Noushad et al. v. Hasna

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **Mat.Appeal.No.400 OF 2013** **AGAINST THE ORDER IN OP 1180/2011 DATED 16-04-2013 OF FAMILY COURT,THRISSUR** ## **APPELLANTS/RESPONDENTS:** - **1 NOUSHAD AGED 37 YEARS,S/O MOIDEEN SHAH,KULANGARA VEETTIL, CHETTUVA, KUNDALIYUR, KUNDALIYUR P.O.** - **2 MOIDEEN SHAH KULANGARA VEETTIL, CHETTUVA, KUNDALIYUR, KUNDALIYUR P.O.** - ***3 AISHA W/O.MOIDEEN SHAH KULANGARA VEETTIL, CHETTUVA, KUNDALIYUR, KUNDALIYUR P.O. (*DIED). LR'S IMPLEADED.** **BY ADVS. DR.SEBASTIAN CHAMPAPPILLY DR.ABRAHAM P.MEACHINKARA SRI.GEORGE CLEETUS SMT.S.JASMINE SRI.P.A.SAINUDEEN** ## **RESPONDENT/PETITIONER:** **1 HASNA AGED 24 YEARS,D/O POKKAKKILLTH MONU,KANDANASSERY VILLAGE, CHOWALLOOR DESOM, THALAPPILLY TALUK. 683 104.** Mat.Appeal No.400/2013 -:2:- - **2 ADDL.R2. SAJITHA FAROOK, AGED 41 YEARS D/O.AISHA, ARAVASSERY HOSE, BAGAVAN NAGAR P.O., THALIKKULAM, THRISSUR DISTRICT, PIN-680 569.** - **3 ADDL.R3. MUMTHAS, AGED 36 YEARS D/O.AISHA, PANIKKAVEETTIL HOUSE, KUNDALIYUR P.O., THRISSUR DISTRICT, PIN-680 616. ADDITIONAL RESPONDENTS 2 AND 3 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 3RD APPELLANT AS PER ORDER DATED 24.02.2020 IN IA NO.1945/2018** **R1 BY ADV. SRI.AJIKHAN.M R1 BY ADV. SMT.MAJIDA.S** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2020, THE COURT ON 09-03-2020 DELIVERED THE FOLLOWING:** Mat.Appeal No.400/2013 -:3:- ## **J U D G M E N T** Dated this the 9[th] day of March, 2020 ## _**Shaffique, J.**_ The above appeal was decided by a Division Bench of this Court as per judgment dated 21/7/2017. Later, it was brought to our notice that 3[rd] appellant died during the pendency of the appeal and the legal heirs were not impleaded. Accordingly, the judgment was recalled as per order dated 25/7/2019 in IA No.5/2018 pursuant to which the legal heirs of the deceased 3[rd] appellant have been impleaded as additional respondents in the appeal. We heard the learned counsel appearing on either side. 2. The short facts in OP No.1180/2011 against which the aforesaid appeal has been filed are as under:- The parties are shown as described in the Original Petition unless otherwise stated. Petitioner married the 1[st] respondent on 19/11/2009 as per the custom prevailing among the Muslim community. At the time of marriage, petitioner was adorned with 100 sovereigns of gold ornaments. After one week of the marriage, the respondents asked her to entrust the gold Mat.Appeal No.400/2013 -:4:- ornaments to them so that the gold ornaments could be kept in a locker. She therefore entrusted 70 sovereigns of gold ornaments to the respondents who promised to return it back within one month. According to her, the entire gold ornaments were misused by the respondents. Later, on account of matrimonial issues, she had to leave the matrimonial home. In fact, she was taken back to the parental home at her instance as she was not keeping well on account of the fact that she was subjected to forceful sexual intercourse. 3. Respondents denied the allegations. They denied having been entrusted with 70 sovereigns of gold ornaments. They admitted that she had gold ornaments during the time of marriage but they were not aware of the quantity of the same. It is contended by the respondents that the petitioner used to keep the gold ornaments underneath her pillow in a bag and when she left the matrimonial home, she had taken away the gold ornaments. 4. Before the Family Court, petitioner was examined as PW1 and a witness on her behalf was examined as PW2. 1[st] respondent was examined as RW1. Exts.A1 series, A2 and B1 to Mat.Appeal No.400/2013 -:5:- B4 were the documents relied upon by either side. The Family Court granted a decree for return of 70 sovereigns of gold ornaments or its equivalent value taking into account the fact that the version of the petitioner was believable. Their claim for return of `40,000/- was rejected in the absence of any evidence. 5. The respondents have preferred this appeal _inter alia_ contending that the entire case set up by the petitioner is self contradictory. Though she had produced Ext.A1 series of invoices to prove purchase of gold ornaments, evidence indicates that she did not have 100 sovereigns of gold ornaments as claimed. On a computation of the total gold she had, after adjusting the value as evident from Ext.A1 series, the total gold purchased only would come to 77.193 sovereigns. If she has a case that 70 sovereigns of gold ornaments were entrusted with the appellant and as she admitted that she was having 30 sovereigns of gold ornaments with her, the alleged entrustment will come to 47.193 sovereigns. Further even in respect of the said quantity, there is no evidence to prove entrustment of gold ornaments or its appropriation by the 1[st] respondent. Therefore, the Family Court was not justified in granting a decree for return of gold Mat.Appeal No.400/2013 -:6:- ornaments. 6. Learned counsel for appellants further submitted that, before the Judicial Magistrate of First Class Court, Chavakkad, while considering a case filed against the first appellant u/s 498A r/w 406 of I.P.C. as CC No.416/2011, petitioner took up a contention that only 60 sovereigns of gold ornaments were entrusted to the appellant. Reference is also made to judgment of this Court in _**Abubakker Labba and another v. Shameena K.B and another**_ [2018 (3) KHC 219] wherein this Court held that unless entrustment of the gold ornaments is pleaded and proved, claim for gold ornaments or money cannot be justified. 7. On the other hand, learned counsel appearing for the petitioner/wife, contended that the Family Court had relied upon sufficient material to grant a decree. Further, the oral testimony of PW1 and RW1 when read together clearly indicates that the 1[st] respondent was concealing material particulars in the case. The petitioner had to be taken away from the matrimonial home as she was not keeping well and there is no justification in contending that at that time she had taken away her gold ornaments as well. Mat.Appeal No.400/2013 -:7:- 8. The short question to be considered in the case is whether there is justification on the part of the Family Court to have directed return of 70 sovereigns of gold ornaments or its equivalent value. There is no dispute about the fact that when a claim for gold ornaments is made, entrustment and appropriation have to be proved by the petitioner. In matrimonial cases, documentary evidence may not be available to prove the quantity of gold that is transacted at the time of marriage. At times, people produce bills or estimates or even photographs to prove that bride was wearing gold ornaments. The entire pleadings and evidence of the parties are to be considered for arriving at a just decision. 9. When a marriage is solemnized between a couple, generally the terms and conditions of the marriage are made known to both the families. Therefore, under normal circumstances, the quantity of gold that a bride wears during the marriage will be made known or rather at least the family of the bride groom will be knowing as to how much property she brings to the matrimonial home. Each case may depend upon its own facts, but by and large when a girl is given in marriage, she goes Mat.Appeal No.400/2013 -:8:- to the matrimonial home with all her gold ornaments. The husband and his immediate family members may have a rough idea about the gold ornaments the bride brings to the matrimonial home. When large quantity of gold is brought, attempt is usually made to ensure that the gold ornaments are either kept in their own house in safe custody or by availing locker facilities in a bank. In the case on hand, petitioner's definite contention is that she was adorned with 100 sovereigns of gold ornaments and out of which 70 sovereigns were entrusted to the respondents for safe custody. This fact is disputed by the respondents. But, according to them, petitioner was wearing some gold ornaments. They do not know whether it was gold or not and they do not know the weight of the gold ornaments. The gold that she was wearing was kept in her custody and herself and her parents were handling the gold ornaments she had and she was in the habit of keeping the gold ornaments under her pillow while sleeping. According to the respondents, they were totally against taking any dowry and they have not enquired about the gold ornaments. From the aforesaid pleadings, it is rather evident that the bride was having gold ornaments, but Mat.Appeal No.400/2013 -:9:- according to the respondents, they have not enquired as to whether it is imitation or not. It is to prove the aforesaid fact that the petitioner had produced Ext.A1 series invoices from a jewellery. Ext.A1 series would indicate that substantial quantity of gold ornaments have been purchased on 4/7/2008, 25/7/2008, 16/11/2009 and 18/11/2009. Even according to the learned counsel for appellant, the total gold purchased would come to 699.254 grams which would come to 87.406 sovereigns. One contention urged is that some gold ornaments were returned which weighs 268.54 grams. Therefore, it is contended by the appellant that the allegation that she was having 100 sovereigns of gold ornaments was clearly a fabricated lie. During crossexamination, the petitioner denied the suggestion that she used to keep the gold ornaments by herself and while sleeping she was keeping the same under her pillow. The cross-examination proceeded on the basis that Ext.A2, the photograph which indicates that the bride was wearing substantial gold ornaments was a fake. In other words, the respondents were trying to make a case that even the photograph of the bride taken at the time of marriage which shows that she was wearing substantial quantity Mat.Appeal No.400/2013 -:10:- of gold ornaments is a fake. On a perusal of the photograph, we do not think so. She was wearing substantial quantity of gold ornaments though it may not be possible for us to say the exact quantity. During further cross-examination, she stated that 70 sovereigns were purchased by paying money. Gold ornaments given to the jewellery were that of her mother. She denied the fact that gold ornaments that were returned to the shop were scheduled in the petition. She admitted that items shown in bills dated 4/7/2008 and 16/11/2009 were items 11, 12 and 13 as per the schedule. Suggestion was that those ornaments were returned on 18/11/2019 and her answer was that she did not know. Other than the aforesaid cross-examination, there is no other cross-examination with reference to the averments in the affidavit filed in support of her case. Items 11, 12 and 13 in the schedule are a bangle weighing 15.90 grams, another bangle weighing 15.95 grams and a necklace weighing 49.86 grams. In Ext.A1(e) invoice for cash/credit dated 18/11/2009, it is seen that 3 items weighing the same had been returned. It is also seen that those gold ornaments were purchased as per Ext.A1(d) bill dated 16/11/2009. From Ext.A1(e), it is evident that it was sales Mat.Appeal No.400/2013 -:11:- returns. Apparently these items were returned to the jewellery and therefore, to that extent weight of those items are required to be reduced from the schedule, which is 81.71 grams equivalent to 10.214 sovereigns. The contention that such a quantity of gold ornaments belonging to the wife will be kept under her pillow while sleeping cannot be believed. Her contention was that all the respondents had offered to keep her gold ornaments in safe custody and she gave 70 sovereigns. Altogether she had 100 sovereigns. During cross-examination, there is no denial of the fact that she had 100 sovereigns of gold ornaments whereas they proceeded on the basis that as per Ext.A1 series, they have purchased only 70 sovereigns which she admitted. She also admitted the fact that what is shown in the schedule is only 752.87 grams which corresponds to 94.109 sovereigns. Petitioner also had a case that she was tied to the cot and he attempted to have forceful sexual intercourse with her. She cried aloud and became unconscious. Thereafter, her family members had come and took her back home. Though she had stated these facts in her affidavit, there is no crossexamination on that point. Apparently, she was taken back to her Mat.Appeal No.400/2013 -:12:- home while she was unconscious and it would have been possible for her to take the gold ornaments which were available with her and not which were already entrusted to the respondents. PW2 yet another witness was examined on behalf of the petitioner. He was examined to prove that on 21/4/2010, at about 5.30 a.m in the morning, petitioner's father called him and asked him to go along with petitioner's mother to the respondents' house. He knew that the petitioner was facing some problem at the matrimonial house. They went to respondents' house. Petitioner's mother went inside and helped the petitioner to proceed to the vehicle and they were dropped at the petitioner's house. Other than questioning him on the gold ornaments, there is no cross on any other point. 10. It is therefore apparent that the petitioner was taken back home by her mother on 21/4/2010 and she had to be helped by her mother to take her to the car. The 1[st] respondent had been examined as RW1. He reiterated the contentions urged by him. However, during cross-examination, he stated that petitioner was wearing ornaments, but he does not know whether it was gold. It was having the colour of gold. The parents of the 1[st] Mat.Appeal No.400/2013 -:13:- respondent had not been examined in the case. From what is discussed above, it is rather clear that the petitioner's version is believable. She was taken to her matrimonial home adorned with sufficient quantity of gold ornaments as evident from Ext.A2 and several bills have been produced to prove that she had large quantity of gold ornaments. But according to her, she entrusted only 70 sovereigns of gold ornaments with the respondents for safe keeping. Of course, in the schedule, the total quantity shown is 94.109 sovereigns and there is evidence to prove that 3 items had been returned and the total quantity so returned to the jewellery was 10.214 sovereigns. Deducting the said quantity from the schedule items, the total quantity would only be 83.895 (94.109 – 10.214) sovereigns. Petitioner's case is that she gave 70 sovereigns for safe custody. In other words, she had with her 30 sovereigns. Taking into consideration the fact that there is evidence of returning 10.214 sovereigns to the jeweller and deducting 30 sovereigns, the balance gold returned would come to 53.895 sovereigns. The Family Court of course has directed return of the entire 70 sovereigns of gold ornaments. We are of the view that the respondents are liable to return 53.895 (83.895- Mat.Appeal No.400/2013 ## -:14:- ## 30) sovereigns. In the result, this appeal is allowed in part and the decree shall stand modified as under:- (i) That the respondents shall return to the petitioner 53.895 sovereigns of gold ornaments. (ii) If the gold ornaments are not returned, the petitioner is entitled to recover the value of the gold ornaments as on the date of decree of the trial Court i.e., 16/4/2013 with interest @ 6% per annum from the date of decree till realisation. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** ## **MARY JOSEPH** Rp True Copy **JUDGE** PS to Judge