IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY,THE 27TH DAY OF MARCH 2019 / 6TH CHAITHRA, 1941
Mat.Appeal.No. 114 of 2012
AGAINST THE ORDER/JUDGMENT IN OP 1030/2008 of FAMILY COURT,
NEDUMANGAD DATED 31-05-2011
APPELLANTS/PETITIONERS:
1 ANEESA
AGED 30 YEARS, D/O.ABU HANEEFA,
C.V.HOUSE, VETTOOR VILLAGE,
CHIRAYINKEEZHU TALUK.
2 RAHANA,
AGED 8 YEARS, D/O.RAHUMATHULLA
RESIDING AT C.V.HOUSE, VETTOOR VILLAGE,
CHIRAYINKEEZHU TALUK.
3 RAYHANA
AGED 4 YEARS, D/O.RAHUMATHULLA,
RESIDING AT C.V.HOUSE, VETTOOR VILLAGE,
CHIRAYINKEEZHU TALUK,
APPELLANTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER
AND NEXT FRIEND, THE IST APPELLANT.
BY ADVS.
SRI.G.S.REGHUNATH
SRI.A.S.SHAMMY RAJ
SRI.K.RAJESH KANNAN
SRI.P.SHANES METHAR
Mat.Appeal.No. 114 of 2012
2
RESPONDENTS/RESPONDENTS:
1 RAHUMATHULLA
AGED 37 YEARS, S/O.MUHAMMED IBRAHIM,
CHINAKKARA VILA VEEDU, VETTOOR VILLAGE,
CHIRAYINKEEZHU TALUK, CHIRAYINKEEZHU P.O.,
THIRUVANANTHAPURAM-695304.
2 MUHAMMED IBRAHIM
AGED 63 YEARS, RESIDING AT CHINAKKARA VILA VEEDU,
VETTOOR VILLAGE, CHIRAYINKEEZHU TALUK,
CHIRAYINKEEZHU P.O., THIRUVANANTHAPURAM-695304.
3 HABUSA BEEVI,
AGED 57 YEARS, W/O.MUHAMMED IBRAHIM,
RESIDING AT CHINAKKARA VILA VEEDU, VETTOOR VILLAGE,
CHIRAYINKEEZHU TALUK, CHIRAYINKEEZHU P.O.,
THIRUVANANTHAPURAM-695304.
BY ADVS.
ADV. PARVATHYMENON(B/O)
SRI.GLEN ANTONY
ADV. PARVATHYMENONBO
SMT.A.PARVATHI MENON
SMT.M.VANAJA
SRI.P.SANJAY
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
27.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No. 114 of 2012
3
JUDGMENT
Ashok Menon, J.
This appeal is filed by the petitioners in
O.P.No.1030/2008 on the file of the Family Court,
Nedumanagad, for recovery of money, gold ornaments and
maintenance from the respondents. The 1st petitioner
got married the 1st respondent on 05.08.2008 and two
children were born in the wedlock. They are petitioners
2 and 3. Thereafter, their marriage ran into rough
weather and they separated. The 1 st petitioner states
that on the date of marriage, the petitioner’s family
had entrusted her with 50 sovereigns of gold ornaments
and also paid the 1st respondent a sum of Rs.5 lakhs.
Soon after the marriage, the gold ornaments were
entrusted to the 3rd respondent, the mother-in-law. Some
more amounts were demanded and handed over to the
respondents by way of dowry, is the contention of the
1st petitioner. The 2nd respondent is the father of the
1st respondent. The 1st petitioner was subjected to
matrimonial cruelty, and constant demand for dowry by
Mat.Appeal.No. 114 of 2012
4
the respondents. Criminal case was also registered at
the Varkala Police Station as Crime No.479/2008,
against them, for an offence punishable under section
498A, I.P.C. The petitioners demanded a sum of
Rs.1,38,000/- towards arrears of maintenance, and
future maintenance at the rate of Rs.2,000/-,
Rs.1,500/- and Rs.1,000/- to petitioners 1 to 3
respectively. That apart, 50 sovereigns of ornaments or
its value, Rs.4 lakhs, and Rs.7 lakhs in cash received
by the respondents, which according to the petitioners
was utilized by the them for discharge of debts and
renovation of their house, is also claimed from the
respondents.
2. Per contra, the respondents contend that the
1st petitioner’s family was not financially capable of
paying any such amounts or ornaments. The 1 st respondent
had fallen in love and decided to marry the 1st
petitioner, who belongs to a poor family. It was agreed
that the 1st petitioner would be provided with only 10
sovereigns of gold ornaments. Considering the status
of the respondents, they had, even prior to marriage,
Mat.Appeal.No. 114 of 2012
5
adorned the 1st petitioner with more gold ornaments. It
is also contended that the 1st and 2nd respondents, who
were employed in the Gulf, gifted her with more gold
ornaments.
3. A counter claim was also raised by the 1 st
respondent claiming recovery of the value of 80
sovereigns of gold ornaments. Including the sum paid
and expended by the 1st respondent for the marriage of
the 1st petitioner’s sister, a sum of Rs.4,50,000/- is
claimed from PW1 on that account.
4. The Court below was pleased to dismiss the
counter claim, and it has not been challenged in
appeal. Hence, the only question that arises for
consideration before us is whether the 1st petitioner’s
claim for money and gold ornaments could be sustained.
5. Before the Family Court, the 1st petitioner was
examined as PW1 and two witnesses were examined as PW2
and PW3. The 1st respondent was not examined, but two
witnesses were examined. DW1 is his brother and power
of Attorney, while, DW2 is a witness. Exts.A1 to A5
were produced for the petitioners and Exts.B1 to B7
Mat.Appeal.No. 114 of 2012
6
were produced for the respondents. Ext.B1 is an
agreement, which is relied upon by the respondents to
prove that the entire matter between the 1 st petitioner
and 1st respondent has been settled on 23.05.2008 and 10
sovereigns of gold ornaments were returned to the 1 st
petitioner, which she has acknowledged. DW2 is one of
the witnesses to Ext.B1, who speaks in conformity with
the settlement arrived at between the parties as per
Ext.B1. The learned Family Court Judge had relied on
Ext.B1 agreement to conclude that the entire liability
that the respondents had towards the petitioners has
been discharged by virtue of Ext.B1 agreement and
nothing remains. Maintenance has also been ordered to
minor petitioners 2 and 3, rejecting the claim of the
1st petitioner. The witnesses examined for the
petitioners as PW2 and PW3 do not inspire confidence
regarding payment of money or giving of ornaments. The
Court below rightly found that there is not a scintilla
of evidence pertaining to the petitioner’s family being
financially capable of raising such funds.
Mat.Appeal.No. 114 of 2012
7
6. We find that Ext.B1 agreement has been
sufficiently proved by examination of DW2 and the
denial of that agreement by the 1st petitioner cannot be
countenanced. It is brought to our notice by the
learned Counsel appearing for the appellants that the
stamp paper on which Ext.B1 written was purchased on
20.05.2008 and the agreement was executed only on
23.05.2008. Contradicting this, DW2 would testify that
the stamp paper was purchased on the same date the
agreement was executed, which according to the learned
Counsel is a major discrepancy questioning the verity
of Ext.B1 agreement. We find that the stamp paper was
purchased by the 1st respondent. DW2 was only a witness
and signatory to Ext.B1, his testimony regarding when
the stamp paper was purchased cannot be entirely relied
upon, and need not be given undue importance. The
learned Family Court Judge was justified in relying
upon Ext.B1 in declining the claim put forth by the 1st
petitioner.
We find no infirmity with the finding of the Court
below as impugned in this appeal, calling for any
Mat.Appeal.No. 114 of 2012
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interference. The Mat.Appeal is dismissed. No order
as to costs.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
ASHOK MENON
dkr JUDGE