IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941
Mat.Appeal.No. 902 of 2009
AGAINST THE ORDER IN OP 227/2009 of FAMILY COURT,
MALAPPURAM DATED 26-10-2009
AJMAL, AGED 38 YEARS, S/O MIODIEEN MASTER,
EDALODI HOUSE, COURT GATE, MANJERI, MALAPPURAM.
1 RASHA, AGED 28 YEARS,
D/O.SAYED ABDUSALAM, KOLLATHODI HOUSE,,
AMBALAPPADI, PUTHALAM, ARECODE P.O., MALAPPURAM
2 ADDL R2. VILLAGE OFFICER
NARUKARA, ERNAD, MANJERI. (IMPLEADED AS ADDL.R2
SUO MOTU, AS PER ORDER DATED 20.4.2010, IN
BY ADV. SRI.K.PRAVEEN KUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
8.04.2019, THE COURT ON 30.05.2019 DELIVERED THE FOLLOWING:
This appeal arises from an order dated 26/10/2009 in OP
No.227/2009. The respondent in the OP is the appellant.
2. The OP has been filed by the wife seeking for return of
112 sovereigns of gold ornaments and the value of furniture
being `50,000/-, past maintenance for the wife and minor
children @`13,000/- per month for a period of 28 months prior to
the date of filing the Original Petition. The Family Court directed
return of 112 sovereigns of gold ornaments or its value of `13
lakhs with interest @9% per annum from the date of filing the OP.
Past maintenance was directed to be paid @`5,000/- for the wife,
`2,000/- for the first child and `1,000/- for the second child.
3. In the appeal, learned senior counsel appearing on
behalf of the appellant Sri.S.V.Balakrishna Iyer contended that
there is absolutely no evidence to prove that she was having 112
sovereigns of gold ornaments at the time of marriage and the
amount awarded as maintenance was exorbitant.
4. The short question to be considered in this appeal is
whether the Family Court was justified in granting a decree for
return of gold ornaments and for directing past maintenance.
PW1 to PW3 were examined on the side of the petitioner/wife and
the respondent/husband was examined as RW1.
5. The nikah between the couple was on 27/7/2003 and
the wife was taken to the matrimonial home in January, 2004.
According to the wife, at the time of marriage, she was given 100
sovereigns of gold ornaments. After some time, the respondent
had taken from her all her gold ornaments and the same was
used for his own purpose. That apart, 6 sovereigns of gold
ornaments given to the minor Serin and another 6 sovereigns of
gold ornaments belonging to minor Sebin were also appropriated
by the respondent. Her parents had given furniture worth
`50,000/- at the time of housewarming ceremony. She further
contended that there was demand for more money and gold
ornaments and she was being ill-treated. The ill-treatment
continued though there were mediations and settlement between
the parties. Ultimately, on 19/11/2006, she was severely
assaulted. She had to inform the matter to her relatives who had
come and taken her away from the matrimonial home. She had
filed a complaint under Sections 498A, 323 r/w 34 of SectionI.P.C. and a
crime has been registered. Hence she claimed return of 112
sovereigns of gold ornaments or its equivalent value of `13 lakhs.
In the objection, respondent denied the allegation. According to
him, she had only 25 sovereigns of gold ornaments and the entire
gold ornaments had been retained by her itself. He denied
having committed any acts of cruelty. He further stated that at
the time of conducting nikah, petitioner was working at Tirur.
When she was taken to the matrimonial home, she was working
at Regional Engineering College at Kizhisserry. She convinced the
respondent that it is easy for her to go for work from her parental
home and 2 months after the marriage, she shifted to her own
house. She is the only daughter of her parents. He understood
that she would like to remain at her parental home and
respondent permitted the same and therefore there was no
reason for her parents to come and take her for the delivery.
Some days before delivery, she discontinued the employment at
the Regional College. After 90 days of delivery, she made
arrangements for her employment at Manjeri Unity Womens
College as a Guest Lecturer. While so, though she stayed at the
matrimonial home for about 2 months, thereafter under the guise
of taking care of the child, she shifted to Areacode, the parental
house. He permitted the same as well. In the meantime, she
became pregnant for the second time and she discontinued her
employment at Unity College. According to him, there was no
necessity for mediation as they were having a cordial
relationship. Even after marriage, stating one reason or other,
she used to continuously go to her parental home. But she was
interested to remain at her parental house. He later thought that
if he constructs a house, she will come and reside with him. By
taking loan from KSFE and with the help of his brother, he
constructed a house at Manjeri. The petitioner was not interested
in the same. However, with much difficulty, she came and resided
with him. One month thereafter, the elder child had a problem
with his stomach and he was admitted at Manjeri Korambayil
hospital. On the date of discharge from the hospital, she on her
own wish and without even informing him had gone to Areacode
to her parental house. Though he requested her to come and
reside with him, she did not come. Mediators interfered and
though attempts were made to compromise the issue, nothing
happened and in the meantime, she filed criminal complaint
6. Having regard to the aforesaid contention, the
question is whether there is evidence to prove that she had 100
sovereigns of gold ornaments at the time of marriage. The Family
Court had placed reliance upon Ext.A2 which is a slip issued by
the goldsmith of PVS Jewellery Works, Areacode and Ext.A7 series
photographs. PW2 is a witness to Ext.A2. Evidence of PW2 is
again supported by PW3, elder brother of the petitioner. Family
Court found that when there is no rebuttal evidence regarding the
claim for 112 sovereigns of gold ornaments, Family Court was
justified in granting a decree.
7. Learned senior counsel placed reliance on the
judgment in Pankajakshan Nair v. Shylaja and another [2017
(1) KLJ 739] wherein a Division Bench of this Court held that the
initial burden of proving entrustment of gold ornaments is with
the plaintiff. Yet another judgment relied upon is Abubakker
Labba v. Shameena (2018 (3) KLT 196) wherein this Court held
that merely on the evidence that the bride had worn gold
ornaments, it cannot be held that the ornaments which were
worn at the time of marriage were entrusted with the father and
mother of the bridegroom.
8. Apparently, this is a case in which the husband had a
definite case. According to him, she had only 25 sovereigns of
gold ornaments at the time of marriage. Ext.A2 is a handwritten
document given by PW2 under the name PVS Jewellery Works,
Areacode. It gives the details of jewellery made for one Salam
Musliar. Ext.A7 series are the photographs. Ext.A7 would show
that she was wearing sufficient quantity of gold ornaments. The
contention that it was only 25 sovereigns of gold ornaments
cannot be believed. At any rate, she had more quantity of gold
ornaments than what has been pleaded by the respondent.
Therefore, placing reliance on the oral testimony of PW2, it is
rather clear that she had enough gold ornaments. In her
pleadings, she had stated that all her gold ornaments were taken
one by one which she had reiterated in her evidence as well.
Further, she had to leave the matrimonial home on account of
demand for more gold and money. Reference has been made to
Exts.B1 and B2. Ext.B1 is a lawyer’s notice issued on behalf of
the appellant to the respondent seeking restitution of conjugal
rights. Notice was issued on 28/10/2008. Ext.B2 is the reply to
lawyer’s notice in which it was stated that the petitioner/wife was
unable to live at the matrimonial home on account of the physical
and mental cruelty by the respondent and that her ornaments
had been taken away and they have been demanding more
ornaments. She had also filed a complaint before the Vanitha
Commission which is pending. The respondent and his mother
had appeared before the Commission and since the respondent
did not comply with the conditions for settlement as suggested
by the Commission, the notice had been issued with malafide
intention. The other documents are not relevant. It only proves
that there was a complaint filed before the Vanitha Commission.
9. The only question to be considered is whether the
version of PW1 could be believed in order to grant a decree in her
favour. As already stated, from the photographs produced, it
could be seen that she had sufficient quantity of gold ornaments.
The only question is whether such gold ornaments were
appropriated by the respondents as alleged.
10. PW1 has filed a chief affidavit in accordance with the
contentions urged. During cross-examination, she stated that her
father retired in the year 1999. She does not have any job. She
was working on a daily wage basis in a nursing college. Regarding
the source of funds, it was stated that the father’s retirement
money was available. There was enough money by sale of their
family property, but she does not know how much properties
were sold. It was by the side of the main road. Though she
contended that she was given 10 sovereigns of gold as mahar,
when she was confronted with A1 which is a marriage certificate
it is stated that the mahar was 5 sovereigns.
11. PW2 is the jeweller. He is a goldsmith. During cross-
examination, he states that he was in Gulf from 1998 to 2006. He
had made the gold ornaments while he had come on leave in
2003. At that time, the place was in the name of his father’s
brother Sukumaran. He had no license. License is in the name of
his father’s brother. Though he was cross-examined, nothing has
been brought out to discredit his evidence.
12. PW3 is the brother of PW1. He also reiterated that 100
sovereigns of gold ornaments were given.
13. From the materials placed on record, it is rather clear
that she had 100 sovereigns of gold ornaments. During cross-
examination of RW1, his contention is that she was having only
25 sovereigns of gold ornaments. But from the photographs
produced, the said contention does not appear to be correct.
Therefore, this is a case in which it is rather clear that respondent
was not stating the true and correct facts. The specific contention
of the petitioner is that her gold ornaments were taken away by
her husband. Apparently, when a wife goes to the matrimonial
home, her gold ornaments are kept in the matrimonial home. To
say otherwise, there has to be some evidence. Other than the
oral testimony of RW1, there is no other material to indicate that
the gold ornaments were taken by her when she left the
matrimonial home. According to him, she never stayed at the
matrimonial home for a considerable period. But, that by itself
does not indicate that there was no entrustment of gold
ornaments belonging to her. Her specific case is that the gold
ornaments were taken for various purposes and misappropriated
by her husband. Though the exact dates on which the gold
ornaments were taken had not been stated, taking into account
the factual circumstances, we do not think that a different view
should be taken in the matter.
Mat.Appeal is dismissed. No costs.
Rp //True Copy// JUDGE
PS to Judge