1. These Mat. Appeals are preferred by the parties in O.P.No.760 of 2017 on the files of the Family Court, Irinjalakuda. Mat. Appeal No.8 of 2024 was filed by respondent in the said Original Petition challenging the direction in the judgment of the Family Court to return 25 sovereigns of gold ornaments or its value. Mat. Appeal No.103 of 2024 is filed by the petitioner in the said Original Petition seeking the value of the gold ornaments at its present rate. For the purpose of considering these Appeals, Mat. Appeal No.8 of 2024 will be treated as a lead case and the parties will be referred to as per their order in the said case.

2. The brief facts necessary for the filing of the Mat.

                  Appeal is as follows:-

                  The appellant is the husband of the respondent and their marriage was solemnized on 17.04.2004 in accordance with the customary rites and ceremonies prevalent in the Hindu religion. Two male children were born in the wedlock. The Original Petition was filed by the respondent-wife, contending that after the birth of the second child, the relationship between the appellant and the respondent turned sour and the respondent was subjected to grave acts of cruelty and ultimately, she was sent away from her matrimonial home on 22.06.2017. According to the respondent-wife, at the time of marriage, she was provided with 25 sovereigns of gold ornaments, which were entrusted to the appellant as a trustee. As the appellant failed to return the gold ornaments which were entrusted to him and certain documents which were shown in as Item B schedule, the respondent filed the Original Petition seeking return of gold ornaments and the petition B schedule documents and to restrain the appellant from committing waste over the B schedule properties or from alienating or disposing of the same.

3. The appellant entered appearance before the Family Court and disputed the allegations of mental and physical cruelty. According to him, the family of the respondent did not have the financial capacity to provide her with 25 sovereigns of gold ornaments, and as such, she was neither wearing the gold ornaments as stated, nor were those entrusted to the appellant. The appellant also stated that the documents shown in B schedule, which were available with him, were returned through court and no further documents were in his possession. The appellant denied the allegation that he had ousted the respondent from the appellant's house on 22.06.2017. On the other hand, the case of the appellant is that the respondent voluntarily left the company of the appellant. The respondent was in possession of about 12 sovereigns of gold ornaments purchased by the appellant and presented to the respondent.

4. Before the Family Court, evidence was let in by both parties. PW1 to PW4 were examined on the side of the respondent and Exts.A1 to A7 were marked through them. The appellant examined himself as RW1 and Exts.B1 to B4 series were marked. The bank account statement in the joint account of the appellant and the respondent was produced as Ext.X1 through PW3. The respondent-PW1 deposed in tune with the averments in the pleadings. The respondent-PW1 stated that her father had died in a motor accident and the family received a compensation under the Motor Vehicles Act, 1988 and a portion of the award amount was utilized for purchasing 25 sovereigns of gold ornaments and B schedule movable properties, including a sofa set. The respondent-PW1 further stated that while they were in the relationship, the appellant had raised a sum of ₹3,00,000/- by pledging her ornaments for giving capitation fee for securing employment as a Lecturer. The respondent-PW1 also stated that gold was again pledged during the period of construction of their residential building.

5. In cross-examination, PW1 would admit that the appellant was also in possession of gold ornaments at the time of marriage and she denied the suggestion that the appellant had presented her with 12 sovereigns of gold ornaments. In cross-examination, PW1 also admitted that after separation from the appellant, she had purchased a new Honda Activa Scooter and even though a new motor car was purchased, that was also soon sold away. She also denied the suggestion that when she left the company of the appellant, she had taken the gold ornaments along with her. On the other hand, she reiterated that the ornaments described in A schedule and movables described in B schedule were retained by the appellant when she was sent away from the house. PW2, the brother-in-law of the respondent, was also examined. According to him, the appellant had admitted that gold ornaments were in his possession and he has a pendrive, which has automatically recorded the mobile phone conversation. The general tenor of cross-examination was to project PW2 as an interested witness and for the same, suggestive questions were asked regarding the fact that the appellant and PW2 were not on good terms as the appellant had sought for the money borrowed by PW2 from the appellant. PW2, on the other hand, explained that the amount which were transferred to his account were not advanced as loan but were the remuneration for providing labour for the construction of the residence of the appellant. PW3, the Manager of State Bank of India, Irinjalakuda, was examined and Ext.X1 statement was produced through him to prove that on three occasions PW1 had availed loan and the loans were repaid and the loan accounts were closed. PW3 also stated that the appellant had also availed loan on security of gold ornaments on five occasions from the said bank. PW4, mother of PW1 was examined to prove that at the time of marriage, she was given with 25 sovereigns of gold ornaments and PW4 produced Ext.A4(d) award to prove the source of the funds for purchase of the said gold ornaments. PW4 also admitted that PW1 had purchased a new motor car after the separation between the appellant and the respondent, but the same was purchased in the name of her younger sister.

6. As against this evidence, the respondent got himself examined as RW1. Even though RW1 maintained that the appellant was not provided with 25 sovereigns of gold ornaments and that her mother did not have the financial capacity to source 25 sovereigns of gold ornaments at the time of marriage, he stated that he had, altogether, given 12 sovereigns of gold ornaments on various occasions to PW1. The specific case of RW1 is that whatever ornaments of PW1 which were received by her, were kept by her and were independently handled by her and there was no entrustment of the gold ornaments. While she left the company of RW1, she had taken the gold ornaments. RW1 also stated that the gold ornaments pledged by him as per Ext.X1 account statement are his own gold ornaments and not that of PW1 and he secured a decree for divorce on the ground of cruelty and desertion and that he has remarried on 21.02.2021.

7. On the basis of the rival pleadings, the Family Court considered the question as to whether the respondent is entitled to get a decree of directing return of A schedule items in the Original Petition. The Family Court, relying on Ext.A1 photograph and the fact that gold ornaments were offered as security in a nationalized bank, came to a conclusion that the respondent-wife was wearing gold ornaments at the time of marriage. The Family Court considered the evidence of PW1 and PW4 to come to a conclusion that the family of the respondent had sufficient source to purchase 25 sovereigns of gold from the amount received as compensation and rejected the contention of the appellant that no bills were produced and that PW1 was in the habit of wearing imitation gold ornaments. Thus, the Family Court concluded that as contended by the respondent, at the time of marriage, the respondent was wearing 25 sovereigns of gold. The Family Court considered the evidence of PW1 that during 2007, they had started construction of a house and the gold ornaments were pledged for raising the amounts. The Family Court also considered the evidence of PW3 and Ext.X1 and came to a conclusion that the appellant had availed loan on the security of gold ornaments for five occasions. Applying the rule of probability, the Family Court came to a conclusion that the version of the respondent that her gold ornaments were pledged by him is more probable than the version of the appellant that it was his gold ornaments that were pledged. The reasoning of the Family Court in this regard is as follows:-

                  "It cannot be expected that the gold ornaments and other articles of the petitioner were entrusted with the respondent by executing documents. It is to be noted that in our society, when a bride is brought to her matrimonial home on marriage, she is virtually transplanted to a new circumstances and surroundings than the same in her parents home until her marriage. In such circumstances, normally, the parents-in-law of the bride as well as her husband would obtain her ornaments and other valuable articles representing to keep the same in safe custody. When a bride is brought in marriage to her matrimonial home, she will be under an anxiety about her future there and it cannot be expected that even herself or her parents will insist her husband and his parents to execute necessary documents evidencing entrustment of the gold ornaments and other valuable items of the bride."

                  Thus, the Family Court held that the gold ornaments were entrusted to the appellant and that while she was sent away from the company of the appellant on 22.06.2017, she was not allowed to take out gold ornaments and other articles from her matrimonial home. The Family Court, therefore, directed the appellant herein to return 25 sovereigns of gold ornaments or in the alternative to recover and realise ₹5,55,000/- being the value of the ornaments together with interest at 6% thereon. The Family Court also directed return of B schedule items and permanently restrained and prohibited by an injunction pending return of the petition B schedule items to the respondent from committing any waste or damage over those items or from disposing or alienating the same.

8. We have heard Smt. Aiswarya E. J. Vettikombil, the learned counsel for the appellant and Sri. Reji Mathew M., the learned counsel for the respondent.

9. The appellant and the respondent reiterated their respective claim. The appellant contends that the quantum of gold ornaments which was in the possession of the respondent was not proved before the Family Court and there was absolutely no evidence on record to prove that the said gold ornaments were entrusted to the appellant. Per contra, the respondent would submit that the appellant was handling the gold ornaments of the respondent as is apparent from the version of PW3, as she had pledged the gold ornaments for about three times. It is also the case of the respondent that the said gold ornaments were in the joint possession of the appellant and the respondent and when the respondent left the company of the husband, she was literally thrown out and there was no occasion for her to take even her apparels or the documents and certificates. The learned counsel appealed to the sympathy of this Court, stating that, although the appellant has remarried in the year 2021 and the children are with the appellant, the respondent still remains unmarried and has nothing but the gold ornaments, which are yet to be received pursuant to the impugned judgment.

10. Having considered the rival contention, the question to be addressed herein is regarding the entrustment of gold ornaments by the respondent-wife to the appellant so as to claim quantum of the same to the respondent. Even though the appellant admitted that the family of the respondent did not have the financial capacity to purchase gold ornaments, there is ample evidence to prove that the mother of the respondent was working as a Peon and that they had received amounts as compensation in the case pertaining to the death of her father in a motor accident and a portion of the said funds was utilized for the purchase of the gold ornaments. Merely because of the fact that the bride was wearing gold ornaments would not entitle a court to come to a presumption that the gold ornaments were entrusted to the husband and his family. Herein, even though RW1 was extensively cross examined, nothing was brought out in the cross-examination of RW1 to prove that the gold ornaments were entrusted. Rather, the evidence of PW1 could go on to show that she was independently handling the gold ornaments. Going by the evidence of PW3 and Ext.X1, it can be seen that the respondent had pledged her gold ornaments for three times and the appellant had also pledged the gold ornaments for about five times. Therefore, it can be seen that after pledging the gold ornaments, the same was taken back and therefore, the case of PW1 that the gold was entrusted to the husband cannot stand the scrutiny.

11. In evaluating the evidence in family matters, where strict rules of evidence are not applicable, the test to be applied is one of preponderance of probability. In Dr.N.G.Dastane v. Mrs.S.Dastane [(1975) 2 SCC 326], the Apex Court has held as follows:

                  “ 23. …. it is necessary to clear the ground of certain misconceptions, especially as they would appear to have influenced the judgment of the High Court. First, as to the nature of burden of proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much earlier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. But does the law require, as the High Court has held, that the petitioner must prove his case beyond a reasonable doubt ? In other words, though the burden lies on the petitioner to establish the charge of cruelty, what is the standard of proof to be applied in order to judge whether the burden has been discharged ?

                  24. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies.”

12. The findings of the Family Court, therefore, has to be reviewed in the light of the principles afore-stated. The burden of proof in such cases is on the claimant to prove that there was entrustment by the wife to the husband and her or his family. Only when such burden is discharged, then the burden shifts to the husband to disprove the allegations levelled by the wife. In the instant case, the Family Court has relied on conjectures and surmises in arriving at a conclusion that any bride entering to the family of the husband would entrust her gold ornaments to the family of the husband. Such a finding cannot substitute the burden of proving entrustment as surmises and conjectures cannot take the place of proof.

13. Herein, there is absolutely no evidence regarding proof of entrustment of the gold ornaments to the appellant. On the other hand, as pointed out supra, the respondent was also independently handling the gold ornaments, which probabilises the case of the appellant that the gold ornaments were not entrusted to him. There is also one other aspect of the case. It is the specific contention of the respondent that she was thrown out of the house on 22.06.2017 and she had to leave her house empty handed. However, in cross-examination of PW1 and PW4, it is come out that after the separation, the respondent had purchased a brand new car and thereafter, is in possession of a brand new Honda Activa. The said admissions would also probabilise the case of the appellant that the respondent had taken her gold ornaments, as she is not otherwise employed so as to take a loan or to raise funds for the purchase of car or scooter. In the absence of proof of entrustment, we find that the finding of the Family Court directing return of 25 sovereigns of gold ornaments to the respondent is against the evidence on record and we therefore set aside the direction in the impugned judgment directing return of 25 sovereigns of gold ornaments or in the alternative to pay a sum of ₹5,55,000/- being the value of gold ornaments.

                  Mat. Appeal No.8 of 2024 is therefore allowed as above.

                  As regards Mat. Appeal No.103 of 2024 is concerned, the same was filed by the respondent-wife challenging the impugned judgment of the Family Court to the extent that the value of the gold ornaments has been fixed at ₹5,55,000/-. According to her, the Family Court ought to have awarded the prevailing market value of 25 sovereigns of gold. In view of the findings in Mat. Appeal No.8 of 2024, allowing the plea of the appellant and by setting aside the direction to return 25 sovereigns of gold, the Mat. Appeal No.103 of 2024 is liable to be dismissed.

Interlocutory applications, if any pending, shall stand closed.