Nandini Devi and K.P. Bhaskar Nair v. Manaya M and P.P. Arun Bhaskar

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M. Shaffique
K.P. Jyothindranath
Judgment Date: 2017-08-24
Court Decision / Holding: Appeal dismissed; no costs.
Final Disposition: Appeal dismissed

Parties to the Case

Appellants / Petitioners

Nandini Devi
K.P. Bhaskar Nair

Respondents

Manaya M
P.P. Arun Bhaskar

Legal Representation & Advocates

Counsels for Petitioners

• K. Jaju Babu
• Brijesh Mohan
• T.S. Shyam Prasant
• M.U. Vijayalakshmi

Counsels for Respondents

• JESWIN P. Varghese
• Millu Dandapani

Case Synopsis & Summary

This matrimonial appeal arises from the Family Court, Kozhikode, in O.P. No. 241/2008, dated 28 January 2009. The wife sought the return of gold ornaments (110 sovereigns) given at marriage and compensation for their alleged misappropriation by her husband and in-laws. The couple married on 18 August 2005; after the husband’s arrest in a murder case on 22 December 2006, the ornaments reportedly disappeared, except the Thali chain, which was replaced with a duplicate during the public examination. The ornaments were said to have been entrusted to the second respondent and kept in a bank locker in the name of the second and third respondents; they allege misappropriation and sale of the ornaments. The Family Court partly allowed the petition, ordering the appellants to return 110.25 sovereigns of gold or its market value (Rs. 11,00,000). The appellants challenge the decree, arguing that the lower court relied primarily on Ext. A3 photographs; they rely on Mohammedali v. Rahiyanath (2015 KHC 820) to contend that photographs alone cannot determine genuineness, weight, or ownership of gold ornaments. The court noted that Ext. A3 is not a substantial piece of evidence and that oral evidence (PW1, PW2) can be treated as substantial, while non-examination of the first respondent and the bank-locker ownership in the names of respondents weigh against the appellants. The High Court dismisses the appeal, upholding the Family Court’s order with no costs.

Legal Doctrines & Maxims

Rigidity of the Evidence Act may not be applicable in Family Court
Oral evidence can be treated as substantial evidence; photographs alone cannot establish weight or ownership of gold ornaments (as emphasized in Mohammedali v. Rahiyanath)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Family Court primarily relied on Ext. A3 photographs to prove the loss of 110 sovereigns of gold and would require reliable, non-photographic proof. They rely on Mohammedali v. Rahiyanath to argue that photographs cannot establish the weight, purity, or ownership of gold ornaments and that oral evidence and entrustment of ornaments should be given primacy. They highlight the non-examination of the first respondent and the bank locker in the name of the second and third respondents as material defects in the lower court’s reasoning, and they seek restoration of the ornaments or their value.

Contentions of Respondents

The respondents deny the allegation of misappropriation, challenge the claim of 110 sovereigns, and question the quality, quantity, and make of the ornaments. They point to the non-examination of the first respondent, discrepancies in the documentary proof, and contend that the evidence does not warrant the decree for return of 110.25 sovereigns or its value.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mohammedali v. Rahiyanath and another	2015 KHC 820	Positive	Cited to caution against relying solely on photographs (Ext. A3) to determine ownership, weight, or genuineness of gold ornaments; reinforces the principle that oral evidence and corroboration are essential.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 24TH DAY OF AUGUST 2017/2ND BHADRA, 1939** **Mat.Appeal.No. 500 of 2009 -------------------------------** **AGAINST THE JUDGMENT IN OP 241/2008 of FAMILY COURT,KOZHIKODE DATED 28-01-2009** **APPELLANTS/RESPONDENTS 2 & 3 :** **-----------------------------------** **1. NANDINI DEVI, W/O.K.P.BHASKARAN NAIR, 'ARUNIMA', NEAR AYYAPPA BHAJANA MADOM,, 'EMILY', KALPETTA, WYANAD DISTRICT.** **2. K.P.BHASKARAN NAIR,** **'ARUNIMA', NEAR AYYAPPA BHAJANA MADOM,, 'EMILY', KALPETTA, WYANAD DISTRICT.** **BY ADVS.SRI.K.JAJU BABU SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS/PETITIONER & 1ST RESPONDENT :** **-------------------------** **1. MANAYA M, D/O.K.N.DHARMAPALAN,** **'VIDHU', NEAR SBI PAVANGAD, PUTHIYANGADI P.O., KOZHIKODE.** **2. P.P.ARUN BHASKAR, S/O.K.P.BHASKARAN NAIR** **'ARUNIMA', NEAR AYYAPPA BHAJANA MADOM, 'EMILY', KALPETTA, WYANAD DISTRICT.** **R2 BY ADV. SRI.JESWIN P.VARGHESE(B/0) R1 BY ADV. SRI.MILLU DANDAPANI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A.M.SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - **Mat. Appeal No.500 OF 2009** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of August, 2017 ## **JUDGMENT** ## Jyothindranath, J. This appeal is preferred against the order of the Family Court, Kozhikode in O.P.No.241/2008. The petition was filed for realization of gold ornaments and compensation, which was partly allowed. Appellants are respondent Nos. 2 and 3 in the original petition. 2. The facts necessary for consideration of this appeal is as follows :- . The parties are referred to as shown in the original petition The parties are Hindus. The marriage was on 18.8.2005. The appeal is preferred by respondents 2 and 3 who are the parents of the husband of the petitioner before the court below. The first MA No.500/2009 2 respondent was a practicing lawyer at Kalpetta Bar. The case of the petitioner was that at the time of marriage, the petitioner was provided with 110 sovereigns of gold ornaments by her father and relatives. After marriage, the gold ornaments were entrusted with the second respondent. It was the case of the petitioner that, due to the extravagance, the first respondent was on financial difficulties and he was not in a position to lead a normal marital life. The gold ornaments which were originally kept in the locker was taken away. It was also the case of the petitioner that the said locker was in the name of respondents 2 and 3 and except the Thali chain, all the ornaments were taken away by the respondents. It was the further case that after September 2005, the petitioner had not seen the gold ornaments. 3. It can be seen that the first respondent was arrested by the Nanjangud Police on 22.12.2006 in connection with a murder case. Even after marriage, the petitioner continued her studies. It MA No.500/2009 3 was the case of the petitioner that even the Thali chain was asked to be removed on the day of her public examination and a duplicate chain was provided. Her life become totally agonizing subsequent to the arrest and detention of the first respondent. She also lost her gold ornaments. She filed O.P.609/2007 before the court seeking a divorce from the first respondent as well as filed O.P.No.241/2008 for recovery of gold ornaments. It was the case that the respondents have misappropriated the entire money by selling the gold ornaments belonging to the petitioner. 4. The respondents filed counter denying the petition averments. It was their case that the petitioner was not having 110 sovereigns of gold ornaments at the time of marriage. Respondents even challenged the quality, quantity and make of the gold ornaments. 5. After appreciating the evidence, the court below partly allowed the petition and passed a decree in favour of the petitioner MA No.500/2009 4 for realizing 110.25 sovereigns of gold ornaments or its market value of Rs.11,00,000/- from the reaspondents. 6. The main challenge of the appellants is that the court below mainly relied upon the photographs which were marked as Ext.A3 series. In this case, the appeal is preferred by the respondent Nos. 2 and 3. In support of their submission, the learned counsel for the appellants relied upon the decision of this Court in **Mohammedali v. Rahiyanath and another ( 2015 KHC** **820)** . Therein it was held that “blind acceptance of all photographed ornaments as pure gold ornaments and further, making calculation regarding the weight of each of such ornaments for the purpose of finding the verity of the claim made for the return of gold ornaments given to the bride at the time of marriage without any other reliable proof would be extremely unsafe. Hitherto, no technology has been developed to identify whether an ornament appearing in a photograph is gold or not.” MA No.500/2009 5 7. In this case, the petitioner was examined as PW1. She filed proof affidavit wherein it was stated that she was given 110 sovereigns of gold ornaments at the time of marriage by her parents and relatives and she had taken all the ornaments to Kalpetta. The ornaments were kept in the custody of the second respondent. The ornaments were kept in the bank locker by the second respondent in the presence of the petitioner. It is also the case that the first respondent with the aid and help of respondents 2 and 3 removed the entire ornaments from the locker. This oral evidence tendered by the petitioner is a substantial piece of evidence. Her case is that to corroborate the same, Ext.A3 series of photographs are produced. Surely, Ext.A3 series cannot be considered as a substantial piece of evidence. The oral evidence given on oath can be treated as the substantial piece of evidence whereas the photographs are only to give corroboration or assurance while appreciating the oral evidence. It is to be MA No.500/2009 6 remembered that proceedings is before a Family Court where the rigidity of the Evidence Act may not be applicable. In this regard, in this case, it is also relevant to note that first respondent was not examined before the court. Surely, it was the positive case of the first respondent that he was in jail in connection with a murder case. Respondent No.2 is also not seen examined. As per the evidence of PW1, the locker in which gold ornaments were kept was in the name of second and third respondents. Thus, the nonexamination of first respondent also will have its own bearing in appreciating the evidence before the court. There is no appeal by the first respondent. In this case, PW2 is a witness examined by the petitioner. He deposed before the court that he is a Doctor by profession and he know the father of the petitioner for the last ten years. It was also deposed that as the father of the petitioner was a medical representative, he was acquainted with him and he also knows the respondents. There was a mediation wherein respondent MA No.500/2009 7 No.3 admitted to give back the gold ornaments. His evidence is that during mediation when an enquiry was made about the gold, respondent No.3 told that he will retrieve it and give back the same. PW2 seems to be a respectable witness. When the substantial evidence of PW1 is corroborated by the evidence of PW2 as well as the photographs, the evidence in respect of entrustment of gold can be accepted. No error had occurred in appreciating the evidence by the court below or arriving at the logical conclusion. Thus, there is no merit in the appeal. The appeal is accordingly dismissed. No costs. ## **A.M.SHAFFIQUE, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv.