Shameema vs Mohamed Askar

R. Basant, J.—The appellant/wife has preferred this appeal against the rejection of her claim for return of an amount of Rs. 4,05,000/- which the respondent/her husband was allegedly liable to return to her.

That the parties are spouses is not disputed. The marriage took place on 4/7/93. Three children were born in the wed-lock and the spouses were together till 9/5/03 on which day separate residence commenced. It is the case of the appellant that 60 sovereigns of gold ornaments which were valued at Rs. 2,40,000/- on the date of the petition were worn by the appellant when she came to the matrimonial home after marriage. It is her case that these ornaments were misappropriated by the husband. According to her, when she went for the delivery of the first child, some of these ornaments were given to her; but they were also taken after she reached her parental home. The appellant/wife contended that on 9/5/03 when she returned from the matrimonial home, the entire quantity of 60 sovereigns of gold ornaments were at her matrimonial home. In addition to this, according to her, an amount of Rs. 1 lakh was paid as consideration at the time of the marriage. Later, when the husband shifted to a new house, Rs. 50,000/- was paid for purchase of furniture in the new house and household articles worth Rs. 15,000/- were handed over to the husband. It is thus that she claimed a total amount of Rs. 4,05,000/- (Rs. 2,40,000/- + Rs. 1,00,000/- + Rs. 15,000/- + Rs. 50,000/-).

The respondent/husband entered appearance and resisted the claim. According to him, no amount of Rs. 1 lakh or Rs. 50,000/- were handed over at the time of marriage or at the time of the house warming ceremony. Household articles were not given. He did not admit that the wife was having 60 sovereigns of gold ornaments. He, however, asserted that whatever gold ornaments she had had been taken back by her and no ornament belonging to her was available with him.

Parties went to trial on these contentions. The claimant/wife examined herself as P.W.1. The respondent/husband examined himself as R.W.1. No documents were marked.

The court below made an attempt to evaluate and assess the oral evidence of P.W.1 and R.W.1. The court below felt that the appellant on whom the burden lay to prove her case to entitle to her for a decree had miserably failed in establishing her case. Her self-serving assertions were not reckoned by the Family Court as sufficient to found a decree for money. Accordingly, the court below proceeded to pass the impugned order dismissing the claim in toto.

The respondent, though served, has not appeared before this Court. We have heard the learned Counsel for the appellant. The learned Counsel for the appellant contends that the court below erred totally and completely in rejecting the evidence of P.W.1. The court below was not realistic in the appreciation of evidence. The court below must have looked into the broad probabilities and must have come to conclusions in favour of the appellant. It is idle to assume that the bride would not have brought ornaments with her. It is unrealistic to assume that the husband did not know the quantum and nature of the ornaments brought by the wife. The assertion of the wife that she did not take any ornaments with her when she went back to her house must have been accepted. In any view of the matter, the complete rejection of the claim is not justified, contends the learned Counsel for the appellant.

Before the court below, there was significant absence of satisfactory materials to prove the claim of the appellant. The self-serving assertion of P.W.1 alone was there in support of the claim staked in the petition. Significantly no other material whatsoever was available. Except the self-serving assertion of the appellant, there was no other evidence whatsoever. The learned Judge of the Family Court in the given circumstances was certainly excepted to be cautious and careful. The possibility of exaggeration in a dispute between warring spouses must certainly have been taken into consideration by the Family Court. We do realise the difficulty of a wife to establish her case in the given circumstances. But we cannot be oblivious to the possibility of false and exaggerated assertions being made by a spouse like the appellant herein in the given circumstances. It would be totally unrealistic to assume that the wife will not be in a position to tender better evidence on her part in support of the claim, other than her own self-serving assertions. Many persons must have participated in the wedding. Photographs taken at the wedding may also be there. It is asserted that the husband had pledged the gold ornaments. No evidence whatsoever is adduced to even remotely indicate such pledging of ornaments. As to what is the quantum of gold ornaments that the wife may have carried with her to the matrimonial home, there is absolutely no evidence. Going by the evidence of the wife, her relatives had gone to the matrimonial home and she had returned along with them. There is nothing contemporaneous to show that she was refused permission to take away her personal belongings when she so left the matrimonial home.

The possibility of the assertions of the appellant being true cannot be ruled out. Equally, the possibility of the appellant making false and exaggerated assertions cannot also be ruled out. The trial court had the evident advantage of seeing the interested rival contestants making assertions on oath in the witness stand before it. The learned Judge who had occasion to see such evidence being tendered did not choose to place reliance on the oral evidence of P.W.1 in preference to that of R.W.1. The conclusion appears to be inevitable that the appellate jurisdiction available to this Court u/s 19 of the Family Courts Act cannot and need not be invoked to interfere with such discretion exercised by the trial court in choosing not to accept and act upon the oral evidence of P.W.1 in preference to that of R.W.1.

We do not intend to say that the oral evidence of R.W.1 is worthy of credence and can be swallowed by a prudent mind. But we are unable to agree that the self-serving version of P.W.1 can also be similarly accepted and swallowed by a court. The burden undoubtedly is on the party who seeks relief from the court. The claimant''s case must fail for the simple reason that the claimant has not been able to place such materials before court which can give the court the assurance that a decree for payment of money can be founded or anchored on such evidence. For that simple reason, the claim of the appellant fails and cannot succeed before this appellate court also. The challenge must fail.

In the result, this appeal is dismissed.