Nellikodan Rajitha v. Kunnummal Rajan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 1939 Mat.Appeal.No. 867 of 2008 -------------------------- AGAINST THE JUDGMENT IN OP 108/2008 of FAMILY COURT, MALAPPURAM DATED 11-07-2008 APPELLANT/APPELLANT: ------------------- NELLIKKODAN RAJITHA, AGED 28 YEARS, D/O.NELLIKKADAN CHOZHIKUTTY (LATE), NELLIKODAN HOUSE, MARUTHA POST, MANIMOOLI AMSOM,, MARUTHA DESOM, VAZHIKKADAVU, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.SHIBILI NAHA RESPONDENT: ----------- KUNNUMMAL RAJAN, AGED 40 YEARS, S/O.KELU (LATE), VELLAMPARAMBAN HOUSE, THRIKKALANGODE.P.O, THRIKKALANGODE AMSOM DESOM, ERNADU TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01. 08.2017, THE COURT ON 20-09-2017, DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.** **= = = = = = = = = = = = = = = = = = = = Mat.Appeal No.867 of 2008** **= = = = = = = = = = = = = = = = = = = = Dated this the 20th day of September, 2017** ## **JUDGMENT** ## **Anu Sivaraman, J.** - 1.This appeal is preferred by the petitioner in O.P.No.108 of 2008 against the dismissal of her petition by Family Court Malappuram by judgment dated 11.07.2008. - 2.The contention in the original petition was to the effect that the appellant and the respondents were married in accordance with Hindu rites and customs on 15.05.2000 at Nilambur. The petitioner had 17 sovereigns of gold ornaments at the time of the marriage. Soon after the marriage, the respondents started suspecting the petitioner and questioning her minutely. He did not permit the petitioner to go home and she was treated with extreme mental cruelty. The respondent started harassing her and M.A.867/08 2 she was forced to entrust all her gold ornaments except one bangle with the respondent. Thereafter, on 08.02.2001 the respondent had pledged the gold ornaments belonging to the petitioner weighing 11 sovereigns. The respondent's mother passed away on 02.04.2001 after a prolonged illness and thereafter, petitioner and respondent were alone in the house. It is stated that the petitioner was mentally harassed and the respondent required her to handover the rest of the gold ornaments left with her as well. When she refused, the respondent started behaving with utmost cruelty to her. It is stated that on 7.06.2001, the petitioner's mother had come to the matrimonial home to enquire about the harassment meted out to her daughter, she was threatened and the petitioner was physically assaulted in her presence by the respondent. That evening the petitioner had been taken to her parental home by her mother. Though demands were made for return of gold ornaments and the same was not returned and hence the original petition was filed. M.A.867/08 3 - 3.An objection was filed by the respondent admitting the marriage, but denying the entrustment or appropriation of 11 sovereigns of gold ornaments by the respondent. He stated that the marriage between the parties had been dissolved by decree of divorce dated 16.10.2006 in O.P.No.285/2006. The allegations of matrimonial cruelty were also denied. - 4.PW1 to 3 were examined and A1 & A2 documents were marked by the side of the petitioner. The respondent was examined as RW1 and B1 to B3 documents were marked. - 5.As PW1, the petitioner had given evidence in tune with her pleadings in the original petition. Exhibit A1 is an estimate from Thrissur Gold Jewellers, Main Road, Nilambur for the purchase of 8 bangles, 3 necklaces and one pair each of studs and ear drops. The total weight of the ornaments as shown in A1 estimate is 146.50 grams. Exhibit A2 is a copy of the petition filed by the petitioner before the Sub M.A.867/08 4 Inspector of police, Manjeri the marking of which was objected to, since it was only a photocopy. 6.The Family Court found that the case of entrustment and appropriation of gold, set up in the original petition had been denied by the respondent. Though the petitioner, her brother and a relative had given evidence as to the appropriation of 11 sovereigns of gold, the Family Court found that the evidence of PW1 & 2 would amount to interested testimony and PW3 had also admitted in crossexamination that he was a relative of the petitioner and therefore his evidence also could not be taken into account. The Family Court went on to hold that PW3 is a hired witness and that no sanctity can be attached to his testimony. In the absence of any independent evidence as to the entrustment of the gold ornaments, the claim raised by the petitioner was found to be not substantiated by proof and the original petition was therefore dismissed. M.A.867/08 5 - 7.Heard the learned counsel for the appellant and the learned counsel for the respondent. - 8.It is vehemently contended by the learned counsel appearing for the appellant that it would be only in extremely rare cases that independent evidence could be forthcoming in matrimonial cases. By the very nature of the relationship between the parties and the dispute arising therefrom, it would be highly improbable that independent witnesses would be available in such disputes. Relying on the decision of this Court in **Bexy Michael v. A.J.Michael** [2010(4) KHC 376] it is contended that it would be unreasonable for a Court to insist for documentary evidence regarding ornaments and money that had changed hands at the time of marriage. A petition cannot be dismissed merely because no documentary evidence was produced. In most of the cases, such claim will have to be decided on the basis of oral evidence. It is argued that in **Shinu P.K. v. Dhanya Madhavan** [2013 (3) KHC 735] this Court held that when M.A.867/08 6 respondent wife discharged her onus and makes out a prima facie case, the onus shifts to the appellant to prove the circumstances pleaded by him. It is contended that the evidence of the parties to the marriage and the persons who are privy to the transactions between them who would invariably be relatives or close acquaintances cannot be discarded while considering a dispute which arises in a matrimonial case. It is further contended that the reasons stated by the Family Court for discarding the evidence of PW3 were completely perverse and misconceived. - 9.The learned counsel appearing for the respondent would contend that the Family Court being perfectly aware of the nature of disputes raised before it had considered the evidence in the proper perspective and had come to the conclusion that there was no reliable evidence to hold that the petitioner had 17 sovereigns of gold ornaments at the time of marriage and further that 11 sovereigns of gold had been taken and appropriated by the respondents. In the M.A.867/08 7 above circumstances, the findings of the Family Court were fully justified, it is contended. 10.We have considered the contentions advanced as well as the pleadings and the materials on record. It was the petitioner's case that she had 17 sovereigns of gold ornaments at the time of her marriage. Exhibit A1 estimate was produced by her to prove this fact. It is true that no person from the jewellery in question had been examined to prove Exhibit A1. Exhibit A2 was a photocopy of a petition preferred by her before the Police. The Family Court held that this was also not satisfactorily proved. However, the petitioner had given evidence as PW1. Her testimony as well as the sworn testimonies of PW2 and 3 clearly supported her version. They had been subjected to extensive cross-examination as well. Their evidence was not discredited in the crossexamination. All that was brought out was that PW3 who claims to be a mediator in the matrimonial dispute between the parties, was a relative of the petitioner. M.A.867/08 8 11.The respondent, as RW1, had stated that the petitioner did not have 17 sovereigns of gold ornaments. He also denied the appropriation of 11 sovereigns of her gold. However, he did not state what quantity of gold ornaments the petitioner did have at the time of marriage. He also did not state as to what happened to the gold that was in her possession. The testimony of the petitioner and her brother clearly established that the petitioner had some gold ornaments at the time of marriage and 11 sovereigns had been appropriated and pledged by the respondent. In the nature of the relationship between the parties at the time of said transaction, we are of the considered opinion that it would not be practical to expect clear documentary evidence or oral testimony by completely independent witnesses as to the appropriation of gold ornaments. In the absence of any clear rebuttal evidence from the respondent, we are of the opinion the Family Court should have relied upon the unshaken testimony of PW1 as to the appropriation of 11 sovereigns of M.A.867/08 9 gold by the husband. The discarding of the oral evidence by the Family Court was not proper, in our view. In the above circumstances, this appeal is allowed. The finding of the Family Court that the claim raised in the original petition was not proved by evidence is reversed. The original petition is allowed granting a decree for recovery of 11 sovereigns of gold or its equivalent value of Rs.94,160/- as claimed in the petition with 6% interest from the date of petition till realisation. There will be no order as to costs. sd/- **A.M.Shaffique, Judge** sd/- **Anu Sivaraman, Judge** sj /TRUE COPY/- PA TO JUDGE