Family Courts Can Consider Evidence Otherwise Inadmissible U/S 92 Evidence Act If Necessary To Resolve Dispute: Kerala High Court

However, the Court underscored that such discretion must be exercised with care and caution. Applying the principle, the Court accepted evidence concerning the actual consideration and source of funds for a jointly registered property, declared the wife its exclusive owner and directed the husband to vacate it.

The Court was hearing cross-appeals challenging a Family Court decree that partly disposed of the wife’s claims for the return of gold ornaments and money, past maintenance and the value of the husband’s share in a jointly registered property, along with the husband’s counterclaim.

A Bench of Justice Sathish Ninan and Justice P. Krishna Kumar observed: “Indeed, Section 92 of the Indian Evidence Act states that no such oral agreement or statement shall be admitted if it would vary from the terms of any contract, grant or other disposition of property. Nevertheless, in view of the specific enabling provision referred to above, the Family Court can take into consideration any such statement, information or document if it finds that the same is necessary for effectively resolving the dispute. Once the Family Court arrives at such conclusion, it can rely on any such evidence dehors Section 92, in the light of Section 14 of the Act, which gives an overriding effect to the provisions relating to relevancy and admissibility under the Indian Evidence Act, 1872.”

“We hasten to add that, while Section 14 of the Act gives discretion to the Family Court, in a given case, to admit evidence which may otherwise be inadmissible under Section 92 of the Indian Evidence Act, such discretion should be exercised with due care and caution, having regard to the laudable objects underlying Section 92”, the Bench added.

Advocate P. Samsudin appeared for the wife, while Advocate R. Rajesh Kormath appeared for the husband.

Background

The parties were married according to Mohammedan law. The wife claimed that she possessed 85 sovereigns of gold ornaments at the time of marriage and subsequently entrusted 80 sovereigns to the husband for safekeeping. She also alleged that her father had provided money to the husband for renovating his house and deposited a further amount in his bank account while the couple lived abroad.

The wife further claimed that her father had provided the funds to purchase seven cents of land and a residential building for her. The property was nevertheless registered jointly in the names of the wife and husband. She sought the return of the gold ornaments and money, past maintenance and ₹15 lakh representing the value of the husband’s half share in the property.

The husband denied receiving the gold ornaments or the money. He claimed that the property had been purchased using his own funds and was registered jointly in the interests of the family. He also raised a counterclaim to recover ₹3 lakh allegedly deposited in the account of the wife’s father.

The Family Court rejected the wife’s claims concerning the gold ornaments, money and past maintenance. It also dismissed the husband’s counterclaim. However, it found that the property had been purchased entirely with funds provided by the wife’s father and awarded her ₹15 lakh as the value of the husband’s half share. Both parties challenged the respective adverse portions of the decree.

Court’s Observations

The High Court agreed with the Family Court that the wife had failed to establish the alleged entrustment of 80 sovereigns of gold ornaments. Her oral testimony was contradicted by the husband, while a photograph taken shortly before the couple travelled abroad showed her wearing only one chain despite her assertion that all the ornaments were then in her possession.

The Court observed: “The only evidence adduced to prove the entrustment of the gold ornaments with the respondent is the oral testimony of the petitioner. That evidence stands stoutly controverted by the testimony of RW1, the respondent. When the petitioner admits that she had worn only one chain at the marriage function of her husband's brother, despite claiming that all her gold ornaments were then in her possession, and when she further admits that she went abroad along with her husband from her parental home, we do not find her claim that she had entrusted her gold ornaments to the respondent, to be a probable version.”

The Court also upheld the rejection of the wife’s monetary claim, finding no reliable material apart from the oral testimony of the wife and her father. It affirmed the dismissal of the husband’s counterclaim because he had not proved that the amount deposited in the father’s account was paid on the wife’s behalf.

The rejection of past maintenance was also sustained because the wife had not produced material supporting her claim despite admitting that her bank account would disclose her income.

The husband contended that the sale deed recorded a consideration of ₹7.58 lakh and that oral evidence suggesting a higher consideration could not be accepted because of Section 92 of the Indian Evidence Act, 1872.

The Court clarified that while a recital concerning payment of consideration is a recital of fact, the quantum of consideration stands on a different footing. It nevertheless held that Section 14 of the Family Courts Act, 1984 expressly authorises a Family Court to receive any report, statement, document, information or matter that may assist it in dealing effectively with a dispute, irrespective of whether it would otherwise be relevant or admissible under the Indian Evidence Act.

However, the Court cautioned that Section 14 does not dispense with the need to assess the quality of the evidence.

It remarked: “The reliability and probative value of such materials are also to be tested in the light of the facts and circumstances of each case. This Court has held that the Family Courts are bound to adhere to the fundamental rules of evidence founded on logic, fairness and expediency, as well as the principles of natural justice, even when Section 14 of the Act permits them to receive evidence which may otherwise be irrelevant or inadmissible under the Indian Evidence Act.”

The Bench relied upon Pramod E.K. v. Louna V.C. (2019) for this limitation upon the evidentiary flexibility available to Family Courts.

The Court found that the bank statement produced by the wife showed that ₹25 lakh had been credited to her father’s account shortly before the purchase and was debited on the date of execution of the sale deed. His oral evidence was consistent with the documentary record.

In contrast, the husband produced no evidence regarding the source from which he allegedly contributed towards the purchase. Although he claimed during cross-examination that money belonging to him was held by his brother-in-law abroad, he neither examined that person nor produced documents showing how the funds were brought to India.

The Court held: “Coming to the disputed questions before us, we have no hesitation in holding that the oral evidence of PW1 and PW4, which is substantially corroborated by Ext.A3, is sufficient to establish that the actual consideration paid for purchasing the property was not the amount shown in Ext.B1 and that the entire sale consideration was paid by the father of the petitioner.”

The husband had also admitted that the original title deed remained with the wife and that she had obtained it from the Sub-Registry. The Court accordingly accepted that the property had been purchased with funds provided by the wife’s father for her welfare, although it was registered jointly.

The husband relied upon Shereefa Shanavaz v. Shanavaz (2026), where parties were treated as equal co-owners in the absence of specified shares in the sale deed. The Court distinguished that decision as having been rendered in its peculiar factual circumstances and noted that Section 45 of the Transfer of Property Act, 1882 was not considered there.

Referring to Vasanthakumary v. Omanakuttan Nair (2009), the Court explained that Section 45 ordinarily determines the parties’ respective interests according to their contributions towards the consideration. In the present case, the entire consideration had been provided by the wife’s father for her benefit.

The Court observed: “In the present case, it is proved that the entire consideration was provided by the father of the petitioner in the best interests of his daughter and for her benefit and that it belongs to her.”

The wife had originally sought ₹15 lakh as the value of the husband’s half share rather than a declaration of exclusive ownership. During the appeal, she sought to amend the petition to claim exclusive title and a mandatory injunction directing him to vacate the property.

The Court noted that Section 10(3) of the Family Courts Act permits a Family Court to lay down its own procedure to ascertain the truth, notwithstanding the application of the Code of Civil Procedure, 1908. It further relied upon Order VII Rule 7 of the Code and Syamini S. Nair and Others v. Sreekanth R. (2022), which recognised the Court’s authority to grant an appropriate general or other relief even when it had not been expressly sought.

The Court found that the original pleadings substantially asserted the wife’s exclusive right by alleging that her father had paid the entire consideration and that the husband had made no contribution. The husband had specifically denied this case and defended the proceedings with full knowledge of the nature of the claim.

It held: “In the light of the above pleadings, and having regard to the specific and emphatic denial by the respondent of the said claim in his written objection, it is evident that the respondent defended the case with full knowledge of the true nature of the petitioner's claim. Therefore, no prejudice will be caused to him if we mould the relief in the above manner.”

The Court also found that remitting the matter to the Family Court would be futile because nothing remained to be adjudicated once the wife’s exclusive title was established.

Conclusion

The High Court dismissed the husband’s appeal and partly allowed the wife’s appeal. It modified the Family Court decree granting her ₹15 lakh and instead declared her exclusive ownership over the land and residential building. The husband was directed to vacate the property within three months. The remaining portions of the Family Court decree were upheld.

Cause Title: R v. KS (Neutral Citation: 2026:KER:73656)

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