This matrimonial appeal appeals a Family Court order declining recovery of gold and money from the respondent. The High Court upheld the Family Court, holding evidence insufficient to prove entrustment of gold or payment of dowry, barring civil recovery.
Appeal dismissed; Family Court decision rejecting claim for recovery of gold ornaments and money affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
“C.R.”
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 7TH DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944
MAT.APPEAL NO. 13 OF 2016
AGAINST THE ORDER DATED 26.08.2015 IN O.P.NO.405 OF 2010 ON THE FILE OF THE FAMILY COURT, KOLLAM APPELLANT/PETITIONER:
BINITHA
AGED 32 YEARS, D/O.BALACHANDRAN, 'CHAITHRAM', THEKKEMURI, EAST KALLADA, KOLLAM DISTRICT.
BY ADVS. SRI.C.RAJENDRAN SRI.K.R.RANJITH
RESPONDENT/RESPONDENT:
HAREENDRAN
AGED 39 YEARS, S/O.VENUGOPAL, HARI NIVAS, KUNNATHOOR P.O., SASTHAMKOTTA, KOLLAM.
BY ADVS. SMT.B.BINDU SMT.P.K.DHANYA SRI.N.K.SUBRAMANIAN SRI.T.V.SREEJITH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 19.01.2023, THE COURT ON 07.02.2023 DELIVERED THE FOLLOWING:
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“C.R.”
JUDGMENT
P.G. Ajithkumar, J.
The petitioner in O.P.No.405 of 2010 before the Family Court, Kollam is the appellant. She filed O.P.No.405 of 2010 seeking recovery of money and return of gold ornaments and movables. The Family Court as per the common judgment in O.P.Nos.404 and 405 of 2010 dated 26.08.2015 allowed O.P.No.405 of 2010 only in part. The appellant was allowed to recover a few movables included in the petition schedule. Her claim for recovery of money and return of gold ornaments was declined. Aggrieved by the said part of the decree, this appeal has been filed under Section 19(1) of the Family Courts Act, 1984.
as per order dated 08.01.2016. The respondent entered appearance through his learned counsel. The appeal was admitted on 29.03.2017.
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held on 09.06.2002. On that day, Rs.5 lakhs was entrusted by the father of the appellant to the respondent. On the occasion of the marriage, the appellant was given 100 sovereigns of gold ornaments. After the marriage, respondent was given Rs.1 lakh by the father of the appellant to avail a locker facility. The gold ornaments of the appellant were kept in the locker availed in her name. The entire gold ornaments were eventually appropriated by the respondent. Later, an amount of Rs.2 lakhs was given by the father of the appellant to the respondent for purchasing a property in the name of the appellant.
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was dissolved. O.P.No.405 of 2010 was not decreed as prayed. The appellant would contend that the Family Court without appreciating the evidence in a proper perspective, rejected her claim for return of gold ornaments and realisation of money.
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convincing. Mere denial by RW1 in the box was given overemphasis by the Family Court. It is further submitted that trivial inconsistencies in the evidence of PWs 1 and 4 was highlighted by the Family Court in order to disbelieve them, which is wrong. It is also submitted that even the admission of the respondent that 50 sovereigns of gold ornaments were given to the appellant at the time of marriage was not acted upon by the Family Court. Accordingly, the learned counsel contended that findings of the Family Court regarding misappropriation of gold ornaments and Rs.5 lakhs paid at the time of betrothal are liable to be reversed.
facility in the name of the appellant and another Rs.1 lakhs for the purchase of the property, the Family Court took the view that the evidence goes contrary to the pleadings of the appellant. The contention of the appellant is that Rs.1 lakh was paid for availing a locker in the name of the appellant. Admittedly a locker facility was availed in the name the appellant. PW1 admitted that her gold ornaments were kept in
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the locker availed in her name. The further evidence is to the effect that Rs.1 lakh deposited for availing the locker facility was later withdrawn and the same along with another Rs. 1 lakh paid by the father of the appellant was utilised by the respondent to purchase a property.
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respondent at the time of betrothal. The betrothal was on 09.06.2002. What was averred in the petition is that on the occasion of betrothal Rs.5 lakhs was paid to the respondent. It may say that further details need not have been pleaded, since pleadings need contain only material facts. But when the evidence tendered in respect of such facts pleaded, contain inconsistencies, lack of detailed pleadings impel the court to doubt the evidence.
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evidence with respect to the payment of Rs.5 lakhs to the respondent is available on record. It was in the said circumstances the Family Court held that the evidence was insufficient to prove payment of Rs.5 lakhs to the respondent in connection with the marriage.
and handed over the money. Since payment of dowry is prohibited by law it was done so and hence the evidence naturally would be scanty.
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Court in Bobbili Ramakrishna Raju Yadav and others v. State of Andhra Pradesh and another [(2016) 3 SCC
309] held that if the dowry amount or articles of married woman was placed in the custody of his husband or in-laws, they would be deemed to be trustees of the same. The person receiving dowry articles or the person who has dominion over the same, as per Section 6 of the Dowry Prohibition Act, is bound to return the same within three months after the date of marriage to the woman in connection with whose marriage it is given. If he does not do so, he will be guilty of a dowry offence under this Section. The section further lays down that even after his conviction he must return the dowry to the woman within the time stipulated in the order.
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Dowry Prohibition Act on those who receives dowry to transfer of the same to the beneficiary, and till then the person holds it in trust for the benefit of the woman. When taking or giving or abetting of giving or taking of dowry is punishable, any such transaction tantamount to a void transaction. As per Section 23 of the Contract Act, 1872 if the object or consideration of an agreement is forbidden by law, that agreement is void. The question then is, can there be a valid claim for recovery of the money and the gold thus given. The Legislature itself has provided in Section 6 of the Dowry Prohibition Act that the person who took the dowry shall give it to the woman, and in the interregnum to hold it in trust for the benefit of the woman. Therefore, it is the right of a woman to file a suit to recover the amount and gold from the person who held the dowry in trust, if that person has not transferred the trust property in favour of the woman. It follows that the claim in the original petition is permissible in law.
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Courts owing to Section 14 of the Family Courts Act. That does not however dispel the application of the basic principle that in a civil case, facts are to be proved at least by preponderance of probabilities, if to get a decree. In Dr.N.G.Dastane v. Mrs.S.Dastane [AIR 1975 SC 1534], a Three-Judge Bench of the Apex Court explained when can it be said that the fact is proved by preponderance of probabilities as follows:-
“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 links 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.”
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376] the matter in issue was a claim for return of gold and money. The Court held that absolute certainty is not the requirement under Section 3 of the Evidence Act. In a civil case rival contentions and rival evidence will have to be considered, assessed, evaluated, and weighed to come to a conclusion about whether the burden on the claimant has been discharged. The standard of proof, therefore, is by a preponderance of probabilities.
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sovereigns of gold ornaments from her relatives, the case of the respondent is that she had only 50 sovereigns of gold ornaments. Ext.A5 is the photographs of the marriage function. From Ext.A5 photographs, it can be seen that the petitioner wore a good amount of ornaments at the time of marriage. Whether it was 100 sovereigns or 50 sovereigns is not able to be decided on a mere perusal of Ext.A5. PW1 asserted that she had 100 sovereigns. PW2 is the proprietor of Panikkassery Jewellers. He deposed that the gold ornaments for the marriage function of the appellant were purchased from his shop. But he did not say that the appellant bought 100 sovereigns from him.
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sovereigns of gold ornaments. On a comparative analysis of oral evidence let in by either side, the preponderant view is that the appellant had 100 sovereigns of gold when her marriage was solemnised. The success of the claim of the appellant, however, depends on the question of whether the ornaments were entrusted to the respondent and misappropriated by him.
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things being happened, and not of any presumption available in law.
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Court took the view that the wife while making a claim for gold ornaments will have to prove the entrustment of gold ornaments.
[2021 (4) KHC 242] it was held, it is a customary practice in our country, particularly in our state, among all the communities, that parents would gift gold ornaments to their daughters at the time of marriage as a token of love. Indian parents start making jewellery for their daughters from their birth to make sure that they have enough golden jewellery for their marriage. Thus, it would be unrealistic for a Court to insist on documentary evidence regarding ornaments that had changed hands at the time of marriage. The Court can, certainly, act upon oral evidence if it is found credible and trustworthy. It is also quite common that when the bride moves to the house of the groom after the marriage, she takes all her ornaments and entrusts the
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same, except a few required for daily wear, to her husband or in-laws for safe custody. Such entrustment also could be established by the sole testimony of the wife since, normally, no independent witness would be available to witness the same. Once such entrustment is made, a trust gets created. Being a trustee, the husband or his parents, as the case may be, is liable to return the same.
340] a Division Bench of this Court held that once it is proved that gold ornaments were entrusted by the wife to the husband, the burden is on the husband to prove, what happened to the gold ornaments. It is further held that if it was taken by the wife when she left the matrimonial home, the same has to be proved by the husband.
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subsequent occasions, the respondent obtained the gold ornaments and he misappropriated the same. From the oral evidence of PW1, it cannot be seen that the respondent ever operated the locker. There is no other evidence in that respect. She deposed that some ornaments were taken from the locker and many were kept in it. Keeping the ornaments of the appellant in a locker in her own name cannot amount to the entrustment of the same to the respondent. In the nature of the said evidence, it is not possible to find that the ornaments; whole or any part, were entrusted to the respondent. Only if the fact of entrustment of the gold ornaments to the respondent is proved, the appellant can claim return of such ornaments. The finding of the Family Court that there is lack of evidence to prove the entrustment of gold ornaments to the respondent is therefore not liable to be interfered with. Accordingly, we hold that the decision of the Family Court to reject the claim of the appellant for the return of gold
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ornaments and money does not suffer from any infirmity.
Hence, this appeal fails and the same is dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
3 issues framed by the court
Whether the appellant is entitled to recover gold ornaments and money given before marriage alleging misappropriation by the respondent.
Whether proof of dowry under Section 6 of the Dowry Prohibition Act creates a valid trust enabling a civil suit for recovery.
Whether the burden of proving entrustment of gold ornaments to the respondent rests on the appellant.
Colour shows how this judgement treated each authority
Bobbili Ramakrishna Raju Yadav and others v. State of Andhra Pradesh and anotherExplained¶13
[(2016) 3 SCC 309] · Who else cites this
Dr. N. G. Dastane v. Mrs. S. DastaneExplained¶15
[AIR 1975 SC 1534] · Who else cites this
Bexy Michael v. A. J. MichaelExplained¶16
[2010 (4) KHC 376]
Pankajakshan Nair v. Shylaja and anotherExplained¶20
[2017 (1) KHC 620]
Abubakkker Labba and another v. Shameena K. B. and anotherExplained¶21
[2018 (3) KLT 196]
Binod v. SophyExplained¶22
[2019 (4) KLJ 128]
Rajesh P. P. and another v. Deepthi P. R.Explained¶23
[2021 (4) KHC 242]
Leelamma N.P v. M.A.MoniExplained¶24
[2017 (3) KHC 340]
4 provisions across 3 enactments
Binitha
Hareendran
Anil K. Narendran
P. G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Anil K. Narendran and P. G. Ajithkumar
Parties & counsel
