IMPORTANT POINT
Burden of proving fact always lies upon person who asserts.

P.D. Rajan, J.—This appeal is directed against the judgment in O.P.No.126 of 2012 of Family Court, Moovattupuzha. The husband who was the respondent before the Family court is the appellant herein and wife, who was the petitioner before the Family court is the respondent. The above case was filed by the wife against her husband for realization of gold ornaments and other valuables included in plaint A schedule list. Petitioner had also claimed compensation of Rs.2,00,000 towards mental agony from her husband. She also filed another petition, OP 125 of 2012 under Section 13(1)( a) of Hindu Marriage Act, for divorce. The husband denied the allegations in both cases by filing objections.

2. Both cases were tried jointly by the lower court. To prove the case, on the side of petitioner, PWs 1 to 6 were examined and Exs. A1 to A15 were marked. Respondent did not adduce any oral evidence, but Ex. B1 to B12 were marked on his side. Family Court decreed OP No.126 of 2012 and directed the husband to return the gold ornaments and dresses included in A schedule to the wife within two months from the date of the decree. It was also directed that if he fails to return the articles and money as directed, the wife will be entitled to realise Rs.5,57,750 with 9 % interest from the date of the decree till realisation. O.P.No.125 of 2012 was dismissed by the trial court. Aggrieved by the judgment in OP No.126 of 2012, the husband preferred this appeal.

3. Learned counsel appearing for the appellant contended that no documentary evidence was adduced by the respondent to prove that she had entrusted the entire gold ornaments as alleged in the petition. According to him, the burden of proof with regard to entrustment was upon the wife her and that in the absence of any evidence, and the order of the Family Court is illegal, arbitrary and liable to be set aside. Learned counsel relied on the decision reported in Susan George v. Rahul Padman, 2012(1) KLT 360 and the Apex Court judgment in Rangammal v. Kuppuswami and another, AIR 2011 SC 2344: 2011(2) CCC 249 (SC).

4. Learned counsel appearing for the respondent strongly resisted the above contention and contended that on the date of marriage itself, the entire gold ornaments were entrusted to the husband, which, was done in the ordinary course of life. It was contended that the photographs itself is a conclusive proof with regard to the quantity of gold ornaments and that there was no inconsistency in the documentary evidence and the oral testimony of PWI. The learned counsel contended that the oral evidence of the respondent proved that she was wearing 35 sovereigns of gold at the time of marriage and that she got 12.4 sovereigns as gift. It was argued that her initial burden was discharged in the Family Court and in the absence of any contra evidence, the appellant is not entitled to succeed.

5. However, on hearing the appeal and in the light of the facts and circumstances of the case in hand, we are of the view that the respondent/petitioner had made out a case against appellant and therefore, according to us, she has discharged her initial burden of proof regarding entrustment. Further, when the respondent was examined, the appellant did not ask her any question disputing her claim regarding entrustment of the ornaments.

6. In order to decide the controversy in this appeal, it is necessary to scrutinize the facts that gave rise to this appeal. Respondents case was that 35 sovereigns of gold was given to her and that 12.4 sovereigns of gold ornaments were received as gift. She had also purchased dresses. Both gold and dresses are scheduled as ‘A’ in the petition. According to her, both were taken away by the appellant on the day of the marriage itself. But in the trial court appellant denied that allegation and contended that when she left the matrimonial home, she took all gold ornaments and dresses.

7. The general rule of evidence is that a party who approaches the court must prove all f