPONDENT/PETITIONER:

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JOLLY SAMUEL,
AGED 39 YEARS
EBENEZER HOME, MULAKKUZHA P.O, CHENGANNUR,
NOW RESIDING GILGAL-5, C.C NO. 32/1158 A1,
ROHINI APARTMENT, PALARIVATTOM 682 025

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BY ADVS.
SRI.M.RAJENDRAN NAIR (THONNALLOOR)
SRI.SREEJITH R.NAIR
SRI.A.D.SHAJAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
04.12.2023, ALONG WITH Mat.Appeal.567/2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:

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MAT.APPEAL NO. 449 OF 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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 4TH DAY OF DECEMBER 2023 / 13TH AGRAHAYANA,

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MAT.APPEAL NO. 567 OF 2019

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AGAINST THE JUDGMENT DATED 22.03.2019 IN OP (OTHERS)
NO.1208/2015 OF FAMILY COURT, MAVELIKARA

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APPELLANT/PETITIONER:

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JOLLY SAMUAL
AGED 35 YEARS
D/O. YOHANNAN, EBANEZER HOUSE, MULAKUZHA P. O.,
CHENGANNUR TALUK, PIN CODE – 689505.
BY ADVS.
M.RAJENDRAN NAIR (THONNALLOOR)
SRI.A.D.SHAJAN
SRI.SREEJITH R.NAIR

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RESPONDENTS/RESPONDENTS:

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1SAMUEL JOHN, AGED 40 YEARS
S/O. P. V. JOHNKUTTY, GILGAL NO.6, KUNAMAVU
KARIYL, VARAPUZHA TALUK, ERNAKULAM – 683517.
2P. V. JOHNKUTTY
AGED 71 YEARS, S/O. VARGHESE, -DO- PIN – 683517
BY ADVS.
SRI.AMAL STANLY
SRI.SHYAM NAIR
SRI.M.B.SANDEEP
SMT.R.PRIYA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD
ON 04.12.2023, ALONG WITH Mat.Appeal.449/2019, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

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MAT.APPEAL NO. 449 OF 2019

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JUDGMENT

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[Mat.Appeal Nos.449/2019, 567/2019]

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AMIT RAWAL, J.

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This order shall decide two appeals against the judgment dated 22.3.2019 in OP(Others).No.1208/2015 of the Family Court, Mavelikkara; Mat.A.No.449 of 2019 by the husband for setting aside the judgment and Mat.A.No.567of 2019 by the wife for modification of the judgment.

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Parties to the lis got married on 20.09.2005 and at the time of engagement father of the wife alleged to have entrusted Rs.5,00,000/- (Rupees five lakh only) to the husband and after twenty(20) days of the marriage, another Rs.2,00,000/- (Rupees two lakh only). Husband was working in gulf. Earlier the marriage was smooth but thereafter owing to the bickering and other circumstances the parties started living separately. Wife instituted a petition under Section 498A IPC in 2008 and also filed a petition for divorce and claimed maintenance. Compromise was arrived at between the parties in 2009

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MAT.APPEAL NO. 449 OF 2019

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and started living together from 2011 onwards. Again relationship became bitter, complaint was filed under Section 498A IPC in 2015 and it was alleged that at the time of the compromise another sum of Rs.20,00,000/(Rupees twenty lakh only) was entrusted to the husband. Husband purchased a property out of the money initially provided by the parents of the wife which was sold for a sum of Rs.50,00,000/- (Rupees Fifty lakh only) and thus set up the claim of half of the value of the property to the tune of Rs.25,00,000/- (Rupees Twenty five lakh only).

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Husband appeared and contested the petition and denied not only the receipt of Rupees five lakh but the entire amount. Parties were at variance and the Family Court framed the following points of determination:

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“(1)Whether the petitioner is succeeded in proving that an amount of Rs.27,00,000/- was entrusted to the respondents by the petitioner’s father as alleged?

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MAT.APPEAL NO. 449 OF 2019

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(2)Whether the petitioner is succeeded in proving that joint property of the petitioner and 1^st respondent was sold for Rs.50,00,000/- and the first respondent utilised the share of the petitioner also for purchasing flat at Ernakulam in the name of 1^st respondent alone?

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(3) Whether the petitioner is entitled to realise Rs.52,00,000/- from the respondents as prayed for?

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(4)Reliefs and costs?”

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Before the court below wife examined the following witnesses:

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PW1 Jolly Samual PW2 T.Yohannan PW3 Baby Chalse PW4 T.M.Philip

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Respondent examined himself as RW1. Wife brought on record Exts.A1 to A11 whereas the husband Exts.B1 and B2.

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On appreciation of the evidence, the Family

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Court rejected the whole version of witnesses examined on behalf of the wife and decreed the claim in part to the

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MAT.APPEAL NO. 449 OF 2019

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extent of Rs.5,00,000/- (Rupees five lakh only). It is in that background two appeals have been filed.

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Learned counsel representing the

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appellant/husband in appeal No.449 of 2019 submitted that the findings of the court below are based on surmises and conjunctures as there is a categoric assertion in the objection as well as before the court the witnesses examined on behalf of the wife failed to prove the entrustment of Rs.5,00,000/- (Rupees five lakh only) which was allegedly paid out of the custom practiced amongst the Christians belonging to particular sect, i.e., Pentecost, which means that no ornaments are worn at the time of marriage except exchange of money. Similar was the version of the wife for entrustment of Rs.2,00,000/- (Rupees two lakh only) and another Rs.25,00,000/- (Rupees Twenty five lakh only) in a compromise, but said statement was disbelieved. So the court did not use the yardsticks in the correct prospective resulting into the decree of Rs.5,00,000/-.

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MAT.APPEAL NO. 449 OF 2019

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On the other hand, learned counsel

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representing the wife submitted that custom prevailed amongst the family was to give an amount as per the financial capacity. No doubt the father of the wife at the time of marriage was working as a pastor and did not have any means to pay off the money as per the custom but arranged the money from his son who was working abroad. Similarly with regard to other payment, the money was transmitted by the brother. All these factors if read in cumulative court below ought to have decreed O.P.No.1208 of 2015 in entirety.

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We have heard learned counsel for the parties and appraised the paper books and of the view that the wife and her witnesses have miserably failed to prove entrustment of Rs.5,00,000/- (Rupees five lakh only), also Rs.2,00,000/- (Rupees two lakh only) and Rs.20,00,000/(Rupees Twenty lakh only) as sought to be projected in a cross appeal preferred by the wife. The reasons are not one but many:

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MAT.APPEAL NO. 449 OF 2019

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Except for the bald testimony of the witnesses, no corroborative evidence like statement of brother of the wife who alleged to have transferred the money of Rs.5,00,000/- (Rupees five lakh only) and also Rs.2,00,000/- (Rupees two lakh only) and Rs.20,00,000/(Rupees Twenty lakh only) at different occasions. Onus to discharge the burden heavily relies on the person who asserts it until and unless the same is discharged, it does not shift upon the other side who dispute this. However in the instant case, wife miserably failed to prove on record payment of Rs.5,00,000/- (Rupees five lakh only) as per the custom or even the custom practiced amongst the Pentecost Sect they belong. Purchase of the property by the husband cannot be correlated from the funds provided by the wife. Therefore the stake of half share was also a figment of imagination. It is not discerned how Family Court believed the statement with regard to the entrustment of Rs.5,00,000/- (Rupees five lakh only) without any direct and cogent evidence.

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MAT.APPEAL NO. 449 OF 2019

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For the reasons aforementioned, the judgment

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and decree of the Family Court dated 22.03.2019 rendered in O.P.No.1208 of 2015 is set aside. Mat.A.No.449 of 2019 preferred by the husband is allowed whereas Mat.A.No.567 of 2019 by the respondent wife seeking relief of recovery of the amount is dismissed.

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Sd/-

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AMIT RAWAL
JUDGE

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Sd/-

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C.S. SUDHA
JUDGE

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Samuel John, v. Jolly Samuel

Case brief

What is this about?

What did the court decide?

Samuel John, v. Jolly Samuel

Case brief

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What did the court decide?

What the court decided

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