The court affirmed that a trust is created upon a wife entrusting her property to her husband, permitting her to recover the property regardless of the divorce proceedings.

JUDGMENT

P.Krishna Kumar, J.

In a petition filed by the appellant under Section 13 of the Hindu Marriage Act for a decree of divorce, the respondent raised a counterclaim seeking recovery of gold ornaments and money, and also claiming maintenance for herself and for the two children. By the judgment impugned in this appeal, the Family Court, Thiruvananthapuram dismissed the petition for divorce but decreed the counterclaim, directing the appellant to return 992 grams of gold ornaments or its value, and to pay ₹8,000/- per month as maintenance to the respondent and ₹5,000/- each to the two children.

2. Though the appeal is preferred against the findings in the original petition as well as the counterclaim, during the course of hearing, the learned counsel submitted that the appellant is not pressing the appeal insofar as it pertains to the dismissal of the divorce petition. No arguments were addressed challenging the order granting maintenance to the respondent and the children. Therefore, we confine our discussion to the issues relating to the claim for return of gold ornaments.

3. The marriage between the appellant and the respondent was solemnized on 29.08.1994. In her counterclaim, the respondent contended that she was given 992 grams of gold ornaments by her parents at the time of marriage. Except 8 sovereigns retained by her, the remaining ornaments were allegedly entrusted to the appellant, who later pledged and sold the same. She also sought recovery of ₹6,00,000/-, alleging that the appellant received that amount from her father.

4. In the written statement to the counterclaim, the appellant denied the allegations and contended that, at the time of marriage, the respondent adorned less than 70 sovereigns of gold ornaments, as evident from the photographs. He further contended that all such ornaments were kept in the custody of the respondent’s father in a locker, as the appellant was working in different places and had frequent transfers.

5. The evidence consists of the oral testimony of PW1, PW2, CPW1 to CPW3 and Exts.A1 to A5 and B1 to B5. Upon evaluation of the evidence, the trial court allowed the counterclaim with respect to gold ornaments and maintenance, but rejected the claim for money.

6. We have heard Sri. P.C. Haridas, learned counsel for the appellant, and Sri. Rajesh P.Nair, learned counsel for the respondent.

7. Placing reliance upon the decision of the Hon’ble Apex Court in Nitaben Dinesh Patel v. Dinesh Dahyabhai Patel [2021 (6) KLT 57 (SC)], the learned counsel for the appellant contended that when a petition is filed under the Hindu Marriage Act (“the Act”, for short), a counterclaim can be raised only for a relief provided under the Act and not otherwise, as is evident from the scheme of Section 23A of the Act. Hence, the trial court ought not to have entertained the counterclaim for recovery of gold ornaments and money, it is urged. It is further submitted that though this contention was not raised before the Family Court, the same is a pure question of law and hence can be raised at this stage.

8. The above contention is strongly opposed by the learned counsel for the respondent. According to him, if the appellant had raised such a contention at the appropriate stage, the respondent could have filed a separate petition and sought adjudication of the claim along with the divorce petition, and thus he should not be permitted to raise such a contention belatedly.

9. Having considered the rival submissions, we are not persuaded