Shan Baby & Anr. vs Roshny Shan

P.Krishna Kumar, J.

A petition for return of gold ornaments and money filed by the wife against her husband was decreed by the Family Court, Ernakulam. The husband challenges the said decree in this appeal.

The parties will hereinafter be referred to as they were arrayed in the original petition. The petitioner and the first respondent were married on 23.10.2010, in accordance with Christian religious rites and customs. Before the marriage, the petitioner had converted to Christianity. According to the petitioner, she had adorned 35 sovereigns of gold ornaments at the time of her marriage. Two days after the marriage, the first respondent obtained all her gold ornaments and pledged them, stating that he needed to discharge debts incurred in connection with his business. The petitioner further alleges that, on 14.09.2010, her mother had given ₹5,00,000/- to the second respondent, the father of the first respondent, as the family share of the petitioner. Thus, the petitioner seeks recovery of the aforesaid gold ornaments and money. (Though the petitioner also claimed that the first respondent had obtained amounts totalling ₹11 lakhs and odd on various occasions from her mother, the trial court did not accept the said claim, and there is no appeal against it.)

The respondents stoutly resisted the petition, contending that they had neither received 35 sovereigns of gold ornaments nor ₹5,00,000/- as claimed in the petition. They further contended that the petitioner had been wearing only 20 sovereigns of gold ornaments at the time of her marriage and that her entire ornaments were taken away by her mother and her friend, Chacko Mathai, from the petitioner within three days of her marriage, for safe keeping in the custody of Chacko Mathai.

The Family Court tried the above case together with the petition filed by the wife for divorce. The evidence of the petitioner consists of the oral testimony of PW1 to PW4 and Exts.A1 to A14. RW1 to RW7 were examined and Exts.B1 to B28 were marked on the side of the respondents. Upon evaluating the oral and documentary evidence, the trial court partly decreed the petition and directed the first respondent to return 35 sovereigns of gold ornaments or their market value. The court also allowed the petitioner to realise ₹5,00,000/- from the second respondent.

We have heard Sri. M.R. Hariraj, the learned Senior Counsel appearing for the respondents/appellants, and Sri. Rajesh Vijayan, the learned counsel appearing for the petitioner/respondent.

The points that arise for consideration in this appeal are as follows:

As regards the quantity of gold ornaments possessed by the petitioner at the time of her marriage, PW1, the petitioner, and PW2, her mother, deposed that, at the time of marriage, the petitioner had 35 sovereigns of gold ornaments. Ext.A9 marriage photograph was also produced in evidence by the petitioner. The genuineness of the document is not under challenge. The respondents also produced Ext.B1 series of photographs taken at the time of their marriage. The ornaments adorned by the petitioner, as seen in Ext.B1 series, tally with those depicted in Ext.A9. The schedule to the petition specifically describes the ornaments possessed by the petitioner at the time of her marriage. The said description also subatantially tallies with the photographs. The respondents have no case that the ornaments worn by the petitioner as seen in Ext. B1 series photographs were spurious gold. The financial capacity of the petitioner's mother to raise so much quantity of gold ornaments, is not in dispute. She had been working abroad. Although the respondents disputed the petitioner's claim that she possessed 35 sovereigns of gold ornaments, they conceded that she was in possession of 20 sovereigns. There is nothing on record to disbelieve the oral evidence of PW1 and PW2 as to the total quantity of the gold ornaments. In the light of all the above circumstances, it can safely be concluded that the petitioner possessed 35 sovereigns of gold ornaments at the time of her marriage.

Coming to the question as to whether the first respondent obtained the petitioner's gold ornaments after her marriage, the oral evidence of the petitioner is consistent with the averment in the petition. When examined as RW1, the first respondent denied the said allegation. In a case where the evidence is essentially one of ‘oath against oath’, the acceptability of the competing versions has to be assessed in the light of the overall circumstances of the case, having regard to all relevant factors including various social circumstances.

Sri. M.R. Hariraj, the learned Senior Counsel appearing for the respondents, contended that, as the petitioner had failed to adduce convincing evidence, other than her own oral testimony, to prove the alleged entrustment of the gold ornaments with the first respondent, no decree ought to have been passed in her favour, in view of the law laid down in Vinu K.S. and Another v. Veena Viswan (2026 (5) KHC 19). It is further contended that the trial Judge reached a conclusion as to the entrustment merely on the basis of surmises and inferences, without any factual foundation, by observing that the marriage in question was an arranged one and, hence, gold ornaments must necessarily have been presented to the bride by her parents at the time of marriage. The learned Senior Counsel further submitted that the said finding runs counter to the law laid down in Vinu K.S., particularly when the marriage in question was a love marriage and the petitioner had converted to Christianity just one week before the marriage. Referring to Exts.B2 to B5, the learned Senior Counsel fervently contended that the trial court had failed to advert to the said documents while arriving at the crucial conclusion that the entire gold ornaments were obtained by the first respondent, whereas those photographs, admittedly taken much later, would show that some of the ornaments were retained by the petitioner.

In view of the above submissions, it is necessary to consider the ratio of Vinu K.S. before appreciating the evidence on record. In paragraph 7, Their Lordships, following the law laid down in Dr. N.G. Dastane v. Mrs. S.D. Dastane (AIR 1975 SC 1534) observed that, in matrimonial matters, the proof of a relevant fact is tested on the touchstone of ‘preponderance of probabilities’ and not ‘beyond reasonable doubt’. It is further observed that the court must first look into the pleadings and the evidence adduced by the parties to see whether there is any material therein from which the court can draw an inference as regards the existence of a fact. If there are no positive proved facts— oral, documentary or circumstantial— from which such an inference can be drawn, the process of inference would fail, and what would remain is mere speculation and conjecture. Their Lordships further deprecated the practice of trial courts placing reliance on observations made by the constitutional courts in lieu of inferences to be drawn on the basis of the evidence on record, thereby abandoning the search for available evidence on record. The Court also criticised the tendency to rely upon a Judge's singular perception of a general practice or custom to find an ‘entrustment’. It was further observed that, if the court bases its finding on general practices or customs, there must be evidence on record regarding the existence of such practice or custom. Accordingly, this Court held that, while considering claims by a wife for return of gold or money that she had taken along with her to the matrimonial home, the court needs to look for proved facts from which an inference as regards entrustment of such gold or money to the husband or his relatives can be drawn. Their Lordships further observed that past precedents which assume the existence of a general practice that a woman, at the time of her marriage and entry into her matrimonial home, would hand over her gold ornaments to her husband or in-laws for safe keeping, may not be reflective of the present reality where a well-educated and financially independent bride retains decisional autonomy in respect of her material possessions, in the light of the changed status of women in modern society.

We are in respectful agreement with the view expressed in Vinu K.S.. However, even while applying the principles laid down in Vinu K.S., we do not find any flawed exercise by the trial court in appreciating the evidence in the present case. The trial court specifically considered the oral evidence of PW1 and PW2 in the light of Ext.A9 wedding photographs and arrived at a conclusion, though not in so many words, that the petitioner possessed 35 sovereigns of gold ornaments at the time of her marriage. Giving due emphasis to the oral evidence of PW1, the trial court concluded that those ornaments were taken by the first respondent, observing that the entire gold ornaments were kept in the matrimonial home, but that the petitioner could neither see nor hear about them thereafter (paragraph 22). In paragraph 24, the trial court referred to the law laid down in Pankajakshan Nair v. Shylaja (2017 (1) KHC 620), observing that the primary burden of proving the entrustment of gold ornaments with the husband and in-laws is on the petitioner/wife and that, once she succeeds in proving that aspect, it is for the respondent to disprove the same. The trial court thereafter considered the respondents' contention that the gold ornaments had been taken away by PW2 and her friend, Chacko Mathai. The court concluded that the respondents had failed to establish the said plea and accordingly held that “so much so, the entrustment of gold ornaments weighing 35 sovereign as pleaded by the petitioner with the first respondent stands well proved and established.” True, in the course of appreciating the rival oral versions the court observed that in an arranged marriage, bride would necessarily be presented with gold by the parents.

The trial court, as well as the appellate court, while appreciating the evidence on record to determine whether a disputed fact is proved or not, is guided by the principles embodied in Section 3 of the Indian Evidence Act, 1872/Section 2(1)(j) of the Bharatiya Sakshya Adhiniyam, 2023, where the term “proved” is defined. A fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent person ought, in the circumstances of the particular case, to act upon the supposition that it exists, upon considering the matters before the court. In the course of such appreciation of evidence, the court can draw inferences as to the existence of any fact which it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, as empowered by Section 114 of the Indian Evidence Act (Section 119 of Bharatiya Sakshya Adhiniyam, 2023).

In M. Narsinga Rao v. State of Andhra Pradesh (AIR 2001 SC 318), the Apex Court held that, in reaching a conclusion, the Court can use the process of inferences to be drawn from the facts produced or proved, and that such inferences are akin to presumptions in law. It was observed that the law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. While inferring the existence of one fact from another, the Court is only applying the process of intelligent reasoning which the mind of a prudent person would employ in similar circumstances, it was held. The relevant part of the judgment reads thus:

Drawing a permissive presumption or an inference as to the existence of a fact, depending upon the facts of a particular case, is often indispensable to the process of appreciation of evidence. Evidently, such inferences cannot be drawn out of thin air, but must arise from the circumstances in which the foundational facts are established through evidence. Trial Judges and appellate Judges, while appreciating evidence, are guided by such wider principles. It is only a process of intelligent reasoning. In appropriate circumstances, this process may involve drawing upon their general knowledge and experience. The Apex Court, in Chaturbhuj Pande and Others v. Collector, Raigarh (AIR 1969 SC 255), observed that, while assessing the value to be attached to oral evidence (in that case, for the purpose of discarding unchallenged and uncontroverted oral evidence) the trial Judges are bound to call into aid their experience of life and, as Judges of fact, are entitled to test the evidence placed before them on the basis of probabilities.

Indeed, a Judge is not permitted to rely upon specific facts not proved by the evidence in the case, merely because they are known to him personally or otherwise. At the same time, it is equally clear that a Judge may, and indeed does, use his general knowledge and experience in assessing the credibility of the evidence adduced before him and in applying it to the determination of the specific facts in dispute in the case. (See Mulpuru Lakshmayya and Others v. Sir Rajah Varadaraia Apparow, 1912 23 MLJ 624).

Section 59 of the Indian Evidence Act, which corresponds to Section 54 of Bharatiya Sakshya Adhiniyam, 2023, permits proof of any fact by oral evidence, except the contents of documents or electronic records. The question of entrustment of gold ornaments, in most cases, depends upon an appreciation of the oral evidence. The process of arriving at a conclusion, guided by the broader principles embodied in Sections 3 and 114, as stated above, should invariably be based on the facts and circumstances of each case and not on any rigid rule. As held in Vinu K.S. and Another v. Veena Viswan (supra), applying precedents in this area, without regard to the facts and circumstances of the particular case, would only be a puerile exercise.

In the cases of the above nature, most often, the courts are called upon to consider a difficult factual situation, namely, which of the rival versions of the oral evidence is more probable and acceptable. In determining that question, the Judges of fact, as noted above, may sometimes test the evidence on the touchstone of the principles discussed above. It is only a process of intelligent reasoning, having regard to the factual circumstances of the particular case.

As regards the question of entrustment of gold ornaments to the first respondent, we have carefully re-appreciated the oral evidence on record. PW1 deposed categorically, both in her chief affidavit and during cross-examination, that the first respondent obtained all her gold ornaments within a couple of days of the marriage. She was subjected to a searching cross-examination, but nothing was elicited to discredit her version. The evidence of RW1 does not inspire confidence in this regard. Pertinently, he falsely disputed the quantum of gold ornaments possessed by the petitioner and even set up a case that all her gold ornaments had been taken back by her mother and her friend, Chacko Mathai, but did not attempt to examine the said person.

The trial court, having had the advantage of observing the demeanour of the witnesses, preferred the version of PW1 over that of RW1 in this regard. In the light of all the above, we are of the view that the claim of the petitioner is more probable than that of the respondents. We therefore conclude that the trial court was correct in holding that the first respondent had obtained the gold ornaments of the petitioner.

However, we find that it is not possible to hold that the entire quantity of gold ornaments worn by the petitioner was taken away by the first respondent. Exts.B2 to B5 were marked in evidence during the cross-examination of PW1. She admitted that those photographs had been taken at a later point of time. It can be seen from the said photographs that she was wearing certain gold ornaments, including a small necklace, a chain and bangles. As regards the necklace and chain, PW1 explained that they had not been given to her at the time of her marriage. Her explanation appears to be genuine, as far as the small necklace and chain are concerned, when they are compared with the images in Ext.B1. However, the same cannot be said with respect to the bangles worn on her hands. Further, it is only probable that she might have retained some of her gold ornaments, probably 10 sovereigns, for daily wear while entrusting the remaining ornaments to her husband. Therefore, it can be inferred that the first respondent had obtained 25 sovereigns of gold ornaments from the petitioner. The trial court did not notice this aspect. To that extent, the decree requires modification.

In respect of the claim for return of ₹5,00,000/-, the evidence of PW2, the mother of the petitioner, is convincing. She specifically stated in her affidavit that, though the family members of the first respondent had informed that they had no demand for dowry, she had entrusted ₹5,00,000/- to the second respondent in the presence of the first respondent. According to her, the said amount was withdrawn from her bank account maintained with the Federal Bank, Marine Drive Branch, by cheque No.677624. Ext.A1 bank account statement was produced to substantiate the said contention.

It was contended by the learned Senior Counsel appearing for the respondents that the said claim is inherently improbable, as PW2 deposed in her affidavit that the amount was withdrawn from the bank on 14.09.2010, whereas, during cross-examination, she stated that the amount was given to the second respondent on the day following the betrothal, which could not be true since the betrothal was held on 12.09.2010. We find no merit in the said contention when her oral testimony is analysed together with Ext.A1 statement of account. It can be seen from Ext.A1 that she had withdrawn ₹5,00,000/- on 04.09.2010 through cheque No.677624. Therefore, the statement in the proof affidavit that she had withdrawn ₹5,00,000/- through the said cheque on 14.09.2010 could obviously be a mistake.

The learned Senior Counsel further contended that merely because the petitioner was able to show that her mother had withdrawn an amount on a particular day, that would not amount to proof of entrustment of the same to the second respondent. We are afraid we cannot agree with the said proposition. The evidence on record has to be appreciated in its entirety. The oral testimony of a witness has to be tested by the court in the light of several elements, one such factor being the ability of the person concerned to raise the requisite funds. Proof of withdrawal of the amount from the bank and the proximity of such withdrawal to the date on which it was allegedly given are aspects that would lend credibility to the oral testimony, in the facts of the given case. In view of the above materials, we accept the claim of the petitioner that her mother had entrusted ₹5,00,000/- to the second respondent as her family share. The second respondent is bound to return the said amount. Thus, we uphold the decree in that regard.

In the result, the appeal is allowed in part. The first appellant is directed to return 25 sovereigns of gold ornaments to the respondent/wife within one month, failing which, the respondent shall be entitled to recover the market value of 25 sovereigns of gold ornaments. The remaining part of the impugned judgment is upheld.