Partly allowed

P K Shinu v. Dhanya Madhavan

Kerala HC21 Aug 2013Mat.Appeal/21/2013

Case brief

AI extract

What is this about?

The High Court modified the Family Court order in a matrimonial appeal. While affirming the respondent's entitlement to 35 sovereigns of gold based on initial burden discharge, the court rejected the claim for additional 12.4 sovereigns and dresses due to lack of proven evidence.

What did the court decide?

Husband directed to return 35 sovereigns of gold or its equivalent value of Rs.3,50,000 with 6% interest; claim for 12.4 sovereigns and dresses rejected.

P K Shinu Vs Dhanya Madhavan — Matrimonial and Divorce | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN

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WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935

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Mat.Appeal.No. 21 of 2013 () ----------------------------AGAINST THE JUDGMENT IN OP 126/2012 of FAMILY COURT, MUVATTUPUZHA DATED 12-07-2012

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APPELLANT/RESPONDENT :

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P.K.SHINU, AGED 36 YEARS,S/O.KARUNAKARAN NOW WORKING AS DRAFTSMAN STAFF NO.S.0988, CO.619 NDIA,AEO, GULF CONTRACTING CO., WLL PO BOX NO.3886 DOHA, QUARTER, REPRESENTED BY POWER OF ATTORNEY HOLDER SHEELA, AGED 41 YEARS, W/O.SATHYADAS RESIDING AT VAZHAPARAMBIL HOUSE, AYMANAM KOTTAYAM - 686 015.

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BY ADV. SRI.T.M.RAMAN KARTHA

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RESPONDENT/PETITIONER :

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DHANYA MADHAVAN, AGED 29 YEARS D/O.MADHAVAN, MALAYIL HOUSE, PAZHOOR P.O. PIN 686 664, PIRAVOM, ERNAKULAM DISTRICT.

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BY ADV . SRI.R.O.MUHAMMED SHEMEEM FOR CAVEATOR BY ADVS. SMT.NASEEHA BEEGUM P.S. SRI.P.N.SAIBEN NIKKISH

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2013, THE COURT ON 21-08-2013 DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & P.D.RAJAN, JJ

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Mat.Appeal.No.21 of 2013 ......................................... Dated 21^st August, 2013

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JUDGMENT

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P.D.Rajan,J 'CR'

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This appeal is directed against the judgment in O.P.No.126 of 2012 of Family Court, Moovattupuzha. The husband, who was the respondent before the Family court is the appellant herein and wife, who was the petitioner before the Family court is the respondent. The above case was filed by the wife against her husband for realization of gold ornaments and other valuables included in plaint A schedule list. Petitioner had also claimed compensation of Rs.Two Lakhs towards mental agony from her husband. She also filed another petition, O.P.125 of 2012 under Section 13(1)(a) of Hindu Marriage Act, for divorce. The husband denied the allegations in both cases by filing objections.

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Both cases were tried jointly by the lower court. To prove the case, on the side of petitioner, Pws 1 to 6 were examined and Exts.A1 to A18 were marked. Respondent did not adduce any oral evidence, but Ext.B1 to B2 were marked on his side. Family Court decreed O.P.No.126 of 2012 and

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directed the husband to return the gold ornaments and dresses included in A schedule to the wife within two months from the date of the decree. It was also directed that if he fails to return the articles and money as directed, the wife will be entitled to realise Rs.5,57,750/- with 9 % interest from the date of the decree till realisation. O.P.No.125 of 2012 was dismissed by the trial court. Aggrieved by the judgment in O.P.No.126 of 2012, the husband preferred this appeal.

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Learned counsel appearing for the appellant contended that no documentary evidence was adduced by the respondent to prove that she had entrusted the entire gold ornaments as alleged in the petition. According to him, the burden of proof with regard to entrustment was upon the wife her and that in the absence of any evidence, and the order of the Family Court is illegal, arbitrary and liable to be set aside. Learned counsel relied on the decision reported in Susan George V. Rahul Padman ( 2012(1) KLT 360) and the Apex Court judgment in Rangammal V. Kuppuswami and another (AIR 2011 SC 2344).

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Learned counsel appearing for the respondent strongly resisted the above contention and contended that on the date

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of marriage itself, the entire gold ornaments were entrusted to the husband, which, was done in the ordinary course of life. It was contended that the photographs itself is a conclusive proof with regard to the quantity of gold ornaments and that there was no inconsistency in the documentary evidence and the oral testimony of PW1. The learned counsel contended that the oral evidence of the respondent proved that she was wearing 35 sovereigns of gold at the time of marriage and that she got 12.4 sovereigns as gift. It was argued that her initial burden was discharged in the Family Court and in the absence of any contra evidence, the appellant is not entitled to succeed.

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However, on hearing the appeal and in the light of the facts and circumstances of the case in hand, we are of the view that the respondent/petitioner had made out a case against appellant and therefore, according to us, she has discharged her initial burden of proof regarding entrustment. Further, when the respondent was examined, the appellant did not ask her any question disputing her claim regarding entrustment of the ornaments.

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In order to decide the controversy in this appeal, it is

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necessary to scrutinize the facts that gave rise to this appeal. Respondents case was that 35 sovereigns of gold was given to her and that 12.4 sovereigns of gold ornaments were received as gift. She had also purchased dresses. Both gold and dresses are scheduled as 'A' in the petition. According to her, both were taken away by the appellant on the day of the marriage itself. But in the trial court appellant denied that allegation and contended that when she left the matrimonial home, she took all gold ornaments and dresses.

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The general rule of evidence is that a party who approaches the court must prove all facts pleaded with cogent and convincing evidence and evidence will have to be let in by the party on whom the burden of proof lies. Section 101 of Indian Evidence Act, 1872 deals with “burden of proof”. The illustrations therein would give a clear idea which show that whoever desires any court to give judgment as to any legal right or liability which is dependent on the existence of any 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 burden of proof lies on that person. Section 102 says that the burden of proof in a suit or proceeding lies on the

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person who would fail if no evidence at all were given on either

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side. Accepting the above law in so far as this case is concerned, the burden of proof was on the respondent.

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In this context, it is relevant to refer to the judgment of the Apex Court in Rangammal V. Kuppuswami and another (AIR 2011 SC 2344), wherein paragraph 14, it was held as follows.

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“ Section 101 of the Indian Evidence Act 1872 defines 'burden of proof' which clearly lays down that whosoever desires any court to give judgment as to any legal right or law 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. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party”.

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In the instant case, respondent contended that her father had given 35 sovereigns of gold ornaments. Though, in Ext.A17 invoice, purchase of 46.71 grams on 29.10.2008 alone is mentioned, Ext.A6 to A15 and Ext.B1 and B2 show that respondent was wearing more than 35 sovereigns of gold.

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Therefore, this claim of the respondent has been rightly upheld by the Family Court.

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To prove the gift of 12.4 sovereigns the relatives or other witnesses were not examined in the lower court. Moreover, no proof regarding the dresses mentioned in A schedule were also adduced. In the absence of convincing evidence, the claim for 12.4 sovereigns of gold and the various items of dresses, is not allowable.

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In a judicial proceedings, the construction 'burden of proof' has two frequently confused and conspicuous meaning. Firstly, the burden of establishing a case and secondly, the burden of introducing evidence. In the first sense, the burden of proof is fixed at the beginning of the trial by way of pleading which will never shift in any manner, which embodies in Section 101 in proving a case. But in Section 102, burden of proof is used in the sense of introducing evidence which is the second stage. Here it is called 'burden of proof' or 'onus of proof' which shifts from party to party when trial proceeds.

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This initial onus of introducing evidence is always on the respondent who is the petitioner in the trial court. This initial burden or right to begin is called 'onus probandi'. Here the

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respondent had discharged her initial burden then we have to examine what is the evidence of appellant. No oral evidence with regard to the denial is made in the written objection. The marriage photos, Ext.B1, B1(a), B1(b) B2 partly supports the evidence of respondent. There was no effective crossexamination of PW1 and other witnesses on that point. Therefore, we are of the opinion that when respondent, wife discharged her onus and makes out a prima facie case the onus shifts to the appellant to prove the circumstances. He was silent at that moment. Therefore, we are of the opinion that appellant failed to prove his part and he cannot claim merit on the basis of the weakness of the other party.

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On examining the totality of the evidence, we are of the view that respondent has succeeded in partly proving her claim. The gift of 12.4 sovereigns of gold and dresses mentioned in A schedule was not proved. Therefore, she is not entitled to get back the gold and dresses. Hence we modify the judgment of the lower court in O.P.No.126 of 2012 as follows. The appellant/husband is directed to return 35 sovereigns of gold or its equivalent value of Rs.3,50,000/-(Rs.10,000/- per sovereign) within 30 days from today with 6% interest from

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the date of decree of the lower court. The claim for dresses

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and 12.4 sovereigns of gold received as gift is hereby rejected.

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This appeal is partly allowed as above. There is no order

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as to costs.

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