Family Law - Return of Gold Ornaments - Husband not raised any dispute regarding the quantity of gold ornaments - without disputing the actual quantity, he pleads ignorance of the quantity of the gold ornaments - gone to the extent of saying that he does not even know whether those were imitation or gold - It is only a vague denial and not very specific.
Family Law - Return of Gold Ornaments - When a marriage is solemnised between the parties, it is quite usual in the community to know the quantum of gold ornaments the bride has when she comes to the matrimonial home. Therefore, pleading ignorance about the quantity of gold ornaments, under normal circumstances, amounts to an admission.
In this case, in the absence of any specific denial, we have to proceed on the basis that the petitioner had 35 sovereigns of gold ornaments at the time of marriage. Exts.A1 and A2 though not believed by the court, taking into account the pleadings of the parties if the court is able to arrive at a conclusion regarding the quantity of the gold ornaments, the same would suffice to hold that she was having 35 sovereigns of gold ornaments, which was spoken to by her in her testimony as PW1. That apart, PW2 to PW6 had also spoken to the effect that at the time of marriage, the petitioner was having 35 sovereigns of gold ornaments.
Family Law - Return of Gold Ornaments - It is quite natural that when wife comes to a matrimonial home, other than the usual wearing apparels or ornaments, all other ornaments are kept under the custody of the husband or his parents.
In this case, there is a specific pleading that the gold ornaments were in the custody of the husband. He pleads absolute ignorance. According to him, whatever gold ornaments she had, was in her custody and it was taken by her when she left the matrimonial home. But it could be seen that the petitioner had to leave the matrimonial home under severe distress on account of matrimonial cruelty and demand for more dowry. Under such circumstances, the version of PW1, the petitioner, is more believable. The respondent had not adduced any other evidence other than entering the box. Even in his evidence, he did not clearly indicate as to whether he was entrusted with the gold ornaments or not. Under such circumstances, we are of the view that the Family Court committed serious error in rejecting the claim of the petitioner for return of the gold ornaments.
Family Law - Return of Gold Ornaments - When a marriage is solemnised between the parties, it is quite usual in the community to know the quantum of gold ornaments the bride has when she comes to the matrimonial home. Therefore, pleading ignorance about the quantity of gold ornaments, under normal circumstances, amounts to an admission.
In this case, in the absence of any specific denial, we have to proceed on the basis that the petitioner had 35 sovereigns of gold ornaments at the time of marriage. Exts.A1 and A2 though not believed by the court, taking into account the pleadings of the parties if the court is able to arrive at a conclusion regarding the quantity of the gold ornaments, the same would suffice to hold that she was having 35 sovereigns of gold ornaments, which was spoken to by her in her testimony as PW1. That apart, PW2 to PW6 had also spoken to the effect that at the time of marriage, the petitioner was having 35 sovereigns of gold ornaments.
Family Law - Return of Gold Ornaments - It is quite natural that when wife comes to a matrimonial home, other than the usual wearing apparels or ornaments, all other ornaments are kept under the custody of the husband or his parents.
In this case, there is a specific pleading that the gold ornaments were in the custody of the husband. He pleads absolute ignorance. According to him, whatever gold ornaments she had, was in her custody and it was taken by her when she left the matrimonial home. But it could be seen that the petitioner had to leave the matrimonial home under severe distress on account of matrimonial cruelty and demand for more dowry. Under such circumstances, the version of PW1, the petitioner, is more believable. The respondent had not adduced any other evidence other than entering the box. Even in his evidence, he did not clearly indicate as to whether he was entrusted with the gold ornaments or not. Under such circumstances, we are of the view that the Family Court committed serious error in rejecting the claim of the petitioner for return of the gold ornaments.
PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940
Mat.Appeal.No. 46 of 2011
AGAINST THE ORDER/JUDGMENT IN OP 222/2007 of FAMILY COURT,KOZHIKODE DATED 07-08-2008
APPELLANT / PETITIONER:
DHANALAKSHMI
BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH
RESPONDENT / RESPONDENT:
SREEDHARAN T.K.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
Shaffique, J.
This Appeal is filed by the petitioner in OP No.222/2007 on the file of Family Court, Kozhikkode. The petitioner sought for return of gold ornaments which was allegedly entrusted and appropriated by the respondent. The Family Court dismissed the claim inter alia observing that there is no evidence to prove that she was having gold ornaments as alleged.
2. In the Appeal, the learned counsel for the appellant/petitioner submits that the court below committed serious error in rejecting her claim insofar as sufficient evidence was available to prove her claim.
3. The short facts of the case are as under, and the parties are described as shown in the Original Petition, unless otherwise stated. The petitioner married the respondent on 16.01.2005 as per Hindu religious rites and ceremonies. A girl child was born in the wedlock. It is alleged that even right from the initial days of marriage, the behaviour of the respondent towards her was not proper. She was being harassed and more gold ornaments were demanded. Ultimately, on account of matrimonial issues, she had to leave the matrimonial home. According to her, at the time of marriage, her parents had given her 35 sovereigns of gold ornaments. Other than the gold ornaments which were utilised for daily use, 28 sovereigns of gold ornaments were entrusted to the respondent. When she had to come back from the matrimonial home on account of the matrimonial disputes, the respondent did not give back the said gold ornaments and accordingly, she made such a claim.
4. The respondent in his objection stated that the petitioner was wearing some gold ornaments. But he does not know either its quantity or that those were imitation gold. He denied of having been entrusted with such gold ornaments or appropriation of the same.
5. Before the Family Court, the case was heard along with few other cases; OP No.153/2008 and MC No.111/2007. Common evidence was taken. On the side of the petitioner, PW1 to PW6 were examined and she relied on Exts.A1 to A3 documents. On the side of the respondent, RW1 and RW2 were examined and Exts.B1 to B5 documents produced.
6. The Family Court rejected the claim of the petitioner for return of the gold ornaments or its equivalent value on the ground that the documents produced by her to prove purchase of the gold ornaments did not inspire confidence in the court to accept the same as evidence for its purchase. It is observed that Exts.A1 and A2 are only white paper documents written by somebody and therefore there is no proof to show that she had 35 sovereigns of gold ornaments at the time of marriage.
7. A perusal of the objection filed by the respondent would indicate that he had not raised any dispute regarding the quantity of gold ornaments she had. The pleadings would show that without disputing the actual quantity, he pleads ignorance of the quantity of the gold ornaments she had and had gone to the extent of saying that he does not even know whether those were imitation or gold. It is only a vague denial and not very specific. When a marriage is solemnised between the parties, it is quite usual in the community to know the quantum of gold ornaments the bride has when she comes to the matrimonial home. Therefore, pleading ignorance about the quantity of gold ornaments, under normal circumstances, amounts to an admission. In this case, in the absence of any specific denial, we have to proceed on the basis that the petitioner had 35 sovereigns of gold ornaments at the time of marriage. Exts.A1 and A2 though not believed by the court, taking into account the pleadings of the parties if the court is able to arrive at a conclusion regarding the quantity of the gold ornaments, the same would suffice to hold that she was having 35 sovereigns of gold ornaments, which was spoken to by her in her testimony as PW1. That apart, PW2 to PW6 had also spoken to the effect that at the time of marriage, the petitioner was having 35 sovereigns of gold ornaments.
8. The next question is whether the gold ornaments were entrusted to the respondent. Though the respondent denied the fact of entrustment, it could be seen that the petitioner had specifically pleaded that out of the 35 sovereigns of gold ornaments, 28 sovereigns of gold ornaments were entrusted to the respondent as directed by his mother and he was in custody of the same. It is quite natural that when wife comes to a matrimonial home, other than the usual wearing apparels or ornaments, all other ornaments are kept under the custody of the husband or his parents. In this case, there is a specific pleading that the gold ornaments were in the custody of the husband. He pleads absolute ignorance. According to him, whatever gold ornaments she had, was in her custody and it was taken by her when she left the matrimonial home. But it could be seen that the petitioner had to leave the matrimonial home under severe distress on account of matrimonial cruelty and demand for more dowry. Under such circumstances, the version of PW1, the petitioner, is more believable. The respondent had not adduced any other evidence other than entering the box. Even in his evidence, he did not clearly indicate as to whether he was entrusted with the gold ornaments or not. Under such circumstances, we are of the view that the Family Court committed serious error in rejecting the claim of the petitioner for return of the gold ornaments.
In the result, the Mat. Appeal is allowed. The judgment in OP No.222/2007 of Family Court, Kozhikkode is set aside and the Original Petition is allowed as under:-
A decree is passed in favour of the petitioner to recover 27 sovereigns of gold ornaments or its value as on date from the respondent. No costs.