Jamsheena v. Naushad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939 Mat.Appeal.No. 193 of 2009 ( ) ------------------------------- AGAINST THE ORDER IN OP 595/2006 of FAMILY COURT,KOZHIKODE DATED 9/12/2008 APPELLANT(S)/PETITIONER: ---------------------- JAMSHEENA, D/O.MAMMED KOYA, AGED 23 YEARS, KALANGOTTU,, KUNNAMANGALAM P.O., KUTTIKKATTUR AMSOM, PAYINGOTTUPUARAM DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/RESPONDENT: ------------------------- NAUSHAD, S/O.ISMAIL, AGED 30 YEARS, VENGAPPATTA, MUTTANCHERRY P.O., POYILTHAZHAM, KOZHIKODE. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 9/8/2017 ALONG WITH MAT.APPEAL NO.204/09 & CRL.M.C.No1909/2012, THE COURT ON 7/11/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** =============================== Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 ==================== Dated this, the 7[th] day of November, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ The petitioner in OP No.595/2006 and the petitioners in OP No.596/2006 of the Family Court, Kozhikode are the appellants in the Mat.Appeals. Crl.M.C. has been filed by the respondent in the Mat.Appeals challenging order dated 30/6/2011 in Crl.R.P. No.21/2010 and order in MC No.13/2009 issued by the Sessions Court, Kozhikode by which the revision petitioner is called upon to pay an amount of `2,14,920/- to the 1[st] respondent therein. Since the issues that have arisen between the parties relate to a matrimonial dispute between Mr.Naushad and Mrs.Jamsheena, the cases are heard and decided together. 2. The short facts which have arisen in the matter are as under:- The couple got married on 15/12/2002 as per Muslim religious Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 **==> picture [21 x 9] intentionally omitted <==** rites and ceremonies. OP No.595/2006 has been filed for realisation of gold ornaments and money. It is alleged that at the time of marriage, she was given `2 lakhs and 96 sovereigns of gold ornaments. On the date of reception, the appellant's mother had given to the respondent one Hero Honda Motorcycle. It is alleged that, on the first day of marriage itself, respondent secured the entire gold ornaments except one chain weighing 4 sovereigns. There was matrimonial dispute with the parties. She became pregnant and was taken to her house for delivery in January, 2004. She gave birth to a child on 17/4/2004. It is alleged that the respondent was not interested to take her back. Her father again gave `50,000/- to him on 6/10/2004 to enable him to take her back. Thereafter, he took her back to his house. However, she was ill-treated and threatened that he would divorce her by pronouncing talaq. Since ill-treatment continued, she left to her house with the child on 21/1/2005. Since he did not look after her and the child, claiming maintenance, she filed MC No.255/2006. 3. In OP No.595/2006, she claimed return of the gold Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 -:3:- ornaments and the money along with the Motor Cycle which was given to the respondent. 4. OP No.596/2006 has been filed claiming past maintenance of `1,23,500/-. It is contended that the respondent was having an income of `40,000/- per month as he is employed abroad and therefore he is liable to pay the said amount. 5. Before the Family Court, the above cases were tried along with MC No.255/2006 and by common order dated 9/12/2008, the Family Court dismissed the claim for recovery of gold ornaments and money. However, directed return of the Hero Honda motor cycle or its value of `43,000/-. Claim for past maintenance was rejected and maintenance was directed to be paid at the rate of `500/- to the minor. The first appellant's claim for maintenance was rejected. 6. In regard to the claim for past maintenance arising in OP No.596/2006, the Family Court found that the wife under the Muslim law is not entitled for past maintenance unless there is an agreement between the parties. 7. With regard to the claim for return of gold ornaments Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 **==> picture [21 x 9] intentionally omitted <==** and money, it was found that no material was produced to prove that she was having such quantity of gold ornaments or the money and hence the claim was rejected. However, it was found that respondent was given a motor cycle at the time of marriage and direction had been issued to return it or pay its value. 8. In the objection filed in OP No.595/2006, the respondent had stated that he had pronounced talaq on 17/7/2006. While the above appeals were pending, MC No.13/2009 has been filed by the appellant/wife under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is contended that she is entitled for a reasonable and fair provision for maintenance. She claimed `8 lakhs and a further amount of `24,000/-. The learned Magistrate directed payment of `3,15,000/-. In the revision filed by the revision petitioner before the Sessions Court, the amount was reduced to `2,14,920/-, against which Crl.M.C.No.1909/12 is filed. 9. As far as Crl.M.C. No.1909/12 is concerned, we do not think it necessary for us to interfere in the matter. The contention urged by the revision petitioner is that the computation of his Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 -:5:- income is without any basis. The respondent/wife contended that he was employed in Gulf and was having sufficient income whereas in the objection, he denied the said fact. Though it was found that there was no evidence to prove the income of the revision petitioner, the Magistrate Court directed payment of `3 lakhs. In revision also, the issue taken up was regarding the quantum of compensation to be paid during _iddat_ period and a reasonable and fair provision for maintenance. Since he contended that he did not have any income and he was unemployed, the Court felt that even a coolie worker can earn more than `200/- per day and has approximated his monthly salary at `6,000/- per month and after setting apart his personal expenditure, found that `1,666/- can be given towards maintenance. Computed in that fashion, the Court below applying a multiplier of 10 as laid down in _**Aboobacker v. Rahiyanath**_ (2008 (3) KLT 482), `1,99,920/- was fixed as fair and reasonable provision and maintenance and `15,000/- was treated as compensation for _iddat_ period. We do not find any error in the aforesaid order warranting interference taking into consideration Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 **==> picture [21 x 9] intentionally omitted <==** the fact that the Court below has considered the entire factual aspects and arrived at a fair decision, which need not be interfered in a revision petition. 10. Coming to Mat.Appeals, evidence consisted of oral testimony of PWs 1 to 3 on behalf of the appellants and RWs 1 to 3 on behalf of the respondent. Petitioners relied upon Ext.A1 and the respondent relied upon Exts.B1 to B11. As far as the return of gold ornaments and money are concerned, apparently no materials were produced to prove the acquisition of gold ornaments or the payment of money. Even the oral evidence adduced by the witnesses on the side of the petitioner was not accepted by the Court below as sufficient enough to prove the aforesaid facts. It is contended by the learned counsel for appellants on the basis of the judgment in _**Ajitha Kumari v. K.D.Jayasekharan**_ [2016 (5) KHC 664 (DB)] that while considering a claim for return of gold ornaments and money, evidence is to be appreciated on the basis of preponderance of probabilities and direct evidence is not required and therefore, the Court below ought to have granted a decree as sought for. Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 -:7:- 11. But, as stated by the Court below, the only material available is Ext.A1 dated 14/12/2002. The name of the purchaser is not mentioned anywhere. The total amount mentioned therein was `3,66,232/- for purchase of 88 sovereigns of gold ornaments. From the evidence it is observed that PW1 had stated that some of the gold ornaments were given to her by her relatives. The marriage photographs have not been produced. Even there is discrepancy in the oral evidence of PW1 and other witnesses. In regard to payment of `2 lakhs. PW2 is the father of PW1. He stated that he purchased the ornaments from Kalyan Jewellery, Kakkodi. But, there is no such statement in his affidavit. Ext.A1 only contains a seal of Kalyan Jewellery and it was not a bill for purchase of gold ornaments. No attempt also has been made to prove that they were in possession of sufficient funds for acquiring such quantity of gold ornaments or for paying `2 lakhs. In the light of the aforesaid factual situation, we do not think that the Family Court had committed any error in rejecting the claim for return of gold ornaments and money. 12. As regards the claim for past maintenance is Mat.Appeal Nos.193/2009, 204/2009 & Crl.M.C. No.1909 of 2012 **==> picture [21 x 9] intentionally omitted <==** concerned, since parties now agree that a divorce had been effected by way of a talaq on 17/7/2006, any claim beyond the said date can only be in terms of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and since the appellant had already approached the Magistrate Court for such reliefs, there is no reason to interfere with the denial of past maintenance. In the result, we do not find any reason to interfere with the orders passed. Mat.Appeals and Crl.M.C. are dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.P.JYOTHINDRANATH, JUDGE** Rp //True Copy// PS to Judge