1. These two Matrimonial Appeals arise from the judgment and decree in O.P.No.286/2014 on the files of Family Court, Kottarakkara, which was a
petition filed by the appellant in Mat. Appeal No.57/2019, claiming return of amounts from her husband and father-in-law and also claiming
maintenance from the husband.
2. For the sake of convenience, parties shall be referred to by their rank in the O.P.No.286/2014 as petitioners and respondents.
3. By the judgment and decree impugned herein, O.P. No.286/2014 was decreed in part, directing the 1st respondent to return ₹2,00,000/- to the 1st
petitioner, with interest. The claim for the return of ₹6,00,000/- was declined by the Family Court. The claim for value of almirah was also declined.
The claim for past maintenance was not granted by the Family Court on the ground that maintenance was granted in M.C.No.85/2014.
4. In Mat.Appeal No.1051/2018, respondent Nos.1 and 2 assail the impugned decree directing them to return ₹2,00,000/- with interest, to the 1st
petitioner.
5. In Mat.Appeal No.57/2019, 1st petitioner assails that part of decree which rejects her claim for return of ₹6,00,000/-and value of wooden almirah.
6. In brief, the petitioners’ case in O.P.No.286/2014 is as follows:
Parties are Christian Pentecostals. The marriage of 1st petitioner and 1st respondent was solemnized on 2.8.2003. 2nd petitioner is the minor daughter
born to them in the said wedlock. 2nd respondent is the father of the 1st respondent. The betrothal ceremony was conducted on 24.7.2003 at
Marthoma Jubilee Hall, Punnala. On the said date, 1st petitioner's father had handed over an amount of ₹6,00,000/- to the respondents towards the
parental share of 1st petitioner. The amount was handed over to the 2nd respondent in the presence of 1st respondent. Shortly after the marriage, a
wooden almirah worth ₹25,000/- was also given to 1st petitioner by her father. Subsequent to the marriage, there arose marital discord between the
1st petitioner and the 1st respondent and the 1st respondent used to torture the 1st petitioner demanding more amounts from her family. Accordingly,
in February 2006, her father gave an amount of ₹2,00,000/- to the 1st respondent. After the birth of the child, the 1st respondent used to harass the 1st
petitioner by doubting the paternity of the child. On 14.8.2013, he left the 1st petitioner and her minor child at her navel home at Punnala and
thereafter he has not looked after their affairs. Respondent Nos.1 and 2 are liable to return the amount of ₹6,00,000/- handover to them by the father
of 1st petitioner on the date of betrothal and ₹2,00,000/- paid to the 1st respondent in February, 2006. She also claimed ₹25,000/- towards the value of
the almirah which was given to her by her father. Petitioners 1 and 2 also claimed a total sum of ₹42,000/- towards past maintenance for a period of
seven months.
7. Respondents filed objections denying the entire allegations made in the petition. They denied to have received any amount from the 1st petitioner
and her father, either on the day of betrothal ceremony, or on any other date. With regard to the claim in respect of value of almirah, their case is that,
though one almirah was brought by the 1st petitioner, the same was sold away by her own father to meet his urgent expenses. Respondents also
denied the allegations regarding the harassment. It was further contended that 1st petitioner left the matrimonial home according to her own will and
volition.
8. Before the Family Court, both sides adduced evidence. The evidence consists of the oral testimonies of PWs 1 to 4, RWs 1 to 3 and the documents
marked as Exts.A1 to A6 and Ext.B1.
9. Admittedly, parties are Christian Pentecostals. The marriage between the 1st petitioner and the 1st respondent is admitted. It is also not in dispute
that their betrothal was on 24.7.2003 and that the marriage was solemnized on 2.8.2003. It is also an admitted fact that, due to marital discord, spouses
drifted apart.
10. Now let us see whether the impugned judgment and decree need any interference by this Court, as contended by the appellants in Mat.Appeal
No.57/2019 and Mat.Appeal No.1051/2018.
11. First petitioner/wife who was examined as PW1 has testified in tune with the averments made in the original petition. According to her, on the date
of betrothal, ie. on 24.7.2003 her father had handed over an amount of ₹6,00,000/- to respondent Nos.1 and 2 at Chachipunna Jubilee Hall, Punnala.
Her further version is that, subsequent to the marriage, the 1st respondent demanded more money from her house and accordingly, in February, 2006,
her father again gave an amount of ₹2,00,000/-to the 1st respondent. Her further case is that, shortly after her marriage, her father had gifted an
almirah worth ₹25,000/- to her which was sold by the 1st respondent and its consideration was misappropriated by him. According to her, she is
entitled to get back the amount of ₹6,00,000/- handed over to the respondents on the betrothal day and ₹2,00,000/-, which was paid to the 1st
respondent in February, 2006, as well as ₹25,000/- towards the price of the wooden almirah.
12. PW2, who is the father of PW1, has testified that, in the negotiations before fixing the marriage, respondents had made a demand for an amount of
₹5,00,000/- as ‘stridhan’ and ₹1,00,000/- towards marriage expenses and accordingly on the date of betrothal, he handed over an amount of
₹6,00,000/- to the respondents for the welfare of his daughter and also as her parental share. His specific version is that the amount was entrusted to
2nd respondent in the presence of the 1st respondent at Punnala Chachipunna Jubilee Hall. He would further say that, on the third day of the
marriage, he had given a wooden almirah worth ₹25,000/- to the 1st petitioner. His further version is that, subsequent to the marriage, the respondents
used to ill-treat the 1st petitioner and used to harass her demanding more amount from her house and accordingly, he gave a further sum of
₹2,00,000/-to the 1st respondent in February, 2006. His further version is that, even after the payment of the said amount, the 1st respondent used to
ill-treat 1st petitioner and physically harass her.
13. Respondents, on the other hand, would contend that they have not received any amount from the father of the 1st petitioner, either on the betrothal
day or on any subsequent date. First respondent who was examined as RW1 has testified that neither he nor his father demanded any dowry or any
amount towards the expenses of the marriage from the 1st petitioner and her father and that they have not received any amount. It is his further
version that, they being Pentecostal believers, the demand and receipt of dowry is prohibited and is against their belief. His further version is that the
1st petitioner's father, namely PW2, had no financial capacity to pay any amount and that PW2 had sold out his properties in the year 1997 itself. He
would further say that PW2 had mortgaged his son's property for an amount ₹25,000/-for the purpose of marriage of his elder daughter. According to
RW1, even at the time of his marriage proposal with the 1st petitioner, PW2, the father of the 1st petitioner had told them that PW2 has no financial
capacity to meet the expenses of the marriage and to pay any amount to his daughter as “stridhan†and accordingly, respondents informed him
that they do not need any such, or any amount towards marriage expenses. Further version of RW1 is that 1st petitioner's father had not entrusted any
amount, either on 24.7.2003, or on any other date and that they have not received ₹6,00,000/- as alleged. He would also deny to have received any
amount in February, 2006. With regard to the wooden almirah presented to the 1st petitioner, his version is that a wooden almirah worth ₹5,000/-,
which was given to the 1st petitioner by her father, was subsequently sold by the latter, namely PW2, to meet his urgent needs. He would also deny
the case of the 1st petitioner that he left her at her paternal home on 14.8.2013. According to him, he has never harassed or tortured the 1st petitioner.
On the other hand, his case is that, it was she who deserted him, evident from Ext.B1 letter, dated 18.11.2013, sent by the 1st petitioner to him.
14. RW2, who is the father of RW1, also testified in tune with RW1 and he also denied to have received any amount from 1st petitioner’s father,
either on the betrothal day or on any other date. He has also testified that 1st petitioner’s father had no means to pay any amount as
“stridhan†or to meet the marriage expenses; and that, even at the time of marriage proposal, 1st petitioner’s father had informed his inability
to pay any amount to his daughter as stridhan.
15. RW3, who was examined on the side of the respondents, would say that he had participated in the betrothal ceremony and marriage of 1st
petitioner and the 1st respondent; that he is conversant with all the affairs in respect of that marriage. According to him, the father of the 1st petitioner
had not handed over any amount either on the betrothal day or thereafter. He would also say that even at the time of marriage proposal itself, 1st
petitioner’s father, namely PW2, had told the father of the 1st respondent, namely RW2, that PW2 has no means to pay any amount as
“stridhan†or as a share of the bride. His further version is that respondents who are Pentecostals, had told PW2 that, accepting “stridhan†is
against their belief. The specific case of the respondents is that the 1st petitioner's father had no financial capacity to pay any amount to his daughter
at the time of marriage, as he was indebted.
16. It is a well settled principle that in civil cases facts have to be proved by preponderance of probabilities.
17. In Dr.N.G.Dastane v. Mrs.S.Dastane (AIR 1975 SC 1534) ,the Hon’ble Apex Court held that the standard of proof in matrimonial cases
would be same as in civil cases i.e. the court has to decide cases based on preponderance of probabilities.
18. The specific case of the 1st petitioner is that, on the date of betrothal ceremony i.e. on 24.7.2003, an amount of ₹6,00,000/- was entrusted to the
respondents at Marthoma Jubilee Hall, Punnala. To substantiate her case, she has examined two independent witnesses namely PW3 and PW4, who
are the family friends of 1st petitioner, who had attended the betrothal ceremony and the marriage.
19. PW3-Sri.Ullas Kumar, in his evidence, testified that, both parties are known to him; that he is a family friend of PW2, who is the father of the 1st
petitioner; and that in connection with the marriage of the 1st petitioner, PW2 had borrowed ₹4,00,000/- from him. According to him, when PW1
handed over ₹6,00,000/- to the respondents on the date of betrothal ceremony, he was also present and that he had witnessed such entrustment by
PW2 to the father of the 1st respondent namely RW2, at Marthoma Jubilee Hall, Punnala. His further version is that PW2 had sought his help in
selling 25 cents of property; that after selling the said property through him, PW2 repaid ₹4,00,000/-borrowed from him.
20. PW4 in his evidence, has stated that he is a friend and neighbour of PW2; that he had attended the betrothal ceremony and marriage of the 1st
petitioner and the 1st respondent. According to him, immediately after the betrothal ceremony, PW2 handed over ₹6,00,000/- to the 2nd respondent.
His further version is that, in 2006, he was involved in selling the property of PW2’s son and that he had witnessed PW2 repaying ₹4,00,000/- to
PW3-Sri.Ullas Kumar on the very same day. He would also say that, on the said day, 1st petitioner and the 1st respondent who were present there,
demanded ₹2,00,000/- from PW2 for construction of their house and accordingly that PW2 paid an amount of ₹2,00,000/- to them.
21. It has come out in evidence that 1st petitioner’s father namely PW2, was an A Grade PWD contractor. To substantiate the said contention,
1st petitioner has produced Exts.A4 and A5 documents. It is the case of PWs 1 and 2 that large amounts were due to PW2 from the Government for
the works undertaken and carried out by him as PWD Contractor. It is also their case that they had landed properties. It is the assertion of PW2 that,
in connection with the marriage of his daughter, he borrowed an amount of ₹4,00,000/- from his friend Ullas Kumar, who was examined as PW3. The
evidence tendered by PW3 and PW4 corroborates the version of PW2 that, at the time of marriage of his daughter, he had borrowed a sum of
₹4,00,000/- from PW3. The versions of PWs 1 to 4 are consistent and mutually corroborative and there is no reason to disbelieve the versions of PWs
1 to 4. The testimony of PWs 3 and 4 that, on the date of betrothal, i.e. on 24.7.2003, an amount of ₹6,00,000/- was handed over by PW2 to the 2nd
respondent, is consistent and in spite of thorough cross examination, the defence could not make any dent in their version. We find no reason to
disbelieve the versions of PWs 1 to 4 regarding the handing over of an amount of ₹6,00,000/- by PW2 on the betrothal day. The case of RWs1 and 2
that, at the time when the groom’s party contacted the bride’s family with the marriage proposal, the father of the bride i.e. PW2 had told
them that he has not even a penny with him to meet the marriage expenses and has no means to give any amount to his daughter is highly
unbelievable. No father of a girl would make such a statement to the groom's party at the time of marriage proposal. On the other hand, the natural
course of conduct of a father is to give gold or amounts to his daughter before the marriage, or at the time of marriage, as per the custom and practice
followed by the parties. It has come out in evidence that it was in response to a matrimonial advertisement, that the parties went ahead with the
proposal and fixed their marriage. The marriage was soleminized on 2.8.2003. The betrothal ceremony was just one week ahead of the date of
marriage. It is quite common among Christians in Kerala that the daughter is given her family share at the time of marriage and the same is usually
handed over at the time of betrothal ceremony. There is no reason to disbelieve the version of PWs1 to 4 that the said practice was followed in the
case on hand also. It has come out in evidence that 1st petitioner’s father was an A Grade Contractor of PWD. Though respondents would
contend that PW2 had no means or income to conduct the marriage of his daughter, RW1 would admit that PW2 had plantain cultivation. To the
specific question put to RW1 during cross examination, that PW2 was running a rubber nursery named 'Parayil Rubber Nursery', his version is that
PW2 might have run such prior to the marriage of his daughter. Even if PW2 had to borrow money from some source at the time of marriage of his
daughter, it does not automatically lead to a conclusion that he was bankrupt or insolvent. There is nothing unusual or unnatural in the conduct of the
father borrowing money from a friend or a relative or any financial institution at the time of conducting marriage of his daughter. It has come out in
evidence that PW2 borrowed an amount of ₹4,00,000/- from his friend Sri.Ullas Kumar, who was examined as PW3 in this case. We find no reason
at all to disbelieve the version that, on the date of betrothal, an amount of ₹6,00,000/- was paid to the respondents and that the said amount was
entrusted to 2nd respondent, who is the father of 1st respondent.
22. The learned counsel for the 1st petitioner then took our attention to Ext.A3 counter statement filed by the 1st respondent in M.C.No.85/2014 of
Family Court, Kottarakkara, between the parties and pointed out that 1st respondent is a person who had even denied the paternity of the child born in
the wedlock to avoid providing maintenance to his child.
23. A perusal of Ext.A3 would reveal that, in the said counter statement filed by 1st respondent, he has even denied the paternity of the child born to
him in the wedlock. So it can be seen that he is a person who would go to any extent to suit his case.
24. The blanket denial made by the respondents regarding receipt of any amount would show that respondents are not telling the truth before the
court.
25. In Bexy Michael v, Michael.A.J. (2010(4) KHC 376) (DB )this Court held that it would be unreasonable, irrational, puerile and perverse for a
court in the given circumstances to look for documentary evidence regarding the ornaments and money that had changed hands at the time of
marriage. The standards of a prudent man have to be adopted by the court. The controversy in most of the matrimonial cases has to be decided on the
basis of oral evidence. It would be a travesty of justice for a Family Court to throw its hands up and merely dismissing a claim for the simple reason
that the documentary evidence is not made available. It was held that the standards of prudent man are paramount and disputed question of fact has to
be resolved on the touchstone of probabilities. It was also held that absolute certainty is not the requirement under Section 3 of the Indian Evidence
Act. In a civil case, rival contentions and rival evidence will have to be considered, 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 preponderance of probabilities.
26. In Willam David and Ors. v. Linu Mary George (2010(4) KLT 691) a Division Bench of this Court observed as follows:
“The Court is called upon to evaluate, assess, weigh and scrutinize 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 RWs1 to 3 show that it is only natural, probable and reasonable to assume that there
must have been thoughts 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.â€
27. In Bobbili Ramakrishna Raju Yadav and others v. State of Andra Pradesh and another (2016(3)SCC 309) ,the Hon’ble Apex Court
held that if dowry amount or articles of married woman was placed in the custody of her husband or in laws, they would be deemed to be trustees of
the same and the person receiving the dowry articles, or the person who has dominion over the same, is bound to return the same, as per Section 6 of
the Dowry Prohibition Act.
28. In the case on hand, 1st petitioner in the O.P has succeeded in establishing her case that, on the date of betrothal, an amount of ₹6,00,000/- had
changed hands to the respondents by her father towards her family share.
29. There is categoric version by PWs 1 to 4 that on the date of betrothal an amount of ₹6,00,000/- was handed over by PW2 to RW2 and the amount
was handed over in the presence of 1st respondent. The evidence of PWs 1 to 4 regarding payment of ₹6,00,000/- to the respondents on the date of
betrothal ceremony between the 1st petitioner and the 1st respondent is found reliable, trustworthy and acceptable. The entrustment of the amount by
the father of the 1st petitioner stands proved and therefore, the finding of the learned Family Court, that PW2 was not having the financial capacity to
pay ₹6,00,000/- to the respondents in the year 2003; and further that the evidence tendered by PWs 1 to 4 that ₹6,00,000/- was entrusted with the
respondents in connection with the marriage at the time of engagement ceremony is not reliable, deserves to be set aside. Accordingly, respondents 1
and 2 are liable to return the amount of ₹6,00,000/- to the 1st petitioner.
30. Now, with regard to the claim for return of ₹2,00,000/-, which according to the 1st petitioner was paid by her father to the 1st
respondent in February 2006, the learned Family Court has granted a decree directing the 1st respondent to pay the said sum to the 1st petitioner. First
respondent/husband challenges the said direction and contend that no such amount has been received either in February 2006 or on any other date.
The learned counsel for the respondents pointed out that, there is no consistent case for the petitioners regarding the alleged payment of ₹2,00,000/-
and that there is no reliable evidence in support of such a payment. It was pointed out that, according to PW1, the amount was given at the rented
house at Pathanapuram, wherein, she along with the 1st respondent, was residing; whereas, according to her father, namely PW2, the amount was
paid at the residence of PW2.
31. PW4, who was examined on the side of the petitioners, would also say that an amount of ₹2,00,000/- was paid at the residence of PW2 when he
sold the property which stood in the name of his sons.
32. It is the case of the 1st petitioner that, in the year 2006, when the property, which stood in the name of her brothers, were sold, her father paid an
amount of ₹2,00,000/- to the 1st respondent. According to PW2, 1st respondent demanded the amount saying that he is in need it for the construction
of a house; and that accordingly, PW2 paid a sum of ₹2,00,000/-. PW4 would also say that when the property was sold in 2006, PW2 paid a sum of
₹2,00,000/- to the 1st respondent at the residence of PW2. The 1st petitioner who was examined as PW1 would say that an amount of ₹2,00,000/-
was paid to the 1st respondent by her father in 2006, while she and 1st respondent were residing at their rented house at Pathanapuram. Thus, the
version of PW1 and PW2 regarding the said payment are inconsistent. First petitioner has not succeeded in establishing that in February 2006, when
the property was sold as per Ext.A1 sale deed, an amount of ₹2,00,000/- was paid to the 1st respondent. Hence, her claim for return of ₹2,00,000/-
stands disallowed and the finding of the learned Family Court, that 1st respondent is liable to return ₹2,00,000/- with interest, is liable to be set aside.
33. The next aspect for consideration is regarding the claim towards the value of almirah. First petitioner’s case is that, shortly after her marriage,
in the year 2003, her father gave a teak wood almirah worth ₹25,000/- to her and that the same was sold away by 1st respondent to meet his
expenses and therefore, that the 1st respondent is liable to return ₹25,000/- towards the price of almirah.
34. Respondents would admit that PW2, the father of the 1st petitioner, had given a wooden almirah to her. But their case is that the said almirah was
sold by PW2 himself to meet his own urgent needs. The version of 1st respondent that, PW2 had gone to the matrimonial home of his daughter for
selling a wooden almirah given to her to meet his expenses is quite unheard of and it is highly improbable and therefore, unbelievable. On the other
hand, the version of 1st petitioner that, it was sold by the 1st respondent to meet his expenses, is more probable and believable than the case of the
respondents that it was sold by the father of the 1st petitioner to meet his expenses. It stands established that the wooden almirah given to the 1st
petitioner by her father was sold away by the 1st respondent. Hence, he is liable to return an amount of ₹25,000/- towards the value of the almirah as
claimed by the 1st petitioner.
35. In the result:
a) Mat.Appeal No.57/2019 is allowed and respondent Nos.1 and 2 are jointly and severally liable to pay a sum of ₹6,00,000/- with 6% interest per
annum, to 1st petitioner, from the date of filing of O.P.No.286/2014 till the date of realisation.
b) The 1st respondent shall pay an amount of ₹25,000/- towards the value of wooden almirah, with 6% interest per annum from the date of filing of
O.P.No.286/2014, till the date of realisation.
c) Mat.Appeal No.1051/2018 stands allowed and the judgment and decree in O.P.No.286/2014 directing the 1st respondent to pay an amount of
₹2,00,000/-, with 6% interest per annum, stands set aside.
d) Parties are directed to suffer their respective costs in both appeals.
