IMPORTANT POINT
The word 'entrustment' is not used in the Original Petition. But, the word 'misappropriation' is used. Unless the gold ornaments are taken into custody, those cannot be misappropriated. Ext.A1 series would make it clear that 46½ sovereigns of gold ornaments were given to the petitioner at the time of marriage. According to PW1, 25 sovereigns of gold ornaments and Rs.1,00,000/-were given to her by her parents. According to him, Rs.1,00,000/-given in cash is equivalent to 21½ sovereigns of gold ornaments and together it formed 46½ sovereigns. As already stated neither the cross examination of PW1 to PW3 nor examination of RW1 to RW3 did not help the respondent to establish the defence taken by him. PW1's version is believable and the Family Court had rightly relied on it and thereby granted the decree for return of gold ornaments and money.

JUDGMENT

Mary Joseph, J

The judgment of Family Court, Alappuzha in O.P.(HMA) No.92 of 2010 is under challenge in the appeal on hand preferred by the respondent. The original petition was filed by Smt.Usha seeking recovery of gold, patrimony and maintenance. Counter claim was also raised by the respondent seeking restitution of conjugal rights and custody of minor, who is the 2nd petitioner in the Original Petition.

2. Judgment was rendered by the Family Court allowing the claims made by the petitioners and dismissing the counter claim of the respondent. The respondent being aggrieved thereby, preferred the appeal on hand.

3. Smt. Bindu Sreekumar, the learned counsel for the appellant contended that the Family Court failed to appreciate the evidence in its proper perspective and therefore, the judgment suffers from illegality, impropriety and infirmity. According to her, the evidence adduced by the 1st respondent was not considered by the court in its true spirit and it infact had gone to the extent of granting the reliefs as such, without any basis. The Family Court has allowed huge sum towards value of gold ornaments and maintenance to the 1st petitioner beyond the financial capacity of the respondent to pay it, especially in a context wherein cogent evidence was not forthcoming from the petitioner to establish the latter's income. According to her, the respondent has paid the entire arrears of maintenance ordered in M.C.No.12 of 2010 and continues to pay the monthly maintenance and those aspects are overlooked by the Family Court, while awarding maintenance further. Raising contentions as above, the judgment is sought to be set aside. The dismissal of counter claim was not under challenge.

4. The marriage among the parties was solemnised on 03.07.2005 at the residence of the 1st petitioner in accordance with the custom prevalent in Hindu-Ezhava community to which they belong. A male child was born in the marriage on 03.08.2006. 25 sovereigns of gold ornaments and Rs.1,00,000/-were given to the 1st petitioner by her parents at the time of marriage and those were misappropriated by the respondent. The petitioner was subjected to ill treatment, mentally as well as physically, raising reasons against her physical outlook and insufficient dowry brought. Herself and the child were thrown out from the matrimonial home in neglect, denying even maintenance for their sustenance.

5. According to the petitioner, the respondent is employed and earning Rs.10,000/-monthly from his job and Rs.5,000/-from the landed property of 1 acre belonging to him. She is having no job or income of her own and the sustenance of herself and child was managed purely from the help offered by neighbours. When the efforts to settle their differences failed and the marital relationship was found irretrievably broken, the petitioner was constrained to file the petition seeking return of gold ornaments, patrimony and maintenance from August, 2008 onwards, from the respondent.

6. In the counter statement, the respondent has totally denied entrustment of any gold ornaments to him. According to him, it is a falsehood to state that the petitioner has adorned 25 sovereigns of gold ornaments at the time of her marriage. According to him, she had only 15 sovereigns of gold ornaments and those were never entrusted to him. According to him, respondent had given the 2nd petitioner 5 ½ sovereigns of gold ornaments and those were also kept locked by the 1st petitioner herself in her almirah. 7 sovereigns of gold ornaments were given by her to her brother without their consent for pledging and those were sold by him later. According to the respondent, his brother in law when questioned by him has agreed to redeem the gold ornaments pledged. He failed to do so and therefore, quarrel ensued among himself and his brother in law on the issue. Thus, petitioners were taken to the parental home by her brother and she had taken the entire gold ornaments alongwith. Thereafter, attempts were