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Aneesa vs Rahumathulla on 27 March, 2019

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
8

interference. The Mat.Appeal is dismissed. No order

as to costs.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

ASHOK MENON

dkr JUDGE

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