IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO 1850 of 2019
(@ SLP (Criminal) No 2338 of 2019)
Priya Prabhakaran & Anr. Appellant (s)
D Santhosh Kumar & Ors. Respondent(s)
J U D G M E N T
Dr. Dhananjaya Y Chandrachud, J.
1 Leave granted.
2 This appeal arises from a judgment of the learned Single Judge of the High Court of Kerala dated 24 October 2018. The first appellant and the first respondent got married on 9 November 2003. The second appellant is their child, who was born on 2 November 2005. On 27 September 2007, the first respondent filed a proceeding1 in the Court of the Subordinate Judge at Tirupur for dissolution of the marriage. On 24 October 2007, the first appellant filed a proceeding2 in the Family Court at Alappuzha for the restitution of conjugal rights. In 2008, the first appellant moved the JMFC-I, Haripad3 claiming maintenance and for the return of gold ornaments weighing fifty-one sovereigns belonging to her, the value of which was quantified at Rs 4,59,000 on the date of filing of the application. Certain other reliefs were also sought on which it is not necessary to dwell at this stage. The petition for dissolution was allowed ex-parte on 11 September 2008. Consequently, the application filed by the first appellant for restitution of conjugal rights was dismissed. The Trial Judge granted maintenance in the amount of Rs 15,000 per month to each of the two appellants and directed the return of an amount of Rs 1,00,000 (Rupees One Lakh). However, the prayer for the return of the gold ornaments or their equivalent value was rejected. Thereupon, the first appellant filed a Criminal Appeal4 before the Additional District and Sessions Judge, Mavelikara. On 14 December 2011, the appeal was allowed in part. Insofar as is material to the present controversy, the first respondent was directed to return the fifty-one sovereigns of gold or the equivalent value at the market rate. Against the order of the Additional District and Sessions Judge, a criminal revision was filed before the High Court5. The High Court, by its impugned order dated 24 October 2018, modified the judgment of the appellate court by directing the first respondent to either return the fifty-one sovereigns of gold or, in the alternative, to pay a sum of Rs 4,59,000 within three months.
3 The main issue which falls for determination in the present appeal is whether the High Court was justified in modifying the order of the appellate court by restricting the value of fifty-one sovereigns of gold at Rs 4,59,000, the value which was quantified on the date of the filing of the application.
4 Having heard Mr. V Shekhar, learned Senior Counsel appearing on behalf of the appellant and Mr. Joseph Aristotle S, learned counsel appearing for the respondent and Mr.Nishe Rajen Shonkar, learned counsel for the State, we are of the view that there was no justification for the High Court to modify the order which was passed by the first appellate court. The appellant sought the return of her gold ornaments weighing fifty-one sovereigns and, in the alternative, the money equivalent which was quantified at Rs 4,59,000 on the date of the filing of the application. The Trial Court did not grant the relief which was sought but in appeal, the Additional District and Sessions Judge correctly directed the return of fifty-one sovereigns of gold or, in the alternative, the equivalent of their current market value. The order of the High Court directing the first respondent to pay an amount of Rs 4,59,000 which was the value in 2008 will result in a miscarriage of justice. If the first appellant cannot have the return of the fifty-one sovereigns of gold in her possession she is entitled to the refund of the value of the fifty-one sovereigns on the date of the repayment. Mr. Shonker has placed on record the applicable rates for gold which is not in dispute. The value of fifty-one sovereigns (equivalent to 480 gms) works out to Rs 15,25,920.
5 We accordingly direct the first respondent to pay an amount of Rs 15,25,920 to the first appellant on or before 31 January 2020 failing which, the first appellant shall be entitled to interest at the rate of 9% per annum with effect from the date on which refund has been directed.
6 The appeal is accordingly disposed of in the above terms.
[Dr Dhananjaya Y Chandrachud]
December 6, 2019
1 HMOP 176/2007
2 HMA 905/2007
3 MC 64/2008
5 Criminal Revision Petition No.310/2012