M.K.Jubairiya vs Abusalih on 20 August, 2007

[Cites 5, Cited by 4]

Kerala High Court

M.K.Jubairiya vs Abusalih on 20 August, 2007

This appeal is preferred against the order in O.P.No.27/2005 of the Family Court, Kozhikode. Appellant is the wife who preferred the above petition in the family court Kozhikode for realisation of money and gold ornaments from her husband and father in law, who are respondents in this appeal. The above petition was dismissed by the learned Judge of the Family Court. The appellant's case in the court below was that her marriage with the the 1st respondent was solemnized on 9.3.1998 as per Muslim customary rites and two children born to them in that wedlock. At the time of marriage, the appellant had 55 sovereigns of gold and her father gave seventy five thousand rupees to the 1st respondent at Kodempuzha Mosque. Few days after marriage, the 1st respondent demanded twenty five thousand rupees more, to pay off the debt and liabilities in connection with his sister's marriage. So, she obtained Mat. Appeal No.439/09 2 Rs.20,000/- from her house and gave it to the 1st respondent. While residing so, the appellant's father purchased 4 cents of land in Ramanattukara Village in her name and constructed a house therein. The said property and house therein was sold due to the pressure of the respondents for a sum of Rs.1,42,000/- and the sale consideration was shown as Rs.30,000/- and the 2nd respondent received the amount and he purchased a property in his name. Now, the 1st respondent married another women and neglected the appellant and her children. The appellant's children had also ten sovereigns of gold ornaments. All money and gold ornaments were misappropriated by the 1st respondent. Hence, the appellant filed the above O.P., in the Family Court for realizing 55 sovereigns of gold ornaments, Rs.95,000/- received by the respondents from the appellant and also Rs.1,42,000/-received by the respondents as sale consideration of the property.

2. The respondents strongly resisted the above contention in the lower court, but they admitted the marriage and birth of two children. According to the respondents, the appellant's father never paid Rs.75,000/- to the 1st respondent, since he was in love with the appellant and there was no Mat. Appeal No.439/09 3 demand for gold or money. The appellant had only 20 sovereigns of gold ornaments at the time of marriage and the 1st respondent had given 2 = sovereigns of gold chain to the appellant as 'mahar'. The 1st respondent never demanded any amount for his sister's marriage and appellant never brought Rs.20000/- from her father. The allegation that the appellant's father purchased four cents of property and constructed a house therein and that was given to the appellant is false. According to them, the 2nd respondent, father of the 1st respondent, sold the joint property in his name and in the name of his wife in R.S.No.72/1 at Karimkallayi desom and purchased four cents of land and house in the name of the appellant at Choorakkad. According to the respondents, the appellant and the 1st respondent together leased a house for their residential purpose for that she paid a sum of Rs.1,00,000/-. After the lease period, that amount was returned to the appellant's father with the consent of the 1st respondent. Therefore, they are not bound to pay any amount or return any gold ornaments.

3. In the court below both parties adduced oral and documentary evidence, the appellant's evidence consist of Mat. Appeal No.439/09 4 oral testimony of PW1 and PW2 and Exts.A1 to A3 (Exts.A4 to A6 marked by this Court) The respondents' evidence consist of oral testimony of RW1 to RW3 (Exts.B1 to B3 marked by this Court on the side of the respondent). After analyzing the evidence on record, the learned Judge of the Family Court dismissed the petition. Aggrieved by that, she preferred this appeal.

4. The learned counsel appearing for the appellant contended that the evidence of PW1 reveals the actual facts of the case at the time of marriage. The court below concluded that non-production of the bill of the gold ornaments and photos of marriage affected the credibility of the case and that observation is not according to law. The quality of the evidence shows that sufficient gold ornaments and money were given to the respondents at the time of marriage. No documents are available in the possession of the appellant to prove the quantity of the gold. The court below thoroughly mistakened the transaction. The appellant also urged that the defence put forwarded by the respondents is improbable in all respects.

5. The learned counsel appearing for the respondents Mat. Appeal No.439/09 5 strongly resisted the above argument and contended that there is no evidence in this case to prove the transaction of gold and money. There is no consistent case to the appellant that the respondent received money from her. In the absence of specific evidence, the conclusion reached by the court below is proper and there is no reason to interfere in the finding.

6. Keeping in view of the aforesaid argument, the first question that arises for consideration is whether the appellant is entitled to get the gold ornaments and money from the respondent as claimed. To prove the aforesaid allegation, the appellant was examined as PW1. Her evidence shows that on 9.3.1998, the 1st respondent married her as per Muslim Religious Rites. She is a physically handicapped woman and congenital disease to heart. Ext.A1 is the disability certificate. At the time of marriage, the appellant had 55 sovereigns of gold and her father gave Rs.75,000/- to the 1st respondent. The gold ornaments were misappropriated by the 1st respondent within 1 = years after the marriage. The respondents ill-treated the appellant demanding more amount from her house and she paid Rs.20,000/- to the 1st respondent to pay off the debt incurred for his sister's marriage. Her Mat. Appeal No.439/09 6 father also purchased 4 cents of property to her at Ramanattukara and that property was sold by the 1st respondent by cheating. Exts.A2 and A3 are the documents to prove the aforesaid property transaction. Now the 1st respondent married one Rasheeda and residing with her. A close scrutiny of the oral evidence of PW1 shows that there is relevancy in her evidence.

7. It is the case of the appellant that her marriage is a settled marriage, after considering her physical disability. She is also an epilepsy patient, once she became unconscious due to epilepsy, at that time the respondents obtained signed papers from her and used those papers for transferring her property. Even though PW1 contended that she is suffering from epilepsy and obtained signed papers, no evidence has been adduced by her to show that she is suffering from epilepsy. On the other hand, she produced Exts.A4, to prove the payment of Rs.75,000/-. PW2 also supported the evidence of PW1. Analysing the evidence of PW1, it is clear that the appellant has discharged her initial burden to prove her claim. In Ext.A4, it is clear that, on 9.3.1998, an amount of Rs.75,000/- was withdrawn from the South Malabar Mat. Appeal No.439/09 7 Gramin Bank, Mannur. This is a clear evidence in favour of the appellant. PW2, father of the appellant also admitted that he gave Rs.75,000/- to the 1st respondent. Therefore, that evidence is corroborating the oral evidence of PW1.

8. The evidence may be further analysed in the light of the evidence of RW1 who is the 1st respondent in this case. According to RW1 the marriage was on 22.9.1998 and he has no direct knowledge regarding her ailment at the time of marriage, and it was a love marriage, no gold or money paid to him. But, he admitted that PW1 was in possession of 20 sovereigns of gold at the time of marriage. He gave 2 = sovereigns of gold as 'mahar'. RW1 admitted that his elder son is a Student in JDT Islam Technical School only on the ground that he will get better education there. RW2 categorically stated that he was not willing for the marriage with the appellant and there was no gold ornaments at the time of marriage. The evidences of RW1 and RW2 show that their story is inconsistent and unbelievable with regard to gold and money. But, in cross examination, RW1 admitted that appellant had 20 sovereigns of gold at the time of marriage. From the above oral evidence it is clear that proof of a fact by Mat. Appeal No.439/09 8 oral evidence is relevant under Section 59 of the Indian Evidence Act. Oral evidence is the testimony of a living person examined in the presence of a Judge or Commissioner appointed by the court. That evidence is a mixure of truth and falsehood or half truth. Taking a decision based on oral testimony after extracting truth would be a difficult task. While dealing with oral evidence, probabilities, presumptions and surrounding circumstances are to be looked into. Sections 59 and 60 of the Act reads as follows:

"59. Proof of facts by oral evidence.- All facts, except the contents of documents or electronic records, may be proved by oral evidence.

60. Oral evidence must be direct.- Oral evidence must, in all cases whatever, be direct; that is to say-

If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided also that, if oral evidence refers to the existence or condition of any material thing Mat. Appeal No.439/09 9 other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection."

The oral evidence adduced in this case is direct from PW1 and PW2 who were parties to the marriage and it is admissible.

9. The various facts, highlighted in this case show that the appellant has discharged her initial burden to prove her case. Normally in all civil cases the preponderance of probability is the yardstick to prove the facts in a case. The principle of standard of proof required for proving a fact in both civil and criminal cases was discussed by the Apex Court in R.V.E. Venkatachala Gounder v. Arulmigu Visweswaraswami [AIR 2003 SC 4548] as follows: (para 28) " Whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872, is one and the same. A fact is said to have been 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. "The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case. BEST says:

there is a strong and marked difference as to Mat. Appeal No.439/09 10 the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being head to the burden of proof, is a sufficient basis of decision: but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. (BEST, S.95). While civil cases may be proved by a mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt." (See Sarkar on Evidence, 15th Edition, pp.58-59). In the words of Denning LJ (Bater v. B, 1950, 2 ALL ER 458, 459) "It is true that by our law there is a higher standard of proof in criminal cases then in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases there may be degrees of probability." Agreeing with this statement of law, Hodson, LJ said "Just as in civil cases the balance of probability may be more readily fitted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others."(Hornal v. Neuberger Products Ltd. (1956) 3 ALL ER 970 at p.977 D)".

Broadly speaking, in the light of the above dictum, the evidence of PW1 and PW2, both oral and documentary, which, is very relevant in proving her case was not properly considered by the court below. Evidence means both oral and documentary which includes all statements of the witnesses which the court permits in relation to matters of fact before it under inquiry and all documents produced for inspection at Mat. Appeal No.439/09 11 that time. Therefore, in disputed facts, courts can consider all the materials before it for reaching a conclusion. Original evidence of a witness is that, if he is examined as a witness in a court, he reports himself that he has seen or heard himself through his own senses. This direct evidence is believable. The witness who give direct evidence may lie but the circumstances proved in cross examination may be conclusive in proving disputed facts. Therefore, in civil cases a preponderance of probability is sufficient justification for coming to the conclusion that a fact is proved or disproved.

10. The learned Family Court observed that no document has been produced by the appellant to prove the payment of money and gold. When direct oral evidence of PW1 and PW2 is believable, the court can rely those portion of the oral evidence for granting relief. Even though the appellant contended in her evidence that the property purchased by her father was sold by the respondents and appropriated that amount, no evidence has been adduced by PW1 to prove that contention. Therefore that is not believable. Moreover, the respondents obtained signed papers from her while she was suffering from epilepsy is also not believable. In Mat. Appeal No.439/09 12 matrimonial cases, it is difficult to get documentary evidence to prove the money transaction and payment of gold in marriages took place as per customary rites. The family members of both parties make this arrangement with utmost confidentiality till the solemnization of marriage. Both parties make allegation against each other to take maximum benefit when the marital tie is disrupted. In such situation, it is primary responsibility of the court to scan the evidence both oral and documentary to reach a conclusion. Moreover, the Judges are bound to see this ground realities of the human conduct in their day-today life. In the circumstances, interference is necessary in the finding of the court below with regard to payment of money and gold ornaments. The learned Judge of the Family Court failed to appreciate that fact. Therefore, the finding of the court below is set aside and the appellant is entitled to get a decree for Rs.75,000/- as paid by the father of the appellant to the 1st respondent and 44 sovereigns of gold or its equal amount from the respondents. Appellant is not entitled to get Rs.1,42,000/- which is the alleged sale price of the property.

Mat. Appeal No.439/09 13

In the result, this appeal is allowed and decreed as follows:-

1) The respondents are directed to pay Rs.75,000/-

to the appellant with 6% interest from the date of petition till realisation.

2) They are also directed to return 44 sovereigns of gold or its equal value to the appellant.

3) They shall pay the amount and gold within 30 days from today with cost, failing which the appellant can realize the amount from the assets of the respondents. The rest of the claim of the appellant is disallowed.

PIUS.C.KURIAKOSE,JUDGE P.D. RAJAN, JUDGE.

acd Mat. Appeal No.439/09 14 Mat. Appeal No.439/09 15

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