Basheer Kakkengal and others v. C.H. Sajna and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945`** ## **`MAT.APPEAL NO. 157 OF 2011`** ``` AGAINSTTHEORDERDATED28.12.2010INOP247/2010OFFAMILY COURT,MALAPPURAM ``` ## **`APPELLANTS/RESPONDENTS:`** - **`1 BASHEER KAKKENGAL, AGED 42 YEARS, S/O. MUHAMMEDKUTTY, KAKKENGAL HOUSE, KADUNGAPURAM.P.O., ANGADIPPURAM, (VIA) PERINTHALMANNA, KAKKENGAL HOUSE, KADUNGAPURAM P.O., ANGADIPURAM, (VIA) PERINTHALMANNA.`** - **`2 MUHAMMEDKUTTY, AGED 70 YEARS,`** - **`KAKKENGAL HOUSE, KADUNGAPURAM.P.O., ANGADIPPURAM,`** - **`(VIA) PERINTHALMANNA.`** ## **`3 KADEEJA,`** - **`W/O. MUHAMMED KUTTY, KAKKENGAL HOUSE, KADUNGAPURAM.P.O., ANGADIPPURAM, (VIA) PERINTHALMANNA.`** ``` BYADVS. SUNILN.SHENOI ROSEMOLABRAHAM ``` ## **`RESPONDENTS/PETITIONERS:`** - **`1 C.H.SAJNA, AGED 32 YEARS, D/O. AYAMUTTY, CHAKCHAN HOUSE, KODUNGAPURAM.P.O., ANGADIPPURAM VIA. MALAPPURAM DISTRICT-676505.`** - **`2 MUHAMMED BASIL, 13 ½ YEAR (MINOR) REP. BY GUARDIAN AND MOTHER, 1ST RESPONDENT/PETITIONER.)`** Mat.Appeal No.157 of 2011 2 ``` 3MUHAMMEDSHIBILI,AGED10YEARS(MINOR) (MINOR,REP.BYGUARDIANANDMOTHER, 1STRESPONDENT/PETITIONER) ``` ## **`BY ADV SRI.P.M.RAFIQ`** ``` THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON 03.10.2023,THECOURTON27.10.2023DELIVEREDTHEFOLLOWING: ``` Mat.Appeal No.157 of 2011 3 ## **JUDGMENT** ## **Sophy Thomas, J** The respondents in O.P.No.247/2010 on the file of Family Court, Malappuram are the appellants herein, impugning the judgment and decree dated 28.12.2010, by which, they were directed to return the patrimony consisting of cash worth Rs.55,000/-, 42 sovereigns of gold ornaments or its equivalent value Rs.5,27,520/and also past maintenance amounting to Rs.1,83,800/- to the wife and children with interest. ## 2. The facts in brief are as follows. The respondents, who are the wife and minor children of the 1[st] appellant filed the Original Petition for recovery of patrimony and past maintenance. The marriage between the 1[st] appellant and the 1[st] respondent was solemnized on 02.01.1994 as per Muslim rites and custom. Minor respondents 2 and 3 were born in their lawful wedlock. At the time of marriage, the 1[st] respondent was given 42 sovereigns of gold ornaments and Rs.25,000/- in cash as her patrimony. After marriage, her father handed over Rs.30,000/- to the 1[st] appellant for going to gulf countries. Matrimonial life of the 1[st] respondent was miserable, as the 1[st] appellant and his family members ill-treated her physically and mentally demanding more money from her family. Moreover they misused and misappropriated her entire gold ornaments and money entrusted with them. The 1[st] appellant even refused to maintain the respondents. Hence, they filed the Original Petition for recovery of patrimony as well Mat.Appeal No.157 of 2011 4 as for past maintenance. 3. The appellants opposed that petition contending that only 25 sovereigns of gold ornaments and Rs.25,000/- in cash were given to the 1[st] respondent as her patrimony. The gold was kept by herself, and she took it with her, when she returned to her paternal house. There was no entrustment of any gold ornaments, and the 1[st] appellant never received any money from the house of the 1[st] respondent, when he went to Gulf countries. Regarding the maintenance claim also the 1[st] appellant contended that he is a mental patient not able to do his driving job. He is only a commission agent in PACL Pvt.Ltd. Moreover, he has to look after his second wife and two children, and so, he is unable to pay maintenance to the respondents as claimed by them. 4. The Family Court formulated necessary issues and thereafter the parties went on trial by examining PWs 1 and 2 from the side of the respondents and RWs 1 to 6 from the side of the appellants. Exts.A1 to A8, B1 to B6 and X1 were marked. 5. Now we are called upon to find out whether there is illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court. 6. Heard learned counsel for the appellants and learned counsel for the respondents. 7. Admittedly the marriage between the 1[st] appellant and the 1[st] respondent was solemnised on 02.01.1994. PW1-the 1[st] respondent/wife deposed before court that at the time of marriage, she was given 42 Mat.Appeal No.157 of 2011 5 sovereigns of gold ornaments and Rs.25,000/- in cash as her patrimony. Receipt of Rs.25,000/- in cash is admitted by the 1[st] appellant also. PW1 has got another case that after about 1½ years of marriage, the 1[st] appellant went to Gulf countries for a job, and for that purpose, her father had given Rs.30,000/- to him. Though the 1[st] appellant denied receipt of that amount, the Family Court found that there was every probability for the father of PW1 to give that amount to the son-in-law for sending him to Gulf countries for securing the future of his daughter and children. PW2-the father of PW1 also categorically stated that he had given Rs.30,000/- to the 1[st] appellant for going to Gulf countries for a job. It is true that no documentary evidence is there to prove entrustment of that money with the 1[st] appellant. ## 8. In the decision **Bexy Michael v. A.J. Michael [2010 (3) KLJ** **538]** , a Division Bench of this Court held that, it would be unreasonable for a court to insist for documentary evidence regarding ornaments and money that had changed hands at the time of marriage. In most of the cases, such a claim has to be decided on the basis of oral evidence and such a claim cannot be dismissed merely because no documentary evidence was produced. Absolute certainty is not the requirement under Section 3 of the Evidence Act. In a civil case, rival contentions and rival evidence will have to be considered, assessed, evaluated and weighed to come to a conclusion whether the burden on the petitioner has been discharged or not. 9. The evidence adduced from the side of the appellants was not Mat.Appeal No.157 of 2011 6 sufficient enough to rebut the case of entrustment of Rs.30,000/- with the 1[st] appellant, in connection with his travel to Gulf countries. RW3, the 1[st] appellant was admitting receipt of Rs.25,000/- from the house of the 1[st] respondent as her patrimony at the time of marriage. So, the finding of the Family Court that the 1[st] appellant was liable to return cash worth Rs.55,000/- to the 1[st] respondent is liable to be confirmed. 10. Now regarding 42 sovereigns of gold ornaments alleged to have been entrusted with the appellants, RW3-the 1[st] appellant admitted before court that the 1[st] respondent was having 25 sovereigns of gold ornaments at the time of marriage. But according to PW1, she was having 42 sovereigns of gold ornaments, and she produced Ext.A1-estimate obtained from K.Velayudhan & Sons Jewellery dated 23.12.1993. PW2-her father also corroborated her testimony and according to him, 42 sovereigns of gold ornaments were purchased, and it was given to PW1 at the time of marriage. Ext.B1 photograph was produced by the appellants to show the ornaments worn by PW1 at the time of marriage. He admitted that PW1 was wearing the ornaments seen in the photograph, at the time of marriage, which includes 11 bangles, one broad bangle, anklet, chains, necklaces, ear studs etc. Their marriage was on 02.01.1994. Ext.A1 estimate is dated 23.12.1993, i.e., about 10 days prior to the marriage and it probabilizes the case of PWs1 and 2 that those ornaments were purchased for the marriage of PW1. The details of ornaments stated by PW1 and Ext.B1 photograph tallies with Ext.A1 estimate. The total weight of ornaments Mat.Appeal No.157 of 2011 7 as per Ext.A1 is 340.760 grams equivalent to 42.59 sovereigns, which also tallies with the statement of PWs 1 and 2. 11. The next question is whether those ornaments were entrusted by the 1[st] respondent to the appellants. RWs 3 to 6, who are the appellants herein, admit that the 1[st] respondent was a little girl at the time of marriage. According to RW3, she was only 18 years old. RW5-his father also would say that the 1[st] respondent was a small girl at the time of marriage. Learned counsel for the respondents would say that when the 1[st] respondent gave evidence before court as PW1 in the year 2010, she was only 32 years. She was married in the year 1994. So at the time of marriage, she was only 16, and so there was no probability that the appellants permitted her to keep her entire gold ornaments with her either it be 25 sovereigns as stated by them, or 42 sovereigns as stated by the respondents. 12. RWs 3 to 5 stated that they never received her gold ornaments. But RW3-the 1[st] appellant admitted before court that he had taken her 7 sovereigns of gold ornaments. According to him, he sold away those 7 sovereigns of gold ornaments for giving Rs.40,000/- to the uncle of the 1[st] respondent. There is no evidence to show that the 1[st] appellant had given Rs.40,000/- to the uncle of the 1[st] respondent. Since the 1[st] appellant is admitting that he had taken 7 sovereigns of gold ornaments of the 1[st] respondent, and sold it away, it is up to him to prove the actual weight of ornaments taken from her. No scrap of paper has been produced by him to show that what he sold was only 7 Mat.Appeal No.157 of 2011 8 sovereigns of gold. We have already seen that for sending the 1[st] appellant to Gulf countries, father of the 1[st] respondent had given Rs.30,000/-. If the 1[st] respondent was keeping her ornaments with her as stated by the appellants, in normal course, that might have been utilised for raising funds, for his travel abroad. So obviously, the ornaments given to the 1[st] respondent from her family was misused and misappropriated by the appellants even prior to that date. Though the appellants flatly denied entrustment of gold by the 1[st] respondent, since she was only a small girl aged about 16 or 18 at the time of marriage, in all probability her ornaments might have been kept under the care and custody of the appellants, especially when there is clear admission from the part of the 1[st] appellant that he had sold away her 7 sovereigns of gold ornaments. 13. The appellants examined RW6-Panchayat Vice-President to say that Rs.25,000/- and 25 sovereigns of gold were the patrimony agreed to be given to the 1[st] respondent at the time of marriage. But it has come out in evidence that he is a close associate of the 1[st] appellant and he was not able to say about the patrimony amount of other marriages he had participated, except the patrimony of the 1[st] respondent. So the Family Court rightly disbelieved his testimony. 14. RW3-the 1[st] appellant deposed before Court that, he sold away 7 sovereigns of gold ornaments of the 1[st] respondent. But, according to him, subsequently he purchased new ornaments weighing 7 sovereigns for the 1[st] respondent, before she went back to her paternal house. Mat.Appeal No.157 of 2011 9 RW1 is the owner of Parammal Jewellery, from where the 1[st] appellant purchased 7 sovereigns of gold ornaments as per Ext.B2 quotation dated 23.06.2001. According to RW1, since the 1[st] respondent had to be given gold ornaments when she goes back to her paternal house, those ornaments were purchased by RW3. If her entire gold ornaments were kept by herself, there was no scope for purchasing any new ornaments for her by the 1[st] appellant. If she was having any other ornaments for her daily use, then also there was no chance for the 1[st] appellant to purchase 7 sovereigns for her, when she went back to her paternal house. If at all the testimony of RWs1 and 3 regarding the purchase of 7 sovereigns of gold is believed, then also it will show that, when the 1[st] respondent went back to her paternal house, she was not having any ornaments given to her from her family. Appellants have no case that the 1[st] respondent or her family members misused or misappropriated the gold ornaments given to her at the time of marriage. It is pertinent to note that the relationship between the 1[st] appellant and 1[st] respondent was strained, and the case of PW1 is that she was sent back to her paternal house on 04.07.2020. Ext.B2 quotation is dated 23.06.2001. The appellants have no case that after she went back to her paternal house, they purchased gold ornaments for her as per Ext.B2 quotation. Ext.B2 is in the name of the 1[st] respondent-wife. That itself gives a clear indication that the said document was manipulated subsequently in the name of the 1[st] respondent. The 1[st] appellant has no case that his wife was present with him in the Jewellery to purchase that Mat.Appeal No.157 of 2011 10 gold. If that gold was purchased by the 1[st] appellant using his money from the Jewellery shop of RW1, in normal course, the bill/quotation might have been issued in the name of the purchaser himself. So Ext.B2 as well as the testimony of RW1 did not inspire confidence and hence the Family Court rightly rejected the same. 15. The testimony of RW2-the Secretary of Rahmania Juma Musjid will show that the 1[st] respondent was given mahar of 2½ sovereigns of gold. Ext.X1, a complaint given by the 1[st] appellant was produced by him. But the attempt of the 1[st] appellant was to show that when the mahar was 2½ sovereigns, normally the gold given from the house of the bride will be 25 sovereigns, as the proportion is 10:1. But RW2 stated that there is no such rule regarding the mahar. So the testimony of RW2 could not substantiate the case of the appellants that the gold ornaments given from the family of the 1[st] respondent was only 25 sovereigns. Exts.A1 and B1 coupled with the testimony of PWs 1 and 2 are sufficient to show that she was given 42 sovereigns of gold ornaments, at the time of marriage. We find no reason to disbelieve the testimony of PW1 that her entire gold ornaments were entrusted with the appellants and they misappropriated the same. So the Family Court directed the appellants to return 42 sovereigns of gold ornaments or its equivalent value Rs.5,27,520/- with interest to the 1[st] respondent and we find no illegality or irregularity in that finding, warranting interference by this Court. So we uphold that finding. 16. Regarding the past maintenance claimed @ Rs.4,000/- to the Mat.Appeal No.157 of 2011 11 wife, Rs.3,000/- to the elder child and Rs.2,000/- to the younger child, after taking evidence, the Family court found that the respondent was employed in Gulf countries for 10 to 15 years, he was having driving licence for heavy vehicles and he was working in a Private Limited Company by name PACL, and so he was able to maintain his wife and children. The elder child was epileptic with continued medication and the 1[st] appellant also admitted that fact. He further admitted that he married another lady, and he has got two children in that marriage. According to him, he has to maintain his second wife and children as well. Moreover, he would say that he is a mental patient and produced Ext.B5 series documents to prove his mental illness and treatment for the same. But the Family Court found that his mental illness, if any, could not prevent him from contracting a second marriage and begetting two children, and for taking up a job in PACL Pvt. Ltd. etc. etc. Moreover, he admitted that he was constructing a house of his own. So it was found to be lame excuses from his part, to deny maintenance to his wife and children. So, past maintenance was ordered for 36 months @ Rs.3,000/- for the wife, Rs.2,000/- for the elder child and Rs.800 for the younger child. The 1[st] appellant produced Ext-B3 series money order receipts to prove payment of Rs.25,000/- towards maintenance to the children. The Family Court adjusted that amount also and thereafter awarded the balance amount of Rs.1,83,800/- in total. Considering the plight of the respondents, including the illness of the elder child, present cost of living treatment expenses etc., the amount awarded by the Family Court is Mat.Appeal No.157 of 2011 12 quite reasonable and we find no reason to interfere with that amount. For the reasons stated above, we find no reason to interfere with the impugned judgment and decree, and hence the appeal is liable to be dismissed. In the result, the appeal is dismissed. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** DSV/-