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Ajmal vs Ajmal on 30 May, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

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

APPELLANT/RESPONDENT:
AJMAL, AGED 38 YEARS, S/O MIODIEEN MASTER,
EDALODI HOUSE, COURT GATE, MANJERI, MALAPPURAM.

BY ADVS.
SRI.P.SAMSUDIN
SMT.P.VANDANA
SRI.C.KHALID
SRI.N.GOPINATHA PANICKER
SRI.P.B.KRISHNAN
SRI.SABU GEORGE
SRI.T.P.SAJID
RESPONDENT/PETITIONER:
1 RASHA, AGED 28 YEARS,
D/O.SAYED ABDUSALAM, KOLLATHODI HOUSE,,
AMBALAPPADI, PUTHALAM, ARECODE P.O., MALAPPURAM
DISTRICT.

2 ADDL R2. VILLAGE OFFICER
NARUKARA, ERNAD, MANJERI. (IMPLEADED AS ADDL.R2
SUO MOTU, AS PER ORDER DATED 20.4.2010, IN
I.A.1069/2010)

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:
Mat.Appeal No.902/09

-:2:-

JUDGMENT

Shaffique, J.

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.
Mat.Appeal No.902/09

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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
Mat.Appeal No.902/09

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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
Mat.Appeal No.902/09

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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
Mat.Appeal No.902/09

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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

against him.

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
Mat.Appeal No.902/09

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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
Mat.Appeal No.902/09

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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
Mat.Appeal No.902/09

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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
Mat.Appeal No.902/09

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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
Mat.Appeal No.902/09

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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.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

ASHOK MENON

Rp //True Copy// JUDGE

PS to Judge

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