The main legal point established in the judgment is the reliance on the principle of preponderance of probabilities and the importance of oral evidence in family dispute cases.

Shaffique, J.

This appeal is filed against the judgment and decree dated 18/11/2005 in O.P.No.640 of 2004 of the Family Court, Thiruvalla by which the petition filed by the appellant herein seeking recovery of patrimony and return of gold ornaments had been dismissed.

2. Parties are described as shown in the original petition and the short facts of the case are as under:

The petitioner and the respondent got married on 13/01/1996 as per the Christian religious rites and ceremonies. The marriage was declared null and void as per the judgment in O.P.No.351/2003. According to the petitioner, Rs.1,00,000/- was paid by petitioner's mother to the respondents on 23/12/1995, on the date of betrothal. It is alleged that she had 12 sovereigns of gold ornaments and the respondents, that is the husband of the petitioner, his father and mother have forcibly taken possession of 10 sovereigns of gold and misappropriated the same. It is also alleged that the patrimony given to her for her benefit was not utilized for her progress and hence the petition was filed seeking return of 10 sovereigns of gold ornaments or its value and an amount of Rs.1 lakh.

3. The 1st respondent remained ex parte. Objection was filed by respondent 2 and 3 disputing the claim. According to them, they have not taken possession of the gold ornaments or the money. It is alleged that, at the time of negotiating the marriage, petitioner's mother promised to pay Rs.1 lakh after one year, but the said amount was not paid.

4. The evidence consisted of oral testimony of PWs 1 to 3 and Exts.A1 to A4. On the side of the respondent, the 2nd respondent was examined as RW1. The Family Court, after considering the evidence on record, observed that there is no reliable evidence to arrive at a finding regarding payment of Rs.1 lakh on 23/12/1995 and there is no material to indicate that the petitioner was in possession of gold ornaments, as claimed and accordingly, dismissed the petition.

5. Learned counsel for the appellant submitted that the fact of payment of Rs.1 lakh had been proved in the case whereas, the Court below did not properly appreciate the factual materials available on record. The evidence of PWs 1 to 3 clearly proved the entrustment of money as well as the availability of gold ornaments and going by the judgment of this Court in Bexy Michael v. A.J.Michael [2010(4) KHC 376], the petitioner's claim stands proved.

6. On the other hand, learned counsel appearing for respondents 2 and 3 submitted that there was no occasion for the parents of 1st respondent to receive any amount and there is no reason why such a liability could be mulcted on them. The Family Court was justified in arriving at a conclusion that evidence was lacking to prove the claim made by the petitioner.

7. The short issue to be considered in the appeal is whether the appellant/petitioner is entitled for the claim made in the original petition and whether the respondents have any obligation to pay any amount as claimed.

8. First of all, it is relevant to note that the 1st respondent was ex parte and did not contest the matter. Secondly, pleadings in the case clearly indicate that the money and the gold ornaments were entrusted to the respondents. In the petition, it is specifically alleged that a sum of Rs.1 lakh was paid by the petitioner's mother to the respondents as patrimony on 23/12/1995, the date of betrothal. Further, it is alleged that 10 sovereigns of gold was available with the petitioner and it was forcibly taken over by the respondents shortly after the marriage. The particulars of the gold ornaments have also been mentioned.

8. In the objection filed, it is contended that petitioner's mother has not entrusted any amount to the respondents and no amount was received as patrimony either on 23/12/1995 or any other date. The respondents also denied having received Rs.1 lakh. However, it is stated that, at the time of negotiation of marriage, petitioner's mother offered to pay Rs.1 lakh after