FAUSIYA v. SAKEER HUSSAIN

## **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. 475 of 2010** **AGAINST THE ORDER IN OP 69/2009 of FAMILY COURT, MALAPPURAM DATED 30-04-2010** ## **APPELLANT/PETITIONER:** **FAUSIYA, D/O ALI HASSAN, THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM P.O.,, A.R.NAGAR, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SRI.BABU S. NAIR SMT.M.T.SHEEBA** ## **RESPONDENT/RESPONDENT:** **SAKEER HUSSAIN S/O.PARAYI KOZHIPARAMBATH MOIDEENKUTTY, THENODY HOUSE, PADIKKAL, VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.R.RAMADAS** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2.04.2019, ALONG WITH Mat.Appeal.101/2011, Mat.Appeal.129/2011, RPFC.28/2012, THE COURT ON 30.5.2019 DELIVERED THE FOLLOWING:** Mat.Appeal No.475/10 & conn.cases -:2:- **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. 101 of 2011** **AGAINST THE ORDER IN OP 239/2009 of FAMILY COURT, MALAPPURAM DATED 30-04-2010** ## **APPELLANT/PETITIONER:** **SAKEER HUSSAIN S/O.PARAYI KOZHIPARAMBATH MOIDEENKUTTY, THENODI (H), PADIKKAL, VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM, TIRURANGADI POLICE STATION LIMIT.** **BY ADV. SRI.R.RAMADAS** ## **RESPONDENT/RESPONDENT:** **FOUSIYA, D/O. ALIHASSAN, THAZHATHIL (H), ERUMBUCHOLA, KOLAPPURAM POST, A.R.NAGAR,, TIRURANGADI TALUK-676306.** **BY ADV. SRI.BABU S. NAIR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2.04.2019, ALONG WITH Mat.Appeal.129/2011, Mat.Appeal.475/20 & RP(FC) NO.28/12, THE COURT ON 30.05.2019 DELIVERED THE FOLLOWING:** Mat.Appeal No.475/10 & conn.cases -:3:- **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. 129 of 2011** **AGAINST THE ORDER IN OP 69/2009 of FAMILY COURT, MALAPPURAM DATED 30/4/2019** ## **APPELLANT/RESPONDENT:** **SAKEER HUSSAIN, S/O PARAYI KOZHIPARAMBATH MOIDEENKUTTY, THENODI(H),PADIKKAL,VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM,, TIRURANGADI POLICE STATION LIMIT.** **BY ADV. SRI.R.RAMADAS** ## **RESPONDENT/PETITIONER:** **FOUSIYA, D/O ALIHASSAN, THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM POST, A.R.NAGAR, TIRURANGADI TALUK-676306.** **BY ADV. SRI.BABU S. NAIR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2.04.2019, ALONG WITH Mat.Appeal Nos.101/2011 475/2010 & RP(FC) NO.28/12, THE COURT ON 30.05.2019 DELIVERED THE FOLLOWING:** Mat.Appeal No.475/10 & conn.cases -:4:- ## **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** ## **RPFC.No. 28 of 2012** **AGAINST THE ORDER IN MC 66/2009 of FAMILY COURT, MALAPPURAM DATED 30-04-2010** ## **PETITIONER/RESPONDENT:** **SAKEER HUSSAIN, S/O PARAYI KOZHIPARAMBATH MOIDEENKUTTY, THENODI(H),PADIKKAL,VELIMUKKU SOUTH, TIRURANGADI TALUK, MALAPPURAM, TIRURANGADI POLICE STATION LIMIT, PIN 676306. BY ADV. SRI.R.RAMADAS** ## **RESPONDENTS/PETITIONERS:** - **1 FOUSIYA, D/O ALIHASSAN, THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM POST, A.R.NAGAR, TIRURANGADI TALUK-676306.** - **2 SALMAN FARIZ, (MINOR) S/O.FAUSIYA, THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM POST, A.R.NAGAR, TIRURANGADI TALUK-676306.** - **3 MUHAMMED FAYIZ (MINIOR), S/O FAUSIYA,THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM POST, A.R.NAGAR, TIRURANGADI TALUK-676306.** **(MINOR RESPONDENTS ARE REPRESENTED BY GUARDIAN/MOTHER 1ST RESPONDENT) BY ADV. SRI.BABU S. NAIR** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 2.04.2019, ALONG WITH MAT.APPEAL NO.475/10 & CONN.CASES, THE COURT ON 30.05.2019 PASSED THE FOLLOWING:** Mat.Appeal No.475/10 & conn.cases -:5:- ## **J U D G M E N T** **[Mat.Appeal Nos.475/2010,101/2011, 129/2011 & RP(FC)No.28/2012]** ## _**Shaffique, J.**_ Mat.Appeal Nos. 475/2010 and 129/11 arise from an order in OP No.69/09 of the Family Court, Malappuram. Mat.Appeal No.101/11 arises from the order in OP No.239/2009 and RP(FC) No. 28/2012 arises from the order in MC No.66/2009. Mat.Appeal Nos.101/11, 129/11 and RP(FC) No.28/12 are filed by the husband and Mat.Appeal No. 475/10 has been filed by the wife. All these cases were decided by a common order. 2. The parties are Muslims and they got married on 30/1/2003 and two children were born in the wedlock, who are petitioners 2 and 3 in MC No.66/2009. They are minors. On account of matrimonial issues, the couple are living separately. The claim by the wife was for return of gold ornaments, money and maintenance-past as well as future. Husband filed a case for restitution of conjugal rights. The Family Court partly allowed OP Mat.Appeal No.475/10 & conn.cases -:6:- No.69/2009 and directed payment of past maintenance of `3,000/- to the first petitioner, `1,200/- to the 2[nd] petitioner and `800/- to the third petitioner for a period of five months, directed return of 103 sovereigns of gold ornaments or its value of `10,30,000/- with interest at the rate of 9% per annum from the date of filing the Original Petition. The claim for money has been disallowed. OP No.239/2009 filed for restitution of conjugal rights was dismissed. MC filed for future maintenance has been allowed by the very same rate fixed for past maintenance. 3. In Mat.Appeal No.475/2010, the wife claimed that she is also entitled for return of `11 lakhs which claim was rejected by the Family Court whereas the husband challenges the entire decree for return of gold ornaments, past as well as future maintenance. 4. Before the Family Court, common evidence was taken in these cases. Petitioner/wife placed reliance upon the oral testimony of PW1 to PW4 and Exts.A1 to A11. Respondent/husband relied upon the evidence of RW1 and RW2 Exts.B1 to B20 documents were marked. 5. Learned counsel for the appellant/wife contended that Mat.Appeal No.475/10 & conn.cases -:7:- there is sufficient evidence to prove payment of `11 lakhs at the time of marriage and Court below committed serious error in not granting a decree for the said amount. Reliance had also been placed to the judgment in _**Bexy Michael v. A.J.Michael**_ [2010 (4) KHC 376 (DB)] and _**Pankajakshan Nair v. Shylaja**_ [2017( 1) KHC 620 (DB)]. 6. First we shall consider the claim for maintenance-past and future. According to the wife, she was unemployed and had no source of income. She has to take care of two minor children and the parties got separated on account of the matrimonial cruelty and she was compelled to file a complaint u/s 498A of IPC. According to her, her husband was doing bakery business in Madras and owns shops and his income is about `50,000/- per month. He denied the said fact and allege that he is only a coolie worker. The Family Court found that the parties come from a socially upward class and therefore the contention that the husband does not have sufficient income cannot be believed. Further a case was filed by the wife seeking return of gold ornaments, money and maintenance. He had gone to the extent of filing a petition for restitution of conjugal rights. Respondent Mat.Appeal No.475/10 & conn.cases -:8:- contended that he is only a coolie worker, but even according to him, he had been sending money order as evident from Exts.B5 to B17. He was sending money at the rate of `1,000/- every month. All these payments are being made during 2009 after the couple got separated. The contention that he is a coolie worker is not supported by any material. Even otherwise, the Court below had directed only payment of `5,000/- for all the petitioners together as past maintenance for five months and future maintenance, which according to us, is not on the higher side. Even a coolie worker in the State of Kerala is able to derive sufficient income for maintaining his family and therefore, we do not think that the amount awarded as future maintenance is on the higher side. 7. Next we have to consider the claim for return of gold ornaments and money. Wife had taken up a plea that at the time of marriage, she was given 100 sovereigns of gold ornaments. It was her second marriage. Even during the first marriage, her family members had purchased 100 sovereigns of gold ornaments which is evident from Ext.A1 series. The first nikah was held on 11/11/2001 and divorce was granted on 3/5/2002. As Mat.Appeal No.475/10 & conn.cases ## -:9:- evidence to prove that she was having 100 sovereigns of gold ornaments, in addition to A1 series, they produced Ext.A10 photographs which relate to the ornaments given as mahar which according to the husband is 10 sovereigns. In the pleading, petitioner had stated that the nikah was conducted by giving a mahar of 10 sovereigns. After marriage, they have been demanding more gold and dowry and in the meantime, her 100 sovereigns of gold ornaments and `2 lakh given as parental share were appropriated by the respondent. Further, in order to augment his business, respondent had taken an amount of `7 lakhs on several occassions from her father. That apart, on 26/6/2008, at the instance of the respondent, she had received an amount of `2 lakhs from her father and it was given to her husband. The money or the ornaments were not returned and that apart, they have been demanding more gold and money. She further stated that she had to flee from the matrimonial home. She further contended that she was given 7 sovereigns as mahar and she was entitled for further 3 sovereigns as well. Ext.B20 is a photograph produced by the respondent which would clearly show that the bride was having sufficient ornaments Mat.Appeal No.475/10 & conn.cases -:10:- though it may not be possible to state the actual quantity of gold ornaments she had. 8. In the objection he denied that 10 sovereigns was fixed as mahar whereas according to him 1 sovereign was fixed as mahar. Even on a perusal of Ext.A10 series photographs, it could be seen that the mahar was a chain and it cannot be 1 sovereign at all. Therefore, the contention that the mahar was only 1 sovereign is absolutely baseless. That apart, he had blanketly denied that the wife was having 100 sovereigns of gold and that he received payment of any amount. He does not say the quantity of gold she had at the time of marriage. This is quite improbable. But it is rather clear from the evidence of PW1 to PW4, Ext.B20 and the blanket denial of the respondent, the Family Court was justified in stating that she had 100 sovereigns of gold ornaments. It was also found by the Family Court that at the time of marriage, the girl was only 17 years old and she was having 107 sovereigns of gold ornaments which include the mahar and therefore it is quite improbable that she might be keeping the gold ornaments with herself. During crossexamination of the respondent, he stated that photographs were Mat.Appeal No.475/10 & conn.cases **==> picture [27 x 9] intentionally omitted <==** not taken. In cross-examination, he further reiterated that 1 sovereign was given as mahar and no photograph was taken during nikah. When he was shown the photograph, he admitted that those were the photographs of the nikah and he admitted that the chain which was given as mahr can be seen in the photograph. He further stated that the bill was with him. When a suggestion was made that the said chain weighed 7 sovereigns, he denied the said fact. He further admitted that at the time of marriage, petitioner had several ornaments, but he does not know how much ornaments she had. He further deposed that according to the petitioner, she had 20 sovereigns. He further admitted during cross-examination that he had not stated either in the counter or in the chief affidavit that while his wife left the matrimonial home, she had taken away all her gold ornaments. 9. Further evidence of PW2 to PW4 supports the version of the petitioner. From an over all consideration of the evidence, and taking into account the preponderance of probabilities, it is clear that she had 100 sovereigns of gold ornaments at the time of marriage and the contention urged by the respondent cannot be believed. Further, she was only 17 years of age at the time of Mat.Appeal No.475/10 & conn.cases -:12:- marriage and therefore, it is always possible that the gold ornaments are entrusted to the custody of her husband. Being a business man, he would have appropriated the same as well and therefore the Family Court was justified in directing return of gold ornaments or its value. 10. Now coming to the claim for payment of money, the Family Court observed that there is no evidence to prove the source of money. When a claim is made for return of money and when the factum of payment is disputed, some material should be produced to prove the source of funds. Of course, the case has to be considered on the basis of preponderance of probabilities, but still in the absence of any material to prove the source of funds, it may not be possible to grant a decree. The Family Court having observed so, declined the same for valid reasons and it is not possible for us to arrive at a conclusion that the said view is perverse in order to take a different view. When the Family Court had rejected the claim based on sufficient reason, we do not think it necessary to interfere with the said judgment. 11. The husband had challenged order in OP No.239/2009 which was a petition filed for restitution of conjugal rights. The Mat.Appeal No.475/10 & conn.cases **==> picture [27 x 9] intentionally omitted <==** Family Court found that the wife had to remain separately from the husband on account of matrimonial cruelty and there was more demand for money and gold. Under such circumstances, when it is found that there are valid reasons for the wife to remain away from the matrimonial home, we do not think it necessary for us to interfere with the said order as well. In the result, Mat.appeals and RP(FC) are dismissed. **Sd/-** **A.M.SHAFFIQUE** **JUDGE Sd/-** Rp //True Copy// PS to Judge **ASHOK MENON JUDGE**