Fathima & Muhammed Farkhan v. Najeeb V.H & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN TUESDAY, THE 25TH DAY OF JUNE 2013/4TH ASHADHA, 1935 Mat.Appeal.No. 450 of 2008 ( ) ------------------------------OP 784/2005 of FAMILY COURT,THRISSUR ## APPELLANTS/PETITIONERS: ------------------------------ 1. FATHIMA, AGED 25 YEARS, - D/O. HYDROSE BHAVU (A.H.BAVA, ), ARAKKAPRAMBIL HOUSE KARUPPADANNA P.O., THEKKUMKARA VILLAGE MUKUNDAPURAM TALUK. 2. MUHAMMED FARKHAN (MINOR), - AGED 4½ YEARS, DATE OF BORTH 15.01.2004 REPRESENTED BY GUARDIAN/MOTHER 1ST PETITIONER FATHIMA, ARAKKAPRAMBIL HOUSE, KARUPPADANNA (P.O.) THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA ## RESPONDENTS/RESPONDENTS: ----------------------------------- 1. NAJEEB V.H, AGED 38 YEARS (CONTRACTOR), S/O.HASSANKUNJU VATTAPARAMBIL HOUSE NO.13/1, CHULLIKKAL, COCHIN -2. 2. ASHRAFF V.H., AGED 45 YEARS, (CONTRACTOR), B/O IST RESPONDENT &, S/O HASSANKUNJU VATTAPARAMBIL HOUSE, NO. 13/1. CHULLIKKAL, COCHIN -2. 3. NAZER V.H, AGED ABOUT 41 YEARS, (CONTRACTOR), B/O 1ST & 2ND RESPONDENTS S/O.HASSANKUNJU, VATTAPARAMBIL HOUSE NO. 13/1. CHULLIKKAL, COCHIN -2. 4. RUKKIYA, AGED ABOUT 43 YEARS, SISTER OF 1ST, 2ND & 3RD RESPONDENTS, W/O. SULAIMAN PARAKULAM HOUSE, SOUTH PUTHENCHIRA (P.O.) 5. SEKKINA, AGED 36 YEARS, SISTER OF IST, 2ND AND, 3RD AND 4TH RESPONDENTS, W/O NAVAS CHAKKALATH HOUSE, NAMBYAMPURAM ROAD PALLURUTHY, COCHIN -6. MAT.A.450/08 6. NEFISA, AGED 68 YEARS, M/O 1ST TO 5TH RESPONDENTS, W/O HASSANKUNJU, VATTAPARAMBIL HOUSE, HOUSE NO.13/1, CHULLIKKAL COCHIN -2. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25-062013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** --------------------------------------------Mat.Appeal No.450 of 2008 --------------------------------------------Dated 25[th] June, 2013 ## JUDGMENT ## Antony Dominic, J Appellants are the petitioners before Family Court, Thrissur. They filed O.P.784/2005 against respondents herein for return of 45½ sovereigns of gold ornaments, return of house hold articles scheduled to the plaint, past maintenance for 17 months at the rate of `.5,000/- per month and for recovery of `.4,80,000/- paid to the first respondent. The case pleaded is that on 12/1/2003, betrothal prior to the marriage between the first appellant and first respondent took place. At that time, it was agreed between the parties that the first respondent would be paid `.3,00,000/- and that the first MA 450/08 2 appellant would be given 45½ sovereigns of gold ornaments. According to the appellants in pursuance of the said agreement on 26/1/2003, `.3,00,000/was given to the first respondent. Thereafter the marriage was solemnised on 6/4/2003 when ornaments as agreed before was also given. It is stated that in that wedlock second respondent was born on 15/1/2004. Subsequently, the relationship between the parties got strained and suffice it to say that the first appellant filed O.P.679/2005 for dissolution of her marriage with first respondent and that the Family Court, Thrissur allowed the same by its judgment dated 5/12/2007. It was thereafter that the appellants filed present O.P for the reliefs mentioned above. 2. Despite service of notice, respondents remained absent before Family Court and hence they MA 450/08 3 were set exparte. The first appellant filed proof affidavit and Exts.A1 to A9 were marked. Thereafter, Family Court passed its judgment dated 31/3/2008, directing the first respondent to return 45 ½ sovereigns of gold ornaments or in the alternative `.2,00,000/- towards its value. Past maintenance for a period of 17 months was allowed at the rate of `.600/per month. Being the value of house hold articles, `.25,000/- was allowed. It is aggrieved by this judgment appellants have now come up in appeal. 2. In this appeal also notice was served. But the respondents have chosen to remain absent. Heard the counsel for the appellants. 3. The grievance of the appellants is three fold. First one is that the Family Court should have ordered payment of the market value of the gold MA 450/08 4 ornaments which were misappropriated by the first respondent. In support of this contention, counsel for the appellant relied on the judgment of this Court in William David v. Linu Mary George (2010 (4) KLT 691). In that case, a Division Bench of this Court held that the wife is entitled to get market value of the gold ornaments and the Division Bench adopted the rate prevailing on the date of the judgment. Such a relief was granted even in the absence of a specific prayer to that effect. 4. In so far as this case is concerned, from the judgment of the Family Court, we notice that after upholding the entitlement of the appellant to be returned 45½ sovereigns of gold ornaments, the Family Court has awarded only `.2,00,000/- towards MA 450/08 5 its value. It is common knowledge that the market value of the gold has increased substantially and now a days a sovereign will cost about `.20,000/-. In such a situation, we are satisfied that the direction of the Family Court to pay `.2,00,000/- is too low and is insufficient to compensate the wife whose ornaments have been misappropriated by the first respondent. Therefore, we modify that part of the judgment which directs payment of `.2,00,000/- towards the value of the gold ornaments and direct that, in the event the respondent fails to return gold ornaments, the first respondent shall pay the value of the gold ornaments at the rate of `.15,000/- per sovereign of 8 grams each. 4. The second claim of the appellants is for enhancement of past maintenance ordered. As MA 450/08 6 already stated by us, although the claim was for maintenance at the rate of `.5,000/- per month for 17 months, what is awarded by the Family Court is `.600/- per month. The evidence adduced by the first appellant before the Family Court would show that the first respondent was a contractor earning `.20,000/per month. As there is no denial of that assertion, there was no reason for the Family Court to grant such a meager sum for the maintenance of first appellant and the child. Therefore, we cannot sustain the past maintenance order awarded by the Family Court and having regard to the facts of the case including the capacity of first respondent to pay the amount, we enhance the same to `.3,000/- per month. 5. The third grievance of the appellants is regarding rejection of their monetary claim. As MA 450/08 7 already stated, the appellants claimed `.4,80,000/from the respondents. According to them, `.3,00,000/- was paid on 26/1/2003. `.50,000/- was paid after marriage, `.80,000/- was paid to enable the first respondent to obtain a visa and `.50,000/- was paid towards hospital expenses during second appellant's delivery. This claim was rejected by the Family Court in its entirety stating that there was no evidence available. However, we notice that Ext.A1 series produced by the appellants proved payment of `.3,00,000/- to the first respondent. Ext.A1 series consist of five documents which are the photocopies of DD, cheque etc. which would show that `.3,00,000/-, which include amounts sent by first appellant's father from abroad on two occasions and also `.1,80,000/- MA 450/08 8 was borrowed by them from one Abdul Gafoor was paid to the first respondent. Therefore, the Family Court was totally in error in holding that there was total lack of evidence supporting the monetary claim of the appellants. Therefore, while we agree with the Family Court, the claim of the appellants for `.1,80,000/- was not supported by any evidence, we disagree with the Family Court in its conclusion on the appellants claim for recovery of `.3,00,000/-. Therefore, we modify that part of the judgment which rejects monetary claim of the appellants and direct that respondents shall pay `.3,00,000/- to the appellants. In the result, the appeal is disposed of directing that on the failure of the respondents to return 45½ sovereigns of gold ornaments, the MA 450/08 9 appellants will be entitled to recover its value at the rate of `.15,000/- per sovereign of 8 grams each. They would also be entitled to past maintenance at the rate of `.3,000/- per month and to recover `.3,00,000/-, paid to the first respondent. They will also be entitled to interest at the rate as ordered by the Family Court. Judgment of the Family Court will stand modified to the above extent. **(ANTONY DOMINIC) Judge.** **(P.D.RAJAN) JUDGE.** uj.