JAMALUDDEEN v. FATHIMA (Matrimonial Appeal No.333 of 2009)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL &** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939** **OP 451/2008 of FAMILY COURT, MALAPPURAM** ## **APPELLANT(S)/RESPONDENTS** **1 JAMALUDDEEN, AGED 31 YEARS, S/O.MOIDEENKUTTY, VAZHAYIL(H), THAZHATHAL PADI,, ERAMANGALAM.PO, PONNANI TALUK.** **2 NAFEESA, AGED 49 YEARS, W/O.MOIDEENKUTTY, VAZHAYIL(H), THAZHATHAL PADI, ERAMANGALAM.PO, PONNANI TALUK.** **BY ADV.SRI.C.KHALID** ## **RESPONDENT(S)/PETITIONER:** **FATHIMA, AGED 28 YEARS, D/O.ABDUTTY, CHEEPANTE(H), PUTHUPONNANI.PO, PONNANI SOUTH, PONNANI TALUK.** **R, BY ADV. SRI.MOHAMMED SADIQUE.T.A** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **scl.** ## **K.HARILAL & A.M.BABU, JJ.** ## **-------------------------------------** Matrimonial Appeal No.333 of 2009 -------------------------------------Dated this the 8[th] day of February, 2018 ## **JUDGMENT** ## **K.Harilal, J** _**.**_ The appellant is the respondent in O.P. No.451 of 2008 and M.C. No.391 of 2008, on the files of the Family Court, Malappuram and this appeal is filed challenging the common judgment passed in the said Original Petition and Maintenance Case, after a joint trial. The parties are referred to as in the Original Petition. 2. The appellant/respondent and the respondent/ petitioner are husband and wife respectively. Their marriage was solemnized on 31.01.2001 and lived together till 27.02.2005. After the marriage, the marital relationship between the petitioner and the respondent got strained and they are living separately from 27.02.2005 onwards. According to the petitioner, at the time of marriage, she was given 75 sovereigns of gold ornaments and the respondent was given Rs.1,00,000/- by cash on the date of nikkah. On the date of marriage itself, after reaching the house of the respondents, the petitioner entrusted all the gold ornaments with the 2[nd] M.A No.333 of 2009 2 respondent, the mother of the 1[st] respondent. Subsequently, out of the said 75 sovereigns of gold ornaments, the 2[nd] respondent has given 34 sovereigns of gold ornaments to the 1[st] respondent and he misappropriated the same and sold away to meet his own personal needs only. Thereafter, he treated the petitioner with cruelty and assaulted her physically several times, on demand of more gold ornaments and money. Four years back, she left the matrimonial home in connection with the death of her close relative and thereafter, the respondent has not made any attempt to bring back the petitioner to the matrimonial home and no amount was given towards her maintenance allowance. The respondent told her that unless the parents of the petitioner give 50 more sovereigns of gold ornaments, he will not bring back the petitioner to the matrimonial home; but the parents of the petitioner did not heed to the said demand. Thus, the petitioner was residing in her house with the parents from 27.02.2005 onwards. In the Original Petition, she prayed for granting a decree for realising Rs.1,00,000/-, 34 sovereigns of gold ornaments and maintenance allowance for the period from 31.05.2005 to 31.05.2008 at the rate of Rs.3,000/- per month. M.A No.333 of 2009 3 3. Respondents filed a counter statement denying the averment that the petitioner had been given 75 sovereigns of gold ornaments and he was given Rs.1,00,000/- by cash on the date of nikkah. According to him, at the time of marriage, the petitioner was wearing a few sovereigns of gold ornaments only. He denied the allegations that on the date of nikkah, the uncle of the petitioner entrusted Rs.1,00,000/- with the second respondent. He denied the allegation that the petitioner entrusted 75 sovereigns of gold ornaments with the second respondent and the second respondent subsequently had given 34 sovereigns of gold ornaments to the first respondent and the first respondent had appropriated to the same to meet his personal needs. Further he denied the allegation that he was the drunkard and spendthrift. In short, he is not liable to return the gold ornaments or money as claimed by the petitioner. As regards claim of maintenance, he averred that the petitioner has filed a maintenance case against him claiming maintenance. According to him, he is not liable to pay any amount towards past maintenance allowance as he has divorced her by pronouncing talaq on 15.2.2008. With the aforesaid averments both parties went to trial and adduced M.A No.333 of 2009 4 both oral and documentary evidence. The petitioners were examined as PW1 and PW2 and produced Exts.A1 to A1 (I). The respondent was examined as RW1 and another witness was examined as RW2. But no document was produced in evidence. Exts.X1 and X2 were marked as third party document. After considering the aforesaid evidence, the Family Court passed the impugned common order granting a decree for realising Rs.3,19,600/- as value of 34 sovereigns of gold ornaments, Rs.72,000/- as maintenance allowance, (for 36 months at the rate of 2000 per month) and rejecting claim for Rs.1,00,000/- which is alleged to have been paid on the date of nikkah. The legality and correctness of the said finding is challenged in this appeal. 4. Heard the learned counsel for the petitioners and the learned counsel for the respondent. 5. The marital relationship between the petitioner and the first respondent was admitted. So also it was not disputed that they were living together till 27.2.2005 only, as husband and wife in the matrimonial home and thereafter the petitioner has been residing in her parental home. The specific claim of the petitioner is that at the time of marriage, she was wearing M.A No.333 of 2009 5 75 sovereigns of gold ornaments and after reaching the matrimonial home on the same day itself she entrusted the said gold ornaments with the second respondent. Subsequently, the second respondent has given 34 sovereigns of gold ornaments to the first respondent on his demand and he appropriated the said gold ornaments to meet his own personal needs without the consent or knowledge of the petitioner. Further, it is averred that on the date of nikkah, under the instruction of the first respondent, the maternal uncle of the petitioner had entrusted Rs.1,00,000/- with the second respondent and subsequently, the first respondent misappropriated the said amount to meet his own personal requirements without the consent or knowledge of the petitioner. The first respondent was the trustee of the petitioner in respect of the said money and gold ornaments. Therefore, he is liable to return the said money and gold ornaments to the petitioner. 6. Since the petitioner is the wife of the first respondent, the first respondent was liable to give maintenance allowance to her. But, he did not pay any amount towards maintenance allowance after 31.5.2005. The M.A No.333 of 2009 6 petitioner has been residing separately from 27.2.2005 onwards, because the respondent refused cohabitation, on demand of 50 more sovereigns of gold ornament. Since the parents of the petitioner were unable to fulfill the said demand she was constrained to live in the parental home along with her month and father from 27.2.2005 onwards. In order to prove the aforesaid averments, the petitioner was examined as PW1 and she has testified in terms of the aforesaid averments. PW2 was examined to corroborate the evidence of PW1. The Family Court rejected the claim of Rs.1,00,000/-. 7. Therefore, the point to be considered in this appeal is whether the Family Court is justified in granting a decree for realising an amount of Rs.1,19,600/- as value of gold ornaments and Rs.72,000/- towards maintenance allowance. PW1 has sworn a proof affidavit in tune with the averments in the original petition that she was wearing 75 sovereigns of gold ornaments at the time of marriage. In order to prove the said claim PW2 was examined in evidence and Ext.A1 series of photographs were marked. During the cross examination, PW1 stood by the averments in the original petition and nothing has been brought out to discredit her evidence. Further, her M.A No.333 of 2009 7 evidence stands corroborated by the evidence of PW2. 8. Going by the cross examination of the first respondent, it is seen that the respondent himself admitted that at the time of marriage, the petitioner was wearing gold ornaments as shown in Ext.A1 series of photographs and those ornaments are gold ornaments. Thus he himself admitted the claim that the petitioner was wearing gold ornaments as shown in the photographs. There is nothing to disbelieve the evidence of PW1 and PW2 to the effect that PW1 was given a 75 sovereigns of gold ornaments at the time of marriage. 9. Coming to the entrustment of gold ornaments with the second respondent, it is the specific case of the petitioner that on the date of marriage itself after reaching the house of the respondent, the petitioner has entrusted the entire gold ornaments with the second respondent and out of the said ornaments, subsequently the second respondent has given 35 sovereigns of gold ornaments to the first respondent to meet the personal needs of the first respondent without the knowledge or consent of the petitioner. Going by the cross examination of the petitioner by the respondent, no question was put to her challenging or denying the said claim of the M.A No.333 of 2009 8 petitioner. Thus, the oral evidence of the petitioner with respect to the entrustment of entire gold ornaments with the second respondent and appropriation of 34 sovereigns of gold ornaments by the first respondent stands unchallenged in evidence. In the above view, the Family Court is justified in finding that the petitioner has succeeded in proving that the first respondent has appropriated 34 sovereigns of gold ornaments to meet his personal requirements without the consent and knowledge of the petitioner. It is needless to say that being a trustee, the respondents are liable to return the said gold ornaments or its value. Thus, the Family Court is justified in granting a decree directing the respondents 1 and 2 to pay Rs.3,19,600/- as the value of 34 sovereigns of gold ornaments. 10. Coming to the claim for past maintenance, it is a specific case of the petitioner that she was living separately in her house from 27.2.2005 onwards and on demand of more gold ornaments, respondent refused to cohabit with her. Going by the written statement filed by the respondent, the respondent has no claim to the effect that he had paid any amount towards maintenance allowance to the petitioner after M.A No.333 of 2009 9 27.2.2005. On the other hand, he contended that he had divorced her by pronouncing talaq on 15.2.2005. In order to substantiate the said contention he has produced Exts.X1 and X2. We have meticulously gone through Exts.X1 and X2. When going by Ext.X2, we find that Ext.X2 is a letter sent by him without his signature. In **Shamim Ara v. State of U.P. And another [AIR 2002 SC 3551]** , the Supreme Court held that the term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate. A mere plea taken in the written statement that divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The husband ought to have adduced evidence and proved the pronouncement of talaq and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement. 11. In the instant case, no evidence has been adduced to prove the pronouncement of talaque as required under M.A No.333 of 2009 10 personal law. Therefore, the Family Court is justified in rejecting the claim of divorce. Further in **Kunhimohammed** **v. Ayishakutty [2010 (2) KHC 63]** this Court held that the unilateral pronouncement of divorce without offering any reason and attempt for reconciliation is not valid under Muslim Law. It is further held that before the termination of Muslim marriage by unilateral pronouncement of talaq, the husband must attempt for reconciliation by two arbiters in accordance with Ayat 35 Sura IV. In the absence of any evidence to prove a payment of any amount towards maintenance allowance from 31.5.2005, the Family Court is justified in granting a decree for reallising an amount of Rs.72,000/- as monthly allowance for 36 months at the rate of 2000. We do not find any reason to interfere with the common judgment under challenge. This appeal is devoid of any merits and is liable to be dismissed. **Sd/K.HARILAL JUDGE** **K.HARILAL** **Sd/A.M.BABU JUDGE** Scl/18.12.2017