P.P. Sameema v. Raffeeq

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939 Mat.Appeal.No. 188 of 2005 ( ) ------------------------------- AGAINST THE ORDERIN OP 543/2001 of FAMILY COURT,KOZHIKODE DATED 21/08/2004 APPELLANT-PETITIONER:: --------------------- P.P. SAMEEMA, D/O. SAINUDEEN, SAMEEMA MANZIL, KOLATHARA P.O., NEAR UDAYA COLONY,, KOZHIKODE. BY ADV. SRI.V.G.ARUN RESPONDENT- RESPONDENT:: ---------------------- RAFFEEQ, SON OF ABU, RESIDING AT K.P. HOUSE, THRIKKAYAM PARAMBA,, NEAR CHEMBRA AUDITORIUM, FEROKE P.O., KOZHIKODE. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 1506-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & K.RAMAKRISHNAN, J** ## *** * * * * * * * * * * * * *** Mat.Appeal No.188 of 2005 ---------------------------------------Dated this the day of 2017 ## **J U D G M E N T** ## **Shaffique, J** This appeal is filed by the petitioner in O.P.No.543/2001 of the Family Court, Kozhikode against judgment dated 21/08/2002 by which the original petition filed by the appellant claiming realisation of money as the value of gold ornaments and the amount paid to the respondent has been dismissed. 2. The parties are referred to as shown in the original petition. The short facts arising in the case are as under: The marriage of the petitioner and respondent was solemnized on 16/04/1995 as per Muslim Law and Practices. A child was born to them on 05/04/1996. Petitioner alleges that she was treated with cruelty and the respondent had deserted her. She also filed a petition for dissolution of marriage under Section 2(viii)(a) of the Dissolution of Muslim Marriage Act which is filed along with the above original petition and by a common order, the petition for divorce was dismissed. The above original petition is 2 Mat.Appeal No.188/2005 filed seeking return of gold ornaments and money. It is contended that the petitioner was presented with 30 sovereigns of gold ornaments by her parents at the time of her marriage and about 2 months later, respondent started misappropriating the gold ornaments and he had appropriated 8 sovereigns of gold ornaments. He also demanded Rs.30,000 which is paid by her father. She was treated with cruelty and he continued to make demands. He demanded Rs.25,000/- more and also wanted 20 sovereigns of gold ornaments. Demanding the said amount, she was tortured and there was threat to her life. At that time she was five months pregnant. Since she was unable to bear the sufferings, on her request, she was taken back to her house and she delivered a son. The respondent came and enquired about the child only after six months of his birth. When the child was eight months old, mediation took place and the petitioner was taken to the respondent's house. She stayed there for seventeen days and on the 18[th] day she was sent back to her house. Another mediation took place on 10/11/1996. The respondent demanded more gold ornaments and some furniture. Petitioner preferred a complaint before the police station and the case was Mat.Appeal No.188/2005 3 charge sheeted against the respondent under Section 498A of the I.P.C. Ultimately, the matter was settled and a compromise was arrived at and she had gone to the respondent's house. 3. As per the compromise, the petitioner was given 30 sovereigns of gold ornaments on 01/04/1998 and a few days later, he started asking for gold ornaments stating that he wants to start a cool bar. According to the petitioner, the entire gold ornaments were appropriated by the respondent and he started asking further amounts. Petitioner's brother gave him Rs.45,000/for the purpose of starting the business. Later on she was informed that the cool bar was running at a loss. She further contends that her brother had started a ready made shop and being jealous about the same, the respondent started harassing the petitioner. Respondent then demanded that the petitioner should seek partition of her family property. It is further contended that in March 2000, the respondent was admitted in a hospital and she took care of him. After he was discharged, they had gone home and she was left there. Respondent informed the petitioner that he had married another girl who was most suitable for him and her family would assist him in his business. 4 Mat.Appeal No.188/2005 Thereafter the respondent did not take care of the petitioner. Thereafter also, mediation took place, but on account of the adamant stand of the respondent, mediation did not fructify. Petitioner therefore contends that the respondent had misappropriated 38 sovereigns of gold ornaments. She has sought for return of Rs.75,000/- and also value of 38 sovereigns of gold ornaments or its value of Rs.1,98,698.06/- with interest at the rate of 6% per annum from the date of the suit till the date of realisation. The total amount claimed would come to Rs.1,98,698.06/-. 4. In the written statement, the respondent denied the allegations. According to him, subsequent to the marriage of the petitioner, her parents became financially sound and they started to compel the respondent to stay in their house. Since the respondent denied the above demand, according to him, they started making allegations against him which ultimately led to filing of a criminal case. He filed a petition for restitution of conjugal rights as O.P.No.598/2001. According to him, he has love and affection towards the petitioner and he wants to continue the relationship with the petitioner. He denied the fact Mat.Appeal No.188/2005 5 that he has treated the petitioner with cruelty. 5. The above case was jointly tried with three other cases as already indicated. O.P.No.542/2001 was filed by the petitioner for divorce. O.P.No.598/2001 was filed by the respondent for restitution of conjugal rights. M.C.343/2001 was filed by the petitioner and minor child for maintenance. Common evidence was taken in the cases. On the side of the petitioner, four witnesses were examined as PWs 1 to 4 and Exts.A1 to A4 were marked. RW1 to RW3 were examined on the side of the respondent and he relied upon Ext.B1 document. 6. The Family Court, while dismissing the petition for divorce and the above petition, allowed O.P.No.598/2001 for restitution of conjugal rights. O.P.No.343/2001 was also partly allowed directing payment of maintenance to the 2[nd] petitioner @ Rs.500/- per month from 02/12/2001 onwards. 7. In the above appeal, the only question to be considered is whether the petitioner was entitled to recover the amount, as claimed. The Family Court, while considering the above claim, observed that there is no pleading as to when the petitioner's father had paid Rs.30,000/- as alleged in the petition Mat.Appeal No.188/2005 6 and nowhere in the petition it is stated that there was such a demand by the respondent. Further, it was held that there is no clarity in the pleadings with reference to the availability of 30 sovereigns of gold ornaments when the petitioner returned back after delivery. The Court below did not believe Exts.A1 and A2 documents by which the petitioner claimed that gold ornaments were purchased. Further, her brother is alleged to have paid Rs.45,000/-, but, he was not examined in the case and therefore the petitioner is not entitled for the decree, as sought for. 8. Learned counsel for the petitioner submits that the Court below had not appreciated the evidence in the proper perspective. The findings of the Court below, to that extent, is erroneous and therefore a re-appreciation of evidence is required in the matter. Learned counsel also placed reliance upon the judgment of the Division Bench of this Court in **Bexi Micheal v. A.J.Michael** _[2010 (4) KHC 376]_ wherein this Court opined that even in the absence of any documentary evidence, the case of the claimant has to be considered on preponderance of probabilities and standards of a prudent man are paramount in the appreciation of evidence under Section 3 of the Evidence Act. Mat.Appeal No.188/2005 7 When a wife is making a claim for return of gold and cash given at the time of marriage, the Family Court cannot disregard the oral evidence adduced by the wife and reject the claim. In regard to the gold ornaments, respondent contends that he was not given any gold ornaments and he had not misappropriated 38 sovereigns of gold ornaments, as alleged. He also denied the fact of having received Rs.30,000/- from the father of the petitioner and a chain weighing 2 sovereigns given as mehr. He also denied having demanded any other amount or gold ornaments. He further contends that petitioner was having only 5 sovereigns of gold ornaments and other ornaments were plated ones. He had not taken any gold or any ornaments for any use. Whatever ornaments she had brought are still with her. He further contends that the details of gold ornaments shown in the schedule are not owned by the petitioner. 9. In order to appreciate the respective contentions, it is necessary to scan the evidence adduced by the parties. PW1 is the petitioner. She has filed a chief affidavit in terms with the averments in the petition. In the affidavit she had stated that the total gold ornaments misappropriated was 38 sovereigns and 8 Mat.Appeal No.188/2005 Rs.75,000/- and therefore a total claim has been made for Rs.1,98,698/-. In cross-examination, she deposes that 30 sovereigns were purchased before the marriage and there are no records. The photographs have been destroyed by the husband. She further deposes that 18 sovereigns were purchased from Ayodhya, after 3 years. PW1 also denied the suggestion that the documents produced were fabricated. According to her, she does not know, for what amount the gold ornaments were purchased. According to her, the money was paid by her father and she further submits that the gold ornaments were with the respondent's mother. After entrusting the same to her, the petitioner did not take it back. The suggestion was that the gold ornaments were available with the petitioner, which she denied. 10. PW2 is the father of PW1. In the chief affidavit, he deposes that at the time of marriage, he has given 30 sovereigns of gold and Rs.30000/-. He reiterates the averments in the petition. In cross-examination, he says that he is employed in Gulf countries for 18 years. His son is conducting professional courier service. He further deposes that new ornaments were not purchased. Old ornaments weighing 30 sovereigns were given. Mat.Appeal No.188/2005 9 18 sovereigns were given and new ornaments were purchased. He does not know who had changed it and when it was done. He has the bill. He denied the suggestion that only 5 sovereigns of gold ornaments alone were given. He deposes that on the second occasion, 20 sovereigns were again given. 8 sovereigns was misappropriated earlier and the balance 22 sovereigns was with PW1. Thereafter, along with 22 sovereigns, 8 sovereigns were also purchased and 30 sovereigns were given. Now she does not have anything. The gold ornaments were taken by the respondent for starting a cool bar. He further deposes that 8 sovereigns were purchased subsequently and he does not know anything about the bill as it was purchased by his son-in-law. 11. PW3 is the son-in-law of PW2. He deposes that on 24/03/1998, in the chief affidavit, he purchased 18 sovereigns of gold ornaments. To purchase the same, he had gone along with his wife and PW1. PW2 has given the amount for purchasing the gold. The bills are produced as Exts.A1 and A2. Since the earlier case filed against the respondent was settled, and in order to send her back to the matrimonial home, the additional gold ornaments were purchased. While going, she has taken some of Mat.Appeal No.188/2005 10 the old ornaments and new ornaments weighing 18 sovereigns, which was appropriated by the respondent. In cross-examination, he says that when she came back, she had only 22 sovereigns of gold. Therefore the balance 18 sovereigns were purchased. The matter was discussed in the mediation also. For purchasing the gold PW2 has given Rs.70,000/- at the relevant time. He further submits that there is no overwriting in the bill. He deposes that the bill is in his name. Contention urged in the cross-examination is that the bill is fabricated. 12. PW4 is a person in the locality who knew the parties to the marriage. He had mediated in the discussions with reference to the matrimonial issues. He had interfered in the matter in the year 2000. Respondent was not willing to talk. He does not know for what purpose she was sent back to her residence. Therefore, he had come back. On their insistence, after two days, the matter was discussed in the house of Makkada Chithran and the respondent intimated that he is not interested to take back the petitioner and he did not give back the gold ornaments. During discussion, the respondent had informed that he had taken the gold ornaments. According to the respondent, he is giving false Mat.Appeal No.188/2005 11 evidence, which he denied. 13. Ext.A1 is the bill dated 24/03/1998 for purchase of 9.640 grams of gold ornaments for the total value of Rs.4348.86/Ext.A2 is the bill for purchase of 135.130 grams of gold ornaments dated 24/03/1998. Apparently there are some over writings in the document on account of which, the Family Court has not given much relevance to the said documents. 14. RW1 is the respondent himself who had filed a chief affidavit in terms with the objections filed. In cross-examination, his contention is that the petitioner had only 5 sovereigns of gold. When he was asked whether she was wearing any other ornaments, his answer was that she was wearing imitation gold. 15. RW2 is the mother of RW1. According to her, the petitioner had only a few gold ornaments and she herself was wearing it and it was not given to RW2. In cross-examination, she states that petitioner had given a case which was later settled. Thereafter, they resided together. They stayed together for two months and she does not remember in which year. She was in Gulf for 20 years. Her husband died. Her daughter is not divorced, her husband is abroad. She reiterates that petitioner Mat.Appeal No.188/2005 12 had only 5 sovereigns of gold. The only issue between the parties is that the petitioner insisted that the respondent should reside at their house. 16. RW3 is a friend of the respondent. According to him, he had gone to the petitioner's house along with the respondent to see the child and the petitioner's father did not permit to see the child and on that day they had returned. Thereafter on two occasions, they had gone to see the child at the Venerini school where he was studying. On those days, the respondent used to give the child, dresses, sweets and toys. 17. While considering the question relating to the return of gold ornaments or its value there is substantial dispute between the parties regarding the quantum of gold ornaments. The petitioner submits that initially she had 30 sovereigns of gold ornaments of which 8 sovereigns was taken by her husband. Of course, there is no documentary evidence other than the oral testimony of PWs 1 to 3. She had come back for delivery and there is dispute between the parties and she filed a case as C.C.No.975/97 and later the case was compromised and again she had gone back to her matrimonial home. While going back on Mat.Appeal No.188/2005 13 01/04/1998, she had 30 sovereigns of gold ornaments. This, according to her statement, is as per the compromise arrived at earlier. She went back with 30 sovereigns of gold ornaments and the contention is that, a few weeks later, the respondent started asking for the gold ornaments since he was starting a cool bar from stationary shop at Cheruvannoor and ultimately the entire 30 sovereigns were appropriated. Then he started demanding a further amount of Rs.50,000/- from the petitioner. Therefore, the contention is that at the first instance there was appropriation of 8 sovereigns of gold ornaments and on the second occasion, the entire 30 sovereigns. In the objection, there is no specific denial about the aforesaid facts. The respondent denies the fact that the petitioner was having 30 sovereigns of gold at the time of marriage. But, in paragraph 5 he states that she was having only 5 sovereigns of gold ornaments and the other were plated ones. Therefore the fact that she had more ornaments than 5 sovereigns is denied by the respondent. 18. Petitioner has a definite case that, after the understanding between the parties, she was sent back to the matrimonial home with 30 sovereigns of gold which was Mat.Appeal No.188/2005 14 appropriated by him in a few months for the purpose of starting a cool bar. This fact is not denied. He had only stated in the objection that he had not misappropriated 48 sovereigns of gold ornaments belonging to the petitioner. But the fact that she had 30 sovereigns of gold ornaments when she came back from the parental house and resided with him on 01/04/1998 is not denied. In paragraph 5 of the original petition, it is clearly stated that a few weeks later, the respondent started asking the gold ornaments saying that he was starting a cool bar from stationary shop and ultimately the entire 30 sovereigns were misappropriated and then he started demanding a further sum of Rs.50,000/- from the petitioner. This fact is not specifically denied in the written statement. When the fact that she was having 30 sovereigns of gold ornaments when she came back on 01/04/1998, has not been specifically denied, the version of the petitioner can be believed. The Family Court might be right in not relying upon Exts.A1 and A2. But the oral evidence of Pws 1 to 3 categorically states that when she had gone back to the matrimonial home, she had 30 sovereigns of gold ornaments, coupled with the fact that there is no specific denial to the said Mat.Appeal No.188/2005 15 fact, the said contention is to be believed and if so, the question is whether the respondent had appropriated it. The petitioner has a definite case that her gold ornaments were taken and sold by the respondent for starting a cool bar. This fact is also not specifically denied in the counter statement. Whereas, the respondent had stated that he had not misappropriated 48 sovereigns of gold ornaments. In fact, 48 sovereigns mentioned in paragraph 7 in the petition is an apparent mistake, since in the relief sought for, the claim had been corrected as 38 sovereigns i.e. 8 sovereigns taken immediately after marriage and 30 sovereigns appropriated after 01.04.1998. The evidence of Pws 1 to 3 is supported by the evidence of PW4, the mediator. PW4 is an independent witness. According to him, there was a discussion regarding return of gold ornaments which would support the stand of the petitioner. Therefore, we are of the view that absence of a specific denial by the respondent in the counter statement coupled with the evidence of Pws 1 to 4 rather clearly indicates the availability of 30 sovereigns of gold ornaments with the petitioner when she returned to the matrimonial home on 01/04/1998. Of course, as pointed out by the Family Court, there is some discrepancy in the Mat.Appeal No.188/2005 16 evidence of PW2 in regard to the acquisition of gold ornaments. But, when a fact is not specifically denied by the respondent, it is deemed to be admitted and therefore such minor discrepancies shall not stand in the way of a claim being considered. 19. The question would be whether the evidence of the witnesses are believable or not, taking into account the probabilities arising in this case. As held by this Court in **Bexi Micheal** (supra), the standards of a prudent man are paramount in the appreciation of evidence. The petitioner has a case that she had to come back from her matrimonial home due to difference of opinion. She alleges cruelty which is found against her in the matter. Whereas the Family Court has even directed restitution of conjugal rights. But, as far as return of gold ornaments is concerned, such findings cannot have a bearing when the parties are living separately. The gold ornaments given to the wife, if appropriated by the husband, can be recovered at any point of time. 20. Now, coming to the question of refund of Rs.75,000/-, the evidence of Pws 1 to 3 indicates that a sum of Rs.30,000/- has been paid initially at the time of marriage and Rs.45,000/- was Mat.Appeal No.188/2005 17 paid after 01/04/1998. As rightly observed by the Family Court, there is no proof for payment of the said amount. None has given evidence stating that there was an arrangement to pay Rs.30,000/-. In the petition, the contention is that Rs.30,000/was paid after the marriage. The date on which the said payment was made and the source of funds has not been clearly stated. In regard to payment of Rs.45,000/- also, no particulars have been given regarding the said payment. As pointed out by the Family Court, the payment is said to be made by the petitioner's brother Ashraf who was not examined. When oral evidence has been given, necessarily the oral evidence has to be tested in the light of all factual circumstances involved in the matter. Therefore, we are of the view that the Family Court was justified in rejecting the claim in that regard. 21. In the light of the aforesaid discussion, we are of the view that the petitioner is entitled for a decree for recovery of the value of 38 sovereigns of gold ornaments which is valued by the petitioner at Rs.1,23,698/-. Accordingly, this appeal is allowed as under: Mat.Appeal No.188/2005 18 i) Judgment in O.P.No.543/2001 of the Family Court, Kozhikode is set aside. ii) O.P.No.543/2001 is allowed and the following decree is passed: The petitioner shall be entitled to recover from the respondent a sum of Rs.1,23,698/- (Rupees one lakh twenty three thousand six hundred and ninety eight only) with interest @ 6% per annum from the date of the petition till realisation. iii) Parties shall bear their own costs. ## (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(K.RAMAKRISHNAN, JUDGE)** jsr