Sajina v. Firoz and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & ``` ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 MAT.APPEAL NO. 16 OF 2014 AGAINST THE ORDER/JUDGMENT IN OP 173/2011 OF FAMILY COURT, MALAPPURAM ``` ## **`APPELLANT/PETITIONER:`** ``` SAJINA AGED 23 YEARS, D/O.ASSAINAR, CHAPPANKADAVATH HOUSE, THANALOOR AMSAM, MEENADATHUR DESOM, PO MEENADATHUR,THANALUR, TIRUR TALUK, MALAPPURAM. [BY ADV SRI.A.KRISHNAN] ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1FIROZ AGED 33 YEARS S/O.IBRAHIMKUTTY, NECHIKKATTU HOUSE, KOYAMKULAM, KO- DAKKAD, CHETTIPPADI PO - 676 319 2FATHIMA AGED 60 YEARS W/O.IBRAHIMKUTTY,NECHIKKATTU HOUSE, KOYAMKULAM, KO- DAKKAD, CHETTIPPADI PO, 676 319. 3NECHIKKATTU UMMER AGED 43 YEARS S/O.IBRAHIMKUTTY,NECHIKKATTU HOUSE, KOYAMKULAM, KO- DAKKAD, CHETTIPPADI PO, 676 319. BY ADVS. SRI.ARUN MATHEW VADAKKAN SRI.K.P.SUDHEER THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOL- LOWING: ``` 2 Mat.Appeal No.16/2014 ## **J U D G M E N T** Sophy Thomas, J. This appeal has been preferred by the petitioner in O.P. No.173/2011 on the file of Family Court, Malappuram, impugning the judgment and decree dated 31.7.2013, by which her claim for patrimony and past maintenance were rejected. 2. The facts, in brief, could be stated as follows: The marriage between the appellant and the first respondent was solemnised on 26.4.2009 as per Muslim rites and custom. The second respondent is the mother and the third respondent is the brother of the 1[st] respondent. At the time of marriage, the appellant was given 20 sovereigns of gold ornaments and cash worth Rs.2,00,000/- as her patrimony. Out of Rs.2,00,000/-, Rs.1,50,000/was entrusted with the respondents on 15.2.2009, i.e. the date of engagement, and the balance of Rs.50,000/- was handed over prior to the marriage. Within two months of her marriage, Rs.2,00,000/- and six sovereigns of gold were taken by respondents 1 and 2 to give family share to the third respondent. Except one pair of ear-studs, one bangle and one chain given as mehar to the appellant, her remaining Mat.Appeal No.16/2014 3 gold ornaments were misappropriated by respondents 1 and 2 for their own purposes. Her matrimonial life was miserable as the respondents ill treated her, physically and mentally, demanding more money from her family. After six months of marriage, the first respondent took the appellant to her paternal house and abandoned her. Thereafter, he did not maintain her, and her patrimony was not returned also. So she filed the OP before the Family Court for getting back 17¼ sovereigns of gold ornaments, Rs.2,00,000/- given as her patrimony, along with past maintenance @ Rs.6,000/- per month from 13.12.2009 till 13.02.2011. 3. The respondents opposed her petition denying entrustment of gold ornaments or money as her patrimony. There was no chance for the appellant or her family members to give patrimony of 20 sovereigns of gold and cash Rs.2,00,000/- to the first respondent, who was only a coolie worker. The appellant was wearing some gold ornaments at the time of marriage and she was possessing the same throughout, and it was taken by her, when she returned to her paternal house. Though the first respondent tried to bring her back to 4 Mat.Appeal No.16/2014 her matrimonial home, she was not amenable. They never demanded any money or gold from the house of the appellant. The appellant belongs to a poor family and they had no source to give 20 sovereigns of gold ornaments and Rs.2,00,000/- in cash as her patrimony. The first respondent is getting only Rs.4,000/- per month from his coolie work, and so he is not able to give the maintenance amount as claimed by the appellant. 4. After formulating necessary issues by the Family Court, the parties went on trial. The evidence consists of oral testimony of PWs 1 to 3 and RW1, and Exhibits A1 to A3. 5. After analysing the facts and evidence, the learned Family Court dismissed the petition, against which the petitioner/wife has come up with this appeal. 6. Heard learned counsel for the appellant and the respondents. 7. According to the appellant, though there was clear admission from the part of the first respondent/husband that he had received Rs.2,00,000/- from the house of the appellant, the Mat.Appeal No.16/2014 5 Family Court dismissed her claim for that amount. Moreover though there was evidence to show misappropriation of gold ornaments by the respondents, her prayer for recovery of gold also was dismissed. 8. We are called upon to answer whether there is any illegality, irregularity or impropriety in the judgment impugned, warranting interference by this Court. 9. As we have seen, the case of the appellant is that 20 sovereigns of gold ornaments and Rs.2,00,000/- in cash were given from her family as her patrimony. The cash was entrusted with the respondents by way of two installments, Rs.1,50,000/was given on the date of engagement and the balance Rs.50,000/- was given prior to the marriage. RW1, the first respondent, categorically admitted in page No.3 of his cross examination that Rs.2,00,000/- was given to him in cash. The learned Family Court Judge without appreciating the evidence, and even without noticing the clear admission made by the first respondent in the witness box, rejected the claim of the appellant for the patrimony amount of Rs.2,00,000/-. When there was clear admission from the part of the first respondent Mat.Appeal No.16/2014 6 regarding entrustment of Rs.2,00,000/-, the learned Family Court Judge could not have gone in search for documents and evidence to prove the financial capacity of the family of the appellant or evidence to prove entrustment of that amount with the respondents. Since RW1 categorically admitted receipt of Rs.2,00,000/- from the family of the appellant, rejection of that claim by the Family Court is liable to be set aside, and the appellant is entitled to recover that amount from the respondents and their assets with reasonable rate of interest. 10. Now coming to the claim of gold ornaments, PW1, the appellant, would say that she was having 20 sovereigns of gold ornaments at the time of marriage and to prove that fact, she produced Ext.A2, an estimate dated 25.4.2009, which shows purchase of 149.770 grams of gold which would come to 18.72 sovereigns. According to the appellant, her uncle had gifted a golden bracelet to her, but no evidence is forthcoming to prove that gift or to prove its weight. Marriage of the appellant and the first respondent was on 26.4.2009. Ext.A2 estimate is dated 25.4.2009, i.e., on the previous date of their marriage. The fact that the gold ornaments were purchased on Mat.Appeal No.16/2014 7 the previous date of the marriage is not sufficient to discard that document as such. Learned counsel for the respondents pointed out that the 'cash paid' seal in that estimate was dated 4.5.2009, i.e., a few days after the marriage. We may not know the reasons or circumstances under which the payment was delayed, or the understanding between the jewellery owner, and the person who purchased the gold, for the marriage of the appellant. If the jewellery owner gave the ornaments on credit basis, and received the price on a later date, that also cannot be taken as a ground to discard Ext.A2 document. Going by Ext.A2 document, we can come to the conclusion that 18.72 sovereigns of gold ornaments were purchased on the previous date of marriage between the appellant and the first respondent. The first respondent is admitting that the appellant was having some gold ornaments at the time of marriage, though he is not sure about its weight. The appellant would say that Rs.2,00,000/- and six sovereigns of gold ornaments given from her family were taken by respondents 1 and 2 and it was given to the third respondent towards his family share. But no cogent evidence is there to prove entrustment of six sovereigns Mat.Appeal No.16/2014 8 of gold ornaments with the third respondent. The appellant admitted that she was wearing ear-studs, one bangle, one chain etc., and the balance ornaments were misappropriated by the respondents. The first respondent during his cross-examination would say that, he took the appellant to her house and at that time, she was wearing some ornaments. In page No.5 of his cross-examination, he admitted that her ornaments were kept in an almirah in their bed room, and after she went back to her paternal house, he was the custodian of those ornaments. He went on to admit that, nobody will take those ornaments without the knowledge of the respondents. Even then, he has not stated the weight of the gold ornaments, which were in the almirah, after she was taken to her paternal home. 11. The appellant was a 21 year old Muslim girl, and in normal course, she would have been wearing gold ornaments, especially when she went to her paternal house along with her husband. Even going by her own admission, she was wearing ear-studs, bangle, chain etc. for her daily use. Ext.A2 estimate shows that she was having a _padaswaram_ weighing 33.490 grams, long chain weighing 47.310 grams, one pair of ear-studs Mat.Appeal No.16/2014 9 and a fancy ring weighing about 7 grams in total which may be in her daily use. It is true that she may not wear any necklace or broad bangle for her daily use. Excluding the necklace, two broad bangles and two thin bangles, the remaining gold ornaments covered by Ext.A2 estimate might have been in her daily use and the ornaments such as necklace, broad bangles etc. might have been kept in the almirah. The first respondent also is admitting the fact that except the gold ornaments worn by the appellant, her remaining gold ornaments were in the almirah kept in the bed room and he was the custodian of that gold, after she returned to her paternal home. On going through the gold ornaments mentioned in Ext.A2, and the ornaments which might have been in her daily use as stated above, we can safely come to a conclusion that, six sovereigns of gold ornaments might have been under the custody of the respondents and they are liable to return that much of gold or its market value to the appellant. 12. Since there is clear admission from the part of the first respondent as RW1, that the ornaments other than the ornaments in her daily use were kept in the almirah and he was Mat.Appeal No.16/2014 10 its custodian, and it could not have been removed without the knowledge of all the respondents, no further proof is required to find that the respondents are responsible to return six sovereigns of gold ornaments to the appellant. The Family Court rejected the claim of gold made by appellants in its entirety, ignoring the admission of the first respondent, and so that finding is liable to be set aside to that extent. ## 13. In **Bexy Michael v. A.J. Michael [2010 (4) KHC** **376]** , a Division Bench of this Court held that, it would be unreasonable for a court to insist for documentary evidence regarding ornaments and money that had changed hands at the time of marriage. In most of the cases, such a claim has to be decided on the basis of oral evidence and such a claim cannot be dismissed merely because no documentary evidence was produced. Absolute certainty is not the requirement under Section 3 of the Evidence Act. In a civil case, rival contentions and rival evidence will have to be considered, assessed, evaluated and weighed to come to a conclusion whether the burden on the complainant has been discharged or not. Mat.Appeal No.16/2014 11 ## 14. In **Jubairiya M.K. v. Abusalih and another [2013** **(2) KHC 304]** , this Court asserted that, even in the absence of documentary evidence to prove payment of money and gold, oral evidence of the parties if found believable, can be relied upon by the court for granting relief, as we know, in matrimonial cases, it may be difficult to get documentary evidence for each and every transaction. So, the Judges are bound to see the ground realities of the human conduct in their day to day life. 15. We have found that the appellant is entitled to get back Rs.2,00,000/- and 6 sovereigns of gold ornaments from the respondents, which were entrusted as her patrimony. 16. Now the next question to be considered is, if the respondents are not able to return six sovereigns of gold in specie, what shall be the relief to be granted in the alternative. In **Shyamini S. Nair v. Sreekanth [2022 (2) KLT 896],** this Court had discussed a similar issue in detail, and paragraph nos.20 and 21 of that judgment read thus: “20. We all know that, the graph of gold price has been steadily rising over these years. A girl married in the year 2007 might have purchased gold ornaments at the rate of Rs.7,000/- per sovereign. When she files a suit Mat.Appeal No.16/2014 12 in the year 2016 to get back her gold ornaments, the price of gold might have gone upto Rs.21,000/- per sovereign i.e. three times of its purchase value. If the suit was decreed in the year 2021, the gold price might have reached Rs.35,000/- per sovereign i.e five times of its purchase value. So, a decree for the price of gold, as on the date of its purchase or even the date of petition cannot be justified. 21. The alternative relief of value of gold as on the date of decree also may not work out justice always. If there is appeal against the judgment and decree it may take years together for its disposal, and by that time, the price of gold might have gone beyond proportions. If the respondent/husband is returning the gold ornaments in specie, there is no problem. But, in many cases, we find that, even if the husband or in-laws are possessing the gold ornaments of the wife, they find it convenient to pay the alternative relief of its market value on the date of purchase, date of petition or even the date of decree as the case may be, since it may be much less than the actual market rate of gold ornaments held by them. Moreover there is every chance for protracting the matter indefinitely, if ultimately, they need to pay only a meagre amount towards gold value, which was prevailing years back. It will result in gross injustice to the appellant/wife and unlawful enrichment to the respondent/husband.” Mat.Appeal No.16/2014 13 17. After adverting to various decisions holding the field, in the case cited supra, the Division Bench held that the appellant was entitled to get market value of gold as on the date of payment as the challenge was made by the appellant herself. Going by the dictum laid down in that decision, the appellant herein is entitled to get back six sovereigns of gold ornaments or its market value as on the date of payment. 18. Coming to the claim of past maintenance, the learned Family Court Judge allowed M.C. No.165 of 2011, which was tried along with O.P.No.173 of 2011, awarding monthly maintenance @ Rs.3,000/- to the wife from the date of filing the M.C. But, her claim for past maintenance was rejected for the reason that the appellant left her matrimonial home voluntarily, and not returned, in spite of repeated requests made by the first respondent. But, there was clear admission from the part of the first respondent in his re-examination, that he himself took her back to her paternal house, and in cross- examination at page No.7 he admitted that he did not take any steps to bring her back. Despite those admissions, the Family Court observed that the appellant voluntarily went to her paternal house, and in spite Mat.Appeal No.16/2014 14 of repeated requests from the part of the first respondent, she did not come back. That finding is factually incorrect and so it is liable to be set aside. 19. In M.C.No.165 of 2011, monthly maintenance @ Rs.3,000/- was awarded to the appellant from the date of petition, finding that the first respondent was a healthy man doing painting work and earning good income. It was further found that the appellant had no job or income for her livelihood. So, there was no reason for denying past maintenance to her at least at that rate, and so rejection of her claim for past maintenance by the Family Court, is liable to be set aside. 20. On going through the facts and evidence as discussed above, we allow this appeal setting aside the judgment and decree of the Family Court, thereby decreeing the OP in part as follows:- 1. The appellant/petitioner is entitled to recover Rs.2,00,000/- from the respondents and their assets with 6% interest per annum from the date of the original petition till the date of realisation. Mat.Appeal No.16/2014 15 2. That she is entitled to recover six sovereigns of gold ornaments or its market value as on the date of payment from the respondents and their assets. 3. That she is entitled to recover past maintenance @ Rs.3,000/- from the first respondent and his assets for the period from 13.12.2009 till 13.02.2011. 4. No order is made as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **SOPHY THOMAS, JUDGE** ``` jg ```