C.P.SAMEER Vs. NASIYA

JUDGEMENT

(1.) The husband along with his father and mother in a matrimonial dispute came up with this appeal aggrieved by the order dated 27.09.2007 in O.P. No.70/2007 of the Family Court, Malappuram, directing return of an amount of Rs.7,70,000/- and another amount of Rs.1,50,000/- totalling an amount of Rs.9,20,000/- and past maintenance at the rate of Rs.2,500/- for 12 1/2 months to the first petitioner and Rs.1,000/- to the child, the second petitioner, for seven months totalling an amount of Rs.38,250/- with interest and the cost of O.P. and future maintenance at the rate of Rs.2,500/- to the first petitioner and Rs.1,000/- to the second petitioner.

(2.) The marriage between the first petitioner and the first respondent is admitted. The paternity of the child born in the wedlock is not in dispute. Exhibit A1 series of photographs, Exhibit A2 video CD and Exhibit A3 negative of CD of their marriage album were produced to show the gold ornaments which were given at the time of marriage, which, according to her, comes to 100 sovereigns. She was given mahar by way of gold chain having 12 1/2 sovereigns which would prima facie show the extent of gold ornaments which were given at the time of marriage. The usual practice to give one sovereign of gold by way of mahar for each ten sovereigns of gold ornaments agreed to be given to the bride by her parents would also support the case advanced by the petitioner. Even otherwise, it is well evident from the photographs that she was wearing around 100 sovereigns of gold ornaments. In a matrimonial dispute, there may not be documentary evidence showing the extent of gold ornaments which were given to the bride by her parents, except the oral evidence of persons who witnessed the marriage and the photographs which were taken at that time, unless there is an entry in the marriage certificate or document showing its purchase. The oral evidence tendered by herself as PW1, her father as PW2 and one of her relatives, who is a professional photographer, as PW3 when read along with Exhibit A1 series of photographs and Exhibits A2 and A3 video CDs would sufficiently prove the extent of gold ornaments worn by the wife at the time of marriage. Needless to say that in a matrimonial dispute it is not at all necessary to show the concrete evidence regarding the extent of gold ornaments given to the bride at the time of marriage. In dealing with a matrimonial dispute, especially regarding entrustment of gold ornaments and amount, it would always be permissible to have an inference based on the probabilities which can be gathered through the photographs taken at the time of marriage, besides the ocular testimony of persons who witnessed the marriage. The husband, the first respondent, had not cared to give any direct evidence challenging the entrustment. The specific case advanced by the petitioner is that the entire gold ornaments were taken by the respondents and misappropriated. The oral evidence tendered by PW1 along with her father further probabilizes the entrustment of an amount of Rs.1,50,000/- at the time of marriage. Needless to say that when there is an entrustment of gold ornaments at the time of marriage or amount in trust for the wife, the initial burden that it was taken away by the wife and not misappropriated by the person in trust/husband is always on him and non tendering of sufficient evidence, especially when he kept away from the Court would operate against him. As against the oral evidence tendered by PWs 1 to 3 and Exhibit A1 to A4 series, no direct evidence, except the interested testimony of RW1, the second respondent, the father of husband, was adduced. No contra evidence was adduced by the husband/the first respondent. The oral evidence tendered through his father cannot be substituted in the place of direct evidence from the husband. The interested testimony of the father of the husband cannot be acted upon in the absence of independent evidence. As discussed earlier, the photographs, CD and the extent of mahar given would probabilize the case advanced by the petitioner and as such, there cannot be any interference to the order of the Lower Court directing to return the value of gold ornaments and an amount of Rs.1,50,000/-.

(3.) The past maintenance as well as the future maintenance awarded also deserves no interference by this Court as they are entitled to a living which they had accustomed in the company of her husband, unless there is change of circumstance reducing his income or change in the standard of living. The amount awarded is only meagre and does not call for any interference by this Court.