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2024 DIGILAW 1399 (KER)

MOHANDAS S/O RAGHAVA PANICKER v. SUNITHA MOHANDAS

2024-10-30

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

body2024
JUDGMENT : M.B. SNEHALATHA, J. 1. The appellant is the respondent/husband in O.P. No. 494/2015 on the files of the Family Court, Attingal who suffered a judgment and decree against him for return of gold ornaments and money to the petitioner/wife therein. 2. Parties shall be referred to as petitioner and respondent as described in O.P. No. 494/2015. 3. Original Petition was filed by petitioner/wife stating that her marriage with respondent was solemnised on 10.9.1981 as per Hindu religious rites and customs. At the time of marriage, respondent was employed in Bahrain. After the marriage, he took the petitioner also to Bahrain. A girl child was born in the said wedlock. Petitioner returned to her native place along with the child in the year 1985. In 1986, respondent got employment in USA and he took the petitioner and the child also to USA. 4. Petitioner filed the Original Petition before the Family Court, Attingal seeking relief of return of gold ornaments and money from the respondent. Her case is that at the time of marriage, her parents had given 116 sovereigns of gold ornaments to her. Apart from that during “Nallavathil” ceremony, her relatives had given two sovereigns of gold ornaments each to the mother and sister of the respondent. Her case is that within one week of her marriage, respondent/husband took all her 116 sovereigns of gold ornaments and misappropriated the same. Respondent took 45 sovereigns of gold ornaments and handed it over to his sister and the remaining gold ornaments were sold by him for settling his financial liabilities. Respondent is liable to return the 116 sovereigns of gold ornaments taken from the petitioner as well as the 4 sovereigns of gold ornaments given to the mother and sister of the respondent. An amount of Rs. 75,000/- was also claimed towards the value of gift articles which the petitioner had received at the time of the marriage from her relatives and friends. Respondent is an alcoholic and he used to harass the petitioner physically and mentally and due to the marital discord, they are residing separately in USA from 2013 onwards. Petitioner is running a dance school in USA. Respondent purchased 25 cents of property in Varkala in his name by utilising the funds given by her. 5. Respondent filed counter denying the allegations regarding misappropriation of 116 sovereigns of gold ornaments and gifts worth Rs. 75,000/-. Petitioner is running a dance school in USA. Respondent purchased 25 cents of property in Varkala in his name by utilising the funds given by her. 5. Respondent filed counter denying the allegations regarding misappropriation of 116 sovereigns of gold ornaments and gifts worth Rs. 75,000/-. The allegation that 4 sovereigns of gold ornaments were given to his mother and sister was also denied by him. The respondent has neither taken 45 sovereigns of gold of the petitioner to give it to his sister as alleged nor sold any gold ornaments of the petitioner for clearing the liabilities as alleged. The respondent had no occasion or purpose to misappropriate the gold ornaments as he was decently employed in Bahrain at the time of marriage. Respondent had no financial liabilities as alleged. The allegation regarding harassment is also denied by him. He has further contended that petitioner obtained a decree of divorce on 13.03.1989 from the matrimonial part of Supreme Court of State of New York and married a foreigner and she has a child in the said wedlock. Petitioner has approached the court by suppressing the material facts. 6. The evidence consists of the oral testimonies of PWs 1 and 2 and RW1 and the documents marked as Exts.A1 to A5 and Exts.B1 to B4. 7. After trial, the learned Family Court allowed the petition directing the respondent to return 120 sovereigns of gold ornaments or its market value of Rs. 24,33,600/- and to pay Rs. 75,000/- towards the value of gift articles obtained at the time of her marriage. Aggrieved by the said judgment and decree, the respondent/husband has preferred this appeal. 8. Heard the learned counsel for both sides. 9. The point for consideration in this appeal is whether the impugned judgment and decree directing the respondent/husband to return 120 sovereigns of gold ornaments or its market value of Rs. 24,33,600/- and to pay Rs. 75,000/- towards the value of gift articles, needs any interference by this Court. 10. Admittedly, the petitioner and respondent got married on 10.9.1981 as per Hindu religious rites and customs. It is also not in dispute that at the time of marriage, the respondent was employed in Bahrain. The petitioner would admit that in the year 1982, she also went to Bahrain and they lived together in Bahrain till 1985. 10. Admittedly, the petitioner and respondent got married on 10.9.1981 as per Hindu religious rites and customs. It is also not in dispute that at the time of marriage, the respondent was employed in Bahrain. The petitioner would admit that in the year 1982, she also went to Bahrain and they lived together in Bahrain till 1985. It is an admitted fact that in the year 1986, the respondent quit his job in Bahrain and went to USA and thereafter he took the petitioner and their child also to USA and they were residing together in USA. 11. The petitioner, who was examined as PW1 has testified in tune with the averments made in the petition and has stated that at the time of her marriage, her parents had given 116 sovereigns of gold ornaments. To substantiate the case, she has also examined PW2, who is a relative, who had participated in the said marriage. He has also testified that the petitioner was given 116 sovereigns of gold ornaments at the time of marriage. In order to substantiate her case that her parents had given 116 sovereigns of gold ornaments at the time of her marriage, petitioner has produced Ext.A2 series photographs. The respondent/husband has no case that the petitioner had no gold ornaments at the time of her marriage. Ext.A2 series wedding photos are also not disputed by the respondent. Ext.A2 series wedding photos would show that on the wedding day, the petitioner was wearing a lot of gold ornaments. 12. The question is whether the petitioner has succeeded in establishing that the respondent misappropriated her entire gold ornaments as contended by her? 13. The version of PW1 is that within one week of her marriage, her husband, namely the respondent took 45 sovereigns of her gold ornaments and handed it over to his sister Radha. According to her, thereafter, the respondent took the remaining gold ornaments also and sold the same for discharging his financial liabilities. The learned counsel for the petitioner placed reliance on the decision of this Court reported in Rajesh P.P. and Another v. Deepthi P.R. 2021 (4) KHC 242 and contended that it would be unrealistic for a Court to insist on documentary evidence regarding ornaments that had changed hands at the time of marriage. 14. The learned counsel for the petitioner placed reliance on the decision of this Court reported in Rajesh P.P. and Another v. Deepthi P.R. 2021 (4) KHC 242 and contended that it would be unrealistic for a Court to insist on documentary evidence regarding ornaments that had changed hands at the time of marriage. 14. The specific case of the respondent is that there was no occasion or purpose for him to take the gold ornaments of the petitioner and to misappropriate the same. Respondent who was examined as RW1 has categorically denied the case of the petitioner that he took her entire gold ornaments. The categoric version of the respondent who was examined as RW1 is that, he has neither taken 45 sovereigns of the gold ornaments to give it to his sister nor he took any gold ornaments of the petitioner and sold the same to discharge his liabilities as alleged by the petitioner. According to him, he had no financial liabilities and had no occasion or purpose to take the gold ornaments of the petitioner as he was decently employed in Bahrain during the time of marriage. 15. It is true that in view of Section 14 of the Family Court Act, the provisions of Indian Evidence Act have no strict application to the proceedings before the Family Court. 16. Under Section 3 of the Indian Evidence Act, 1872 a fact is said to be “proved” when, considering all the evidence, the court believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The sufficiency of the evidence is to be seen in the context of standard of proof, which in civil case is by preponderance of probability. The legal definition lays the foundation for the application of the preponderance of probability in civil cases. 17. In Dr. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 , the Hon’ble Apex Court held that the standard of proof in matrimonial cases would be the same as in civil cases i.e. the court has to decide cases based on preponderance of probabilities. 17. In Dr. N.G. Dastane v. S. Dastane, AIR 1975 SC 1534 , the Hon’ble Apex Court held that the standard of proof in matrimonial cases would be the same as in civil cases i.e. the court has to decide cases based on preponderance of probabilities. It is a settled position of law that the standards of prudent man are paramount and the disputed question of fact has to be resolved on the touchstone of probabilities and absolute certainty is not the requirement under Section 3 of the Indian Evidence Act and the standard of proof is preponderance of probabilities. 18. In Bexy Michael v. A.J. Michael, 2010 (4) KHC 376 (DB) this Court 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 that 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 on the basis of oral evidence. It would be a travesty of justice for a Family Court to throw its hands up and merely dismiss a claim for the simple reason that the documentary evidence is not made available. In a civil case, rival contentions and rival evidence will have to be considered, evaluated and weighed to come to a conclusion about whether the burden on the claimant has been discharged. The standard of proof, therefore, is a preponderance of probabilities. 19. In this context it is relevant to note the general principles pertaining to the burden of proof for which we can have a look at the Sections 101 and 102 of Indian Evidence Act, 1872 (verbatim to Sections 104 and 105 of The Bharatiya Sakshya Adhiniyam, 2023): “101. Burden of proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 102. On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 20. In Dr. 102. On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 20. In Dr. N.G. Dastane (supra) the Apex Court further held that, the belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. 21. Neither in the pleadings nor in the affidavit filed in lieu of chief, petitioner has furnished the description of the gold ornaments allegedly misappropriated by the respondent. As already stated, Ext.A2 series photographs produced would show that petitioner was wearing a lot of gold ornaments at the time of her marriage. The version of PW2 also corroborates the version of PW1. Respondent also has no case that petitioner was not given that much of gold ornaments by her parents at the time of marriage. So the case of the petitioner that she had 116 sovereigns of gold ornaments at the time of her marriage is believable. But the question is whether she proved the entrustment of her entire gold ornaments weighing 116 sovereigns to the respondent so as to fasten liability upon him. The specific case of the petitioner is that within one week of her marriage, respondent took 45 sovereigns of gold ornaments and handed it to his sister Radhamony and thereafter he took the balance gold ornaments and sold it to settle his financial liabilities. 22. In the case at hand there is oath against oath. The specific case of the petitioner is that within one week of her marriage, respondent took 45 sovereigns of gold ornaments and handed it to his sister Radhamony and thereafter he took the balance gold ornaments and sold it to settle his financial liabilities. 22. In the case at hand there is oath against oath. It is to be borne in mind that except the oral interested version of the petitioner that 45 sovereigns of gold were taken by the respondent and gave it to his sister, there is absolutely no reliable evidence to show that respondent took 45 sovereigns of gold ornaments of the petitioner and gave the same to his sister. Petitioner has also not brought out any attending circumstance so as to hold that respondent took 45 sovereigns of her gold ornaments and gave it to his sister. There is no evidence to show that what was the occasion to hand over that much of gold to the sister as alleged. Was it handed over to the sister in connection with the marriage of the sister? No such pleadings or evidence, rather there is a vague pleading that 45 sovereigns were handed over to the sister of the respondent. She has also not adduced any evidence to show that respondent took the remaining gold ornaments for settling his financial liabilities. Absolutely, there is no evidence to show that respondent had any such financial liabilities during the time of their marriage so as to sell her entire gold ornaments within one week of their marriage. Per contra, it has come out in evidence that during the time of marriage he was employed in Bahrain and in the year 1982, he took the petitioner also to Bahrain. It is quite unbelievable that she handed over the entire gold ornaments without keeping the ornaments at least required for daily wear. 23. This is not a case in which due to marital discord, the wife had to leave the matrimonial home by keeping the gold ornaments at the matrimonial home. She has no case that by keeping all the gold ornaments at the matrimonial home, she went abroad in the year 1982. She has also no case that respondent purchased 25 cents of property in Varkala by selling her gold ornaments. She has no case that by keeping all the gold ornaments at the matrimonial home, she went abroad in the year 1982. She has also no case that respondent purchased 25 cents of property in Varkala by selling her gold ornaments. On the other hand, petitioner's case is that within one week of her marriage, the entire gold ornaments given to her by her parents were taken by the respondent and he misappropriated the same. Therefore, the initial burden is upon her to prove that respondent took all her gold ornaments. Petitioner failed to prove the entrustment of gold ornaments to the respondent. This Court in Abubakker Labba v. Shameena K.B. 2018 (3) KHC 219 and Binitha v. Hareendran, 2023 KHC Online 99 has held that in order to grant a decree for return of gold ornaments and money there should be specific pleadings and evidence regarding the entrustment of the gold ornaments to the husband or in-laws and in the absence of any proof regarding entrustment, the relief for return of gold and cash cannot be granted. 24. In a claim for return of gold ornaments and money, the wife has to prove the entrustment. Mere assertions without any evidence are not sufficient to grant a decree. Upon enstrument, the husband or in-laws assume the role of trustees and they are under an obligation to return the property to her. The initial burden to prove the entrustment lies within the petitioner/wife. Once she discharge the initial burden, then the onus of proof shifts to the husband and in-laws as the case may be to account for the property. The onus is on the petitioner to prove that she entrusted her entire gold ornaments to the respondent, who in turn misappropriated it. Though the version of PW1 that her parents had given 116 sovereigns of gold ornaments at the time of her marriage is believable, it does not automatically lead to a further inference or conclusion that she entrusted the entire gold ornaments to the respondent and the respondent took away all the gold ornaments within one week of her marriage. No such inference can be drawn by the court in the absence of any reliable and acceptable evidence regarding the entrustment. No such inference can be drawn by the court in the absence of any reliable and acceptable evidence regarding the entrustment. Since the entrustment of the gold ornaments has not been proved by the petitioner, she is not entitled to get a decree against the respondent and the trial court went wrong in appreciating the evidence in its correct perspective and in granting a decree for realisation of gold and money in favour of the petitioner. Petitioner failed to prove that her relatives gave 4 sovereigns of gold ornaments to the mother and sister of the respondent during ‘Nallavathil’ ceremony as alleged by her. Absolutely, there is no proof in respect of the said claim. Likewise, her claim for Rs. 75,000/- towards value of gift articles is also not supported by any evidence. 25. Accordingly, this appeal is allowed. The impugned judgment and decree stand set aside and O.P. No. 494/2015 stands dismissed. 26. Parties shall bear their respective cost.