IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) THURSDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR APPEAL SUIT No.154 of 1998 BETWEEN: Dr Nagumothu Sriharinath … APPELLANT (S) And Nagumothu Vani … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR APPEAL SUIT No.154 of 1998 And Cross-Objections in A.S.No.154 of 1998 JUDGMENT: Appellant is the defendant in O.S.No.106 of 1990 on the file of the Court of Subordinate Judge (Senior Civil Judge), Kothagudem (trial Court). The said suit was brought by the respondent herein for recovery of a sum of Rs.1,00,000/- and also gold ornaments weighing 40 tulas or their money value claimed at Rs.1,20,000/- which are said to have been given by her parents towards dowry to the appellant at the time of their marriage. 2. After a contest, the trial Court by its judgment and decree dated 26.11.1997 decreed the said suit for Rs.90,000/- and also directed the appellant to return the 40 tulas of gold ornaments or their value fixed at Rs.1,20,000/- by it and gave certain directions regarding the opening of bank locker in which the gold ornaments are said to have been kept. These details will be given infra. Aggrieved by the said judgment and decree the appellant has come up with this appeal. The plaintiff also filed cross-objections with regard to the refusal of her claim for refund of Rs.10,000/- with regard to the purchase of a scooter in the name of defendant by her father. 3. To state and decide the points that arise for determination in this appeal, the respective cases of the parties should be noted and hereafterwards for the sake of convenience they shall be referred to as they are arrayed in the suit. 4. The defendant is admittedly the husband of the plaintiff and they are Hindus. Their marriage was solemnized on 11.08.1976 at Kothagudem. The defendant is a medical practitioner. Out of the wedlock, they have also been blessed with two children i.e. a son and daughter. The above relationship and the marriage and the birth of children are not in dispute. Unfortunately the relations between them got strained for one reason or the other and they have been living separately. It is clear that following the above strained relationship and estrangement the wife i.e. the plaintiff brought the suit for recovery of dowry amount and the gold ornaments said to have been given by her parents towards dowry to the defendant. 5. The version of the plaintiff is that at the time of the settlement of the marriage on the demand of the defendant and his father, the parents of the plaintiff agreed to and gave as dowry cash of Rs.1,00,000/- and 40 tulas of Gold ornament and also a house at Medarabasti of Kothagudem Town belonging to one Sri Sakhamuri Venkataramaiah who is said to have fostered the mother of the plaintiff. This house still stands in the name of the plaintiff and it is not the subject matter of the suit. The plaint contains a naration of the occasions on which the amount of Rs.1,00,000/- was paid in instalments or parts i.e. at the time of betrothal, at the time of marriage, when the defendant went to Madras for House Surgeonship and for purchase of a scooter worth Rs.10,000/- in the name of the defendant and hospital equipment worth Rs.10,000/- when the defendant has opened his hospital to commence medical practice at Ramavaram village of Kothagudem mandal and these details will be dealt with infra. 6. The grievance of the plaintiff is that subsequently the defendant did not look after her and her children and that further her children and her parents wanted the parents of the plaintiff to give away all her gold ornaments and also the house belonging to Sakamuri Venkataramaiah to them in order to sell them and purchase properties at Guntur for which the plaintiff’s father did not agree. The plaint then contains several details as to how the defendant harassed the plaintiff for no fault of her and as to how they fell apart and started living separately. It is not necessary to go into all those details as the suit is one for recovery of amount and also gold ornaments which are said to have been paid towards dowry and as this is not a case where the plaintiff is seeking dissolution of marriage on the grounds of cruelty and desertion. One admitted aspect which should be noted is that the parties have been living separately even since some time prior to the suit and it is also seen from the record that O.P.No.10./90 filed by the defendant for dissolution of marriage in the Sub-Court of Kothagudem was dismissed and that a CMA filed by the appellant in this Court against that dismissal was also dismissed. Thus the marriage of parties is subsisting. On the above pleas, the suit has been brought for recovery of the cash and gold ornaments. 7. The version of the defendant is that no amounts were paid to him and his father towards dowry or other wise either at the time of betrothal function or marriage or when he went to Madras for House Surgeonship or when he started medical practice and he even denied that the plaintiff’s father purchased a scooter worth Rs.10,000/- for him. He then pleaded that his parents on the other hand presented one black beads chain, mangalasutram golusu, two pairs of bangles and a gold ring as agreed at the settlement of marriage and that they are also along with gold ornaments presented to the plaintiff by her parents kept in the bank locker at Kothagudem. He further pleaded that he himself out of his earnings presented certain gold ornaments to the plaintiff and they are also in the possession of the plaintiff. His version is that certain gold ornaments and the house mentioned by the plaintiff were all given by the plaintiff’s parents towards pasupukumkuma according to the customs of their caste and not towards any dowry. He then pleaded that estrangement between him and the plaintiff started only because of the recalcitrant attitude of the plaintiff and he was never at fault. With the above pleas, the defendant prayed for dismissal of the suit on the ground that he did not receive any cash or gold ornaments towards dowry. 8. The trial Court framed relevant issues. The details of the oral and documentary evidence let in by both sides are mentioned in the appendix of evidence given at the foot of the trial Court judgment. After considering the respective cases of the parties, the trial Court disbelieved the version of the plaintiff regarding the purchase of the abovementioned scooter worth Rs.10,000/- by the plaintiff’s father and granted a decree for the remaining amounts claimed by the plaintiff and aggregating to Rs.90,000/- and also the gold ornaments weighing 40 tulas claimed by the plaintiff or their money value i.e. Rs.1,20,000/-. The defendant filed appeal questioning the decree that was granted against him while the plaintiff filed cross-objections for the refusal of the amount of Rs.10,000/- pertaining to the scooter. 9. Consistent with the grounds of appeal, the learned counsel for the defendant i.e. appellant argued that the evidence on record is not enough to uphold the case of the plaintiff and the trial Court erred in upholding the plaintiff’s claim to the extent of Rs.90,000/- cash and the gold ornaments. He also pointed out that P.W.2 K.Seetharamaiah who is the father of the plaintiff was examined only in chief and he could not be cross-examined because of his death and therefore the trial Court should have eschewed his evidence and if the evidence of P.W.2 is eschewed there is no other reliable evidence to uphold the case of the plaintiff and in that view of the matter it should have dismissed the suit. Certain other contentions were also raised incidentally and they will be dealt with infra. 10. On the other hand, the learned counsel for the plaintiff argued that despite sufficient opportunity the defendant’s counsel did not cross-examine P.W.2 and therefore the trial Court was right in relying upon his evidence in chief-examination and that the entire evidence on record shows that the trial Court findings insofar as the decree granted by it are correct and they do not call for any interference. He further argued the trial Court however went wrong in dismissing the claim for the sum of Rs.10,000/- claimed towards scooter and contended that the trial Court on the basis of the evidence should have granted a decree for that amount also. This has been opposed by the defendant’s counsel. 11. Before points for determination are set out, it should be noted that a feeble argument was raised before the trial Court that a suit for recovery of cash and jewelry given towards dowry may not be maintainable. It may however be noted that Section 6 of the Dowry Prohibition Act, 1961 (for short ‘Dowry Act’), says that where any dowry is received by any person other than the woman in connection with whose marriage it is given then that woman shall be entitled to receive that dowry amount or jewelry or whatever that is given towards dowry. The said provision further says that if the woman who is entitled to any property given as dowry dies before receiving it, the heirs of that woman shall be entitled to receive it. The other details are not necessary but it would be sufficient to note that if the person bound to return the dowry to the woman does not return it the above provision also makes such failure an offence. Correspondingly, it follows that the woman in connection with whose marriage dowry is given shall also be entitled to file a suit for its recovery. Thus it can be said without hesitation that the present suit in principle is maintainable though her claim has to be established by the plaintiff. 12. On the pleadings and the above arguments in the appeal and the cross-objections, the following points arise for determination in this appeal. (i) Whether the plaintiff’s father paid dowry amounts in cash including the amount of Rs.10,000/- for the scooter in question, and gold as claimed by the plaintiff? (ii) Whether the trial Court was right in relying upon the evidence of P.W.2 K.Seetharamaiah though he was not available for cross- examination in upholding the claim of the plaintiff under point No.1? (This is connected to point No.1) (iii) Whether the defendant’s plea that he did not receive any dowry amounts is acceptable? (iv) To what relief? Point No.2: 13. Having regard to the nature of the controversy and the arguments advanced in this Court points 1 and 2 go together. It may however be noted that an argument was advanced by the defendant’s counsel that the trial Court erred in considering the evidence of P.W.2 and not eschewing it as he was not available for cross-examination and therefore this second point is first taken up. The respective cases of the parties and their contentions on these two points have already been set out supra. In support of her claim, the plaintiff, Nagumothu Vani herself gave evidence as P.W.1 and further she examined her father P.W.2 K.Seetharamaiah, her brother P.W.4 K.Prasada Rao and two elders namely P.W.3 K.Krishna Murthy and P.W.5 V.Vishnuvardhana Rao. What should be noted is that the chief examination of P.W.2 was recorded on 14.03.1995 and also on 23.06.1995 and on the later date, the deposition of P.W.2 reads that the cross-examination of the said witness was adjourned at the request of Sri Y.Udayabhaskara Rao, Advocate for the defendant. 14. The trial Court in para-9 of its judgment observed that after the chief-examination of P.W.2 was recorded the matter was adjourned to 10.07.1995, 27.07.1995 and 13.10.1995. It then observed that on 12.02.1996 also P.W.2 was present but the suit was again adjourned at the request of the defendant to 25.03.1996 on payment of costs of Rs.50/- and that by the next date of hearing P.W.2 died and therefore he could not be cross- examined. The trial Court relied upon Section 33 of the Evidence Act and observed that since the defendant had sufficient opportunity to cross-examine P.W.2 but as he did not cross- examine him and as P.W.2 subsequently died the chief- examination evidence of P.W.2 can be relied upon under Section 33 of the Evidence Act. The learned counsel on either side could not argue about the scope of Section 33 of the Evidence Act and its applicability to a case like this and hence I do not propose to go into the same. The above observations of the trial Court would however show that the defendant was at fault in not cross- examining P.W.2 though he had sufficient opportunity. 15. A Division Bench of this Court in S.Erapa Reddy (Died) vs. P.Chinna Gangappa[1] held that the evidence of a witness who was examined in chief but died without being cross-examined cannot outright be excluded from the record and the weight to be given to such evidence depends upon the facts of each case and if the circumstances of the case warrant that his evidence should be considered it can be considered. It is also held in this case that the chief-examination evidence of such a witness cannot be considered where the witness has been purposefully withheld from being cross-examined. That is not the case here. Added to this, it may also be noted that Chapters 9 and 10 of the Evidence Act and Order XVIII of the Code of Civil Procedure which deal with examination of witnesses do not lay down that the chief- examination evidence of a witness should invariably excluded in all cases where he is not available for cross-examination irrespective of the reason for the failure of the opposite party to cross-examine him. It is only going by the rule of prejudice that the chief-examination evidence of a witness is eschewed when the opposite party had no opportunity at all to cross-examine such witness. 16. The learned counsel for the defendant could not cite any authority to accept his contention that in a situation like this the Division Bench decision of this Court can be ignored and the evidence of P.W.2 should be eschewed. The observations of the trial Court which are already extracted supra would show that the defendant had ample opportunity to cross-examine P.W.2 but he did not do it and hence he has to blame himself. Thus going by the circumstances in this case and the principle laid down in the above Division Bench decision of this Court I am of the opinion that the trial Court cannot be faulted for relying upon the evidence of P.W.2 and I also propose to rely upon his evidence and examine to what the plaintiff’s claim can be upheld. This point is accordingly decided. Point Nos.1 and 3: 17. Having regard to the controversy in the appeal and cross-objections, these two points go together. The legal position as to what is meant by dowry and when the cash or property given by the bride or her parents can be treated as dowry should be firstly noted in order to determine these points. It is common knowledge that the Dowry Act has been enacted by Parliament in order to eradicate the menace of dowry. Section 2 of the said Act defines ‘dowry’. It says that ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to a marriage; or (b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the parties. 18. The above definition however excludes the dower or mahr in the case of Mohammadans to whom shariat applies. Thus it is clear that the above definition of ‘dowry’ shows that cash or other property or valuable security must be given in connection with the marriage as a consideration or condition for it and of-course another essential requirement is that a demand for the same should be made by the other party to the marriage on the party giving it. It may then be noted that Section 3 of the Dowry Act which prescribes penalty for giving or taking dowry carves out an exception and this exception in substance says that when presents are given to the bride without any demand having been made in that behalf shall not be treated as dowry provided that such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom such presents are given. One has to go by the above definition of ‘dowry’ given in the Dowry Act as there is no authoritative source which is brought to my notice now apart from the above Act to ascertain what dowry is. 19. Now coming to the cash aspect of the dowry, the plaintiff’s version is that an amount of Rs.1,00,000/- was paid towards it on various dates. Giving the break-up of the amounts paid, she says that Rs.35,000/- was paid at the time of betrothal and Rs.25,000/- was paid on the date of the marriage to the father of the defendant and the defendant. P.W.1 i.e. plaintiff, P.W.2 Seetharamaiah who is the father of plaintiff and P.Ws.3 to 5 supported this version of plaintiff that the above amounts were paid towards dowry as part of the amount of Rs.1,00,000/- which was agreed to be paid towards dowry at the time of settlement of marriage. P.W.3 K.Krishna Murthy and P.W.5 V.Vishnuvardhana Rao were examined as elders who were present at the time of marriage settlement talks and they supported the version of P.Ws.1 and 2. P.W.4 Prasada Rao is the brother of the plaintiff and he also supported the plaintiff’s version. Nothing could be elicited from them to improbablise their version. 20. It may be noted that there cannot be any documentation for giving the above amounts to show that they were given as dowry. The version of P.Ws.1 to 5 would show that the above two amounts of Rs.35,000/- and Rs.25,000/- were demanded by the defendant and his father and that they were given as compliance of the condition set up by the defendant and his father in connection with the marriage as ‘dowry’ is defined in Section 2 of the Dowry Act. The trial Court discussed this aspect and gave its reasons to hold that the above amounts were given as dowry. The learned counsel for the defendant could not point out any thing from the evidence to show that the plaintiff’s father gave the above amount voluntarily without any demand from the defendant and his father. In fact, the version of P.W.2 who is the father of plaintiff is that he gave the above amounts only on demand from the defendant and his father. 21. It may also be noted that the timing of the payment of the above amounts i.e. Rs.35,000/- at the time of betrothal and Rs.25,000/- at the time of marriage would also show that they were paid towards dowry as that expression is defined in Section 2 of the Dowry Act. Even though P.W.2 was not available for cross- examination his evidence in chief so far as the above two amounts are concerned and which stands supported by P.Ws.3 and 5 (i.e. elders) also can be relied upon to hold that he paid the said amounts towards dowry only. It may be noted that the above two amounts of Rs.35,000/- and Rs.25,000/- were not invested in any fixed deposits in the name of the plaintiff and it is clear that the defendant and his father have taken that amount and spent it for their purposes. Accordingly I find that the trial Court’s conclusion with regard to the above two amounts must be upheld. That takes me to the other amounts aggregating to Rs.40,000/- which are said to have been paid by the plaintiff’s father to the defendant including purchase of the scooter. It has now to be firstly seen whether the amount of Rs.30,000/- was paid as claimed by the plaintiff and if paid whether it can be treated as dowry. The amount of Rs.10,000/- pertaining to the scooter which has been disallowed by the trial Court and which is the subject matter of cross- objections of the plaintiff will be dealt with a little later. 22. It is the plaintiff’s version that after marriage the defendant left for Madras for doing his House Surgeonship and at that time the plaintiff’s father paid a sum of Rs.20,000/- to him and the plaintiff’s claim is that amount should also be treated as part of dowry. Ex.B.3 certificate filed by the defendant shows that he worked as a Senior House Surgeon in the Government Medical College, Madras, from 17.03.1977 to 16.11.1977 i.e. for a period of 8 months. Thus the defendant must have left for Madras some time in the first week or second week of March 1977. The marriage of the parties admittedly took place on 11.08.1976. In other words, the defendant must have left for Madras roughly seven or eight months after the marriage. The plaintiff’s specific plea is that her father gave Rs.20,000/- to the defendant at that time and this is spoken to by the defendant also. P.Ws.3 and 5 did not speak about this payment stating that they have no knowledge about the same. P.W.4 also did not speak about this payment specifically. 23. It should now be noted here that the evidence of P.Ws.1 to 3 does not show that at the time of settlement of marriage or on the date of marriage the defendant and his father told the plaintiff’s father or elders that in March 1977 the defendant will have to go to Madras for House Surgeonship and at that time the plaintiff’s father should pay the amount to meet that expenditure as condition for the marriage. In her chief- examination itself the plaintiff stated that she also went to Madras with the defendant when the latter went there for House Surgeonship. Thus even if the version of P.Ws.1 and 2 is believed it is quite possible that plaintiff’s father who even according to the version of plaintiff was not a man of straw could have as well given the amount of Rs.20,000/- voluntarily to enable the defendant and the plaintiff to spend their time merrily at Madras and this amount could have been even for the maintenance of the plaintiff at Madras along with the defendant. 24. It may be noted here that it is the version of the plaintiff herself that her father was a civil contractor by the date of her marriage and he was also owning two lorries and that apart he also owned Acs.15-00 of land apart from a house at Kothagudem. It is not found from the evidence of P.W.1 i.e. plaintiff or from the evidence of P.W.2 i.e. her father that he had other daughters whose marriages were to be performed. Now, as the evidence of P.Ws.1 to 5 does not show that the plaintiff’s father on one hand and the defendant and his father on the other anticipating that the defendant would go to Madras for House Surgeonship eight months after the marriage, and that the plaintiff’s father should meet that expenditure also and made the demand for Rs.20,000/- it cannot be concluded that it was demanded and paid as dowry especially when the plaintiff also went to Madras along with the defendant at that time knowing fully well that the defendant would not have any income at Madras. Accordingly it is held that the amount of Rs.20,000/- even if paid, for