Kerala High CourtJencin Mathew vs Boby.P.Augustine on 7 January, 2020Equivalent citations: AIRONLINE 2020 KER 20Bench:K.Harilal,C.S.DiasIN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n                         PRESENT\n\n           THE HONOURABLE MR.JUSTICE K.HARILAL\n\n                            &\n\n            THE HONOURABLE MR.JUSTICE C.S.DIAS\n\nTUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941\n\n                 Mat.Appeal.No.66 OF 2019\n\n AGAINST THE JUDGMENT IN OP 261/2015 DATED 21-11-2018 OF\n               FAMILY COURT, MUVATTUPUZHA\n\nAPPELLANT/PETITIONER:\n\n            JENCIN MATHEW,\n            AGED 36 YEARS\n            D/O.MATHEW, RESIDING AT NADUVILEDATHU HOUSE,\n            KIZHAKOMBU KARA, KIZHAKOMBU P.O,\n            KOOTHATTUKULAM VILLAGE, MUVATTUPUZHA TALUK,\n            ERNAKULAM, PIN- 686662.\n            BY ADVS.\n            SRI.K.RAKESH ROSHAN\n            SRI.I.K.RAJU\n            SMT.THUSHARA.V\nRESPONDENT/RESPONDENTS:\n      1     BOBY.P.AUGUSTINE,\n            AGED 38 YEARS\n            S/O.AUGUSTINE, RESIDING AT PANNIVALLIYAVIL\n            HOUSE, KADANADU KARA AND VILLAGE,\n            KADANALMEENACHIL POST, MEENACHIL TALUK,\n            KOTTAYAM DISTRICT, PIN- 686653.\n\n     2     AUGUSTINE @ BABY,\n           AGED 60 YEARS\n           PANNIVALLIYAVIL HOUSE, KADANADU KARA AND\n           VILLAGE, KADANAL MEENACHIL-POST, MEENACHIL\n           TALUK, KOTTAYAM DISTRICT, PIN- 686653.\n\n           R2 BY ADV. DOMSON J.VATTAKUZHY\n\n     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON\n18-12-2019, ALONG WITH Mat.Appeal.393/2019, THE COURT ON\n7.01.2020 DELIVERED THE FOLLOWING:\n Mat.A Nos.66 and 393 of 2019\n                     2\n\n         IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n                         PRESENT\n\n           THE HONOURABLE MR.JUSTICE K.HARILAL\n\n                            &\n\n            THE HONOURABLE MR.JUSTICE C.S.DIAS\n\nTUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941\n\n                Mat.Appeal.No.393 OF 2019\n\n  AGAINST THE ORDER IN I.A 221/2019 IN O.P 261/2015 OF\n               FAMILY COURT, MUVATTUPUZHA\n\nAPPELLANT/S:\n\n     1     BOBBY. P.AUGUSTINE\n           AGED 35 YEARS,S/O.AUGUSTINE, PANNIVALLIYAVIL\n           HOUSE, KADANADU KARA, KADANADU VILLAGE,\n           MEENACHIL TALUK.\n\n     2     BABY AUGUSTINE,\n           AGED 61 YEARS,S/O.AUGUSTINE, PANNIVALLIYAVIL\n           HOUSE, KADANADU KARA, KADANADU VILLAGE,\n           MEENACHIL TALUK.\n           BY ADVS.\n           SRI.MATHEW JOHN (K)\n           SRI.MATHEW DEVASSI\n           SRI.ABY J AUGUSTINE\nRESPONDENT/S:\n           JENCIN MATHEW\n           AGED 33 YEARS,D/O.MATHEW, NADUVILEDATHU\n           HOUSE, KIZHAKOMBU KARA, KOOTHATTUKULAM\n           VILLAGE, MUVATTUPUZHA, PIN-686661\n           R1 BY ADV. SRI.K.RAKESH ROSHAN\n           R1 BY ADV. SRI.I.K.RAJU\n           R1 BY ADV. SMT.THUSHARA.V\n\n     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON\n18-12-2019, ALONG WITH Mat.Appeal.66/2019, THE COURT ON\n7.1.2020 DELIVERED THE FOLLOWING:\n Mat.A Nos.66 and 393 of 2019\n                     3\n:\n\n\n\n\n                   COMMON JUDGMENT(Dated this the 7th January, 2020)\n\n\n\n\nDias,J.The petitioner in O.P No.261/2015 on\n\nthe file of the Family Court, Muvattupuzha\n\nis the appellant in Mat.Appeal No.66/2019.\n\nThe    1st    respondent        in    the   appeal,   the\n\nappellant's husband, is the 1st respondent\n\nand his father is the 2nd respondent in the\n\nabove appeal.2.     Mat.Appeal No.393/2019 is filed by\n\nthe    respondents         in        O.P.261/2015     (the\n Mat.A Nos.66 and 393 of 20194respondents            in     Mat.Appeal        No.66/2019)\n\nchallenging            the     order     passed           in    I.A\n\nNo.221/2019 in O.P 261/2015.3.    Since the         subsequent Mat.Appeal is\n\nfiled against a consequential order passed\n\nby    the    Family         Court,     these    appeals         are\n\nconsolidated,           heard    and     disposed          of    by\n\nthis common judgment.                The parties are for\n\nthe    sake       of   convenience        referred         to    as\n\n"petitioner"           and     "respondents",             as    per\n\ntheir status in O.P.261/2015.Mat.A 66/20194.    The         petitioner             had             filed\n\nO.P.261/2015           underSection        7(c)of    the\n\nFamily Courts Act, seeking a decree for\n\nrecovery of money and her gold ornaments\n\nallegedly              misappropriated               by         the\n Mat.A Nos.66 and 393 of 20195respondents. It was her case before the\n\nFamily Court that          she was married to the\n\n1st respondent on 12.01.2012, as per the\n\nreligious     rites       and    customs          of   their\n\ncommunity. The 2nd respondent is the father\n\nof the 1st respondent.           She averred that at\n\nthe time of marriage she was employed as a\n\nNurse in the United Kingdom, and that the\n\n1st respondent was employed in Iraq.                      As\n\nthe   marriage      was    an        arranged      one,   an\n\namount of Rs.3 lakh was given to the 2nd\n\nrespondent         on      7.1.2012,              as      the\n\npetitioner's       share        in       her       parental\n\nproperties.      She also averred that she was\n\ngiven sixty sovereigns of gold ornaments\n\nat the time of marriage. The petitioner's\n\nparents     also    gifted           a         wrist   chain\n Mat.A Nos.66 and 393 of 20196weighing         three sovereigns and a gold ring\n\nweighing         one    sovereign.         The   petitioner\n\nalso       had     in     her     possession        thirteen\n\nsovereigns         of    gold     ornaments      which   was\n\npurchased         with her own resources.5.    The        petitioner     pleaded       in   the\n\noriginal petition that the respondents for\n\nthe        purpose       of     the      1st   respondent's\n\nsister's               marriage          demanded        the\n\npetitioner's            gold    ornaments.       While   the\n\npetitioner was in the United Kingdom, the\n\nrespondents            took    away   the      petitioner's\n\ngold ornaments and pledged some of them.\n\nWhen the 1st respondent went on a visit to\n\nthe    United          Kingdom,    the     petitioner    had\n\nentrusted with him 3,000 pounds (at that\n\npoint of time, the amount had a exchange\n Mat.A Nos.66 and 393 of 20197value of Rs.2,55,000/-).6.    It    was       her    further        case    that    as\n\ndemanded by the respondents she had sent\n\nan    amount          of         Rs.6,90,000/-          which    was\n\ncredited         in        the     1st     respondent's         bank\n\naccount. Later on, differences of opinion\n\narose       between         the      couple,       as     the    1st\n\nrespondent manhandled the petitioner.                            The\n\n1st   respondent,                thereafter,       filed          an\n\noriginal petition before the Family Court,\n\nPala,      seeking          the     permanent       custody       of\n\ntheir child. As the marital relationship\n\nwas        irretrievably                 broken     down,        the\n\npetitioner no longer                     reposed     trust       and\n\nfaith       in        the        respondents,           and     thus\n\ninstituted             O.P.261/2015               seeking        for\n\nrecovery         of    73        sovereigns        of    her    gold\n Mat.A Nos.66 and 393 of 20198ornaments            that          were          allegedly\n\nmisappropriated by the respondents,                     and\n\nalso     for    a    decree         for    recovery      of\n\nRs.12,45,000/- from the respondents.7.     The    respondents         appeared     in    the\n\ncase     and        filed     a    detailed        written\n\nobjection.          The respondents admitted the\n\nmarriage as well as the paternity of the\n\nchild.    The       respondents         bluntly     denied\n\nentrustment         of   money     at     the    time    of\n\nmarriage. The 1st respondent admitted that\n\nhe was         gifted with a wrist chain, but\n\nonly      weighing          one      sovereign.         The\n\nrespondents         never     knew      the      quantity,\n\nquality or purity of the petitioner's gold\n\nornaments,       which      were        always    in    her\n\npossession.         The 1st respondent also denied\n Mat.A Nos.66 and 393 of 20199that he was given 3,000 pounds as alleged.\n\nThe respondents further averred that                     all\n\nthe petitioner's gold ornaments were kept\n\nin   a    locker      in   the    joint   names    of    the\n\ncouple at the State Bank of Travancore,\n\nKoothattukulam Branch.             The 1st respondent,\n\nhowever, admitted that he had received an\n\namount of Rs.6 lakh in                April, 2013 and\n\nRs.90,000/-           on     6.8.2011.          But,     the\n\nrespondents        took     the    defense       that    the\n\namount was handed over to the petitioner's\n\nfather     in    connection        with    her    sister's\n\nmarriage        and    Rs.75,000/-        was    given    as\n\nmaintenance expense to the                  petitioner's\n\nparental home.8.   The     petitioner       and    two    witnesses\n\nwere examined as PW1 to PW3 and Exts.A1 to\n Mat.A Nos.66 and 393 of 201910A3     were        marked     through         them.      The\n\nrespondents         and   three        other    witnesses\n\nwere examined as RW1 to RW4 and Exts.B1\n\nand B2 were marked through them.                  Exts.X1\n\nto X13 were summoned and marked through\n\nthe above witnesses.9.   The Family Court after considering\n\nthe pleadings, the oral testimony of the\n\nwitnesses and the documentary evidence on\n\nrecord,       partly      allowed         the    original\n\npetition by directing the 1st respondent to\n\nreturn        the    wrist    chain     weighing         one\n\nsovereign and permitting the petitioner to\n\nrealise       an     amount       of   Rs.4     lakh   with\n\ninterest at the rate of 6% per annum from\n\nthe    date    of    petition      till   the     date   of\n\nrealisation         of      the    amount       from     the\n Mat.A Nos.66 and 393 of 201911respondents and their assets.10. It is aggrieved by the                rejection\n\nof the other claims of the petitioner that\n\nthe present Mat.Appeal is filed.Mat.Appeal 393/201911. The         petitioner          along         with\n\nO.P.261/2015         had      filed    I.A     No.412/2015\n\nseeking     an       order     of     attachment   before\n\njudgment        of     the     attachment        scheduled\n\nproperties belonging to the 2nd respondent.\n\nThe    Family        Court     passed     an    order    of\n\nattachment before judgment.12. Subsequent          to    the   judgment      and\n\ndecree     passed      by     the     Family    Court    in\n\nO.P.261/2015, the 2nd respondent deposited\n\nthe decree amount of Rs.5,14,043/- before\n\nthe    Family        Court,     and    then    filed    I.A\n Mat.A Nos.66 and 393 of 201912No.48/2019       seeking   withdrawal     of   the\n\nattachment.13. The      petitioner    opposed       the\n\napplication on the ground that Mat.Appeal\n\nNo.66/2019 is filed against the impugned\n\njudgment     and decree, and that in the mean\n\ntime if the attachment is withdrawn, it\n\nwould cause substantial prejudice to the\n\npetitioner.The Family Court did not pass\n\nany order on the above application.14. Subsequently, the respondents filed\n\nI.A 221/2019 praying that the amount that\n\nhas been deposited before the Family Court\n\nmay be returned to the 2nd respondent since\n\nhe    wanted     to   conduct   his     daughter's\n\nmarriage.       He averred that the amount that\n\nwas    deposited before the Family Court was\n Mat.A Nos.66 and 393 of 201913borrowed by him from a third person, on\n\nthe     belief       that     he     could       get    the\n\nattachment        withdrawn    and        then   mortgage\n\nthe property. The petitioner opposed the\n\nsaid application also. The Family Court by\n\norder       dated     16.4.2019       dismissed          the\n\napplication on the ground that as per the\n\norder of this Court in I.A No.1/2019 in\n\nMat.A    66/2019,      the    attachment         scheduled\n\nproperty     is      furnished       as   security      and\n\nthat an additional amount may be decreed\n\nin Mat.Appeal 66/2019. Hence, the amount\n\nmay not be returned, and the attachment\n\nmay   not    be     withdrawn.     The    Family       Court\n\ndismissed the application. It is assailing\n\nthe said order that Mat.Appeal 393/2019 is\n\nfiled by      the    respondents.Mat.A Nos.66 and 393 of 20191415. We      have    heard       Adv.Rakesh      Roshan\n\nthe learned counsel for the appellant and\n\nAdv.Domson      J.Vattakuzhy,             the     learned\n\ncounsel for the respondents.16. From      the     facts       in     the     above\n\nappeals, the following points emerge for\n\ndetermination.(i) Whether the petitioner is\n   entitled to recover 73 sovereigns\n   of   gold ornaments as claimed                  in\n   O.P. 261/2015?(ii)      Whether      the    petitioner\n   is   entitled        to     a     decree       forrecovery of money as claimed in the\n   original petition?(iii)     Whether the respondents\n   are entitled to get the amount that\n   was deposited as per I.A 48/2019 in\n Mat.A Nos.66 and 393 of 201915O.P.261/2015 or get the attachment\n      before judgment withdrawn?17. As the points are         interweaved, we\n\nare considering them together.18. We have re-appreciated the entire\n\npleadings and evidence on record.19. This Court inBhaskaran v. Radha[2019 (3) KHC 960], Abubakker                Labba v.\n\nShameena [2018 (3) KLT 196]            and in Shinu\n\nP.K v.Dhanya Madhavan [2013 (3) KHC 735]\n\nhas       succinctly laid down the law that,\n\nin    a   petition   filed   for    return   of   gold\n\nornaments     and     money,       there   should   be\n\nspecific pleadings and evidence describing\n\nthe details of the gold ornaments             and the\n\nthe amount that were entrusted at the time\n Mat.A Nos.66 and 393 of 201916of marriage.          The initial onus of               proof\n\nis on the           wife to substantiate that the\n\namount        and     the        gold     ornaments         were\n\nmisappropriated         by       the     husband      and    his\n\nfamily, and that money was entrusted to\n\nthem    in trust at the time of marriage.20. Keeping           in      mind        the     above\n\ndeclaration of law by this Court, we have\n\nperused        the           pleadings          on     record\n\npertaining to the alleged entrustment of\n\ngold    and    the    money       by     the    petitioner's\n\nfamily to the respondents. The counsel for\n\nthe    appellant       fairly concedes that there\n\nis no specific              pleading in the original\n\npetition that Rs.3 lakh was entrusted at\n\nthe    time    of    marriage.          There   is    also   no\n\nspecific plea that 73 sovereigns of gold\n Mat.A Nos.66 and 393 of 201917ornaments       were          misappropriated           by        the\n\nrespondents.             On    the    other      hand,       it   is\n\nseen     that       the       petitioner         and    the       1st\n\nrespondent had taken a joint locker in the\n\nState    Bank       of    Travancore,           Koothattukulam\n\nBranch,      wherein          the    petitioner        had    kept\n\nher gold ornaments.                  The petitioner does\n\nnot    have     a    case       that       during      the    said\n\nperiod, the 1st respondent had opened the\n\nlocker and taken away the gold ornaments.\n\nRegarding           the        allegation           that          the\n\npetitioner had entrusted 3000 pounds                               to\n\nthe    1st   respondent,            when    he    visited         the\n\nUnited Kingdom, there is no evidence.21. The only fact that has been proved\n\nby the petitioner and admitted by the 1st\n\nrespondent          was        that        an     amount           of\n Mat.A Nos.66 and 393 of 201918Rs.6,90,000/- was sent by the petitioner\n\nto the 1st respondent and the amount was\n\ncredited to his bank account in State Bank\n\nof Travancore.             The 1st respondent           does\n\nnot deny that he has received the amount.\n\nBut,    his    case      is    that   he   entrusted    the\n\namount to the petitioner's father towards\n\nthe marriage expenses of the petitioner's\n\nsister       and     for      their   house   renovation\n\nwork.    Therefore, going by the evidence of\n\nthe witnesses examined in the case, it is\n\nmanifestly established that an amount of\n\nRs.6,90,000/- was sent to the bank account\n\nof     the    1st    respondent.           There   is    no\n\nevidence            or     proof       regarding         the\n\nentrustment of the             earlier amount of Rs.3\n\nlakh and 3000 pounds and also the alleged\n Mat.A Nos.66 and 393 of 201919misappropriation of the petitioner's gold\n\nornaments      weighing       73     sovereigns.      The\n\nFamily Court on a threadbare               analysis of\n\npoint    Nos.1   and     2      has      discussed    the\n\nmatter in detail.        The entire evidence was\n\nevaluated   by    the    Family       Court,   and    the\n\nFamily   Court    rightly      concluded       that   the\n\nrespondents      had    not    misappropriated        the\n\ngold ornaments or an amount of Rs.3 lakh\n\nwas entrusted to them.22. With reference to            point No.3, the\n\nentrustment        of         3000       pounds       and\n\nRs.6,90,000/- being credited to the bank\n\naccount of the 1st respondent, the Family\n\nCourt,    admittedly,         by     a    guess     work,\n\npresumed that the 1st respondent had given\n\nan    amount     of     Rs.2,90,000/-          to     the\n Mat.A Nos.66 and 393 of 201920petitioner's father. Thus, by the impugned\n\njudgment, 1st respondent has been directed\n\nto return Rs.4 lakh.23. On a re-appreciation of the finding\n\nof the Family Court in paragraph 18 of the\n\nimpugned judgment, it is seen that there\n\nis absolutely no evidence for the Family\n\nCourt to arrive at the conclusion that the\n\n1st respondent entrusted Rs.2,90,000/- to\n\nthe petitioner's father.24. The 1st respondent had not summoned\n\nand    examined   the   concerned   witnesses    to\n\nprove that he had returned Rs.2,90,000/-\n\nfrom the    amount that he received from the\n\npetitioner.       The   Family   Court   has     in\n\nunequivocal       words held that the finding\n\nis on the basis of          guess work.        Such\n Mat.A Nos.66 and 393 of 201921guess work is impermissible in law.                         The\n\nFamily Court is bound to render specific\n\nfindings on the basis of the pleadings,\n\nissues formulated and evidence on record,\n\nto     arrive          at    its      conclusions.          The\n\npetitioner       had    discharged      her     burden       of\n\nproof     by     proving      that     the     amount        of\n\nRs.6,90,000/- was sent to the bank of the\n\n1st respondent.             Thereafter, the onus of\n\nproof shifted           on the 1st respondent to\n\nprove      that         he      had         handed      over\n\nRs.2,90,000/- to the petitioner's father,\n\nas alleged in the written objection.                    But,\n\nthe 1st respondent has not               discharged the\n\nburden    by    any    cogent         evidence       that    he\n\npaid     Rs.2,90,000/-         to     the    petitioner's\n\nfather.        Thus, we are of the opinion that\n Mat.A Nos.66 and 393 of 201922the 1st respondent is liable to return an\n\namount of Rs.6,90,000/- to the petitioner\n\nand that the petitioner is entitled to a\n\ndecree    for     realising              an      amount     of\n\nRs.6,90,000/-          from    the        1st    respondent\n\npersonally       and    from       his    assets.        Thus,\n\npoint Nos.1 to 3 are answered accordingly.\n\nAccordingly, we concur with the                    findingsof the Family Court on point Nos.1 and 2in the impugned judgment, but we modify\n\nthe    decree    permitting        the     petitioner      to\n\nrealise an amount of Rs.4 lakh from the\n\nrespondents;          instead,       we         permit     the\n\npetitioner       to     recover          an      amount    of\n\nRs.6,90,000/-          from    the        1st    respondent\n\npersonally and from his assets.25. With    regard      to    point        No.4,    i.e,\n Mat.A Nos.66 and 393 of 201923pertaining to Mat.Appeal 393/2019, whether\n\nthe respondents are entitled to get the\n\namount of Rs.5,14,043/- returned to them\n\nand/or get the order of attachment before\n\njudgment    withdrawn?        we   order       that,    in\n\nview of our findings in Mat.Appeal 66/2019\n\nthat the petitioner is entitled to recover\n\nan amount of Rs.6,90,000/- with interest\n\nat the rate of 6% per annum from the date\n\nof petition till the date of realisation\n\nfrom the 1st respondent and his                  assets,\n\nand that the 1st respondent is also liable\n\nto return         the wrist chain weighing one\n\nsovereign of gold ornament, or its value\n\nthereof,    we     direct      the   respondents        to\n\ndeposit     the     balance    amount        decreed    in\n\nfavour     of     the   petitioner      as     per     this\n Mat.A Nos.66 and 393 of 201924judgment     and    decree       before        the    Family\n\ncourt, within        three months from the date\n\nof receipt of a copy of this judgment.                    On\n\ndepositing         the      entire            amount      in\n\nfulfillment of           this judgment and decree\n\nin Mat.Appeal No.66/2019, the                   attachment\n\nbefore judgment ordered in I.A No.412/2015\n\nshall     stand     withdrawn.           In     case     the\n\nrespondents deposit the entire                   amount as\n\nordered     by     this     Court        in     Mat.Appeal\n\nNo.66/2019,        the          Family        Court     shall\n\nwithdraw    the     attachment       before          judgment\n\nordered in I.A No.412/2015 in O.P.261/2015\n\nand     communicate       the     same    to      the    Sub\n\nRegistry Office, Ramapuram. The petitioner\n\nshall be at liberty to withdraw the entire\n\namount so deposited as per the procedure\n Mat.A Nos.66 and 393 of 201925established in law.In the result, Mat.Appeal No.66/2019 is\n\nallowed in part as follows:(i) The 1st respondent is directed to\n\nreturn      the     wrist     chain        weighing       one\n\nsovereign,        failing   which,     the     petitioner\n\nshall be entitled to realise its value as\n\non the date of the original petition with\n\n6%   interest      per   annum     from     the    date   of\n\noriginal     petition       till   the      date   of     its\n\nrealisation         from     the      1st      respondent\n\npersonally and from his properties.(ii)     The     petitioner         is   granted       a\n\ndecree      for      realising        an      amount       of\n\nRs.6,90,000/- with interest at the rate of\n\n6% per annum from the               date of original\n\npetition     till     the    date     of      realisation\n Mat.A Nos.66 and 393 of 201926from the 1st respondent personally and from\n\nhis properties.(iii)      The    parties     shall    bear    their\n\nrespective costs.Mat.Appeal 393/2019 is allowed in part,\n\nas follows:(i)      The    respondents    are     directed   to\n\ndeposit the balance          decree amount, as per\n\nthis judgment        and decree passed by this\n\nCourt in Mat.A No.66/2019.             The amount of\n\nRs.5,14,043/-       already    deposited     shall   be\n\ngiven credit by the Family Court.(ii)       If the respondents deposit the\n\nremaining     amount in fulfillment of this\n\njudgment    and     decree    within     three   months\n\nfrom the date of obtaining a copy of this\n\njudgment,     in    addition     to     Rs.5,14,043/-Mat.A Nos.66 and 393 of 201927already deposited, the order of attachment\n\nbefore judgment ordered in I.A No.412/2015\n\nof the Family Court shall stand withdrawn,\n\nand the order shall be communicated to the\n\nSub Registry Office, Ramapuram.            On such\n\ndeposit,    the   petitioner      shall     be   at\n\nliberty    to   withdraw    the   entire    amount\n\ndeposited as per the procedure established\n\nin law.(iii)    The   parties    shall   bear    their\n\nrespective costs.Sd/- K.HARILAL, JUDGE\n\nma/28/12/2019           Sd/-C.S.DIAS, JUDGE\n                  /True copy/\n                          P.S to Judge