Gold in wedding Photo is not counted to retrieve

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

FRIDAY, THE 7TH DAY OF NOVEMBER 2014/16TH KARTHIKA, 1936

Crl.MC.No. 3028 of 2012 ()

AGAINST JUDGMENT IN CRRP 31/2011 of COURT OF SESSIONS, KOZHIKODE
MC 11/2006 of J.M.F.C.-V,KOZHIKODE

PETITIONER(S)/REVISION PETITIONER/ RESPONDENT:
MOHAMMEDALI,
S/O LATE MUHAMMED MUSLIAR
KOLAPPALLY EDAYAPPURAM HOUSE, CHOORAKKATTIL
PARUTHIPPARA, FEROOK COLLEGE P.O, KOZHIKODE

BY ADVS.SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SMT.SMITHA GEORGE

RESPONDENT(S)/STATE & COMPLAINANT:
1. RAHIYANATH,
D/O LATE HASSAINAR, MARATHTHAZHAM HOUSE
VAIDYARANGADI P.O, RAMANATTUKARA, NEAR BYE- PASS
KOZHIKODE, PIN-673633

2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HON’BLE HIGH COURT OF KERALA, ERNAKULAM 682031

R1 BY ADV. SRI.P.K.MOHAMED JAMAL
R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-11-2014,ALONG WITH CRL.R.P.1920/2012,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

CRL.M.C.3028/12

APPENDIX

PETITIONER’S EXHIBITS:

ANNEXURE A-TRUE COPY OF JUDGMENT DATED 1.6.2012 IN CRL.R.P.NO.29 OF 2011 ON THE FILE OF THE COURT OF SESSIONS, KOZHIKODE.

ANNEXURE B:TRUE COPY OF JUDGMENT DATED 31.1.10 IN M.C.11 OF 2006 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-V,KOZHIKODE.

RESPONDENTS’ EXHIBITS:NIL

//TRUE COPY//

P.A.TO JUDGE

“C.R”
C.T.RAVIKUMAR, J.

Crl.R.P.No.1920 of 2012 & Crl.M.C.No.3028 of 2012

Dated 7th November, 2014

ORDER
The captioned Crl.M.C. and Crl.R.P. have matrix from a common order in Crl.R.P.Nos.29 and 31, of 2011 dated 1.6.2012 passed by the Court of Session, Kozhikode. A succinct narration of the facts that led to the passing of the aforementioned common order is required for a proper disposal of these cases. The same petitioner filed both these cases against the common first respondent who is his divorced wife. Among the issues to be resolved the sustainability of a direction to return gold ornaments calculating the quantity relying on a photograph wearing the alleged ornaments handed over at the time of marriage, is also included. For the sake of convenience they are respectively referred to hereafter in this order as `the petitioner’ and `the first respondent’. Their marriage was conducted on 18.10.1998 and the matrimonial acrimony and disharmony developed into a cumbersome situation compelling them to part their ways and ultimately their marriage was dissolved as per decree dated 6.7.2005 in O.P.No.460 of 2002 of Family Court, Kozhikode.

2. Later, the first respondent-wife filed M.C.No.11 of 2006 before the Court of Judicial Magistrate of I Class-V,Kozhikode under Section 3 of Muslim Women (Protection of rights on Divorce) Act (for short `the Act’). Based on the rival contentions the following points were formulated for consideration by the learned Magistrate:-

“(1) Whether the petitioner is entitled to get any amount towards `iddath’ period maintenance ? (2) Whether the petitioner is entitled to get reasonable and fair provision for her future maintenance ? (3) Whether the petitioner is entitled to get value of gold ornaments, value of household articles and money, if any, appropriated by the respondents? (4) If the petitioner is entitled to get maintenance, what is the quantum?”

3. The learned Magistrate found that the first respondent is not entitled to get any amount towards `iddath’ period maintenance and that she is entitled to get `56,000/- as reasonable and fair provision and maintenance under Section 3 of the Act. The claim of the first respondent that `the petitioner’ is liable to return 80 sovereigns of gold ornaments or an amount equal to the value of the same and certain other household articles was considered and `the petitioner’ was directed to return either 25 sovereigns of gold ornaments or `3,62,500/- towards its value to the first respondent. Both the petitioner and the first respondent preferred revision petitions against the said judgment before the Sessions Court, Kozhikode respectively as Crl.R.P.No.31 of 2011 and Crl.R.P.No.29 of 2011 and they were heard jointly and a common order dated 1.6.2012 was passed. As per the same, Crl.R.P.No.29 of 2011 filed by the first respondent was allowed in part and Crl.R.P.No.31 of 2011 was dismissed and the petitioner was directed as hereunder:-

“1. to return 80 sovereigns of gold ornaments exhibited in Ext.P4 or pay an amount of Rs.16,80,000/- (at the rate of Rs.21,000/- for one sovereign)
2. to return 5.5 sovereigns of gold ornaments towards Mahar or pay Rs.1,15,500/-.
3. to return fridge and mixer or otherwise pay an amount of Rs.10,950/-.
4. to pay an amount of Rs.56,000/- towards reasonable and fair provision and maintenance.
In total, if the petitioner is not returning any gold ornaments and articles, he has to pay Rs.18,62,450.00 within a period of 30 days from today.”
The above Criminal Revision Petition has been filed against the order in Crl.R.P.No.29 of 2011 and the above Criminal Miscellaneous Case has been filed against the order in Crl.R.P.No.31 of 2011.

4. I have heard the learned counsel appearing for the petitioner, the learned counsel appearing for the first respondent and also the learned public prosecutor.

5. As stated hereinbefore, after the dissolution of the marriage the first respondent claimed fair and reasonable provision and maintenance under Section 3 of the Act and the learned Magistrate found that the first respondent is entitled to get `2,000/-

5 each for a period of 28 months. In the light of the decision of the Hon’ble Apex Court in Danial Latifi and Another v. Union of India ((2001) 7 SCC 740) reasonable and fair provision for future maintenance under Section 3(1)(a) of the Act claimed by a divorced Muslim woman cannot be said to be limited for the `iddat’ period and it extends for the entire life of the divorced Muslim wife, unless she gets remarried. Evidently, in this case, the marriage was dissolved on 6.7.2005 and thereafter, the first respondent got remarried on 18.11.2007. It is in the said circumstances that an amount of `56,000/- was granted towards her reasonable and fair provision and maintenance under Section 3(1)(a) of the Act. The said order passed in M.C.No.11 of 2006 was evidently confirmed by the learned Sessions Judge in Crl.R.P.No.29 of 2011. Taking into account the fact that only an amount of `2,000/- was fixed, the status of the parties and the capacity of the petitioner-husband to pay maintenance and other attending circumstances and that the period of 28 months was correctly calculated by reckoning the period between the date of dissolution of the marriage and the date of re-marriage of the first respondent I do not find any ground or reason to interfere with that part of the order in Crl.R.P.No.29 of 2011 of the learned Sessions Judge confirming the fixation of reasonable and fair provision for future maintenance as per the order passed by the learned Magistrate in M.C.No.11 of 2006.

6. The main challenge of the petitioner is against the direction to return 80 sovereigns of gold ornaments or an amount of `16,80,000/-. In that context, it is to be noted that the case of the first respondent is that at the time of the marriage she was given 80 sovereigns of gold ornaments and the same were handed over to the petitioner and he had misappropriated them and therefore, he is liable to return the same. In M.C.No.11 of 2006 on the side of the first respondent, she was examined as PW1 besides getting examined PWs 2 to 4 and marked Exts.P1 to P15. On the side of the petitioner he was examined as RW1 and Messieurs Hamsa Koya and Vijayakumar were respectively examined as RW2 and RW3 and Exts.D1 to D3 were marked. After analysing the entire evidence the trial court found that the first respondent had succeeded only in establishing that 25 sovereigns of gold ornaments were entrusted with the petitioner as against the claimed entrustment of 80 sovereigns. However, in Crl.R.P.No.29 of 2011 filed by the first respondent the learned Sessions Judge reversed the findings and held that the first respondent is entitled to 80 sovereigns of gold ornaments exhibited in Ext.P4 or an amount of `16,80,000/- towards its value. It is further found that the petitioner is liable to return 5.5 sovereigns of gold ornaments towards Mahar or an amount of `1,15,500/- and also a fridge and mixi or otherwise an amount of `10,950/-.

7. The learned Senior counsel appearing for the petitioner contended that the order to return 80 sovereigns of gold ornaments in terms of Ext.P4 or to pay an amount of `16,80,000/- is not founded on any legally sustainable piece of evidence. The oral testimonies of PWs 1 and 3 and also Exts.P4 and P12 series were unworthy for credence and relying on them the learned Sessions Judge ought not to have found that the petitioner is liable to return 80 sovereigns of gold ornaments especially in the light of the evidence of the petitioner as RW1 and the evidence of the Secretary of Ramanattukara Panchayat as RW3 along with Ext.D1, it is contended. In fact, the very finding in M.C.No.11 of 2006 that the petitioner is liable to return 25 sovereigns of gold ornaments itself is also challenged on the same ground. Obviously, to establish that 80 sovereigns of gold ornaments were given to her at the time of marriage with the petitioner Ext.P4 bill issued from Bismillahh Jewellery, Ramanattukara owned by PW3 and Ext.P12 series of photographs were relied on by the first respondent. Nonetheless, the learned Magistrate did not act upon those materials and the conclusion that the petitioner is liable to return only 25 sovereign of gold ornaments was arrived at independent of such materials. The learned Sessions Judge set aside the said finding and conclusion believing the version of PW1 and PW3 and relying on Ext.P4 bill and Ext.P12 series of photographs and held that the first respondent is entitled to get returned the entire 80 sovereigns of gold ornaments.

8. In view of the divergent finding on the aforesaid question I may firstly consider whether Ext.P4 bill could be relied on by the first respondent to establish that in connection with her marriage 80 sovereigns were purchased and given to her. As stated hereinbefore, Ext.P4 bill was issued from Bismillahh Jewellery and to prove the same PW3 was examined by the first respondent and obviously, he deposed to the effect that he had issued Ext.P4. However, it is to be noted that PW3 had also admitted the fact that he was not possessing any licence, at the time of issuance of Ext.P4, to conduct the said Jewellery. The petitioner let in evidence through RW3 to show that the Jewellery by name `Bismillah Jewellery’ was not in existence within Ramanattukara Panchayat at the relevant point of time. Ext.D1 is the certificate issued to that effect by RW3, the then Secretary of Ramanattuara Panchayat. RW3 deposed to the effect that during the relevant point of time no such Jewellery by name `Bismillah Jewellery’ was functioning within the limits of Ramanattukara Panchayat. There is no case for the first respondent and evidently, no case was also advanced before the courts below by the first respondent to the effect that for conducting a jewellery within he limits of a Panchayat a licence from the concerned Local Self Government Institution is unnecessary and unwarranted. It is also relevant to note that PW3 admitted in the box that he was not holding a licence issued from Ramanattukara Panchayat at the relevant point of time. Such circumstances constrained the learned Magistrate to disbelieve PW1 and PW3 on the aforesaid aspect and to discard Exts.P4 as a piece of evidence to support the claim of the first respondent. A perusal of the judgment in M.C.No.11 of 2006 would reveal that the learned Magistrate ordered for the return of 25 sovereigns of gold ornaments without placing any reliance on Ext.P4 or Ext.P12 series of photographs. It indeed came out in evidence that the first respondent left the house of the petitioner without taking her gold ornaments. The case of the petitioner that the gold ornaments were entrusted to PW2 who participated in the mediation talk was also taken into account. The learned Magistrate held that when once it is admitted that the first respondent was in possession of 25 sovereigns of gold ornaments and she left the matrimonial home without taking her ornaments the petitioner who asserted the entrustment of those ornaments with PW2, the mediator, got the onus to establish the same. PW2 had not supported the case of the petitioner. Though he was cross examined at length the petitioner could not elicit anything to discredit his version regarding entrustment of gold ornaments. In the said circumstances, taking into account the admission on the part of the petitioner that the common first respondent had 25 sovereigns of gold ornaments at the time of marriage and that she left his house without taking her gold ornaments and the failure on his part to establish the entrustment of said gold ornaments with PW2 the learned Magistrate found that the petitioner is liable to return 25 sovereigns of gold ornaments to the first respondent and ordered accordingly. As per the impugned common order in Crl.R.P.29 & 31 of 2011 the said finding of the learned Magistrate was reversed by the learned Sessions Judge and the petitioner was directed to return 80 sovereigns of gold ornaments exhibited in Ext.P4 or to pay an amount of `16,80,000/-. The question is whether the re-appreciation of evidence and the consequential reversal virtually, modification, of the finding of the learned Magistrate as per the impugned common order by the learned Sessions Judge in exercise of revisional jurisdiction is legal and justifiable ? For a proper consideration of the said question the scope of revisional jurisdiction of Sessions Judge has to be looked into. It is to be understood that revisional jurisdiction in its own scope does not postulate appreciation of evidence. Normally, the scope of revisional power is to call for the records of any inferior criminal court and examine the correctness, legality or propriety of the finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court and to pass appropriate orders. Therefore, unless the finding of the inferior court is shown to be perverse or capricious or untenable in law or founded on irrelevant or inadmissible evidence or one passed ignoring relevant evidence interference is uncalled for in exercise of revisional jurisdiction. So also, such interference is impermissible merely because on the same set of evidence another view different from the one taken by the inferior court is possible. Bearing in mind the broad principles, as aforesaid I will scan the impugned common order passed by the learned Sessions Judge in Crl.R.P.Nos.29 and 31 of 2011. As stated hereinbefore, the first question is whether re-appreciation of evidence and the reversal of the finding, virtually modification, of the learned Magistrate in regard to the claim of the first respondent relating return of 80 sovereigns of gold ornaments exhibited in Ext.P4 or its value is legal, proper and correct ?

READ  No proof of dowry articles - Acquitted

9. The first respondent produced Ext.P4 claiming that it is the bill issued from Bismillah Jewellery on 17.10.1998 for the purchase of 80 sovereigns of gold ornaments. PW3 was examined on the side of the common first respondent to show that it was issued by him. However, in the box PW3 deposed that he was not then engaged in the business of selling of gold ornaments and he got no sales tax certificate or labour certificate. He would further depose that Ext.P4 is not a bill issued towards the purchase of gold ornaments whilst it is only a bill evidencing the making of gold ornaments as per the order placed by the first respondent. In that context, it will not be inappropriate to look into the precise case of the first respondent and the evidence adduced by her in support of it. Before dealing with the said issue it is to be considered as to how it is to dealt with and why. When the first respondent was examined in chief as PW1 she deposed:-

10. She was examined in chief on 12.3.2007. Thereafter,

while being cross examined on 21.4.2008 she would depose thus:-

11. It is to be noted that in respect of her second marriage conducted on 18.11.2007 during her cross examination held shortly after just five months since that marriage, she feigned ignorance about the gold ornaments given to her in that marriage. But, at the same she deposed regarding very same aspect in connection with her marriage with the petitioner which was performed as far back on 18.10.1998 in detail. Hence, her evidence has to be scanned with circumspection and caution. The first respondent tendered oral evidence through PW3 and documentary evidence of Exts.P6 to P10 and P11 as also Ext.P12 series of photographs to establish that at the time of her marriage with the petitioner on 18.10.1998 she was given 80 sovereigns of gold ornaments. According to her, she was decked with those gold ornaments at the time of marriage and she brought them to the matrimonial home and then entrusted them with the petitioner.
First respondent further deposed that extreme discordancy and constant bickering made her to return to her parental home on 16.7.2002 and that too, without taking any gold ornaments. To know the reasons that persuaded the learned Sessions Judge to interfere with the findings of the learned Magistrate and to order for the return of 80 sovereigns of gold ornaments, paragraphs 15 to 18 of Annexure-A order are to be seen and screened. Paragraph 15 of the order of the learned Sessions Judge would reveal that the aforementioned testimony was taken as credible by the learned Sessions Judge in the backdrop of Ext.P12 series of photographs and Ext.P4. It was held therein thus:-

“If the photos are relied upon, there is no difficulty in coming to a conclusion that the petitioner was in possession of 80 sovereign of gold ornaments as on the date of marriage.”

12. A further scanning of the order would reveal that the learned Sessions Judge found that the petitioner herein got no contention that the bejewelled bride seen in Ext.P12 series is not his former wife. The oral testimonies of PW1 and PW3 along with Ext.P12 series and Ext.P4 evidently constrained the learned Sessions Judge to come to the conclusion that the first respondent had worn 80 sovereigns of gold ornaments at the time of marriage and the said conclusion coupled with the admission from the part of the petitioner that on 16.7.2002, the first respondent went to her paternal home without taking any gold ornaments made the learned Sessions Judge to find that the first respondent is entitled to get returned 80 sovereigns of gold ornaments. In the circumstances, a scrupulous scanning of the oral testimonies of PW1 and PW3 become essential.

PW1, the first respondent, would depose that all the gold ornaments were purchased from Bismillah jewellery and for that purpose 70 gold coins were given. Ext.P4 is marked through the first respondent as the bill for the purchase of gold ornaments issued from Bismillah Jewellery belonging to PW3. It is to be noted that during cross- examination, PW3 was asked about the entry of the name ‘Raihanath’ in Ext.P4. In Ext.P4 bill, the name of one Raihanath and the date 17.10.1998 were made with different inks and that apart, Ext.P4 would not reveal that the person whose name had been entered therein as Raihanath and the first respondent is one and the same person. No details with respect to such person viz., father’s name, address etc. were given thereunder. As a matter of fact, a perusal of Ext.P4 would reveal that it cannot be treated at all, as a bill issued from Bismillah Jewellery by PW3 towards the purchase of gold ornaments. PW3 himself deposed to the effect that it was not a bill issued towards the purchase of gold ornaments whilst it is only a bill evidencing the making of gold ornaments based on an order placed by the first respondent. Apart from the oral testimony of PW3 that he started Bismillah Jewellery in the year 1995, there is absolutely no document which would reveal that the said jewellery commenced its functioning in 1995 and was in existence on 17.10.1998, the date shown in Ext.P4. The first respondent has produced a registration certificate relating Bismillah Jewellery viz., Ext.P11 dated 2.9.2002 issued from the Assistant Labour Office, Feroke and it carries an entry as follows:-

13. It would also reveal that the said certificate was renewed on 16.7.2003, 8.3.2004, 23.12.2004 and it was finally renewed up to 31.12.2006 on 8.12.2005. No competent authority from the Assistant Labour Office, Feroke was examined to prove the said document. Even otherwise Ext.P11 would not disclose the date on which Bismillah Jewellery started its functioning and more importantly, it would not indicate or establish that Bismillah Jewellery commenced its functioning prior to 17.10.1998 or even on that day. Exts.P6, P7, P8, P9 and P10 series were produced in a bid to establish that the said Jewellery was in existence in the year 1998. At the same time, a perusal of Exts.P6 to P10 would reveal that apart from Ext.P8, all the other letters addressed to PW3 were of the year 1999. True that in Ext.P8, the date is shown as 11.3.1996 and the name of the addressee is Abdulla, Bismillah Jewellery. The author of the said letter was not examined and no other document was produced from the side of the first respondent to show that the said jewellery was functioning on 17.10.1998 and it was engaged in the sale of gold ornaments. If any registration certificate issued from the office of the Assistant Labour Officer to Bismillah Jewellery covering the period 18.10.1998 was available, it could have been produced by the first respondent in the M.C through PW3. In short, no document from Assistant Labour Office evidencing its registration from any earlier period upto the date of Ext.P4 was produced. It is in this context that the evidence tendered by RW3 assumes relevance. The precise case of the petitioner while being examined as RW1, is that in Ramanattukara no jewellery by name Bismillah Jewellery was in existence in the year 1998. It is to substantiate the said contention that the petitioner got examined RW3, the Secretary of Ramanattukara Panchayat and he deposed that no jewellery by name Bismillah Jewellery was functioning within the limits of Ramanattukara panchayat during the year 1998. It is to substantiate the same that Exts.D1 to 3 were produced. Evidently, the first respondent herein (PW1) or PW3 had not produced any evidence for establishing that Bismillah Jewellery was functioning with valid licence to effect sale of gold ornaments during the relevant period in the year 1998. As noticed hereinbefore, Ext.P4 was got marked as a bill issued from Bismillah Jewellery for the purchase of 80 sovereigns of gold though PW3 stated that it is only a bill evidencing making of the gold ornaments and not one relating purchase of gold. Despite the inter se contradiction between the versions of PW1 and PW3, I think it only appropriate to go on with the consideration of Ext.P4. A perusal of the same would reveal that it cannot be construed as a bill in the strict sense and in fact, it is nothing but a scribble relating the gold used for making certain ornaments. Even if Ext.P4 is taken as a bill or a receipt issued by PW3, entries therein are not conclusive enough to establish that it was issued in favour of the first respondent or even in respect of the quantum of gold ornaments allegedly given to the first respondent at the time of her marriage with the petitioner. When the existence of the very jewellery by name Bismillah as also the correctness and admissibility of Ext.P4 are under challenge, the burden to establish the verity of the contentions based on them was on the first respondent. It cannot be said that the first respondent has discharged the said burden successfully by examining PW3 and by producing Exts.P4, P6 to P10 and P12 series of photographs. During the chief examination, the first respondent deposed as follows in relation to Ext.P4:- During the cross examination in respect of the same she deposed:-

READ  Deny SeX, attempt to suicide, Mental Cruelty - Divorce

14. Thus, the first respondent (PW1) who testified Ext.P4 as the bill issued for the purchase of gold ornaments from Bismillah Jewellery in connection with her marriage with the petitioner in her chief examination deposed that she did not know as to whether it is the bill obtained for the purchase of gold ornaments during her cross examination. That apart, her evidence would reveal that she asserted that gold ornaments were purchased from Bismillah Jewellery on the previous day of the marriage, i.e., on 17.10.1998 after giving 70 sovereigns of gold coins. Furthermore, she stoutly denied the suggestion that during 1998 there was no sale of jewellery in Bismillah Jewellery. It is pertinent to note that she deposed that she did not know from where those gold coins were obtained. PW4 is the brother of the first respondent. He would depose that at the time of marriage, 80 sovereigns of gold ornaments were given to the first respondent and those gold ornaments were purchased from Bismillah Jewellery. But, what he would depose is that 70 sovereign of gold ornaments were made from that jewellery. PW3 who claims to be the owner of the Bismillah Jewellery, apart from the matters noted hereinbefore, deposed further that Ext.P4 would reveal the quantity of gold handed over to him by the party as 560.460 and the name of the party has been shown there as one Raihanath. The date on which the gold coins were handed over for making gold ornaments is not revealed either by PW1 or by PW3. Whether the unit is in grams or sovereigns is not discernible from it. But, if it is taken as grams the weight of gold ornaments will be slightly above 70 sovereigns.

Ext.P4 is dated 17.10.1998. If such quantity of gold coins were handed over for the purpose of making gold ornaments, taking into account the fact that the marriage was on 18.10.1998 it could not be believed that they were handed over, for that purpose, on the previous day of the marriage. In such circumstances, the question is what persuaded PW1 to obtain and what made PW3 to give Ext.P4 on 17.10.1998? In this context, it is also to be noted that in Ext.P4 the name Raihananth and the date 17.10.1998 were written with different inks. Even if gold coins worth 70 sovereigns were handed over to PW4 how could gold ornaments worth 560.460 gms, if the unit mentioned in Ext.P4 is gms, be made out of it? When gold ornaments are made out of gold coins, be it with the help of machines or manually, loss of gold would undoubtedly occur and at any rate, gold ornaments weighing more than 70 sovereigns could not have been made out of gold coins weighing 70 sovereigns. Loss of a minimal quantity would invariably take place during the making and such an allowance is permissible in the matter of making of gold ornaments which is commonly called “IC_Aax”” (panikuttam). Even if, for argument sake, it is taken that no loss of gold took place in the instant case and gold coins worth 70 sovereigns were used for making gold ornaments weighing 70 sovereigns, there is no explanation with respect to the purchase of 10 more sovereigns from Bismillah Jewellery. Even if it is taken that for making ornaments using such gold coins some other metalor material was to be used and therefore, it is possible to make ornaments weighing 70 sovereigns or more than that no such evidence was adduced despite the examination of PW3 who allegedly made such ornaments. While PW1 categorically stated that 80 sovereigns were purchased from Bismillah Jewellery after providing gold coins worth 70 sovereigns on 17.10.1998, the version of PW4, her own brother, is that 80 sovereigns were made at the said jewellery with the gold coins supplied by the family. PW3 did not support the sale of gold ornaments from his jewellery during the said period and he would say that gold ornaments were made with the gold coins supplied by the petitioner therein viz., the first respondent herein. If so, where is the question of giving 80 sovereigns gold ornaments from Bismillah Jewellery by PW3 or purchase of 80 sovereigns of gold ornaments from there. There is absolute absence of any explanation in that regard from the first respondent. There was no consideration of such aspects in the impugned common order. Yet another aspect also calls for consideration in these cases. How can a claim of entrustment of 70 sovereigns of gold coins for the purchase/making of gold ornaments worth 80 sovereigns be simply swallowed when PW1, the first respondent herself deposed that she did not know from where such gold coins were obtained. During the cross-examination she had only deposed thus:-

15. Whether the version of possession of gold coins worth 70 sovereigns could be believed and accepted based on the evidence of PW1 and PW4 in the circumstances mentioned above, especially PW1 is absolutely unaware of its source? Collection gold coins in such large numbers cannot simply be accepted based on a mere oral testimony especially when the trustworthiness of the testifier itself is under cloud. How can the version of PW1, the first respondent be believed without proper corroboration when she gave evidence regarding the purchase of gold ornaments from Bismillah Jewellery by giving gold coins only and when she gave evidence that only gold coins worth 70 sovereigns were given and at the same time maintained the stand that the entire 80 sovereigns were thus purchased from Bismillah Jewellery. Going by the evidence of PW4 also only that much gold coins were provided to PW3 for making gold ornaments. PW4 did not reveal how gold coins in such large numbers were obtained. PW3 did not depose that he sold 10 more sovereigns of gold from his jewellery on 17.10.1998. In this context it is also to be noted that the first respondent (PW1) did not adduce any evidence relating the purchase of even a single gold coin. In such circumstances, it can only be said that there was no evidence whatsoever for accepting the version regarding handing over of gold coins worth 70 sovereigns to PW3 even if it is believed that during that time PW3 had been engaged in the making of gold ornaments. At any rate, purchase of gold coins in such large numbers without any document relating purchase of even a single gold coin cannot be the basis for ordering return of 80 sovereigns of gold ornaments based on the oral testimonies of PW1, PW3 and PW4 and Ext.P4.

16. I may now, consider the tenability of the reliance placed on Ext.P12 photographs by the learned Sessions Judge. As noticed hereinbefore, the learned Sessions Judge held that if the photos were relied on there would be no difficulty in coming to the conclusion that the first respondent (the petitioner therein) was in possession of 80 sovereigns of gold ornaments as on the date of marriage with the petitioner. Nowadays, it is a fact that imitation gold ornaments made of other metals and ornaments plated with gold are available in market and it will not be able to distinguish and identify such ornaments if worn together with original gold ornaments and photographed, with naked eye. In such circumstances, blind acceptance of all photographed ornaments as pure gold ornaments and further, making calculation regarding the weight of each of such ornaments for the purpose of finding the verity of the claim made for the return of gold ornaments given to the bride at the time of marriage without any other reliable proof would be extremely unsafe. Hitherto no technology has been developed to identify whether an ornament appearing in a photograph is gold or not.

READ  Phone Affair ground for Divorce

17. Considering the present day value of gold such blind acceptance and ordering for the return of gold ornaments based on determination made purely relying on such photographs might put the person called upon to return the same in indebtedness and to toil and moil throughout the rest of the life for none of his faults, to redeem from it. It is also to be noted in this context that on account of of dexterity and peculiarity in the making of a gold ornament it may appear to have more weightier than its original weight. In such circumstances, the very practice of passing orders for returning of gold ornaments merely by looking at photographs and assessing its weight for the purpose of passing orders to return gold ornaments without considering the question whether the claim is plausible can only be a perverse appreciation of evidence. The discussions made by the learned Sessions Judge in the impugned order for reversing the findings of the learned Magistrate would reveal that Ext.P12 series were heavily relied on and the same reads thus:-

“The photos explicitly depicts the gold ornaments worn by the petitioner. I gone through Ext.P4 and found that almost all the gold ornaments described in Ext.P4 is found worn by the petitioner.

Therefore, Ext.P4 can be relied upon to gather the truth of the fact that PW1 received gold ornaments worn by her. If the photos are relied upon, there is no difficulty in coming to a conclusion that the petitioner was in possession of 80 sovereigns of gold ornaments as on the date of marriage.”

18. I have already found that Ext.P4 could not have been relied on as a piece of reliable, corroborative evidence. In short, I have no hesitation to hold that the learned Sessions Judge went wrong in interfering with a merited consideration of the matter by the trial court. With respect to the question regarding the prayer of the first respondent for mahar to the tune of 5= sovereigns of gold or its value, evidently, that prayer was declined by the learned Magistrate. However, the same was allowed by the learned Sessions Judge in R.P. 29 of 2011. In that context, it is to be noted that the first respondent while being examined as RW1 categorically deposed that at the time of marriage she was given gold chain having 5= sovereigns as mahar. While being examined as RW1 the petitioner herein would also admit the fact that what was given as mahar was a chain having 5= sovereigns. The evidence of the petitioner would reveal that while returning to the paternal home, the first respondent had not taken any gold ornaments with her. In such circumstances and in the absence of any reasons in the order in the M.C for declining it by the learned Magistrate no flaw could be found for the interference with that part of the order. Section 3(3) of the Act reads thus:-

3.3. Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that-
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her. make an order, within one month of the date of filing of the application directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband, or as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman:
Provided that if the Magistrate finds, it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.

19. In such circumstances, Annexure-A order of the learned Sessions Judge with respect to mahar calls for no interference. At the same time, it is evident that in the M.C the petitioner claimed only `17600/- as the amount equal to mahar. As against the said claim, as per the impugned judgment, the learned Sessions Judge had ordered for the return of `115500/- reckoning rate of one sovereign of gold prevailing at the relevant point of time. The petitioner shall either return 5= sovereigns of gold or its equivalent value viz.,`104500/- reckoning the rate of one sovereign at `19000/- to the first respondent. With respect to the return of fridge and mixer, `12450/- was claimed by the first respondent in the M.C. Evidently, the learned Magistrate declined to grant the said relief. However, the same was also reversed in the order in the revision petition by the learned Sessions Judge. The learned Magistrate as per Annexure-B judgment considered certain circumstances to grant the said prayer as is evident from paragraph 10 of the said judgment. It is stated therein thus:-

34 “As a part of custom prevailing among Muslims a fridge and mixy were also given to the respondent at that time. It has come out in evidence that the delivery of PW1 was on 7.9.99. She was taken to the house of the respondent after 90 days from the date of delivery. The claim of PW1 that the articles were purchased much earlier for giving to the respondent is not so believable. There was no necessity for PW1 or her relatives to purchase the fridge and mixy some 7 months prior to the giving the same to the respondent. On the other hand brand now (sic. New) articles are expected to be given to respondent. The above being the case one cannot rule out the submission of defence counsel that fridge and mixy might have purchased by PW1 or her relatives for some other purpose. However, the evidence adduced on the side of petitioner is not sufficient to hold conclusively that a fridge and mixy were given to respondent while taking PW1 to his house after delivery. So I find this point accordingly.”

20. Though it could not be said that there is a custom prevailing among the Muslims to give fridge and mixy, the other reasoning by the learned Magistrate appears to be the only plausible view available in the facts and circumstances. Evidence in this case would reveal that the delivery of PW1, first respondent was on 7.9.1999 and she was taken to the house of the petitioner after 90 days from the date of delivery. Her claim was founded on bills dated 22.5.1999. It was therefore, found that the fridge and mixy were purchased 7 months prior to the arrival of PW1 in her matrimonial home after delivery. What is the necessity of PW1 or her relatives to purchase fridge and mixer prior to 7 months of handing over of the same? The learned Magistrate also observed that normally only branded new articles alone would be expected to be given in connection with such custom. It is taking into account the fact that the fridge and mixer claimed to have been given to the petitioner were purchased about 7 months prior to the occasion for handing over the same that the learned Magistrate declined to believe the version of the first respondent. That apart, it is hard to believe that used articles were given as part of such custom, if at all there is such a custom. It is to be noted that to reverse the said finding, the learned Sessions Judge in paragraph 19 of Annexure- A judgment held that Exts.P2 and P3 documents would reveal that she purchased the same before her arrival at the husband’s house. No reason whatsoever has been assigned by the learned Sessions Judge in reversing the findings of the learned Magistrate relating the aforesaid point. When the conclusions and findings of the learned Magistrate was a plausible view in the matter without assigning any sustainable reason the said finding ought not to have been interfered with, that too, without assigning any reason. In such circumstances, order of the learned Sessions Judge for the return of fridge and mixer or an amount of `10950/- cannot be sustained and the order of the learned Magistrate has to be restored. As noticed hereinbefore, the learned Magistrate found that the petitioner is liable to give an amount of `56000/- towards fair and reasonable provision and maintenance. That order was not interfered with by the learned Sessions Judge in the common order. As noticed hereinbefore, R.P.No.29/11 was filed by the first respondent against the judgment in M.C.No.11 of 2006 and R.P.No.31/2011 was filed by the petitioner herein against the judgment in M.C.11/06. As per Annexure-A order, the learned Sessions Judge dismissed R.P.No.31 of 2011 and R.P.No.29 of 2011 was allowed in part. In view of aforesaid findings, both Crl.R.P.No.1920 of 2012 and CRL.M.C.No.3028 of 2012 are allowed in part as hereunder:-

The direction of the learned Sessions Judge to return 80 sovereigns of gold ornaments exhibited in Ext.P4 or to pay an amount of `16,80,000/- (at the rate of `21,000/- for one sovereign) is set aside and the direction of the learned Magistrate regarding return of 25 sovereigns of gold ornaments is retained fixing the rate of one sovereign at `19,000/-. Accordingly, it is ordered that the petitioner shall return 25 sovereigns or pay its value viz., `4,75,000/- to the first respondent. With regard to mahar, the petitioner shall either return 5= sovereigns or pay `1,04,500/-. The order with respect to the return of fridge and mixer passed by the learned Sessions Judge in Annexure-A is vacated and the order of the learned Magistrate that the first respondent is not entitled to get return of fridge and mixer is restored. Order to pay an amount of `56,000/- towards fair and reasonable provision is also retained.

Sd/-

C.T. RAVIKUMAR (JUDGE)

Leave a Comment

Your email address will not be published. Required fields are marked *