Unreasonable To Expect Documentary Evidence For Money Exchanged Between Parties At Time Of Marriage: Kerala High Court

Justice Anil K Narendran and Justice Sophy Thomas observed that in matrimonial cases, documentary evidence cannot be insisted upon to prove every transaction taken place during a marriage. The Court relied upon the oral testimony given by the wife’s father and brother regarding the patrimony amount. It held thus:

“It is true that no documentary evidence is there to prove the source of money or to prove the handing over of money at the time of marriage. But the oral testimony of PWs 1 and 2 is clear and cogent enough to come to a conclusion that Rs.1,50,000/- was handed over to the respondent at the time of marriage as patrimony of the appellant.”

The Court heavily relied upon the judgment in Bexy Michael v. A.J. Michael (2010) wherein the Court stated that it was unreasonable for the Court to insist upon documentary evidence to prove that money and gold were given at the time of marriage.

It also relied upon Jubairiya M.K.v Abusalih and another (2013) and stated that in matrimonial cases, it may be difficult to get documentary evidence for each and every transaction.

“In Jubairiya M.K.v. Abusalih and another[2013(2) KHC 304], this Court reiterated that, even in the absence of documentary evidence to prove payment of money and gold, oral evidence of the parties if found believable, can be relied upon by the court for granting relief, as we know, in matrimonial cases, it may be difficult to get documentary evidence for each and every transactions."

The marriage between the appellant-wife and respondent-husband was solemnized on August 2006 and it was claimed that at the time of marriage, the wife’s family gave 50 sovereigns of gold ornaments and one lakh fifty thousand rupees in cash. After the relationship turned sour, she filed original petition before the Family Court for return of patrimony and past maintenance. The wife has approached the High Court against the order of the Family Court rejecting her claim for patrimony and for ordering inadequate maintenance amount.

The counsel for the appellant-wife contended that the gold and money given to her as patrimony for their marriage and it was misappropriated by the husband for his business. Photographs wearing the gold ornaments taken during their marriage and other evidences like bill from goldsmith was produced.

The counsel for the respondent-husband denied the contentions and argued that he was not entrusted with gold or money during the marriage. He argued that the wife’s family had no financial capacity to give gold or money. He further argued that when the wife left the matrimonial house, she took those gold ornaments with her back to the paternal house.

The Court found that it was probable for the wife to take back her gold ornaments with her when she left her matrimonial house. Also, no details regarding the description of gold ornaments was given. The Court found that the Family Court rightly rejected the claim for gold ornaments.

The Court stated there was no documentary evidence except oral testimony of the wife’s father and brother to prove that one lakh fifty thousand rupees was given as patrimony amount to the husband at the time of marriage. But the Court noted that it was a matter of common knowledge that in a Muslim arranged marriage, patrimony amount might have been given to the husband by the wife’s family.

The Court relied upon Bexy Michael (supra) to state that in matrimonial cases involving civil disputes, the Court can rely upon oral evidence and not insist for documentary evidence.

“Absolute certainty is not the requirement under Section 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 petitioner has been discharged or not.”

The Court thus ordered to return the of the patrimony amount to the wife. It upheld the Family Court's order regarding the findings on gold ornaments and past maintenance rate.

Counsel For The Appellant: Advocates K.P.Sudheer and Arun Mathew Vadakkan

Counsel for the respondents: Advocate Deepa Narayanan

Citation: 2023 LiveLaw (Ker) 542

Case title: Fousiya v Shamsudheen Pokkadan

Case number: Mat.Appeal No. 1 of 2014

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