Salam v. Saleena

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943 MAT.APPEAL NO. 625 OF 2011** **AGAINST THE ORDER IN OP 1041/2009 OF FAMILY COURT,** ## **MALAPPURAM** ## **APPELLANT/RESPONDENT:** SALAM AGED 38 YEARS S/O. MOIDEENKUTTY KUTTIKKATTIL VEEDU, KOOTTAYI (PO), TIRUR TALUK, NORTH KOOTTAYI, MALAPPURAM DISTRICT. BY ADVS. SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH ## **RESPONDENTS/PETITIONERS:** 1 SALEENA, AGED 28 YEARS D/O.ABDURAHMAN,KUTTYAYEENDE PURAKKAL, KOOTTAYI (PO), TIRUR TALUK,MALAPPURAM DISTRICT, PIN -679324. 2 SHAJITHA MINOR 16 YEARS OF AGE D/O.SALAM. 3 SUHAIL MINOR 12 YEARS OF AGE S/O.SALAM. 4 SHAMEEL MINOR 7 YEARS OF AGE S/O.SALAM. Mat.Appeal No.625/2011 -:2:- 5 HAROON MINOR 5 YEARS OF AGE S/O.SALAM. RESPONDENTS 2 TO 5 ARE REPRESENTED BY THEIR GUARDIAN, MOTHER, 1ST RESPONDENT. BY ADVS. SMT.DEEPA NARAYANAN SRI.BLAZE K.JOSE THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 4.10.2021, THE COURT ON 5.10.2021 DELIVERED THE FOLLOWING: Mat.Appeal No.625/2011 -:3:- J U D G M E N T Dated this the 5[th ] day of October, 2021 ## Kauser Edappagath, J. This appeal has been preferred u/s 19 of the Family Courts Act against the order of the Family Court, Malappuram in OP No.1041/2010 dated 31[st] December, 2010. 2. The appellant is the respondent and the respondents are the petitioners in OP No.1041/2010 which was filed for return of gold ornaments, past maintenance and money advanced at the time of marriage. The parties are referred to as shown in the Original Petition unless otherwise stated. 3. The marriage between the first petitioner and the respondent was solemnized on 28/1/1993 as per Islamic rites and rituals. Four children were born out of the wedlock, they are arrayed as petitioners 2 to 5. The second child is a mentally retarded person. Admittedly the first petitioner and the respondent are living separately. According to the first petitioner, at the time of her marriage, her parents gave her 80 sovereigns Mat.Appeal No.625/2011 -:4:- of gold ornaments and `1,00,000/-. Thereafter, the first and second children received 10 sovereigns of gold ornaments as gift on their birthdays. It is alleged that the respondent collected 25 sovereigns of gold ornaments from her to go abroad and another 55 sovereigns of gold ornaments to start a jewellery. It is further alleged that the respondent misappropriated `1,00,000/- given to her at the time of marriage. The respondent is admittedly employed at Gulf. He is represented at the court below through his younger brother and power of attorney holder. According to the first petitioner, in spite of sufficient means, the respondent failed to maintain her and children. The original petition has been filed for return of 90 sovereigns of gold ornaments, money of `1,00,000/- as well as for past maintenance from 2006 onwards totalling to `3,96,000/-. The respondent through his power of attorney holder filed counter statement denying the averments in the petition. The case set up by the first petitioner that 80 sovereigns of gold ornaments and `1,00,000/- were given to her at the time of marriage and that 10 sovereigns of gold ornaments were given to the children as gift on their birthdays and all those were entrusted to the respondent who Mat.Appeal No.625/2011 -:5:- misappropriated the same have been denied in the counter statement. 4. The parties went on trial. The original petition was tried along with MC No.1093/2009 between the same parties. On the side of the petitioner, PW1 and PW2 were examined and Exts.A1 and A2 were marked. On the side of the respondent, RW1 was examined. After trial, the court below allowed the petition as prayed for as per the impugned order. Challenging the said order, this appeal has been preferred. 5. We heard the learned counsel for the appellant and the respondents and perused the records. 6. The first petitioner herself gave evidence as PW1 and a witness was examined as PW2 to prove the case of the petitioners. The first petitioner adduced evidence in tune with the pleadings. She specifically deposed that at the time of her marriage, she was given 80 sovereigns of gold ornaments and `1,00,000/- and later on two children were given 10 sovereigns of gold ornaments as gift on their birthdays. She further specifically deposed that the gold ornaments and cash were collected from her by the respondent and he misappropriated the same. The Mat.Appeal No.625/2011 -:6:- oral evidence adduced by PW1 gets corroboration from the evidence given by PW2 who is her uncle. He also gave evidence that 80 sovereigns of gold ornaments and `1,00,000/- were given to PW1 at the time of marriage and which were entrusted to the respondent who misappropriated the same. Even though PW1 and PW2 were cross-examined at length, nothing tangible were elicited during cross-examination to discredit their testimony. The Division Bench of this Court in _**Rajesh v. Deepthi**_ (2021 (4) KLT 455) has recently held that the Court can act upon oral evidence to prove possession of gold ornaments at the time of marriage as well as its entrustment to the husband after the marriage. It was held in the above decision that it is unrealistic for a court to insist for documentary evidence regarding ornaments that had changed hands at the time of marriage and the court can act upon oral evidence if it is found credible and trustworthy. It was further held that the entrustment of gold ornaments by the wife to the husband or in-laws also could be established by the sole testimony of the wife. It was also held that once entrustment is made, a trust gets created and being a trustee, the husband or his parents, as the case may be, is liable to return the same. Mat.Appeal No.625/2011 -:7:- Another Division Bench of this court in _**Leelamma N.P. v. M.A.Moni**_ (2017 (3) KHC 340) has held that once it is proved that gold ornaments were entrusted by the wife to the husband, the burden is on the husband to prove as to what happened to the gold ornaments. As against the positive evidence given by the petitioners to prove their case, there is no rebuttal evidence. The respondent did not enter into the box. The power of attorney holder who was examined as RW1 admittedly was a minor boy at the time of the marriage of the first petitioner and the respondent. He had no direct knowledge about the marriage. Thus, the evidence given by PW1 and PW2 remains unrebutted. As stated already, the oral evidence given by PWs 1 and 2 is trustworthy and credible to prove the case set up by the first petitioner that 90 sovereigns of gold ornaments and `1,00,000/cash received by her on marriage were entrusted to the respondent. As stated in the above decisions, on such entrustment, a trust gets created and being a trustee, the respondent is liable to return the same. The respondent failed to establish as to what happened to the gold ornaments and cash. For all these reasons, we endorse the finding of the court below Mat.Appeal No.625/2011 -:8:- that the respondent is liable to return the value of the gold ornaments and cash of `1,00,000/- to the wife. No interference is called for on the said finding. In so far as the claim regarding past maintenance is concerned, admittedly the respondent is employed at Gulf country. No evidence has been adduced to show that he paid any maintenance to the petitioners. The respondent being the husband and father of the petitioners 2 to 5 is legally and morally bound to maintain her. The quantum of past maintenance calculated by the court below at the rate of `3,000/- per month to the first and second petitioners, `1,250/per month each to the third and fourth petitioners and `1,000/per month to the fifth petitioner appears to be very reasonable. In the light of the above discussion, we find no reason to interfere with the impugned order. Accordingly, we dismiss the appeal, but, without costs. Sd/- **A.MUHAMED MUSTAQUE JUDGE** **Sd/-** ## **DR. KAUSER EDAPPAGATH JUDGE** Rp