IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 Mat.Appeal.No. 207 of 2007() ---------------------------- AGAINST THE JUDGMENT AND DECREE IN O.P.NO. 653/02 OF THE FAMILY COURT, KOTTAYAM. ............... APPELLANTS/RESPONDENTS 1 TO 3 -------------------------------------------- 1. WILLIAM DAVID @ BIJO, AGED 32 YEARS, S/O.DAVID WILLIAMS, DAFFODIL HOUSE, THAMALPURAM, ISLAND AVENUE, POONKUNNAM KARA, THRISSUR DISTRICT. 2. IVY ROSSILIN, AGED 63 YEARS, W/O.DAVID WILLIAMS, DAFFODIL HOUSE, THAMALPURAM, ISLAND AVENUE, POONKUNNAM, THRISSUR DISTRICT. 3. DAVID WILLIAMS, AGED 73 YEARS, DAFFODIL HOUSE, THAMALPURAM, ISLAND AVENUE, POONKUNNAM, THRISSUR DISTRICT. BY ADV. SRI.P.SANTHOSH (PODUVAL) RESPONDENT: PETITIONER ------------------------- LINU MARY GEORGE, AGED 28 YEARS, D/O GEORGE MATHAN, MUTTATHETHU (THOPPIL) HOUSE, CHALUKUNNU KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A.No. 207 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October, 2010 JUDGMENT Basant, J. Was the Family Court correct in accepting the evidence of the claimant/wife ignoring Ext.B1? This is the specific question that arises for consideration. A larger question arises as to whether the Courts would be justified in issuing directions, which will effectively do justice to the parties when it comes to a claim for return of movable articles. 2. The appellants in this appeal assail the impugned direction to them to return 60 sovereigns of gold ornaments (or its monetary value of Rs.3,60,000/-), an amount of Rs.3 lakhs and a washing machine to the respondent herein. 3. To the crucial and vital facts first. Marriage between the first appellant/husband and the respondent took place on Mat.A.No. 207 of 2010 2 14.5.2001. No issues were born in the wedlock. Subsequently the marriage has been dissolved. The wife claimed return of 60 sovereigns of gold ornaments, an amount of Rs. 3 lakhs and a washing machine which was left in the possession of the appellants. The appellants are the husband, mother-in-law and father-in-law respectively of the claimant/wife/respondent herein. 4. The contestants took up a blanket and complete denial. According to them, no amount was paid, no gold ornaments were given and none was retained by them. However, it was admitted that a washing machine belonging to the claimant/wife is available with the appellants. It was offered that the same can be returned. It remains unreturned even now. 5. The wife examined herself as PW1. The father-in-law was examined as RW1, the mother-in-law was examined as RW2 and an uncle of the husband was examined as RW3. Exts.A1 to A5 were marked on the side of the claimant/wife and Exts.B1 to B15 were Mat.A.No. 207 of 2010 3 marked on the side of the appellants/respondents. Ext.A1 is the marriage certificate. The marriage is not disputed and the same is irrelevant now. Exts.A2, A4 and A5 are documents relating to S.B. accounts maintained by the wife and her parents to broadly suggest that amounts were available with them. Ext.A3 series are marriage photographs to show that the bride was decked in gold ornaments. These are obviously relied on by the wife in support of her assertion that she did bring gold ornaments with her to the matrimonial home. 6. Ext.B1 relied on by the husband is a notice demanding restitution of conjugal rights issued by the claimant/wife through her counsel after the parties started separate residence. There is an incidental statement in Ext.B1 that an amount of Rs. 3 lakhs and 30 sovereigns of gold ornaments are available with the husband and his parents, though she asserted, consistent with her present assertion that at the time of marriage she had 60 sovereigns of gold ornaments. The appellants rely on Ext.B1 with great emphasis to contend that the Mat.A.No. 207 of 2010 4 version of the respondent/wife was different in Ext.B1. Exts.B2 to B13 do appear to us to be irrelevant. The husband heroically claims that he had spent amounts for the treatment of his wife while she was residing with him. Ext.B14 is the deposition of the claimant/wife in a criminal prosecution. No part of that deposition is specifically relied on as an admission and she has not been confronted with any particular portion of Ext.B14. The manner in which Ext.B14 is intended to be made use of is not made clear from the proceedings. 7. Ext.B15 is a photograph, that is relied on by the husband to show that the wife had atleast some gold ornaments when she attended a wedding shortly prior to the date on which the spouses started separate residence. The court below, on an anxious evaluation of all the inputs, came to the conclusion that the oral evidence of PW1 can safely be relied on. The court below did not accept the evidence of Rws. 1 to 3. Accordingly, the court below proceeded to pass the impugned order directing return of the admitted washing machine, 60 Mat.A.No. 207 of 2010 5 sovereigns of gold ornaments valued by the court at Rs.3,60,000/- as on the date of the judgment along with interest at 6% p.a. and the amount of Rs. 3 lakhs with interest at 6% from the date of the petition. 8. The learned counsel for the appellants assails the impugned order on the ground that the court below had perversely relied on the interested testimony of the claimant/wife. The court below has unjustifiably rejected the evidence of Rws. 1 to 3. The court below had not tested the evidence of PW1 in the light of Exts.B1 and B15. At any rate, the omnibus grant of the prayer made by the claimant/wife is unjustified, contends the learned counsel for the appellants. 9. The learned counsel for the respondents, on the contrary, contends that the preference shown by the court below to accept and act upon the oral evidence of PW1 is eminently reasonable and justified. The unconvincing, vague and evasive evidence of Rws. 1 to 3 was rightly rejected by the court below. On the available materials, Mat.A.No. 207 of 2010 6 the conclusion of the court below is absolutely justified, urges the learned counsel for the respondent/wife. 10. The learned counsel for the respondent/wife submits that even assuming that this Court were persuaded to modify the impugned order, the direction to pay an amount of Rs.3,60,000/- in lieu of return of the gold ornaments is absolutely justified and does not warrant interference at any rate. 11. We have heard both counsel in detail. We have been taken through the pleadings and evidence. The marriage took place on 14.5.2001. The parties started separate residence some time in December, 2001. The divorce was effected on 1.12.2006. Ext.B1 was issued after the spouses started separate residence. The wife had actually claimed return of 65 sovereigns of gold ornaments - 60 sovereigns entrusted at the time of marriage and 5 sovereigns entrusted later. The claim relating to 5 sovereigns was not accepted by the court below. Mat.A.No. 207 of 2010 7 12. The first point we have to consider is whether the court below has erred in accepting and acting upon the oral evidence of PW1 in preference to that of Rws. 1 to 3. The learned counsel for the appellants contends that the evidence of the claimant/wife is interested. Nothing restrains her from making any assertion that she pleases about the quantity of cash and gold ornaments she had brought to the matrimonial home. Courts should not accept such evidence of a partisan witness like PW1. Not even her close relatives have been examined to corroborate her version. It was extremely unreasonable, irrational and unnatural for the Court to place implicit reliance on the oral evidence of PW1. On the contrary he contends that the oral evidence of Rws. 1 to 3 should have been preferred to the oral evidence of PW1 at least taking note of the fact that they corroborate each other. In these circumstances counsel argues that the impugned order may be set aside rejecting the oral evidence of PW1. Mat.A.No. 207 of 2010 8 13. The court is called upon to evaluate, assess, weigh and scrutinise the rival sets of interested testimony. In a transaction like this, it has often been held that it would be unreasonable ordinarily for any one to look for documentary evidence or totally independent oral evidence to show the ornaments and cash that changed hands at the time of marriage. The parties are Christians and the evidence of Rws. 1 to 3 show that it is only natural, probable and reasonable to assume that there must have been talks about the ornaments and money when such a marriage is fixed/performed. The standards of a prudent person have to be imported by a court while evaluating the evidence available even in a case like the instant one. It would be puerile, irrational and unjust for a court to throw its hands up and say that it cannot decide the issue on the basis of the materials available. The court has to bank on its reserves of knowledge of men, matters and circumstances to resolve a disputed question of fact like the instant one. It is perhaps very easy to say that the claimant has to prove her Mat.A.No. 207 of 2010 9 case to entitle her for a decree. But this is not to say that impossible standards of proof can be insisted from a helpless woman like the respondent herein. 14. It is clear as day light that ornaments and cash must in all probability have changed hands. PW1 speaks in terms of that natural and probable course of events. Her evidence is absolutely natural. Her evidence is to a very great extent supported and corroborated by the pass books produced by her as also Ext.A3 series wedding photographs produced by her. Her evidence, we further find, is supported convincingly by probabilities. 15. Even going by the evidence of Rws. 1 to 3 her evidence appears to us to be quite probable as it is only reasonable and natural to expect that there must have been some arrangements and stipulations regarding gold ornaments/cash at the time of betrothal and solemnisation of marriage. She could of course have examined other independent witnesses, if any. But in any view of the matter, it could Mat.A.No. 207 of 2010 10 only have further advanced the acceptability of the evidence tendered by her. The photographs (Ext.A3 series) produced, convincingly corroborate her evidence about the nature and quantum of gold ornaments that was available with her at the time of wedding. 16. As against this we have the evidence of Rws. 1 to 3. They have no consistent case in their pleadings and evidence about the stipulations at the time of the marriage. While they do not dispute the fact that normally such arrangements regarding money and ornaments are made at the time of betrothal/marriage, no satisfactory explanation has been offered about the nature of the transaction in the instant case. Their evidence do appear to us to be artificial in that they plead ignorance about the nature of the stipulations at the time of marriage. Admittedly the wife had ornaments. But Rws. 1 to 3 plead ignorance about the quantity. It is significant that the husband was not examined as a witness. There is prevarication by the witnesses about the quantity of ornaments which were brought by the wife to the Mat.A.No. 207 of 2010 11 matrimonial home. Even in the absence of better evidence when the evidence of PW1 is evaluated in the light of the evidence of Rws. 1 to 3, taking the various circumstances into account, we are unable to find fault with the court below for having chosen to accept and act upon the oral evidence of PW1 in preference to that of RWs. 1 to 3. 17. The court below did not accept the evidence of PW1 in full. The version regarding handing over of an amount of Rs.3 lakhs and 60 sovereigns of gold ornaments at the time of marriage was accepted. The theory about handing over of 5 sovereigns of gold ornaments later was not accepted. We thus find that the court below has not committed any error in choosing to accept and act upon the oral evidence of PW1 in preference to that of Rws. 1 to 3. That course adopted by the court below does appear to us to be eminently reasonable. 18. We now come to the next limb of the contention of the learned counsel for the appellants that even if the court below were to Mat.A.No. 207 of 2010 12 accept and act upon the evidence of PW1 the same must have been subjected to very careful scrutiny. PW1's evidence should not have been swallowed in an omnibus manner without any careful scrutiny. It is in this context that the counsel presses Ext.B1 into service. In Ext.B1, (that notice through counsel was issued by PW1 to her husband after the spouses started separate residence), it is clearly stated that an amount of Rs. 3 lakhs and 60 sovereigns of gold ornaments were brought by her at the time of marriage. The learned counsel for the appellants places crucial reliance on the other averments in Ext.B1. The counsel points out that after specifically stating that an amount of Rs. 3 lakhs and 60 sovereigns of gold ornaments were brought by her to the matrimonial home, the specific allegation is not that the entire quantity of ornaments and cash continued to be with the husband. In Ext.B1 what is specifically stated is only that 30 sovereigns and Rs. 3 lakhs remain with the husband. That is, the quantity of ornaments which is alleged to have been made use of by the appellants. Learned Mat.A.No. 207 of 2010 13 counsel for the appellants submits that in any view of the matter, a decision to accept the oral evidence of PW1 without taking realistic note of the nature of the assertions in Ext.B1 is not justified. 19. We take note of the tenor of Ext.B1. In Ext.B1 the demand is not for return of money or gold ornaments. In Ext.B1 we find that the claimant/wife was only demanding that the husband must resume cohabitation. There is only an incidental statement about the money and ornaments left with/made use of by the husband. 20. Having rendered our very anxious consideration to the oral evidence of PW1 and the broad probabilities emanating from Ext.B1 we find it absolutely safe to assume that the entire quantity of 60 sovereigns of gold ornaments may not have been left in the house of the in-laws when PW1 returned. Essentially the evidence of PW1, we confirm, is entitled to acceptance. But while accepting her evidence, Ext.B1 and the assertions therein should not have been ignored or omitted to be considered by the learned Judge. Mat.A.No. 207 of 2010 14 21. In this context one more input disturbs us. Ext.B15 is proved by RW3. According to RW3 that photograph was taken at a wedding, which the couple attended a few days prior to the date on which they started separate residence. What appears to us to be significant is that this aspect of the matter has not been subjected to any serious challenge. Ext.B15 indicates the convincing probability that the wife must have returned to her house when separate residence commenced with some quantity of gold ornaments. It is idle to assume that she came back without any shred of ornaments on her person. It is in this context that Ext.B15 and the oral evidence of RW3 assumes some relevance. All these have to be considered in the light of Ext.B1, at which point of time, we find no reason whatsoever for PW1 to make any false statements or make any exaggeration regarding ornaments and cash that were available with her husband/in-laws. It would be unreasonable and against human nature to assume that in Ext.B1 PW1 made assertions inconsistent with truth about the quantum Mat.A.No. 207 of 2010 15 of ornaments that her husband was liable to account for. We do, in these circumstances, find merit in the contention of the learned counsel for the appellants that in any view of the matter PW1's evidence should have been appreciated, evaluated and accepted only in the light of the assertions made by her in Ext.B1. To that extent we are in agreement with the learned counsel for the appellants. 22. In the facts and circumstances of this case, eventhough we do not expect any court to throw its hands up and shirk in the responsibility of taking a decision merely because only oral evidence is available about the ornaments and cash that had changed hands at the time of marriage, we do expect the Courts to appreciate the evidence cognizant of the totality of inputs. So reckoned, we take the view that the court must have looked for reconciliation of the oral evidence of PW1 in the light of Ext.B1 and should have accepted the oral evidence of PW1 only to the extent it gets support from Ext.B1, which is issued at a time when the controversy regarding ornaments and cash was Mat.A.No. 207 of 2010 16 never an issue and was never raised also. We are able to get fragrance of nascent truth asserted without any intention to found any claim on such assertion from the contents of Ext.B1. As already stated, the oral evidence of PW1 in the light of Exts.B1, B15 and the oral evidence of RW3 should have been accepted only to the extent to which the same is corroborated by Ext.B1. Only that would be a safe and just course. 23. We do, in these circumstances, uphold the challenge raised by the learned counsel for the appellants that the court below could have safely enterred a finding that only cash of Rs. 3 lakhs and gold ornaments weighing 30 sovereigns are liable to be returned by the appellants to the respondent. The challenge succeeds to the above limited extent. 24. Another interesting contention is raised about the nature of the relief that can be granted in this case. No appeal has been preferred by the respondent. The learned counsel for the appellants argues that our finding above in favour of the appellants must Mat.A.No. 207 of 2010 17 necessarily entail a consequent modification of the operative direction in the impugned order. According to the learned counsel by the impugned order 60 sovereigns of gold ornaments were ordered to be returned. Now this Court is finding that only 30 sovereigns of gold ornaments are liable to be returned. The counsel hence argues that only an amount of Rs.1,80,000/- and not Rs.3,60,000/- can be ordered to be returned. 25. The learned counsel for the respondent/claimant/wife on the other hand contends that this Court must perceive the duty to insist that the orders passed must be just and fair. 30 sovereigns of gold ornaments have been found to be retained by the appellants. They must be directed to return the said 30 sovereigns of gold ornaments. They should not be allowed to enjoy any benefit by their illegal retention of such gold ornaments. The present value of the ornaments must be ordered to be returned. Counsel argues that if Rs.1,80,000/- is ordered to be returned, the claimant would have succeeded on paper, Mat.A.No. 207 of 2010 18 but justice would be denied to her. To make 30 sovereigns of gold ornaments today, she will have to spend an amount much in excess of Rs.3,60,000/- originally ordered by the court below. Interests of justice must be borne in mind and it must be ensured that adequate compensation is ensured to the respondents by an appropriate direction if they do not return the gold ornaments. 26. Learned counsel for the respondent submits that the respondent shall have no objection if the 30 sovereigns were returned in specie. It is pointed out that the appellants have no case that the ornaments have been disposed of. But if that is not returned, there may be an alternative direction to pay the present market value of the gold ornaments. At any rate, the impugned direction to pay an amount of Rs.3,60,000/- in default of the specific return of gold ornaments may not be disturbed, argues the learned counsel. 27. The contention appears to be interesting. It causes worry and anxiety in us that in many cases that come before this Court alternative direction for return of gold ornaments by payment of money Mat.A.No. 207 of 2010 19 is working out great hardship, injustice and perversity. The price of gold has increased to such an extent that the husbands would find it much easier and convenient to return the cash equivalent to the gold ornaments on the date of the petition with interest even when they have the gold with them. The system must be able to device methods by which the contumacious party does not derive advantage by retaining the gold ornaments and returning their cash equivalent on the date of purchase, on the date of the petition or on the date of judgment. This works out injustice and unfairness. It is in this context that we decided to look into the matter in greater detail in this case. 28. There cannot possibly be any dispute that the actual value of the gold ornament of 30 sovereigns today would far exceed Rs.3,60,000/- The learned counsel for the appellants submit that to arrive at this conclusion courts may have to import their personal knowledge. A Court/Judge is a product of the society and there is absolutely nothing wrong if for the ends of justice the Court imports Mat.A.No. 207 of 2010 20 indisputable inputs into the adjudication and to ensure that the directions passed are fair and just. Suffice it to say that there is no contention even before us now that 30 sovereigns of gold ornaments would be worth below Rs.3,60,000/- It is easy for any court to conclude that if the price of gold is calculated, the actual amount payable cannot be at any rate below Rs.4.20,000/- (Rs.14,000/- per sovereign). 29. How can justice be worked out? The respondent has not preferred an appeal. Should this Court succumb to unfairness and injustice merely because the respondent has not preferred any appeal. 30. The learned counsel for the respondent submits that the impugned order can be modified but the direction in the alternative to pay the cash equivalent need not be disturbed. That would serve the interests of justice eminently, argues the learned counsel. At any rate, the alternative direction to pay an amount of Rs.3,60,000/- if the gold Mat.A.No. 207 of 2010 21 ornaments are not returned, may not be disturbed, argues learned counsel for the appellants. 31. Under Order 7 Rule 2 of the C.P.C, where the plaintiff sues for movables in the possession of the defendant, he must estimate and state the approximate value for which he sues. We extract Order 7 Rule 2 below: “In money suits:- Where the plaintiff seeks the recovery of money, the plaint shall state the price amount claimed. But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise or reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for.)” (emphasis supplied) Mat.A.No. 207 of 2010 22 32. In the instant case, it is significant that the respondent has