Shinta P.R. vs Pradeep V.K.

Amit Rawal, J.

The present appeal is directed against the judgment and decree dated 30.11.2016 rendered in O.P.No.1519 of 2013 whereby claim of the appellant/wife for return of gold ornaments or their value was dismissed. Appeal is filed along with an application seeking condonation of delay of 2296 days in filing the appeal.

Succinctly, the facts in brief are that the marriage between the appellant/wife and respondent/husband was solemnized on 11/05/1993. They resided together and out of the wedlock two children, the first child on 14.4.1996 and the second child on 4.12.2000 were born. The husband was working as a Supervisor in a private company at Gulf. At the time of marriage, 65 sovereigns of gold were entrusted to the family of the husband. However, the marriage could not pull on together, and the appellant/wife filed the divorce petition in 2013, respondent appeared in the aforementioned petition and denied all the allegations with regard to the cruelty and other circumstances explained in the application claiming divorce. Since both the parties are at variance, the trial court framed the following points for consideration:

“13. Points for consideration in OP 1519 of 2013 are:

(1) Whether  the  respondents  have  taken  40 sovereigns of gold ornaments of the petitioner as trustees?

(2) Whether the petitioner is entitled to get a decree for return of gold ornaments or their value?

(3) Reliefs and costs?

14.Points for consideration in OP 1654 of 2013 are:

(1) Whether the respondent treated the petitioner with cruelty?

(2) Whether the petitioner is entitled to get a decree for divorce?

(3) Reliefs and costs?”

In the aforementioned matter the appellant/wife also filed O.P.No.1519 of 2013 for return of gold ornaments or their value. Both cases were tried together. Witnesses PW1-Shinta and PW2-Santhoshkumar were examined on behalf of the appellant/wife, Exts.A1 to A6 photographs, copy of complaint before S.I.of Police, Guruvayur, copy of counter statement in MC 382/14 and copy of document 2612/92 of Anthikkad SRO were produced. Two witnesses were examined on behalf of the husband RW1-Pradeep and RW2-Nelson and Exts.B1 to B5, i.e. B1-Pass book of Pradeep (SBT), B2-customer transactions history from AL AHALIA EXCHANGE BUREAU, B3 & B4 receipts and B5 copy of the cancellation of VISA were marked on the side of the husband. Ext.X1, third party exhibit i.e. statement of ACS for SB 10360 Pradeep V.K. (SBT) was also produced. Appellant/wife in her petition claiming return of the gold ornaments, categorically stated that the sovereigns worn at the time of the marriage were entrusted to the respondent/husband and also to his family members. A complaint was also filed before the police regarding cruelty. Husband appeared and denied all the aforementioned allegations and stated that no such gold ornaments or 65 sovereigns as alleged in the petition have been entrusted to him. The trial court on the basis of the evidence, granted divorce and dismissed the claim of the appellant/wife regarding the return of gold ornaments.

Learned counsel appearing on behalf of the appellant submitted that though the judgment was rendered on 30/11/2016, counsel engaged for filing the appeal did not apply and only on 20.04.2023, certified copy was applied and thus delay of 2296 days, approximately six years had occurred. The delay was neither intentional nor willful but for the reason aforementioned. No harm and prejudice would be caused in case the appeal is heard on merits subject to the terms and conditions this Hon'ble Court deem it appropriate.

On the other hand, the learned counsel appearing on behalf of the respondent/husband submitted that after granting the divorce, the appellant/wife got remarried and failed to place on record any material in support of the claim qua 65 sovereigns much less the entrustment. The judgment is based upon the appreciation of evidence and the court was perfectly justified in dismissing the claim.

We have heard counsel for the parties and appraised the paper book.

The appellant/wife when examined as PW1 though reiterated all the contentions made in the petition, but when subjected to cross-examination, admitted that except the photographs there was no other proof with regard to her owning 65 sovereigns of gold ornaments, nor any document to show that children were provided with 10 and 9 sovereigns. It is a matter of record that respondent/husband continuously worked in Gulf for 8 years with a break of two years. During that period he started a hardware shop at Mullassery. This fact was also admitted by her in her deposition. In her testimony, lot of discrepancies occurred which have been noticed by the family court in paragraph no.23 of the impugned judgment. It was stated that the husband lived outside for almost eight years when she resided with the parents of the husband, but it was not her case that said gold ornaments were entrusted to the parents. When she was also put to a specific question in cross-examination regarding the entrustment of gold sovereigns, it was answered that they were kept in a locker. However, no witness from the Bank was examined in support of such deposition. We are of the view that onus of proof which heavily lied upon the appellant has not been discharged therefore, the question of rebuttal on behalf of the respondent/husband did not arise.

In this view of the matter, finding of fact and law arrived at by the trial court do not suffer from any illegality. No proper interference is made out. Application for condonation of delay of 2296 days as well as appeal stands dismissed.