Mat. Appeal No. 102 of 2010 (D)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934 Mat.Appeal.No. 102 of 2010 (D) ------------------------------------OP.150/2004 of FAMILY COURT, MALAPPURAM ----------- APPELLANT/RESPONDENT:: ------------------------------- HAMZA, S/O.MUHAMMED KUTTY, AMMAYATH KONDASSERI HOUSE, AYINKALAM P.O. THAVANOOR VIA., THAVANOOR AMSOM, AYINKALAM DESOM PONNANI TALUK, KUTTIPPURAM POLICE STATION. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT/PETITIONER: ------------------------------ ASYA, D/O.CHOORAKKODAN MOIDU, TIRUR TALUK, ATHAVANAD AMSOM DESOM ATHAVANAD P.O.-676 310. BY ADV. SRI.K.RAMACHANDRAN BY ADV. SRI.S.SREEDEV THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ. -----------------------------------------------Mat. Appeal No.102 of 2010 -----------------------------------------------Dated this the 8[th] day of November, 2012 ## **JUDGMENT** _Pius C. Kuriakose, J_ The respondent in O.P.150/2004 on the files of the Family Court, Malappuram, the husband of the respondent herein is the appellant. The OP was filed by the respondent claiming past maintenance and return of value of 28 sovereigns of gold and cash ` 65,000/-, thus amounting to ` 5,95,000/- and future maintenance at the rate of ` 5,000/per mensem. In the first instance the appellant was set ex parte and the OP was allowed as prayed for. Against that judgment and decree the appellant preferred Mat. Appeal 42/2006 which was allowed by this Court by way of an order of remand on condition that the appellant deposits ` 2 lakhs. The condition was complied with and the matter was reconsidered by the Family Court. Mat. Appeal No.102 of 2010 -2- 2. The case of the respondent is that she and the appellant were married on 21/07/1994 and a daughter was born to the said wedlock on 23/08/1996. The respondent alleged that the appellant, husband is working at Abudabi in a municipality drawing a salary of ` 50,000/- per mensem. According to her in October, 2000 she was sent back to her parental home by the appellant and he left for Adudabi. Hence, her claim for ` 5,000/- per mensem as monthly maintenance and past maintenance for a period of three years amounting to ` 1,80,000/- and 40 sovereigns of gold and cash of ` 40,000/-. 3. The appellant filed a detailed counter affidavit disputing the claims in the plaint. It was specifically contended by him that he has divorced his wife by pronouncing talaq on 18/05/2004 and intimated the same to her as well as to the Mahal. According to him he is having a small employment and drawing salary of ` 7,500/- per mensem only. The appellant is bound to look after his wife, Mat. Appeal No.102 of 2010 -3- daughter and aged mother. The original petition is not maintainable as the talaq has been pronounced. 4. The evidence consisted of Ext.A1 and the oral evidence of PWs.1 to 3 on the side of the respondent. On the side of the appellant, appellant himself was examined as RW1 and documents Exts.B1,B1(a) and B2 were marked. The Family Court took the status of the party as on 06/04/04 and treated him as an employed person in Gulf even though the appellant adduced evidence to the effect that he lost his employment and is living at his native place doing coolie works. The Family Court found that the appellant is having landed properties and that the talaq cannot be accepted in view of the decision reported in Shamin Ara v. State of Uttar Pradesh (2002(3) KLT 537 SC). According to the Family Court ` 5,000/- claimed as monthly maintenance is a reasonable amount comparing his income and the past maintenance was awarded for 36 months totalling to ` 1,80,000/- together with 9% interest and future maintenance was also awarded Mat. Appeal No.102 of 2010 -4- at the rate of ` 5,000/- per mensem. From the date of filing of the OP the claim regarding gold and currency was considered separately along with a further claim of the wife that she had given ` 25,000/- to him for getting employment abroad. The Family Court accepted the respondent's case that 40 sovereigns of gold was given and cash for ` 40,000/was given. The wife's claim regarding payment of ` 25,000/was disbelieved. Family Court directed the appellant to pay ` 3,50,000/-, 28 sovereigns of gold and currency ` 40,000/-. Future maintenance was fixed at ` 5,000/-. 5. In this appeal various grounds are raised challenging the order passed by the Family Court and we have heard the submissions of Sri.K.M.Sathyanatha Menon, the learned counsel for the appellant and those of Sri.K.Ramachandran, the learned counsel for the respondent. 6. Sri.Sathyanatha Menon argued that the decision taken by the Family Court is contrary to the evidence on record and probabilities. Appreciation of the evidence by the Mat. Appeal No.102 of 2010 -5- Family Court was totally irregular, according to Sri.Menon. 7. Per contra Sri.K.Ramachandran who read over to us the full text of the impugned order would submit that there is no warrant for interfering with the impugned order. 8. We have given our anxious consideration to the rival submissions addressed at the Bar. We have gone through the records which are available. We have gone through the impugned order. We are in agreement with the learned Family Court that the status of the party has to be assessed as on the date of the filing of the Original Petition which is 06/04/04. On that day the appellant was admittedly employed at Abudabi. As per his admitted pleadings till just about the period of commencement of trial the appellant continued to be in Abudabi. The Family Court noticed that even after filing of the OP, the appellant went back to Abudabi on expiring of leave and came down from Gulf during the pendency of the OP and filed the Mat. Appeal against the ex parte order and again went back to Gulf. The Mat. Appeal No.102 of 2010 -6- Family Court found that the appellant could have produced salary certificate or some authenticated document from his sponsor or from the Municipal Authorities, his employers regarding his financial status, job, salary etc. According to us, the adverse inference drawn by the Family Court against him for non-production of the documentary evidence to substantiate his contention that he lost his job is justified. The Family Court noticed that in evidence, the appellant admitted that he is still having valid visa and can go back to Adudabi. It came out in evidence that the appellant is residing in a double storeyed house which has several rooms in the upstairs also. It further came out in evidence that three items of immovable properties belongs to him and he does not know what is the total extent in acres. According to us, the finding of the learned Family Court that the appellant is a man of reasonable capacity is in all probability a correct finding based on preponderance of probabilities. The finding that no valid Muslim talaq has been proved in this case is Mat. Appeal No.102 of 2010 -7- again correct in view of the evidence available in the case and also in view of the principles laid down by the Supreme Court in Shamin Ara v. State of Uttar Pradesh (cited supra). 9. Now the respondent's case is that 40 sovereigns of gold was entrusted out of which 28 sovereigns is being retained by the husband. The Family Court accepted this case on the basis of admissions in the appellant's evidence. It was common ground that 4 sovereigns of gold was given as Mahr and the appellant admitted that there is a custom that the ratio between Mahr and the ornaments to be brought by the wife will be 1:10. 10. Having re-appreciated all the materials, we are of the view that the impugned order warrants interference only to the limited extent of reducing the maintenance amount presently fixed at ` 5,000/- per mensem to ` 4,500/- per mensem. This means that future maintenance presently awarded will stand reduced to ` 4,500/- per mensem. This also means that the past maintenance amounting to Mat. Appeal No.102 of 2010 -8- ` 1,80,000/- will stand reduced by ` 18,000/- i.e. from ` 1,80,000/- to ` 1,62,000/-. In all other respects the impugned order will stand confirmed. The appeal is allowed only to the above limited extent. Parties will suffer their respective costs. Sd/PIUS C. KURIAKOSE JUDGE Sd/BABU MATHEW P. JOSEPH JUDGE kns/- //TRUE COPY// P.A. TO JUDGE