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Bexy Michael and anrs. V. A.J.Michael

(Mat.Appeal.No. 378 of 2008)

Comment: What is the nature, extent and quality of evidence which a prudent person would expect and demand in the facts and circumstances of the case to come to a safe conclusion about ornaments and cash which had changed hands at the time of marriage? This is the crucial question, the answer to which must resolve the controversy in this appeal.

Facts of the case

· The parties are divorced spouses now. Their marriage took place on 6/9/03. The spouses started separate residence on 28/11/06. A girl child aged about 5 years on the date of the petition was born in the matrimony. It was an acrimonious marriage. The husband filed an application for divorce as Mat. Appeal No. 378 of 2008.

· The wife evidently did not think it worthwhile to fight in a court of law to salvage the marriage. She instead came to the Family Court with O.P.No.195/07 with a claim for return of money and gold. Be it noted that at that time the petition for divorce was also pending before the Family Court.

· The contention of the wife, to put it in a nutshell, is that an amount of Rs.3 lakhs and 50 sovereigns of gold ornaments had changed hands at the time of marriage. Of this, she had taken back 40 sovereigns and 10 sovereigns were remaining in the custody of her husband. She specifically asserted that the gold and ornaments were handed over in the presence of Eeendickal Appachan - the direct paternal uncle of the husband. She prayed that the amount of Rs.3 lakhs may be ordered to be returned with interest at the rate of 10% per annum and the value of gold ornaments weighing 10 sovereigns which remained in the custody of the husband which he valued at Rs.66,000/- (at the rate of Rs.6,600/- per sovereign) may be ordered to be returned along with interest at such rate as may be fixed by the court.

· The respondent/husband entered appearance and resisted the claim. It is significant that he did not admit that his wife had brought any amount or ornaments to his home after marriage.

· Parties went to trial on these contentions.


Oral Evidences in this case


P.W 1 is the wife. She asserted that an amount of Rs.3 lakhs and 50 sovereigns of gold ornaments had changed hands. She staked a claim for the said amount of Rs.3 lakhs and only 10 sovereigns which were retained by the respondent. Her oral evidence, unless it is convincing cannot be taken into consideration by the court.

The same must be subjected to rigorous tests and must be assessed and evaluated on the touch stone of probabilities. The possibility of falsity and exaggeration must be alertly perceived. We need only mention that the oral evidence of P.W.1 rhymes well with the probabilities. Gold and cash usually change hands on the occasion of betrothal/ marriage. The oral evidence of P.W.1 to that extent is consistent with probabilities.

Evidently, P.W.1 could not adduce any better evidence than oral evidence.

To justify her oral evidence, P.W.1 brought photographs of marriage but the court didnot entertain due to absence of negatives.

P.W.1 could have examined her father or her relatives to prove the quantum of money and ornaments which changed hands. At any rate, those pieces of evidence could not have commanded any better respectability or acceptability than the oral evidence of P.W.1 herself.


So, The Kerala High Court held that it would be irrational for a court to find fault with P.W.1 for not examining any other witness (from her side) who participated in the betrothal or marriage to prove the property/cash that had changed hands.


The claimant wife chose to attempt to prove his assertion only through Oral Evidence.


She did not choose to examine any witness on her side. Instead she took the risk of examining two witnesses as P.Ws.2 and 3, who are none other than the direct paternal uncles (father's brothers) of her husband. It is not as though she attempted to spring a surprise on the husband by examining his uncles. Even in the original petition filed by her she had clearly stated that ornaments and currency changed hands in the presence of Eeendigal Appachan examined as P.W.3.


Judges Opinion in regard to Oral Evidence


It appears to the court that any prudent person must have taken note of the bold assertion by wife that the husband's paternal uncle was a witness to the transaction. What is more important to us is that in the counter statement filed by the husband he did not at all refer to the presence of P.W.3, his direct paternal uncle, at the time when the deal was struck. There is no contention whatsoever in the counter statement that the brothers of his father had any animus against the husband or in favour of the wife. If that present assertion were true, certainly we would have expected the husband to plead in reply that this P.W.3 referred to in the petition by the wife as a witness is not a worthy person and he has animus against the respondent. Significantly, there is no such plea raised at all.


Cross-Examination of P.W. 2 and P.W 3


There is no denial that they are the direct paternal uncles of the respondent/husband. There is no specific attempt to show that there was any strain in the relationship between the respondent/husband and his paternal uncles on any specific ground. In fact, the husband admits that one of them at least had actually attended the marriage. He has no case that they attended the marriage at the invitation of the wife or her relatives.


Both P.Ws.2 and 3 did not show any eagerness or anxiety to support P.W.1. They only stated that they had seen an amount of Rs.2 lakhs changing hands. However, they had to admit that the deal was struck that 3 lakhs rupees and 50 sovereigns of gold ornament should change hands at the time of marriage. P.Ws.2 and 3 do not appear to be too eager to support the claimant/wife.

They avoided direct statements which would inconvenience the respondent.


The Kerala High Court stated that they are surprised to note , Such evidence of P.Ws.2 and 3 was not taken into account by the court for any purpose and the claim was rejected on the sole reason that only oral evidence was available to support the claim of P.W.1.


Proximate Conclusion of the Case by the Kerala High Court

On probabilities ,The Kerala High Court further noted that the very specific case of the wife is that 50 sovereigns of gold ornaments were given to her at the time of marriage by her father and only 10 sovereigns remained with the respondent. The respondent who took up a blanket total denial in the counter statement was constrained to admit in the course of evidence that she had gone back with 40 sovereigns of gold ornaments. This rhymes well with her assertion that she came with 50 sovereigns and was constrained to go back leaving 10 sovereigns of gold ornaments. It will not be inapposite in this context again to note that contrary to his assertions in the counter statement the husband admitted at the stage of evidence that the wife had 13 sovereigns of gold ornaments with her.


Final Conclusion

Finallly, the critical question that was required to be considered in front of the court was “Would a reasonable and prudent person throw over board the evidence of P.Ws.1 to 3 and the admissions made by R.W.1 in cross-examination and reject the claim of the wife for return of ornaments and cash”?

High Court Statement: The High Court stated that they have no hesitation to agree that the courts cannot be pedantic and utopian in the matter of appreciation of oral evidence. The compelling indications available in this case must suggest to a prudent person that it is safer, reasonable, just and prudent to accept and act upon the oral evidence of P.W.1 which is convincingly supported by the pleadings and also the evidence tendered by P.Ws.2 and 3, the direct paternal uncles of the respondent. It would be a traversity of truth, justice and reasonableness to throw over board the entire evidence and reject the claim lock, stock and barrel for the only reason that still better evidence has not been placed before the court. Absolute certainty is not the requirement under Sec.3 of the Evidence Act. In a civil case rival contentions and rival evidence will have to be considered, assessed, evaluated and weighed to come to a conclusion whether the burden on the claimant has been discharged.

No reasonable person could have insisted on better evidence. Better evidence may not be an absolute impossibility. If negatives were there, photographs could have been produced and proved to show the quantum of ornaments worn by the wife at the time of marriage. If there were some entry in the relevant Church records, they could have been produced to show that the properties had changed hands. If the marriage were settled in the presence of the mediators defining the terms of marriage such mediators could have been examined. Significantly, even the respondent does not have a case that such pieces of materials/evidence would be available in this case. If so, he could have produced it at least he could have pursued that aspect in the course of cross-examination of P.Ws.1 to 3.

We are, in these circumstances, of the opinion that the court below has gone wrong completely in rejecting the oral evidence of P.Ws.1 to 3 and choosing to accept and act upon the oral evidence of R.W.1 unmindful of the gross contradictions which have been brought out between his pleadings and his evidence.

The Kerala High Court finally concluded stating that 10 sovereigns of gold ornaments and an amount of Rs.3 lakhs are liable to returned by the respondent/husband to the appellant/wife. There is nothing to show that the ornaments are still available with the husband. An amount of Rs.6,600/- per sovereign is claimed as the value of the gold ornaments. Realistically taking note of the value of a sovereign of gold now we are compellingly persuaded to award satisfactory rate of interest so that the loss suffered by the wife can reasonably be compensated if not fully. Interest is claimed at such rates as the court may deem fit and proper to grant. We are satisfied that interest at the rate of 12% per annum must be ordered to be paid on the amount of Rs.66,000/- claimed as the value of 10 sovereigns of gold ornaments. So far as the amount of Rs.3 lakhs is concerned, we are satisfied that interest can be awarded at the rate of 10% per annum as claimed by the appellant/wife.

Inference: Sometime Oral Evidence can be the sole ground for conviction or acquittal. We cannot deny the merit of oral evidence. In such types of cases, Burden of proof may not be beyond reasonable doubt due to lack of substantial evidences. It is totally based on the rational and prudential approach of the court.

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