Mat.Appeal Nos. 689/2018 and 614/2019, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** **Mat.Appeal.No.689 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OP 159/2016 DATED 23-11-2017 OF FAMILY COURT, KALPETTA** ## **APPELLANT/2nd RESPONDENT:** **KHADEEJA, AGED 52 YEARS W/O.MUHAMMED, CHAMAPURAYIL HOUSE, VALAVAYAL POST, IRULAM AMSOM DESOM, POOTHADY PANCHAYATH, PIN -673 596.** **BY ADV. SRI.S.M.PRASANTH** ## **RESPONDENTS/1ST RESPONDENT/PETITIONER:** - **1 MUHAMMED MUNEER, AGED 30 YEARS S/O.MUHAMMED, CHAMAPURAYIL HOUSE, VALAVAYAL POST, IRULAM AMSOM DESOM, POOTHADY PANCHAYATH, PIN -673 596.** - **2 SHAHAR BANU, AGED 25 YEARS D/O.POCKER, PULPARAMBIL HOUSE, KANIYAMBATTA POST, VYTHIRI TALUK, PIN -673 121. (KAMBALAKKADU POLICE STATION LIMIT).** **R1 BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM R2 BY ADV. SMT.CELINE JOSEPH R2 BY ADV. SRI.GEORGE CHERIAN (SR.)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 6.1.2020, ALONG WITH Mat.Appeal.614/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal Nos 689/2018 and 614/2019 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** **Mat.Appeal.No.614 OF 2019** **AGAINST THE ORDER/JUDGMENT IN I.A. 210 and 211 of 2019 in OP 159/2016 DATED 19-06-2019 OF FAMILY COURT, KALPETTA** ## **APPELLANT/S:** **MUHAMMED MUNEER AGED 33 YEARS** **S/O. MUHAMMED, CHAMAPURAYIL HOUSE, VALAVAYAL P.O, PAPLASSERY, POOTHADI, PANCHAYATH, BATHERY TALUK** **BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM** ## **RESPONDENT/S:** **1 SHAHARBANU, AGED 28 YEARS D/O. POCKER, PULPARAMBIL HOUSE, KANIYAMBETTA P.O, VYTHIRI TALUK, WAYANAD DISTRICT, PIN 673 121** **2 KADHEEJA, AGED 52 YEARS W/O. MOHAMMED, CHAMAPURAYIL HOUSE, VALAVAYAL P.O, IRULAM, POOTHADI PANCHAYATH, BATHERY TALUK, WAYANAD DISTRICT, PIN 673 591** **R1 BY ADV. SMT.CELINE JOSEPH R2 BY ADV. SRI.S.M.PRASANTH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 6.1.2020, ALONG WITH Mat.Appeal.689/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Mat.Appeal Nos 689/2018 and 614/2019 ## **JUDGMENT** ## **C.S.DIAS, J.** The appellant in Mat. Appeal No.689/2018 is the second respondent in O.P No.159/2016 of the Family Court, Kalpetta. The original petition was filed by the second respondent in this Mat.Appeal against the appellant and her son, seeking a decree for return of 15 sovereigns of gold ornaments and an amount of Rs 2,00,000/-. 2. Mat.Appeal No.614/2019 is filed by the first respondent in OP No.159/2016 against the appellant in Mat.Apeal 689/2018 and the petitioner in the original petition. The parties are for the sake of convenience referred to as 'petitioner' and 'respondents' as per their litigate status in O.P No.159/2016. 3. The petitioner had filed O.P 159/2016 with the assertion that she is the wife of the first respondent. The second respondent is the mother of the first respondent. According to her, the marriage between the first respondent 4 Mat.Appeal Nos 689/2018 and 614/2019 and her was solemnized on 28.6.2009 as per Islamic rituals under the auspices of the Kambalakkadu Ishathul Islam Sangham. In the wedlock, a female child, Hiba Fathima was born. 4. The petitioner pleaded in the original petition that on the date of engagement, that is, on 24.5.2009 it was agreed that 35 sovereigns of gold ornaments would be given as the petitioner's share in her parental properties. In order to purchase the above gold ornaments, her parental property was disposed on 20.1.2009, and the sale consideration was deposited in her father's bank account. At that time, the first respondent intimated that instead of 35 sovereigns of gold ornaments, only 15 sovereigns of gold ornaments were necessary and the remaining amount Rs 2,00,000/- need be paid in cash. Accordingly, on 12.5.2009, 16½ sovereigns of gold ornaments were purchased from a person by name Punnoli Abbas for an amount of Rs 1,65,000/-. Subsequently on 3.6.2009, an amount of Rs 2,00,000/- was entrusted to the respondents 1 and 2, which was witnessed by Siraj and Faizal. The marriage was solemnized on 28.6.2009, on 5 Mat.Appeal Nos 689/2018 and 614/2019 which day the petitioner adorned 15 sovereigns of gold ornaments, which were described in detail in the original petition. 5. The petitioner further averred that, on the date of marriage itself, the first respondent's sister's marriage was also solemnized. The gold ornaments that were entrusted to the petitioner was utilized for the sister's marriage by the respondents 1 and 2. Even though the gold ornaments worn by the first respondent's sister were returned to the real owner after a week, the petitioner's gold ornaments, except a pair of earrings weighing 1½ sovereigns, were given to the first respondent's sister. 6. The petitioner had also averred that, subsequently, the marital relationship got strained and all of a sudden on 30.6.2010, the first respondent returned abroad for the purpose of resuming his employment. After 28.5.2013, the first respondent has willfully refused to maintain the petitioner and the child. In the above circumstances, the petitioner was constrained to lodge a complaint before the Kambalakkadu police station. Crime 6 Mat.Appeal Nos 689/2018 and 614/2019 No.42/2016 was registered against the respondents and the first respondent's sister. Although, the petitioner sought for return of gold ornaments and money, the respondents refused to return the same. Accordingly, the petitioner filed the original petition seeking for return of 15 sovereigns of gold ornaments or its market value and also an amount of Rs 2,00,000/- with interest at the rate of 12% per annum. 7. Even though notice was effected by paper publication on the first respondent, he did not contest the proceedings. Consequently, he was set ex parte. The second respondent filed a written objection denying the allegations in the original petition. She denied that the petitioner had entrusted an amount of Rs 2,00,000/-, and that the respondents had taken away the petitioner's gold ornaments for the purpose of marriage of second respondent's daughter. It was her case, that the petitioner had falsely instituted the original petition eying her property, which was attached. She prayed for dismissal of the original petition. 8. The petitioner, her father and another witness 7 Mat.Appeal Nos 689/2018 and 614/2019 were examined as PWs 1 to 3 and Exts A1 to A9 were marked on her side. The second respondent was examined as RW1. 9. The Family Court after going through the pleadings and evidence on record, by the impugned order dated 23.11.201, came to the conclusion that the respondents were liable to be return 15 sovereigns of gold ornaments or its equivalent market value at the rate of Rs 22, 120/- and an amount of Rs 2,00,000/- with interest at the rate of 6% per annum within three months from the date of order. The petitioner's claim for Rs 1,00,000/- with interest was dismissed. 10. It is challenging that finding in the order that Mat.Appeal 689/2018 is filed by the second respondent. 11. Mat.Appeal No.614/2019 is filed by the first respondent against the order dated 19.6.2019 dismissing I.A Nos 210 and 211 of 2019, which were filed by him to set aside the ex-parte order and condone the delay of 514 days in filing the said petition. The Family Court by its order dated 19.6.2019 found that the explanation to condone the delay 8 Mat.Appeal Nos 689/2018 and 614/2019 of 514 days in filing the petition was not satisfactory and that the reasons assigned to set aside the ex parte decree were not sufficient. Consequently, the Family Court by the impugned order dismissed both the applications. It is challenging the said orders that Mat.Appeal 614/2019 is filed. 12. Heard Sri.S.M.Prasanth, the counsel for the appellant in Mat Appeal No.689/2018 and Sri.Joseph Sebastian, the counsel for the appellant in Mat Appeal 614/2019. We have also heard Smt.Celine Joseph, the counsel for the respondents in both the appeals. 13. From the facts and circumstances of the case, the following points emerge for determination: (i) Whether the impugned order passed by the Family Court against the respondents directing them to return 15 sovereigns of gold ornaments or its value thereof and an amount of Rs 2,00,000/- with interest at the rate of 6% per annum is legal and just? (ii) Whether the Family Court was justified in 9 Mat.Appeal Nos 689/2018 and 614/2019 dismissing the applications filed by the first respondent to condone the delay and set aside the ex-parte decree? 14. As the above two points are interweaved, for sake of convenience, we decide them together. 15. The Family Court by the impugned order in Mat. Appeal No.689/2018 has meticulously considered the pleadings and evidence on record. The Family Court found that as per Ext A4, a copy of the marriage register dated 28.6.2009, a decision was taken at the time of engagement that 35 sovereigns of gold ornaments would be given as the petitioner's share in her parental properties. In order to prove this aspect, Ext A3 was produced and proved in evidence. It is clearly mentioned in the document that a decision was taken to entrust the above gold ornaments. The petitioner who was examined as PW-1. She has corroborated the said document in her testimony. She has specifically deposed that though it was agreed that 35 sovereigns of gold ornaments would be given at the time of marriage, subsequently, on the demand of the first 10 Mat.Appeal Nos 689/2018 and 614/2019 respondent, it was decided that only 15 sovereigns of gold ornaments need be given, and the balance amount be paid in cash to the respondents. She has also deposed that her father's property was sold on 20.1.2009 and the sale consideration was deposited in the bank. Ext A1 assignment deed proves this aspect. The property was sold five months prior to the marriage. Ext A1 assignment deed proves the transaction and that the sale consideration of Rs 73,000/was received by the petitioner's father - PW2 from the purchaser. According to the petitioner, this amount was also deposited in the bank account of PW2. Ext A3 statement of account would prove that an amount of Rs 1,90,000/- was deposited on 22.1.2009. 16. The petitioner's further case is that 16½ sovereigns of gold ornaments was purchased from Punnoli Abbas on 12.5.2009 for an amount of Rs 1,65,000/- and an amount of Rs 2,00,000/- was given to the respondents on 3.6.2009. Ext A2 statement would prove that an amount of Rs 2,25,000/- was withdrawn and transferred to fixed deposit account of PW2. All the above facts and circumstances establish that there were monetary 11 Mat.Appeal Nos 689/2018 and 614/2019 transactions by PW2, just before the marriage, and the amounts were withdrawn from his bank account. It is also proved that the gold ornaments were purchased. 17. Moreover, it is found that RW1, the second respondent, had admitted in her evidence that she conducted the marriage of her son as well as her daughter on the same day. She has also not disputed the fact that the petitioner had gold ornaments at the time of the marriage. On evaluation of the evidence on record, we hold that the respondents had taken away the petitioner's gold ornaments weighing 15 sovereigns which was given to the first respondent's sister on the very same day of the marriage. Besides, an amount of Rs 2,00,000/- was entrusted to the respondents for the purpose of solemnization of the marriage. 18. The learned counsel for the appellant in Mat Appeal 689/2018 would contend that the assertion made by the first respondent is unbelievable because as per the custom in the Muslim community, marriage is contracted between the bridegroom and the bride's father. Therefore, 12 Mat.Appeal Nos 689/2018 and 614/2019 by no stretch of imagination can it be said that the second respondent was entrusted with the money and the gold ornaments. The petitioner has falsely implicated the second respondent in the proceedings. Hence the case put forward by the petitioner is unbelievable and has to be rejected. He also invited our attention to paragraph 5 of the original petition to contend that other than the bald statement in the original petition that Rs 2,00,000/- was given to the respondents 1 and 2, there is no other material to make the second respondent liable for the above said amount. 19. The counsel for the petitioner in Mat. Appeal 689/2018 contended that the second respondent in her evidence had admitted that the petitioner had gold ornaments at the time of marriage and that she is the person who conducted the marriage of her son as well as her daughter, which was solemnized on the same day. According to her, the documents that have been produced particularly, Exts A1, A2 and A4 prove that financial transactions took place in connection with the marriage, which establish the giving of 15 sovereigns of gold ornaments and an amount of Rs 2,00,000/-. 13 Mat.Appeal Nos 689/2018 and 614/2019 20. On a complete re-appreciation of the pleadings and the evidence on record, we find a ring of truth in the statement put forth by the petitioner. Exts A1, A2 and A4 and oral evidence of PWs 1 to 3 corroborate that there were financial transactions between the petitioner's father and respondents 1 and 2. The circumstance that the petitioner's father sold his property prior to the marriage and that the amount was deposited in his bank account and subsequently withdrawn just prior to the marriage, prove that the circumstances mentioned in the original petition are true. In matrimonial disputes, it is trite law that, a case only can be proved on preponderance of probability and it need not be proved beyond reasonable doubt. 21. We are convinced from the evidence of PWs 1 to 3 read with Exts A1 to A9 that the petitioner had proved the entrustment of gold ornaments as well as an amount of Rs 2,00,000/- to the respondents. The Family Court has rightly came to the conclusion that respondents 1 and 2 have misappropriated the petitioner's gold ornaments weighing 15 sovereigns and an amount of Rs 2,00,000/-. Accordingly, the order passed by the Family Court directing the 14 Mat.Appeal Nos 689/2018 and 614/2019 respondents to return 15 sovereigns of gold ornaments or its value thereof, and Rs 2,00,000/- with interest at the rate of 6% per annum is just and legal. We do not find any reason or ground to interfere with the findings of the Family Court. In the result, Mat Appeal No.689/2018 is dismissed. 22. As regards Mat Appeal 614/2019, the first respondent filed IA No.210/2019 to set aside the ex-parte order dated 23.11.2017 and I.A No.211/2019 to condone the delay of 514 days in filing I.A No.210/2019. The reason stated by the first respondent in the affidavit accompanying the applications was that, he was doing menial works in the KSA (Jeddah). After his marriage, it was on 23.1.2016, he reached India and he returned to Jeddah on 3.2.2016. He averred that after he reached Jeddah, he was trapped by his sponsor. He was in their custody and he was unable to contact his family. It was finally with the intervention of the Malayalee Association in that Country, he could return to India on 24.12.2018. As soon as he landed at the Kochi international airport, he was arrested on 25.12.2018, as per the order of the Family Court, Kalpetta in M.C No.62/2016. He was later enlarged on bail. It is only thereafter, he 15 Mat.Appeal Nos 689/2018 and 614/2019 came to know that the Family Court had passed the impugned ex-parte order against him, directing him to pay 15 sovereigns of gold ornaments and Rs 2,00,000/-. 23. The specific case of the first respondent is that he has not been served with summons in the aforesaid proceeding, and therefore, he could not contest the proceedings. 24. The first respondent also had a case that after he came to know about the ex-parte decree, with the intervention of mediators, he attempted to settle the dispute with the petitioner. However, the petitioner and her family members were inimical towards him, and that they did not permit any kind of negotiation. In the above circumstances, the first respondent filed I.A No.210/2019 to set aside the ex parte order and I.A No.211/2019 to condone the delay in filing the above application. 25. The above applications were stoutly resisted by the petitioner, who filed detailed counter statements to the applications. 26. The Family Court after considering the 16 Mat.Appeal Nos 689/2018 and 614/2019 applications as well as the counter statements, by the impugned order dated 19.6.2017, dismissed the applications holding that the applications were devoid of merits. 27. It is challenging the said common oder in IA Nos. 210 and 211 of 2019 that Mat.Appeal 614/2019 is filed. 28. The counsel for the first respondent relied on the decision in **Robin Thapa vs Rohit Dora [(2019) 7 SCC 359]** and contended that litigation have to be decided on its merits as far as possible; that the facts in the above precedent are similar to the case on hand. 29. The counsel for the petitioner, per contra, contended that the second respondent, mother of the first respondent, had contested the proceedings. It is with the full knowledge of the first respondent that the mother contested the proceedings, and that she had taken all possible contentions in the written objection, including that of defence of the first respondent. 30. According to counsel, the first respondent had deliberately adopted a wait and watch policy to ascertain what was happening, and the present endeavour was only 17 Mat.Appeal Nos 689/2018 and 614/2019 procrastinate the finalisation of the execution proceeding. The counsel further contended that subsequent to the exparte decree passed by the Family Court in the execution proceedings, the attached property was sold, and that the first respondent had filed IA 3/2019 in Mat Appeal 689/2018 to implead the auction purchaser as an additional respondent in the above case. 31. The counsel further contended that there is absolutely no bona fides on the part of the first respondent in not contesting the proceedings despite the publication of notice through paper publication. The cause shown by the first respondent in the affidavit filed in support of the application is insufficient to condone the inordinate delay of 514 days. There is willful laches and negligence on the part of the first respondent in not contesting the proceedings, despite having full knowledge about the institution and pendency of the case. 32. The Hon'ble Supreme Court in **Sunil Koddar vs. Union Bank of India [2008 (2) KLT SN 15 (Case No.16)]** has held that if the court is convinced that the 18 Mat.Appeal Nos 689/2018 and 614/2019 defendant had otherwise knowledge of the proceedings, and that he could have appeared and contested the proceedings, he cannot put forward the plea of non-service of summons, in setting aside a ex parte order by resorting to Order IX Rule 13 of the Code of Civil Procedure. 33. On going through the affidavit filed by the first respondent to condone the inordinate delay of 514 days as well as to set aside the ex parte order, we find that the first respondent had full knowledge of the proceeding that was pending before the Family Court; contested by his mother, the second respondent. The second respondent had filed her written statement and raised all possible contentions on the merits of the matter and also had given evidence as RW1. 34. We cannot but hold that, it was with the full knowledge of the first respondent that the second respondent raised all the contentions in the written statement. It is after considering her contentions, that the Family Court passed the impugned order on merits. It is thereafter, the first respondent returned to India, and then 19 Mat.Appeal Nos 689/2018 and 614/2019 he filed the present applications to condone the delay and set aside the ex parte order. 35. Furthermore, we find from the affidavit accompanying the application, admittedly the first respondent returned to India on 24.12.2018. He has no explanation in the application what prevented him from filing the application immediately after returning to India. According to him, there was certain negotiations and mediation talks to amicably settle the matter, which did not materialise, and which prevented him from filing the applications. This contention is vehemently objected to by the petitioner. Moreover, the first respondent had not produced a scrap of paper before the Family Court or before this Court to substantiate his contention that he was trapped in Jeddah, and that he could not contact the family as he was in the custody of his sponsor. Other than for the bald assertion averred in the affidavit, we do not find any cogent material placed before this Court to set aside the impugned order passed by the Family Court. 36. We hold that the order passed by the Family Court 20 Mat.Appeal Nos 689/2018 and 614/2019 is legal and just, and does not warrant any interference by this Court in exercise of its appellate jurisdiction. 37. In light of the decisions referred to supra, and our findings, we hold that the first respondent had full knowledge of the proceeding before the Family Court, and it was the first respondent's bounden duty to have made arrangements to contest the proceeding through his mother or any other relatives, if he was unable to personally contest the case. After the order was passed on merits, the first respondent filed the present appeal in order to protract the petitioner from enjoying fruits of the order. Such a course cannot be permitted. 38. Furthermore, the attached property has been sold in execution, and purchased by a third party. It would be harsh travesty of justice to set aside the ex-parte decree at this belated stage, particularly after third party rights has been created. We are also not convinced of the reasons stated by the first respondent in the affidavits accompanying the applications to condone the delay and set aside the exparte order; which we hold are insufficient to allow the 21 Mat.Appeal Nos 689/2018 and 614/2019 applications. We do not find any reason to interfere with the impugned order passed by the Family Court. In the result, the Mat Apeal 614/2019 is dismissed confirming the order dated 19.6.2019 in I.A Nos 210 and 211 of 2019 in O.P No.159/2016 passed by the Family Court. 39. In light of our findings and conclusions above, we order the following: (i) Mat.Appeal No.689/2018 is dismissed. (ii) Mat.Appeal No.614/2019 is dismissed. (iii) The parties shall bear their respective costs. sd/- **K.HARILAL** **JUDGE** **sd/C.S.DIAS JUDGE** sks/13.1.2020