Mohanan, J.
Challenging the judgment dated 30.1.2009 in O.P.No.1123 of 2006 of the court of Family court, Palakkad, the respondent therein who is the husband of the petitioner/ plaintiff (the respondent herein), preferred this appeal. The relief sought for in the said petition was for a direction to return 6 sovereigns of gold ornaments or payment of Rs.30,000/- as value of ornaments to the respondent/ plaintiff, which was allowed by the trial court.
2. The case of the respondent/plaintiff is that the appellant/defendant is the legally married husband of the respondent/plaintiff and they were living separately from 31.12.1996 onwards. According to the respondent/plaintiff, at the time of the marriage, she was given 6 sovereigns of gold ornaments by her parents, but the same were taken and misappropriated by her husband-the appellant herein. It is also the contention of the respondent/plaintiff that the husband harassed and ill-treated her, and as a result of which, they started residing separately. Whereas, the contention advanced by the appellant/husband is that he did not harass the wife-the respondent herein ; instead, she misbehaved to him and took frequent quarrel with him and finally she left the company of the husband on 31.12.1996, while he was not in the house. According to the appellant/ husband, he is not aware of the weight and the nature of the gold ornaments worn by the respondent/wife at the time of marriage and he had not taken the gold ornaments. According to the appellant/husband, when the respondent/ wife left the house on 31.12.1996, she had taken all her ornaments that brought by her.
3. During the trial of the case, Pws.1 and 2 were examined from the side of the respondent/wife and the appellant/husband himself has got examined as RW1. The trial court finally found that the evidence of PW1, the respondent/plaintiff, is reliable and acceptable to prove her claim. Accordingly, the suit was decreed with cost and directed the appellant/defendant to return 6 sovereigns of gold ornaments described in the plaint within one month from the date of the judgment and if not returned, the appellant/husband was directed to pay Rs.30,000/- as the value of the said gold ornaments to the plaintiff. It was also ordered that the said amount shall carry interest @ 6% from the date of filing of the suit till the realisation. It is against the above judgment and decree, the present appeal is filed.
4. We heard Adv.Smt.P.K.Radhika, the learned counsel appearing for the appellant and Adv.Smt.K.Amminikutty, the learned counsel appearing for the respondent.
5. After taking us through the petition and the evidence on record, the learned counsel for the appellant submitted that the trial court is wrong in allowing the claim of the respondent/plaintiff, since no evidence is forthcoming from the side of the wife to prove that she was having 6 sovereigns of gold ornaments. It is also contended that the court below is not correct in holding that there was no denial from the part of the appellant/husband about the gold ornaments given to the respondent/wife at the time of marriage. According to the learned counsel, the appellant/ husband has denied the allegation about the misappropriation of the gold ornaments, but the same was not properly considered by the court below. It is also pointed out by the learned counsel that the court below was not even prepared to accept the evidence adduced through PW2 and hence absolutely there is no independent evidence, except the interested version of PW1, in support of the claim of the respondent/plaintiff. Thus, according to the learned counsel, the judgment is liable to be set aside.
On the other hand, the learned counsel for the respondent, after having taken us through the petition as well as the written statement and the evidence on record submitted that the findings of the court below are absolutely correct which are supported by the evidence and materials on record and hence no interference is warranted.
6. We have carefully considered the rival contentions advanced by both the counsel and perused the evidence and materials on record.
7. In the light of the admitted facts it can be seen that the appellant/defendant is the husband of the respondent/ plaintiff and they were residing separately from 31.12.1996 onwards. The specific case of the respondent/ wife is that at the time of marriage, she was given 6 sovereigns of gold ornaments by her parents. It appears that the said claim of the respondent/plaintiff is not denied by the appellant/defendant. According to the learned Judge of the Family court, though the appellant, who was examined as RW1, has denied the said allegation in his proof affidavit, there is no such denial in the written statement. As rightly pointed out by the learned counsel for the appellant/husband, the allegation of the respondent/ wife, that the defendant-husband has taken 6 sovereigns of gold ornaments given at the time of marriage by the plaintiff- wife's parents, was denied by the defendant-husband in paragraph 4 of the written statement. In the same paragraph, it is seen that the appellant/husband has indirectly admitted about the gold ornaments that given by respondent/wife's parents at the time of marriage and his specific case is that he is not aware about the weight and nature of the gold ornaments given to the respondent/wife by her parents. So, it can be safely concluded that the appellant/husband is also admitting the fact that the respondent/wife had worn gold ornaments at the time of their marriage. At this juncture, it is relevant to note that in the plaint as well as in the proof affidavit, she had specifically described about the weight of the gold ornaments on item-wise. But during the cross examination, the said claim of the respondent/plaintiff, who was examined as PW1, was not effectively challenged. It is also relevant to note that the marriage between the appellant and the respondent is admitted and in the absence of any specific pleading or evidence, it cannot be believed for a moment that the appellant/defendant married the respondent/plaintiff without any ornaments. The evidence of PW1, about the gold ornaments given to her by her parents, is further corroborated by the evidence of PW2. It is true that the court below did not accept the evidence of PW2. But on a close perusal of the evidence of PW2 and the judgment of the trial court it can be seen that, the trial court was not prepared to accept, that part of evidence of PW2 with respect to the misappropriation of the gold ornaments, since all what stated by PW2 about the misappropriation were on the basis of hearsay. However, it can be seen, particularly from paragraph 4 of the deposition of PW2 that, he had given a clear account about the ornaments given to the wife and as to how the gold ornaments were raised by the parents of the respondent/ wife. The above evidence of PW2 is also not properly challenged. So, the evidence of Pws.1 and 2 shows that at the time of marriage, particularly in the absence of effective denial from the part of the appellant, PW1 was given 6 sovereigns of gold ornaments.
8. Another contention advanced by the learned counsel for the appellant is that, absolutely there is no evidence to show that the gold ornaments allegedly brought by PW1 were misappropriated by the appellant/husband. In order to substantiate the above contention, it is pointed out that in the written statement the case put forward by the appellant/husband is that the plaintiff/wife quit the matrimonial house while the appellant/husband was not present in the house and at that time, the wife has taken all the ornaments which she had. We are unable to accept the above contention. In the evidence of RW1, it is stated that the wife and the children were taken by the relatives of the wife. It is also relevant to note that in paragraph 9 of the deposition of RW1, he had stated that after 12o' clock on 31.12.1996, the wife had gone from the house, though he told her to go only after returning him from his work place. At this juncture it is relevant to note that in the evidence of PW1 she had deposed that, as informed by her, her brother came from Madras and taken her with him. She had also stated that when she left the house, her husband was in his work place. She had telephoned him and she was permitted to go with him and the key of the house had been entrusted with the nearby house. On a conjoined reading of deposition of PW1 and RW1, it can be seen that when PW1 left the house, the appellant/husband was not available in the house and he had no occasion to see whether she had taken all the gold ornaments. It is pertinent to note that when the respondent/wife, PW1, was about to go with her brother, she had contacted her husband and informed him about her departure. Thus it can be seen that at the time of her departure, the factom of arrival of her brother and also about her departure with the brother, were informed to the husband. The said facts reveal that the couples were in cordial terms and nobody can anticipate or presume that the respondent/wife has gone with her brother for ever without an intention of coming back. Thus in the absence of any positive evidence, it cannot be presumed that PW1/ plaintiff has taken all her ornaments when she went along with her brother.
9. In the light of the above facts and circumstances and the evidence, particularly in view of the admission of the appellant that contained in paragraph 4 of his deposition that the respondent had 4-5 sovereigns of gold ornaments at the time of marriage and when he approved that the said ornaments are the one that mentioned in the petition, and in the absence of any positive evidence that the respondent/wife had taken the ornaments when she left the matrimonial home along with her brother, we are of the opinion that the trial court is fully justified in accepting the case of the respondent/plaintiff and directing the appellant/ defendant to return the gold ornaments or the amount equivalent to the value of the said ornaments. Thus, we find no reason to interfere with the findings of the court below.
In the result, this appeal is dismissed, as it is devoid of any merit.
Sd/-
V.K.MOHANAN, Judge ami/ Sd/-
A.HARIPRASAD, Judge //True copy// P.A. to Judge