Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 67

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, P.G. AJITHKUMAR, JJ.
BINITHA D/O BALACHANDRAN – Appellant
Versus
HAREENDRAN S/O VENUGOPAL – Respondent
MAT. Appeal No. 13 of 2016
Decided On : 07-02-2023

Advocates:
Advocate Appeared:
For the Appellants : C. RAJENDRAN, K.R. RANJITH.
For the Respondents: B. BINDU, C.S. DIAS, P.K. DHANYA, N.K. SUBRAMANIAN, T.V. SREEJITH.

Point of Law: Dowry Prohibition Act contemplates two aspects; first, prohibition of taking or giving or abetting of giving or taking of dowry and making such acts punishable.

Headnote:
Family Courts Act, 1984 - Section 19(1), 14 - Dowry Prohibition Act, 1961 - Section 6, 7 - Contract Act, 1872 - Section 23 - Indian Evidence Act, 1872 - Section 3 - Recovery of money - Return of gold ornaments - Seeking recovery of money and return of gold ornaments and movables - From oral evidence of PW-1, it cannot be seen that respondent ever operated locker.
Findings of the Court:
From oral evidence of PW-1, it cannot be seen that respondent ever operated locker - There is no other evidence in that respect - She deposed that some ornaments were taken from locker and many were kept in it - Keeping ornaments of appellant in a locker in her own name cannot amount to entrustment of same to respondent - In nature of evidence, it is not possible to find that ornaments; whole or any part, were entrusted to respondent - Finding of Family Court that there is lack of evidence to prove entrustment of gold ornaments to respondent is therefore not liable to be interfered with - Accordingly, Court hold that decision of Family Court to reject claim of appellant for return of gold ornaments and money does not suffer from any infirmity.
Result: Appeal dismissed.

JUDGMENT :

P.G. AJITHKUMAR, J.

1. The petitioner in O.P. No. 405 of 2010 before the Family Court, Kollam is the appellant. She filed O.P. No. 405 of 2010 seeking recovery of money and return of gold ornaments and movables. The Family Court as per the common judgment in O.P. Nos. 404 and 405 of 2010 dated 26.08.2015 allowed O.P. No. 405 of 2010 only in part. The appellant was allowed to recover a few movables included in the petition schedule. Her claim for recovery of money and return of gold ornaments was declined. Aggrieved by the said part of the decree, this appeal has been filed under Section 19(1) of the Family Courts Act, 1984.

2. Notice was directed to be served on the respondent as per order dated 08.01.2016. The respondent entered appearance through his learned counsel. The appeal was admitted on 29.03.2017.

3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.

4. The marriage of the appellant and the respondent was solemnised on 18.08.2002. Betrothal of the marriage was held on 09.06.2002. On that day, Rs. 5 lakhs was entrusted by the father of the appellant to the respondent. On the occasion of the marriage, the appellant was given 100 sovereigns of gold ornaments. After the marriage, respondent was given Rs. 1 lakh by the father of the appellant to avail a locker facility. The gold ornaments of the appellant were kept in the locker availed in her name. The entire gold ornaments were eventually appropriated by the respondent. Later, an amount of Rs. 2 lakhs was given by the father of the appellant to the respondent for purchasing a property in the name of the appellant.

5. The relationship between the appellant and the respondent eventually became estranged. O.P. No. 404 of 2010 was filed by the respondent for a decree of dissolution of marriage. O.P. No. 405 of 2010 was filed by the appellant for recovery of gold ornaments, movables and realisation of money. O.P. No. 404 of 2010 was decreed and the marriage was dissolved. O.P. No. 405 of 2010 was not decreed as prayed. The appellant would contend that the Family Court without appreciating the evidence in a proper perspective, rejected her claim for return of gold ornaments and realisation of money.

6. The appellant would urge that her oral testimony along with the evidence of PWs. 2 to 4 and Exts.A5 photographs sufficiently proved the fact that the appellant had 100 sovereigns of gold at the time of marriage. PW-1 deposed before the court that the gold ornaments kept in the locker availed in the name of the appellant were taken away and misappropriated by the respondent. Regarding payment of Rs. 5 lakhs, evidence of PW-1 and PW-4, who is a family friend, was let in. The appellant claims that the evidence amply proved payment of Rs. 5 lakhs. But the Family Court did not accept that evidence stating flimsy reasons. The learned counsel appearing for the appellant would submit that oral testimonies of PWs. 1 and 4 with respect to the practice prevailing in the area of making payment of money at the time of betrothal is convincing. Mere denial by RW-1 in the box was given overemphasis by the Family Court. It is further submitted that trivial inconsistencies in the evidence of PWs. 1 and 4 was highlighted by the Family Court in order to disbelieve them, which is wrong. It is also submitted that even the admission of the respondent that 50 sovereigns of gold ornaments were given to the appellant at the time of marriage was not acted upon by the Family Court. Accordingly, the learned counsel contended that findings of the Family Court regarding misappropriation of gold ornaments and Rs. 5 lakhs paid at the time of betrothal are liable to be reversed.

7. As regards payment of Rs. 1 lakh for availing locker facility in the name of the appellant and another Rs. 1 lakhs for the purchase of the property, the Family Court took the view that the evidence goes contrary to the pleadings of the appellant. The contention of the appell