Kerala High Court
V.N.Yesudas vs V.N.Yesudas on 22 November, 2018
Bench: A.M.Shaffique, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY ,THE 22ND DAY OF NOVEMBER 2018 / 1ST AGRAHAYANA, 1940
Mat.Appeal.No. 447 of 2011
AGAINST THE JUDGMENT IN OP 196/2008 of FAMILY COURT, THODUPUZHA
APPELLANT/RESPONDENTS IN O.P:
1 V.N.YESUDAS, S/O.MATHAI, AGED 41,
VAVELIL HOUSE,MEENACHIL KARA AND POST,, MEENACHIL
VILLAGE,KOTTAYAM DISTRICT.
2 THANKAMMA MATHAI,W/O.MATHAI
AGED ABOUT 65 YEARS,VAVELIL HOUSE,, MEENACHIL KARA
AND POST,MEENACHIL VILLAGE,, KOTTAYAM DISTRICT.
BY ADV. SRI.P.KURUVILLA JACOB
RESPONDENT/PETITIONER IN O.P
JHANCY, W/O. YESUDAS, AGED 40, VAVELIL HOUSE,
MEENACHIL KARA AND POST, MEENACHIL VILLAGE,,
KOTTAYAM DISTRICT,NOW R/AT NELLICKANIRAPPEL,,
PANDIPPARA PO, THANKAMANI VILLAGE,, UDUMBANCHOLA
TALUK, IDUKKI DISTRICT.
BY ADV. SRI.TOM JOSE (PADINJAREKARA)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No. 447 of 2011 2
JUDGMENT
This appeal is filed by the respondents in O.P.No.196/2008 of the Family court, Thodupuzha. The Original Petition has been filed by the petitioner/wife claiming return of gold ornaments and money.
2. The short facts of the case are as under and the parties are described as referred in the Original Petition, unless and otherwise stated.
3. The petitioner and the first respondent were married on 5.2.1996. A girl child was born in the wedlock on 16.1.1997. on account of matrimonial issues they got separated. According to the petitioner, the first respondent eloped with another lady by name Usha on 9.3.2004. Thereafter, she was taken to her parental house by her father on 16.3.2004. She contended that Rs.1 lakh was given before the marriage, ie; on the date of betrothal, which was on 25.1.1996, as the petitioner's parental share. That apart, she was given 166 gms of gold ornaments. It is her contention that the entire amount given as parental share and the gold ornaments were Mat.Appeal.No. 447 of 2011 3 appropriated by the respondents and though she had separated from the first respondent, the respondents have not cared to return the same. Hence, she sought for return of the amount as well as gold ornaments.
4. The respondents having denied the allegations inter alia contended that the petitioner and family members does not have the financial capacity to pay Rs.1 lakh and the gold ornaments as alleged. They however admitted the fact that Rs.50,000/- was paid on the date of betrothal, ie; on 25.1.1996. Out of the said amount, Rs.49,000/- was spend for purchasing the gold ornaments for the bride and it was given to her before the marriage itself. He therefore denied having received Rs.1 lakh. He further denied having appropriated any of her gold ornaments.
5. Before the Family Court the petitioner was examined as PW1 and her father was examined as PW2. Respondent was examined as RW1 and his mother was examined as RW2. After considering the evidence on record the Family court found that the case set up by the Mat.Appeal.No. 447 of 2011 4 petitioner is believable and accordingly granted a decree for return of the gold ornaments belonging to the petitioner and Rs.1 lakh which was quantified as Rs.4,17,060/-.
6. The learned counsel for the appellants submitted that there is no evidence to prove that the petitioner's family members were having the capacity to pay Rs.1 lakh and there is no evidence to prove the appropriation of gold ornaments. On the other hand, the learned counsel for the petitioner/wife submitted that she had a specific case that her gold ornaments were taken at the time of first respondent's sister's marriage which was two years after their marriage. This fact was spoken to by PW1 as well as her father PW2. That apart, RW1 admitted that his sister's marriage was fixed two years after their marriage. Further, it is submitted that RW1 did not have a specific case regarding the gold ornaments. Though he denied the fact that she was having 166 gms of gold ornaments he did not state as to how much gold ornaments she had at the relevant time.
Mat.Appeal.No. 447 of 2011 5
7. We heard the learned counsel appearing on either side and have perused the records.
8. The first question in this case is whether the petitioner's family had the financial capacity to pay Rs.1 lakh and to give 166 gms of gold ornaments. Even according to the respondents, Rs.50,000/- was paid by them. Therefore, their financial capacity to raise such an amount cannot be disputed. PW2 is the father of PW1. He had clearly deposed that he was having 3 acres of land where he was having coffee and pepper wire cultivation. He stated that the agricultural income as well as other money received as gift was utilized for payment of Rs.1 lakh, to purchase the gold ornaments, to meet the marriage expenditure etc. On the other hand, the respondent does not have a specific case at all. His contention is that out of the amount Rs.50,000/- which he received, Rs.49,000/- was spend for purchase of the gold ornaments for the bride. This we do not think is a practice that is followed and cannot be believed. Of course in certain areas among the community though there is a Mat.Appeal.No. 447 of 2011 6 prohibition to pay dowry, there will be an understanding among the family members regarding the total dowry that would be paid from the bride side and the gold as well as other articles will be purchased from the said amount. But if the intention of the parties was to fix Rs.50,000/- alone as dowry/parental share and the entire amount has been expended for purchase of the gold for the bride, it is not something which could be digested. Apparently, the amount fixed as dowry or the parental share, will be much more than the value of gold ornaments. Therefore, we have no hesitation to accept the version of the petitioner, as the version of the respondent is not believable.
9. 9. Taking into account all these facts we are of the view that the version put forth by the petitioner is more believable. In the light of the aforesaid facts and situation, we have no hesitation to uphold the judgment of the Family Court.
10. The appellants would however submit that the direction to pay 12% interest is on the higher side. But it is relevant to note that the value of the gold had been Mat.Appeal.No. 447 of 2011 7 fixed by the court at a particular rate. The value of the gold had been on the increase over a period of time and therefore, the direction to pay interest will only take care of the appreciation in the value of the gold. Hence, we do not think it necessary for us to interfere with the rate of interest as directed by the Family Court. No grounds are made out for interference. Appeal is hence dismissed. No costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
SHIRCY V.
smm JUDGE