IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 Mat.Appeal.No. 139 of 2003() ---------------------------- OP.130/2000 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): APPELLANT/PETITIONER ----------------------------------- PRESANNA @ MANIKUTTY, AGED 28 D/O. KUTTAPPAN, VADAKKEDATH HOUSE, VELLUKUTTA BHAGOM, PAYYAPADY KARA, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.M.NARENDRA KUMAR SRI.SALISH ARAVINDAKSHAN RESPONDENT(S): 1ST RESPONDENT ----------------------------- P.N.BABU, AGED 39, S/O.NARAYANAN, PACHAKARAYIL PEEDIKACHIRA HOUSE, EDATHWA TALUK, ALLEPPEY DISTRICT. ADV. SRI.P.RAVINDRA BABU FOR R1 GOVERNMENT PLEADER SRI.K.J.MOHAMMED ANZAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal.No.139 of 2003 ---------------------------------------- Dated this the 26th day of May 2009 J U D G M E N T BASANT,J Was the Family Court justified in not accepting and acting upon the evidence tendered by the claimant in support of her assertions that gold ornaments and cash worth Rs.75,000/- in all were handed over to the respondent/husband in connection with her marriage with him? This is the short question of fact that arises for consideration in this appeal. 2. The claimant/appellant/wife preferred O.P.No.130/2000 claiming return of an amount of Rs.75,000/- from the respondent/husband. She asserted that the marriage had taken place and in connection with the marriage, Rs.30,000/- being the equivalent of 10 cents of land, 10 sovereigns of gold ornaments and Rs.5,000/- were handed over as her share in her property to the husband. The husband was illegally retaining the same. In spite of a notice of demand, this amount has not been returned to her. She hence claimed that the said amount along with interest @ 6% per annum from the date of the claim may be ordered to be paid to her. Mat.Appeal No.139/09 2 3. The claim was made against the respondent/husband and his father. During the pendency of the proceedings, the father expired. No steps have been taken to bring any other persons on the party array as the legal heirs of the deceased father of the husband. 4. Parties went to trial on these contentions. The claimant/wife examined herself as PW1 and a relative witness to support her claim as PW3. She examined PW2, the Branch Secretary of the Akhila Kerala Pandithar Mahajana Sabha Sakha No.26 Puthuppally as PW2. She relied on Exts.A1 to A4. Ext.A1 is the suit notice which was issued to the husband and Ext.A2 is the acknowledgment card to prove its service. Admittedly, Ext.A1 evoked no response. Ext.A3 is a certificate issued by PW2 to confirm that the marriage had taken place. Ext.A4 is the marriage register. The original was produced. Copy was retained in file as per the directions of this court. The original was returned. Both Exts.A3 and A4 show that there was a contemporaneous entry in Ext.A4 that 10 cents of land, 10 sovereigns of gold ornaments and Rs.5,000/- were agreed to be paid at the time of marriage. That document is seen signed by both the spouses as also the witnesses. Mat.Appeal No.139/09 3 5. The husband examined himself as RW1. He examined a relative of his as RW2 to offer oral corroboration for his version. He relied on Exts.B1 to B5. He has set up a contention that separate residence is attributable to the faults of the wife. Ext.B1 is a certificate to confirm that he has undergone vasectomy operation. The wife had allegedly become pregnant thereafter and the husband alleged adultery against the wife. According to him, this led to separate residence at the instance of the wife. Ext.B2 is a certificate to confirm that the transfer certificate of the children were taken. This again is produced to explain the circumstances under which separate residence started. Ext.B3 produced is a partition deed. The purpose for which the document is produced remains obscure to us. It is not explained to us. If at all relevant, it only reveals a practice of the bride being paid amounts due to her as share in her father's property at the time of marriage. That is precisely what the appellant/wife claims in this case. Ext.B4 shows the legal heirs of the deceased 2nd respondent in the O.P and Ext.B5 is produced by the husband in support of his contention that Ext.A3 is not genuine. Ext.B5 is a photocopy of Ext.A3 marriage certificate issued by PW2. But Ext.B5 shows that the signature of PW2 which is there in Ext.A4, is not there in Ext.B5. Mat.Appeal No.139/09 4 6. The learned Judge of the Family Court, on a consideration of the materials available before court came to the conclusion that the claimant/wife has not established her claim satisfactorily by cogent evidence. Accordingly, the court proceeded to pass the impugned order. 7. Arguments have been advanced before us. The only point which arises for determination is whether the learned Judge of the Family Court is justified in not accepting and acting upon the evidence tendered by the claimant. 8. This is a matrimonial dispute. It would be idle and puerile for a prudent mind to expect documents or written acknowledgments for property handed over at the time of or in connection with the marriage by a bride/her relatives to the husband. It is crucial that the marriage is admitted. There is no contention that the marriage had taken place on any day other than the day asserted by the wife. According to us, Ext.A4 is of crucial and vital significance. The organisation of the community Akhila Kerala Pandithar Mahajana Sabha maintains a register where the marriage of the members of the community are recorded. In that, the marriage of the spouses is recorded. There is a column to show the properties given to the wife by her parents/guardian. In that, it Mat.Appeal No.139/09 5 is clearly entered that an amount of Rs.5,000/-, 10 cents of land and 10 sovereigns were agreed to be handed over in connection with the marriage. Though there is a valiant attempt on the part of the husband to deny the document, oral evidence of PW1 as also PW2 clinches the issue, according to us. It was idle to expect better evidence in support of Ext.A4. The document comes from proper custody. One of the parties - PW1, had proved it. PW2, the present Secretary had proved Ext.A4 which was maintained in the ordinary course of business as also Ext.A3 certificate issued by him on the strength of Ext.A4. 9. We are in agreement that the alleged corroboration by PW3 for the oral evidence of PW1 or that by RW2 for the evidence of RW1 cannot be taken too seriously as both PW3 and RW2 are found to be extremely interested in favour of the parties who had brought them to court as witnesses. The choice is between the oral evidence of PW1 and RW1. Ext.A4 clinchingly supports the oral evidence of PW1. 10. Further, there is the very crucial circumstance that Ext.A1 notice in which the estranged wife had made a legal claim for return of an amount of Rs.75,000/- was received by the respondent/husband who slept over it and did not choose to respond Mat.Appeal No.139/09 6 to it or deny the allegations therein. That conduct of the husband along with Ext.A4 can, go a long way to offer assurance to this court for the oral evidence of PW1. 11. Law cannot be too far removed from life. Courts cannot adopt an approach which is too distant from the response of a person of an ordinary prudence in the community. Persons of ordinary prudence will not expect anything better in evidence than what is made available to the court in support of the claim of the wife for handing over property and ornaments to the husband at the time/in connection with the marriage. We are satisfied that on the test of probabilities, the entrustment of the articles/cash referred to in Ext.A4 is proved satisfactorily by the claimant/wife and the denial of relief to her is not justified at all. 12. Ext.A4 shows that Rs.5,000/- was paid. Ext.A4 further shows that 10 cents of properties were agreed to be given. It shows that 10 sovereigns of gold ornaments were given. The oral evidence of PW1 shows that Rs.5,000/- in cash and 10 sovereigns of ornaments were given. Her evidence shows that in lieu of 10 cents of land Rs.30,000/- was paid. RW1 only raises a plea of blanket denial of Ext.A4. The oral evidence of PW1 rhymes well with probabilities. We are satisfied that the claim for Rs.75,000/- is well Mat.Appeal No.139/09 7 established. Rs.40,000/- is claimed as the value of gold ornaments and Rs.35,000/- as the amount handed over. That plea is specifically raised in Ext.A1 which is duly received and acknowledged, but not responded to. 13. We are satisfied that the appellant is entitled to succeed. The O.P must have been allowed as prayed for by the court below. 14. In the result, a) this Mat.Appeal is allowed. b) The impugned order is set aside. c) O.P.No.130/80 is allowed and the respondent is directed to pay an amount of Rs.75,000/- as claimed along with interest @ 6% per annum from the date of the petition to the date of payment and cost throughout. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.Appeal No.139/09 8 Mat.Appeal No.139/09 9 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009