Mat.Appeal No. 134 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **Mat.Appeal.No. 134 of 2009 ( ) ------------------------------ORDER IN OP.NO. 196/2006 OF FAMILY COURT, KOZHIKODE ---** **APPELLANT(S): ------------** **JISHA, D/O. KUTTI, AGED 26 YEARS, KARUVOTH HOUSE, ANYANCHERRY, AMSOM DESOM, VADAKARA TALUK, P.O. THAROPOYIL, KOZHIKODE DISTRICT.** **BY ADVS.SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** **RESPONDENT(S): --------------** **SATHYAN, S/O. KUNHIRAMAN, AGED 36 YEARS, PARAMBATH HOUSE, MANDARATHOOR, AMSOM DESOM, P.O. MANDARATHOOR, VADAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV. SRI.R.K.MURALEEDHARAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2017, THE COURT ON 30-05-2017 DELIVERED THE FOLLOWING:** **SKG** ## **A.M.SHAFFIQUE, J & K.RAMAKRISHNAN, J** ## *** * * * * * * * * * * * * *** Mat.Appeal.No.134 of 2009 ---------------------------------------Dated this the 30[th] day of May 2017 ## **J U D G M E N T** ## **Shaffique, J** This appeal is filed against the order dated 25/2/2008 in O.P.No.196/2006 of the Family Court, Kozhikode. 2. The petitioner is the appellant. The parties are referred to as shown in the original petition. The short facts involved in the case are as under: Petitioner and the respondent got married on 09/06/1996 as per Hindu Religious rites and ceremonies. A child was born in their wedlock. Allegation is that though initially the respondent behaved very lovingly and affectionately, later on his behaviour changed and she was viewed in a suspicious manner. She had undergone severe sufferings but was tolerating the same. He did not even permit her to consult main doctors at the time of pregnancy and she was not permitted to mingle with others. On one occasion, after four months of marriage when they attended another marriage with the sisters of the respondent, petitioner 2 Mat.Appeal No.134/2009 also stood for the videographs which was not liked by the respondent. The respondent obtained the video film and deleted that portion. He was behaving in a very selfish and possessive manner and he did not even permit the petitioner to talk to others. The respondent used to ill treat her mentally. Since she could not tolerate his behaviour she took the child and left to her parental house. There was some mediation between the parties and she came back to the house of the respondent. According to her, she had 30 sovereigns of gold ornaments at the time of marriage and 15 sovereigns were received as gift from her relatives. All the ornaments were kept by the respondent and she was given only a few ornaments for wearing. It is contended that all the ornaments were either pledged or sold by the respondent. The respondent even suspected her chastity and allegations were made in front of his mother as well. According to her, she was unable to continue the relationship and she left her matrimonial home. The child was admitted in a school nearby her house. The original petition is filed for realization of the gold ornaments or its value of Rs.2,65,500/-. 3. The respondent filed a counter affidavit denying the allegations. According to him, she had only 20 sovereigns of gold Mat.Appeal No.134/2009 3 ornaments of which 4½ sovereigns was thali chain which is in the possession of the petitioner herself. He denied having appropriated the gold ornaments. The above case was tried along with M.C.No.65/2006 and common evidence was taken. The petitioner and two witnesses were examined as PWs 1 to 3. They placed reliance on Exts.A1 and A2 series. Respondent relied upon the oral testimony of RW1 and RW2 and Exts.B1 and B2 were marked. 4. The Family Court, after considering the claim in the original petition, rejected the claim against which the present appeal is filed by the petitioner. The Family Court observed that from the photographs produced it cannot be discerned that petitioner had 45 sovereigns of gold ornaments at the time of marriage. In Ext.A2 series, the name of purchaser and name of jewellery has not been typed and it is a computer printed estimate and the name of the purchaser has been written by them subsequently. It is also observed that petitioner's father, who had purchased the ornaments, was not examined nor the jewelery owner was examined and on finding that 45 sovereigns of gold was entrusted, in the absence of reliable evidence, decree cannot be granted and the application was dismissed. 4 Mat.Appeal No.134/2009 5. The learned counsel for the appellant submits that evidence of PWs 1 to 3 clearly proves the fact of entrustment of gold ornaments which has to be accounted by the respondent. In matrimonial matters where gold is being entrusted, it may not be possible to adduce direct proof when purchase of gold ornaments are done without any specific bill in that regard. Therefore the Court below had to consider the evidence based on the well settled principles of preponderance of probabilities. Viewed in that angle, there is sufficient evidence to prove entrustment of gold ornaments and the Family Court therefore failed to consider the same in the proper prospective. 6. On the other hand, the learned counsel for the respondent supported the view taken by the Family Court. It is contended that the pleadings or evidence is not sufficient to obtain a decree for obtaining gold ornaments. Whatever gold ornaments the petitioner had brought, was taken back by her and the respondent had not taken any of the gold ornaments. Hence the learned counsel sought for dismissal of the appeal. 7. Learned counsel for the petitioner placed reliance upon two judgments of this Court. Mat.Appeal No.134/2009 5 i) **Bexy Michael v. A.J.Michael** _[2010(4) KHC 376 (DB)]. I_ n that case, it was held that it would be unreasonable, irrational, puerile and perverse for a Court in the given circumstances to look for documentary evidence regarding the ornaments and money which had changed hands at the time of marriage. The standards of a prudent man have to be adopted by the Court. The controversy in most of the matrimonial cases has to be decided based on oral evidence. It would be traversity of justice for the Family Court to throw its hands up and merely dismiss a claim for the simple reason that documentary evidence is not made available. It is held that standards of a prudent man are paramount and the disputed question of fact has to be resolved on the touch stone of probabilities. ii) In **Jubairiya.M.K. v. Abusalih** _[2013(2) KHC 304 (DB)_ this Court held that in civil cases, preponderance of probabilities is a sufficient justification in coming to the conclusion that a fact is proved or disproved. 8. Apparently, this is a case in which the wife claims return of gold ornaments and therefore the pleadings and evidence of the case have to be looked into to ascertain the fact that the Family Court have committed any error in appreciation of Mat.Appeal No.134/2009 6 the evidence. The documents relied upon had been disbelieved by the Family Court and therefore it has to be verified whether the oral evidence is sufficient enough to justify the grant of a decree, as sought for. 9. In the petition, petitioner contends that at the time of marriage, she had 45 sovereigns of gold ornaments. She was given one locket alone for wearing and respondent had taken custody of all other ornaments and it was kept in his custody. She further avers that for attending relative's marriage initially a few ornaments were given and later he did not give any ornaments at all and the respondent's sister used to give some gold ornaments for wearing to attend such functions. According to the petitioner, the gold ornaments were either pledged or sold and the said fact was known to the respondent's sister. 10. The claim is for Rs.2,65,500/-. In the objection filed, respondent denied the aforesaid fact. According to him, at the time of marriage, she had only 20 sovereigns of gold ornaments. That apart, she had a gold chain given by the respondent weighing 4½ sovereigns. She had taken away all the gold ornaments when she left from the respondent's house. According to him, he had not appropriated any of the said gold ornaments. Mat.Appeal No.134/2009 7 11. PW1 is none other than the petitioner. She had filed chief affidavit in terms with the averments made in the petition. In her cross-examination, she submitted that parents had given her 30 sovereigns. Her father is a coolie worker. She has a sister and three brothers. Her brothers are also coolie workers and the sister's marriage is over. Her father had the capacity to purchase 30 sovereigns of gold. A photograph was shown to her in which she admits that she had three chains and one of the chains was given for repairs. She had ten bangles. According to her, Ext.A2 is the original receipt but the name of the jewellery shop is not mentioned. She deposed that the ornaments were purchased from Farida jewellery. PW2 is a person who had mediated between the couple. In the cross-examination, he stated that the intention was to have a reunion between the couple At the time when the 1[st] mediation took place, petitioner was in the house of the respondent. The mediation had taken place since there was an allegation that she was manhandled. 2[nd] mediation took place at the house of the petitioner. That was for the purpose of the gold ornaments. He submits that no agreement was executed. The suggestion was that he was giving false evidence before court. PW3 is a Junior Health Inspector. He was also a mediator. Mat.Appeal No.134/2009 8 12. RW1 is the respondent. He has filed a chief affidavit supporting the stand taken in the matter. RW2 is a friend of the respondent. According to him, he has also mediated and thereafter, the petitioner had gone to her parental house. 13. On a perusal of the evidence of both sides and on hearing the learned counsel on either side, there is apparently some lacuna in the pleadings and evidence of the petitioner. Though the petitioner says that she had 30 sovereigns of gold ornaments, there is no evidence to substantiate the same other than the oral testimony of PW1. PW2 and PW3 were only mediators. Respondent admits that the petitioner was having jewellery. But according to him, it was only 20 sovereigns and he had not appropriated it. The Family Court observed that from Ext.A1 series photographs, it cannot be ascertained that the petitioner was having 45 sovereigns of gold ornaments. But the fact remains that the respondent admits that she was having 20 sovereigns of gold ornaments. But, according to the respondent, it was very much available with the petitioner. Though the petitioner had stated that the gold ornaments were taken by the respondent, there is no pleading to the effect, in whose custody the gold ornaments were kept. In a house where spouses reside Mat.Appeal No.134/2009 9 together, both of them would know where the gold ornaments are kept in safe custody. There is no such pleading whereas it is stated that the respondent had kept all the gold ornaments with him and he has either pledged or sold the same. The Family Court did not believe the version of PW1. As held in the judgments stated above, if the version of the petitioner can be believed, even in the absence of documentary evidence, Family Court will be justified in granting a decree. 14. In the case on hand, the respondent has a case that when the petitioner left to her family house she had taken her gold ornaments. But the only fact is that the respondent does not say where the gold ornaments were kept. When the respondent says that he does not know where the gold ornaments were kept by the petitioner, it is not a believable version. In a family, gold ornaments are supposed to be their wealth which is always kept in safe custody. A person feigning ignorance about the proper custody of the gold ornaments, according to us, is not believable. In the counter statement, he says that all the gold ornaments of the petitioner was in her custody. Where the gold ornaments were kept in safe custody at their house is not mentioned. Is it possible that without the knowledge of the Mat.Appeal No.134/2009 10 husband, the wife will keep the gold ornaments. Therefore, at least in respect of the 20 sovereigns which the respondent admits, he ought to have explained the manner in which it was kept in custody and what happened to the gold ornaments. According to the respondent, the petitioner had taken away the gold ornaments while she had gone to her parental home. But the crucial fact is who was having the custody of the ornaments. It is highly unbelievable that the husband does not know where the gold ornaments were safely kept. To say that he had no access to the gold ornaments, cannot be believed. Hence we are of the view that at least to the extent of gold ornaments admitted by the respondent, he is answerable and he will have to compensate the petitioner. 15. The Family Court rejected the claim purely based on the absence of documentary evidence. The judgments cited above clearly indicates that even in the absence of documentary evidence, the oral evidence has to be considered and if the version of one of the parties is believable, a direction can be issued. 16. Taking into consideration the overall factual circumstances emanating from the evidence on record, we are of Mat.Appeal No.134/2009 11 the view that the Family Court erred in dismissing the petition. A least, to the extent of admitted gold ornaments, the respondent should have been made liable. Accordingly, this Mat.Appeal is partly allowed as under: i) The judgment in O.P.No.196/2006 is set aside. ii) O.P.No.196/2006 is decreed and the respondent is directed to pay the petitioner value of 20 sovereigns of gold ornaments valued at the rate of Rs.5900/- totalling Rs.1,18,000/-. (Rupees one lakh eighteen thousand only). iii) The aforesaid amount shall carry interest @ 6% p.a from the date of petition till the date of realisation. iv) Parties shall bear their own cost. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(K.RAMAKRISHNAN, JUDGE)** jsr