Anilkumar vs Sindhu on 31 March, 2008

[Cites 1, Cited by 3]

Kerala High Court

Anilkumar vs Sindhu on 31 March, 2008

This appeal arises from the judgment and decree passed by the Family Court, Kottayam, in O.P (HMA) No.963/2006 filed by the first respondent herein. The appellant married the first respondent on 08.09.1998. In the wedlock, a male child was born on 20.06.1999. The marriage was dissolved by a decree of divorce passed in O.P. No.236/2008 filed by the wife before the Family Court, Kottayam. It was subsequent thereto that the wife filed O.P. (HMA) No.963/2006 for return of 30 sovereigns of gold, recovery of Rs.6,23,400/- (Rupees Six lakh twenty three thousand and four hundred only) and Rs.50,000/- (Rupees fifty thousand only) paid to the respondent. Before the Family Court, respondent and her brother were examined as PW1 and 2 and the appellant was examined as RW1. Exhibits A1 to A4 and B1 were marked by the parties. Family Court by the impugned judgment passed a decree directing return of 30 sovereigns of gold or its M.A. No. 538 OF 2008 2 market value of Rs.2,85,000/- (Rupees Two lakh eighty five thousand only) with future interest at 9% and recovery of Rs.50,000/- (Rupees fifty thousand only) with 9% interest from 22.12.2006. It is aggrieved by this judgment, the husband has filed this appeal.

2. We have heard the counsel for the appellant and the learned counsel appearing for the first respondent. While the learned counsel for the appellant contended that there was no acceptable evidence in justifying the decree passed, the counsel for the first respondent contended that the decree passed is fully consistent with the evidence available before the Family Court.

3. In this appeal, there are two claims that were upheld by the Family Court. The first claim is that of 30 sovereigns of gold and the second claim is for return of Rs.50,000/- (Rupees fifty thousand only). In so far as the claim for 30 sovereigns of gold is concerned, case of PW1, the wife is that at the time of marriage she was wearing 30 sovereigns of gold ornaments out of which she already had 18 sovereigns of ornaments and the remaining gold were purchased from Kalyan Jewellery, Thrissur. She also stated that the documents evidencing the purchase were lost. It was her case that the M.A. No. 538 OF 2008 3 ornaments were entrusted to the first respondent and that he later sold those ornaments and realized Rs.1,50,000/- (Rupees One lakh fifty thousand only). According to her, utilizing the said amount, he obtained a visa to go to Gulf countries seeking employment. This case of PW1 was substantiated by the evidence of PW2, her brother. On the other hand, according to RW1, the appellant, he did not misappropriate any ornaments belonging to the wife. His case was that she was having only 20 sovereigns of gold and that she had taken it when she left the matrimonial home. It was stated by the respondent husband, she had only 20 sovereigns of gold and not 30 sovereigns as claimed by her. It was upto the husband to adduce evidence in support thereof, which was not done. He also did not adduce any evidence before the court that the ornaments that the wife had were with her at the time when she left the matrimonial home. Apart from Ext.A1, the wedding photograph, which shows that the wife was wearing some ornaments. The above is the sum total of evidence that was available before the Family Court. In a matter of this nature, insisting on strict standard of proof would be unrealistic and in our view the case pleaded by the wife was fully probablised by the evidence that was adduced in the case. If that be so, we M.A. No. 538 OF 2008 4 cannot find fault with the conclusion of the Family Court on any of the ground urged by the counsel for the appellant. However, there is merit in his statement that though even with the case pleaded by the wife was that the amount was misappropriated by the first respondent, decree passed makes respondents 2 and 3 herein also liable for the amount. This in our view could not have been done and therefore the decretal part deserves to be suitably modified.

4. Second claim of the wife which is upheld by the Family Court is for recovery of Rs.50,000/- (Rupees fifty thousand only). According to the wife, on the eve of marriage Rs.50,000/- (Rupees fifty thousand only) withdrawn from the bank was paid to the father of the appellant, the second respondent herein. Her case is fully substantiated by the evidence of PW2, her brother, who has direct knowledge of this payment. It was because of such evidence that was adduced before the Family court, the Family Court has accepted the case of the first respondent, wife. We do not see any ground to upset these findings of the Family Court.

5. In the result, this appeal is disposed of, upholding the decree enabling the first respondent to realise Rs.50,000/- M.A. No. 538 OF 2008 5 (Rupees fifty thousand only) with 9% interest as ordered by the Family Court and modifying the decree enabling the wife to realise 30 sovereigns of gold or its approximate value of Rs.2,85,000/- (Rupees two lakh eighty five thousand only) with 9% interest from the date of the decree from the appellant, husband.

Subject to the above, the decree will stand confirmed in all other respects.

ANTONY DOMINIC, JUDGE P.D. RAJAN, JUDGE DMR/-

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Kerala High Court