High Court of KeralaDivision Bench2018-06-18Appeal partly allowed; maintenance and Rs 75,00...

Mat Appl/Appeal No. 225 of 2008 (In OS 49/2005 of Family Court, Kottarakkara)

Case / Petition Number:Mat.Appeal.No. 225 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
A. M. Babu
Judgment Date: 2018-06-18
Court Decision / Holding: The appeal is allowed in part. The High Court upholds the Family Court’s decree for Rs 75,000 with interest and maintains the maintenance order for the child. It sets aside the decree directing return of ten sovereigns of gold ornaments (or payment of their value). Both sides to bear their costs.
Final Disposition: Appeal partly allowed; maintenance and Rs 75,000 decree upheld; return of ten sovereigns of gold ornaments set aside; costs awarded to both sides.

Parties to the Case

Appellants / Petitioners

Ansari
Shamsudeen Rawther
Ayisha Beevi

Respondents

Sophy
Anoosha (minor)

Legal Representation & Advocates

Counsels for Petitioners

• V. M. Kurian
• Mathew B. Kurian
• K. T. Thomas

Counsels for Respondents

• Anchal C. Vijayan
• Mini S. Das

Case Synopsis & Summary

This matrimonial appeal arises from a Family Court decree in OS 49/2005 (Kottarakkara) by which the respondents claimed maintenance and sought return of money, gold ornaments and household articles. The respondents, Sophy and her minor daughter Anoosha, filed for maintenance and for the recovery of patrimony allegedly given at marriage to the appellants—Ansari (husband), his father (Shamsudeen Rawther) and mother-in-law (Ayisha Beevi)—who contested the claims. The Family Court decreed Rs 75,000 and ten sovereigns of gold ornaments in favour of the respondents, while refusing maintenance to Sophy. The appellants challenged the judgment, arguing that Sophy possessed only 10 sovereigns of ornaments at marriage and that all her ornaments were with her; they admitted receiving Rs 20,000, and claimed that the balance was not established. PW1’s evidence and cross-examination were scrutinized; the first respondent did not testify in person, and the proof-affidavit indicated entrustment of ornaments by someone but failed to identify the entruster. On appeal, the court relied on the principle from Vidhyadhar v. Manikikrao (AIR 1999 SC 1441) that absence of rebuttal evidence supports an adverse inference, sustaining the decretal amount of Rs 75,000 with interest and maintenance for the child, while setting aside the order for return of ten sovereigns of ornaments (or their value). The appeal is thus allowed in part, with costs.

Legal Doctrines & Maxims

Absence of rebuttal evidence should lead to an adverse inference (as per Vidhyadhar v. Manikikrao, AIR 1999 SC 1441)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the bride had only 10 sovereigns at marriage; ornaments were mostly with Sophy, and Rs 75,000 reportedly paid was disputed—PW1’s evidence did not clearly establish payment to a specific recipient. They argued lack of concrete entrustment proof and that cross-examination did not reveal entrustment by the bride. They admitted Rs 20,000 received but claimed it was utilized for a betrothal-related purchase, not reverence of bride’s patrimony. They urged maintenance denial was proper given the financial capacity; the evidence did not prove the claimed patrimony or misappropriation beyond what was determined by the Family Court.

Contentions of Respondents

Respondents argued that Rs 75,000 and 25 sovereigns were entrusted for the marriage and that Rs 75,000 was paid to the second appellant. They claimed 25 sovereigns of ornaments were entrusted as patrimony, with ten alleged to have been misappropriated. They urged the trial court’s assessment should be upheld based on corroboration from PW1 and PW2 and urged the court to draw adverse inferences due to lack of rebuttal evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vidhyadhar v. Manikikrao	AIR 1999 SC 1441	Positive	The court explicitly relied on Vidhyadhar to support the inference that absence of rebuttal evidence can justify an adverse inference against the party, which influenced the decision to uphold the decretal amount and the overall outcome.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 18TH DAY OF JUNE 2018 / 28TH JYAISHTA, 1940** **MAT.APPEAL.NO. 225 OF 2008** **---------------------IN OS 49/2005 OF FAMILY COURT, KOTTARAKKARA DATED 09-03-2007.** **--------------------** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS - RESPONDENTS** **1 ANSARI, AGED 33 YEARS, REJI VILASOM, PANNIVIZHA MURI, ANANDAPPALLY P.O.,, ADOOR VILLAGE AND TALUK.** **2 SHAMSUDEEN RAWTHER, AGED 52 YEARS,** - **-DO- -DO-** **3 AYISHA BEEVI, AGED 50 YEARS,** - **-DO- -DO-** **BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS** ## **RESPONDENT(S)/PLAINTIFF - PETITIONER:** **1. SOPHY, AGED 29 YEARS, D/O.NABEESA BEEVI, SOPHIYA MANZIL, ASHTAMANGALATHU,, MANIYAR P.O., PATHANAPURAM TALUK.** **2. ANOOSHA, AGED 3 YEARS (MINOR)** - **-DO- -DO-** **R1 & 2 BY ADVS. SRI.ANCHAL C.VIJAYAN** **SMT.MINI.S.DAS** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DXY** ## **K.HARILAL & A.M.BABU, JJ. ---------------------------------------Mat.Appeal.No. 225 of 2008** **-----------------------------------------------Dated this the 18[th] day of June, 2018** ## **J U D G M E N T** ## **A.M.Babu, J.** Appellants 1 to 3 are respectively the husband, father-in-law and mother-in-law of the first respondent whose minor child is the second respondent. The respondents filed the suit before the family court for maintenance and also for return of money, gold ornaments and household articles. The family court decreed the claims of the respondents partly. 2. The respondents contended that Rs 75,000/- and 25 sovereigns of ornaments were given as the patrimony of the first respondent at the time of her marriage with the first appellant on 21.05.1995. It was also contended that household articles worth Rs 5,000/- were also given. According to the respondents, the money, gold ornaments and the household articles were misused and appropriated by the appellants. The respondents had a claim **Mat.Appeal.No. 225 of 2008** ..2.. for maintenance at the rate of Rs 2,000/- per month for each. 3. The appellants refuted the contentions of the respondents. According to the appellants, the first respondent at the time of her marriage had only 10 sovereigns of gold ornaments. It was contended that all her ornaments were always with her. The payment of Rs 75,000/- was denied by the appellants. However, they admitted that they received Rs 20,000/-. It was also their contention that with the amount of Rs 20,000/- the betrothal was conducted and a chain weighing four sovereigns was purchased for the first respondent. 4. Evidence was adduced by both sides. Pws 1 and 2 were examined and Ext A1 was marked on the side of the respondents. DW1 was examined on the side of the appellants. 5. The family court granted a decree in favour of the 1[st] respondent and against the appellants for Rs 75,000/- and ten sovereigns of gold ornaments. The claim of the first respondent for maintenance was refused. The first appellant was directed to pay maintenance to the second respondent at the rate of Rs 400/- per month. **Mat.Appeal.No. 225 of 2008** ..3.. 6. We heard Shri. K.T. Thomas, the learned counsel for the appellants and Shri. Anchal .C.Vijayan, the learned counsel for the respondents. 7. The 1[st] respondent asserted that there was a payment of Rs 75,000/-in connection with the marriage. The appellants contended that what they received was only Rs 20,000/-. The first respondent did not go to the witness-box. Her father who was her power-of-attorney holder gave evidence on her behalf. Although the claim was 25 sovereigns of gold ornaments, the decree granted was only for ten sovereigns. Those ten sovereigns of gold ornaments were allegedly appropriated by the first appellant. The proof-affidavit of PW1 states that 25 sovereigns of gold ornaments were entrusted with the appellants as trusties. It is not clear from the affidavit as to who who did entrust the gold ornaments with the appellants. PW1 had no case that he was the person who entrusted the gold ornaments with the appellants. The alleged entrustment must therefore be by the first respondent. As we have already pointed out, she did not choose to go to the witness-box to speak to her case and face **Mat.Appeal.No. 225 of 2008** ..4.. cross-examination. What is stated in the proof-affidavit of PW1 is that the appellants had taken and appropriated the gold ornaments of the first respondent. That was a fact which could be within the knowledge of the first respondent only. PW1 did not claim to have seen the entrustment of gold ornaments with the appellants by the first respondent. The failure of the first respondent to give evidence on entrustment of gold ornaments and appropriation was fatal to her case. Her learned counsel submits that the first respondent could not give evidence since she was employed somewhere in the gulf. That was no reason to skip the witness-box. Coming all the way from the gulf country to give evidence may be inconvenient and expensive, but certainly not impossible. If the first respondent wanted to prove her case of entrustment and appropriation of gold ornaments, she should have come down to Kerala to give evidence. The family court did not consider the failure of the first respondent to give evidence. The decree directing return of ten sovereigns of gold ornaments shall be set aside. We do so. 8. The family court passed a decree for Rs 75,000/- **Mat.Appeal.No. 225 of 2008** ..5.. against the appellants. That was the sum allegedly given to the side of the bride groom in connection with the marriage. PW1's evidence in proof-affidavit was a bit weak. He stated that Rs 75,000/-was entrusted and the entrustment was with the appellants in the nature of a trust. It is not clear from the proofaffidavit of PW1 as to who made the payment of Rs 75,000/- to whom precisely. However, PW1 had given sufficient clarification in cross-examination. In cross-examination he spoke that the amount of Rs 75,000/- was given by him to the second appellant. PW1 spoke further that the payment was made at the house of the appellants. PW1 once again asserted in crossexamination that the amount was handed over by him to the second appellant. It was thus elicited from PW1 in crossexamination that the payment of Rs 75,000/- was made by him to the second appellant. PW2 is a neighbour who spoke that he did see the payment of Rs 75,000/- by PW1 to the second appellant. The evidence of PW1 and PW2 sufficiently and satisfactorily proves the payment of Rs 75,000/- by PW1 to the second appellant in connection with the marriage. There has **Mat.Appeal.No. 225 of 2008** ..6.. been no rebuttal evidence. The second appellant to whom was made the payment did not give rebuttal evidence. Instead, the third appellant was examined as DW1. Her evidence is not sufficient to rebut the evidence of PW1. It has been held in _**Vidhyadhar v. Manikikrao (AIR 1999 SC 1441)**_ that absence of rebuttal evidence should lead to an adverse inference. An adverse inference should therefore be taken against the appellants who failed to adduce rebuttal evidence. We are satisfied from the evidence that there was a payment of Rs 75,000/-. The appellants shall be liable to account for the said payment. We therefore uphold the decree of the family court directing payment of Rs 75,000/- with interest. 9. We do not find any reason to interfere with the decree of maintenance passed against the first appellant and in favour of the second respondent. The father and son relationship between the two is an admitted fact. As every father, a muslim father too is duty bound to maintain his minor child. The first appellant is admittedly a fisherman. The amount of monthly maintenance fixed by the family court was Rs 400/-. **Mat.Appeal.No. 225 of 2008** ..7.. To pay maintenance at the rate of Rs 400/- per month was certainly not beyond the capacity of a fisherman. We therefore confirm the decree directing payment of maintenance to the child. 10. We allow the appeal in part. The decree directing payment of Rs 75,000/- with interest and also the decree directing payment of maintenance to the child are confirmed. The appeal is allowed to the extent of setting aside the decree directing return of ten sovereigns of gold ornaments or payment of the value thereof. As the appeal is partly allowed and partly dismissed, we direct both sides to bare their respective costs. Sd/- ## **K.HARILAL, JUDGE** Sd/- **A.M.BABU, JUDGE** Dxy. 19.06.2018.