Ajmal v. Rasha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** ## **Mat.Appeal.No. 902 of 2009** **AGAINST THE ORDER IN OP 227/2009 of FAMILY COURT, MALAPPURAM DATED 26-10-2009** ## **APPELLANT/RESPONDENT:** **AJMAL, AGED 38 YEARS, S/O MIODIEEN MASTER, EDALODI HOUSE, COURT GATE, MANJERI, MALAPPURAM.** **BY ADVS. SRI.P.SAMSUDIN SMT.P.VANDANA SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.P.B.KRISHNAN SRI.SABU GEORGE SRI.T.P.SAJID** ## **RESPONDENT/PETITIONER:** **1 RASHA, AGED 28 YEARS, D/O.SAYED ABDUSALAM, KOLLATHODI HOUSE,, AMBALAPPADI, PUTHALAM, ARECODE P.O., MALAPPURAM DISTRICT.** **2 ADDL R2. VILLAGE OFFICER NARUKARA, ERNAD, MANJERI. (IMPLEADED AS ADDL.R2 SUO MOTU, AS PER ORDER DATED 20.4.2010, IN I.A.1069/2010)** **BY ADV. SRI.K.PRAVEEN KUMAR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 8.04.2019, THE COURT ON 30.05.2019 DELIVERED THE FOLLOWING:** Mat.Appeal No.902/09 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal arises from an order dated 26/10/2009 in OP No.227/2009. The respondent in the OP is the appellant. 2. The OP has been filed by the wife seeking for return of 112 sovereigns of gold ornaments and the value of furniture being `50,000/-, past maintenance for the wife and minor children @`13,000/- per month for a period of 28 months prior to the date of filing the Original Petition. The Family Court directed return of 112 sovereigns of gold ornaments or its value of `13 lakhs with interest @9% per annum from the date of filing the OP. Past maintenance was directed to be paid @`5,000/- for the wife, `2,000/- for the first child and `1,000/- for the second child. 3. In the appeal, learned senior counsel appearing on behalf of the appellant Sri.S.V.Balakrishna Iyer contended that there is absolutely no evidence to prove that she was having 112 sovereigns of gold ornaments at the time of marriage and the amount awarded as maintenance was exorbitant. Mat.Appeal No.902/09 -:3:- 4. The short question to be considered in this appeal is whether the Family Court was justified in granting a decree for return of gold ornaments and for directing past maintenance. PW1 to PW3 were examined on the side of the petitioner/wife and the respondent/husband was examined as RW1. 5. The nikah between the couple was on 27/7/2003 and the wife was taken to the matrimonial home in January, 2004. According to the wife, at the time of marriage, she was given 100 sovereigns of gold ornaments. After some time, the respondent had taken from her all her gold ornaments and the same was used for his own purpose. That apart, 6 sovereigns of gold ornaments given to the minor Serin and another 6 sovereigns of gold ornaments belonging to minor Sebin were also appropriated by the respondent. Her parents had given furniture worth `50,000/- at the time of housewarming ceremony. She further contended that there was demand for more money and gold ornaments and she was being ill-treated. The ill-treatment continued though there were mediations and settlement between the parties. Ultimately, on 19/11/2006, she was severely Mat.Appeal No.902/09 -:4:- assaulted. She had to inform the matter to her relatives who had come and taken her away from the matrimonial home. She had filed a complaint under Sections 498A, 323 r/w 34 of I.P.C. and a crime has been registered. Hence she claimed return of 112 sovereigns of gold ornaments or its equivalent value of `13 lakhs. In the objection, respondent denied the allegation. According to him, she had only 25 sovereigns of gold ornaments and the entire gold ornaments had been retained by her itself. He denied having committed any acts of cruelty. He further stated that at the time of conducting nikah, petitioner was working at Tirur. When she was taken to the matrimonial home, she was working at Regional Engineering College at Kizhisserry. She convinced the respondent that it is easy for her to go for work from her parental home and 2 months after the marriage, she shifted to her own house. She is the only daughter of her parents. He understood that she would like to remain at her parental home and respondent permitted the same and therefore there was no reason for her parents to come and take her for the delivery. Some days before delivery, she discontinued the employment at Mat.Appeal No.902/09 -:5:- the Regional College. After 90 days of delivery, she made arrangements for her employment at Manjeri Unity Womens College as a Guest Lecturer. While so, though she stayed at the matrimonial home for about 2 months, thereafter under the guise of taking care of the child, she shifted to Areacode, the parental house. He permitted the same as well. In the meantime, she became pregnant for the second time and she discontinued her employment at Unity College. According to him, there was no necessity for mediation as they were having a cordial relationship. Even after marriage, stating one reason or other, she used to continuously go to her parental home. But she was interested to remain at her parental house. He later thought that if he constructs a house, she will come and reside with him. By taking loan from KSFE and with the help of his brother, he constructed a house at Manjeri. The petitioner was not interested in the same. However, with much difficulty, she came and resided with him. One month thereafter, the elder child had a problem with his stomach and he was admitted at Manjeri Korambayil hospital. On the date of discharge from the hospital, she on her Mat.Appeal No.902/09 -:6:- own wish and without even informing him had gone to Areacode to her parental house. Though he requested her to come and reside with him, she did not come. Mediators interfered and though attempts were made to compromise the issue, nothing happened and in the meantime, she filed criminal complaint against him. 6. Having regard to the aforesaid contention, the question is whether there is evidence to prove that she had 100 sovereigns of gold ornaments at the time of marriage. The Family Court had placed reliance upon Ext.A2 which is a slip issued by the goldsmith of PVS Jewellery Works, Areacode and Ext.A7 series photographs. PW2 is a witness to Ext.A2. Evidence of PW2 is again supported by PW3, elder brother of the petitioner. Family Court found that when there is no rebuttal evidence regarding the claim for 112 sovereigns of gold ornaments, Family Court was justified in granting a decree. 7. Learned senior counsel placed reliance on the judgment in _**Pankajakshan Nair v. Shylaja and another**_ [2017 (1) KLJ 739] wherein a Division Bench of this Court held that the Mat.Appeal No.902/09 -:7:- initial burden of proving entrustment of gold ornaments is with the plaintiff. Yet another judgment relied upon is _**Abubakker Labba v**_ . _**Shameena**_ (2018 (3) KLT 196) wherein this Court held that merely on the evidence that the bride had worn gold ornaments, it cannot be held that the ornaments which were worn at the time of marriage were entrusted with the father and mother of the bridegroom. 8. Apparently, this is a case in which the husband had a definite case. According to him, she had only 25 sovereigns of gold ornaments at the time of marriage. Ext.A2 is a handwritten document given by PW2 under the name PVS Jewellery Works, Areacode. It gives the details of jewellery made for one Salam Musliar. Ext.A7 series are the photographs. Ext.A7 would show that she was wearing sufficient quantity of gold ornaments. The contention that it was only 25 sovereigns of gold ornaments cannot be believed. At any rate, she had more quantity of gold ornaments than what has been pleaded by the respondent. Therefore, placing reliance on the oral testimony of PW2, it is rather clear that she had enough gold ornaments. In her Mat.Appeal No.902/09 -:8:- pleadings, she had stated that all her gold ornaments were taken one by one which she had reiterated in her evidence as well. Further, she had to leave the matrimonial home on account of demand for more gold and money. Reference has been made to Exts.B1 and B2. Ext.B1 is a lawyer's notice issued on behalf of the appellant to the respondent seeking restitution of conjugal rights. Notice was issued on 28/10/2008. Ext.B2 is the reply to lawyer's notice in which it was stated that the petitioner/wife was unable to live at the matrimonial home on account of the physical and mental cruelty by the respondent and that her ornaments had been taken away and they have been demanding more ornaments. She had also filed a complaint before the Vanitha Commission which is pending. The respondent and his mother had appeared before the Commission and since the respondent did not comply with the conditions for settlement as suggested by the Commission, the notice had been issued with malafide intention. The other documents are not relevant. It only proves that there was a complaint filed before the Vanitha Commission. 9. The only question to be considered is whether the Mat.Appeal No.902/09 -:9:- version of PW1 could be believed in order to grant a decree in her favour. As already stated, from the photographs produced, it could be seen that she had sufficient quantity of gold ornaments. The only question is whether such gold ornaments were appropriated by the respondents as alleged. 10. PW1 has filed a chief affidavit in accordance with the contentions urged. During cross-examination, she stated that her father retired in the year 1999. She does not have any job. She was working on a daily wage basis in a nursing college. Regarding the source of funds, it was stated that the father's retirement money was available. There was enough money by sale of their family property, but she does not know how much properties were sold. It was by the side of the main road. Though she contended that she was given 10 sovereigns of gold as mahar, when she was confronted with A1 which is a marriage certificate it is stated that the mahar was 5 sovereigns. 11. PW2 is the jeweller. He is a goldsmith. During crossexamination, he states that he was in Gulf from 1998 to 2006. He had made the gold ornaments while he had come on leave in Mat.Appeal No.902/09 -:10:- 2003. At that time, the place was in the name of his father's brother Sukumaran. He had no license. License is in the name of his father's brother. Though he was cross-examined, nothing has been brought out to discredit his evidence. 12. PW3 is the brother of PW1. He also reiterated that 100 sovereigns of gold ornaments were given. 13. From the materials placed on record, it is rather clear that she had 100 sovereigns of gold ornaments. During crossexamination of RW1, his contention is that she was having only 25 sovereigns of gold ornaments. But from the photographs produced, the said contention does not appear to be correct. Therefore, this is a case in which it is rather clear that respondent was not stating the true and correct facts. The specific contention of the petitioner is that her gold ornaments were taken away by her husband. Apparently, when a wife goes to the matrimonial home, her gold ornaments are kept in the matrimonial home. To say otherwise, there has to be some evidence. Other than the oral testimony of RW1, there is no other material to indicate that the gold ornaments were taken by her when she left the Mat.Appeal No.902/09 -:11:- matrimonial home. According to him, she never stayed at the matrimonial home for a considerable period. But, that by itself does not indicate that there was no entrustment of gold ornaments belonging to her. Her specific case is that the gold ornaments were taken for various purposes and misappropriated by her husband. Though the exact dates on which the gold ornaments were taken had not been stated, taking into account the factual circumstances, we do not think that a different view should be taken in the matter. Mat.Appeal is dismissed. No costs. ## **Sd/-** Rp //True Copy// PS to Judge **A.M.SHAFFIQUE JUDGE Sd/ASHOK MENON JUDGE**