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Fausiya vs Sakeer Hussain 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. 475 of 2010

AGAINST THE ORDER IN OP 69/2009 of FAMILY COURT, MALAPPURAM
DATED 30-04-2010

APPELLANT/PETITIONER:

FAUSIYA, D/O ALI HASSAN, THAZHATHIL
HOUSE, ERUMBUCHOLA, KOLAPPURAM P.O.,, A.R.NAGAR,
TIRURANGADI TALUK, MALAPPURAM DISTRICT.

BY ADVS.
SRI.BABU S. NAIR
SMT.M.T.SHEEBA

RESPONDENT/RESPONDENT:
SAKEER HUSSAIN
S/O.PARAYI KOZHIPARAMBATH MOIDEENKUTTY, THENODY
HOUSE, PADIKKAL, VELIMUKKU SOUTH, TIRURANGADI
TALUK, MALAPPURAM DISTRICT.

BY ADV. SRI.R.RAMADAS

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
2.04.2019, ALONG WITH Mat.Appeal.101/2011,
Mat.Appeal.129/2011, RPFC.28/2012, THE COURT ON 30.5.2019
DELIVERED THE FOLLOWING:
Mat.Appeal No.475/10 conn.cases

-:2:-

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. 101 of 2011

AGAINST THE ORDER IN OP 239/2009 of FAMILY COURT,
MALAPPURAM DATED 30-04-2010

APPELLANT/PETITIONER:

SAKEER HUSSAIN
S/O.PARAYI KOZHIPARAMBATH MOIDEENKUTTY,
THENODI (H), PADIKKAL, VELIMUKKU SOUTH,
TIRURANGADI TALUK, MALAPPURAM, TIRURANGADI
POLICE STATION LIMIT.

BY ADV. SRI.R.RAMADAS

RESPONDENT/RESPONDENT:
FOUSIYA, D/O. ALIHASSAN,
THAZHATHIL (H), ERUMBUCHOLA, KOLAPPURAM POST,
A.R.NAGAR,, TIRURANGADI TALUK-676306.

BY ADV. SRI.BABU S. NAIR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
2.04.2019, ALONG WITH Mat.Appeal.129/2011,
Mat.Appeal.475/20 RP(FC) NO.28/12, THE COURT ON
30.05.2019 DELIVERED THE FOLLOWING:
Mat.Appeal No.475/10 conn.cases

-:3:-

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. 129 of 2011

AGAINST THE ORDER IN OP 69/2009 of FAMILY COURT, MALAPPURAM
DATED 30/4/2019

APPELLANT/RESPONDENT:

SAKEER HUSSAIN, S/O PARAYI KOZHIPARAMBATH
MOIDEENKUTTY, THENODI(H),PADIKKAL,VELIMUKKU
SOUTH, TIRURANGADI TALUK, MALAPPURAM,,
TIRURANGADI POLICE STATION LIMIT.

BY ADV. SRI.R.RAMADAS

RESPONDENT/PETITIONER:
FOUSIYA, D/O ALIHASSAN,
THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM POST,
A.R.NAGAR, TIRURANGADI TALUK-676306.

BY ADV. SRI.BABU S. NAIR

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
2.04.2019, ALONG WITH Mat.Appeal Nos.101/2011 475/2010
RP(FC) NO.28/12, THE COURT ON 30.05.2019 DELIVERED THE
FOLLOWING:
Mat.Appeal No.475/10 conn.cases

-:4:-

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

RPFC.No. 28 of 2012

AGAINST THE ORDER IN MC 66/2009 of FAMILY COURT, MALAPPURAM
DATED 30-04-2010

PETITIONER/RESPONDENT:
SAKEER HUSSAIN, S/O PARAYI KOZHIPARAMBATH
MOIDEENKUTTY, THENODI(H),PADIKKAL,VELIMUKKU
SOUTH, TIRURANGADI TALUK, MALAPPURAM,
TIRURANGADI POLICE STATION LIMIT, PIN 676306.
BY ADV. SRI.R.RAMADAS

RESPONDENTS/PETITIONERS:
1 FOUSIYA, D/O ALIHASSAN,
THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM POST,
A.R.NAGAR, TIRURANGADI TALUK-676306.

2 SALMAN FARIZ, (MINOR) S/O.FAUSIYA,
THAZHATHIL HOUSE, ERUMBUCHOLA, KOLAPPURAM POST,
A.R.NAGAR, TIRURANGADI TALUK-676306.

3 MUHAMMED FAYIZ (MINIOR), S/O FAUSIYA,THAZHATHIL
HOUSE, ERUMBUCHOLA, KOLAPPURAM POST, A.R.NAGAR,
TIRURANGADI TALUK-676306.
(MINOR RESPONDENTS ARE REPRESENTED BY
GUARDIAN/MOTHER 1ST RESPONDENT)
BY ADV. SRI.BABU S. NAIR
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY
HEARD ON 2.04.2019, ALONG WITH MAT.APPEAL NO.475/10
CONN.CASES, THE COURT ON 30.05.2019 PASSED THE FOLLOWING:
Mat.Appeal No.475/10 conn.cases

-:5:-

JUDGMENT

[Mat.Appeal Nos.475/2010,101/2011, 129/2011
RP(FC)No.28/2012]

Shaffique, J.

Mat.Appeal Nos. 475/2010 and 129/11 arise from an order in

OP No.69/09 of the Family Court, Malappuram. Mat.Appeal

No.101/11 arises from the order in OP No.239/2009 and RP(FC)

No. 28/2012 arises from the order in MC No.66/2009. Mat.Appeal

Nos.101/11, 129/11 and RP(FC) No.28/12 are filed by the husband

and Mat.Appeal No. 475/10 has been filed by the wife. All these

cases were decided by a common order.

2. The parties are Muslims and they got married on

30/1/2003 and two children were born in the wedlock, who are

petitioners 2 and 3 in MC No.66/2009. They are minors. On

account of matrimonial issues, the couple are living separately.

The claim by the wife was for return of gold ornaments, money

and maintenance-past as well as future. Husband filed a case for

restitution of conjugal rights. The Family Court partly allowed OP
Mat.Appeal No.475/10 conn.cases

-:6:-

No.69/2009 and directed payment of past maintenance of

`3,000/- to the first petitioner, `1,200/- to the 2nd petitioner and

`800/- to the third petitioner for a period of five months, directed

return of 103 sovereigns of gold ornaments or its value of

`10,30,000/- with interest at the rate of 9% per annum from the

date of filing the Original Petition. The claim for money has been

disallowed. OP No.239/2009 filed for restitution of conjugal rights

was dismissed. MC filed for future maintenance has been allowed

by the very same rate fixed for past maintenance.

3. In Mat.Appeal No.475/2010, the wife claimed that she

is also entitled for return of `11 lakhs which claim was rejected by

the Family Court whereas the husband challenges the entire

decree for return of gold ornaments, past as well as future

maintenance.

4. Before the Family Court, common evidence was taken

in these cases. Petitioner/wife placed reliance upon the oral

testimony of PW1 to PW4 and Exts.A1 to A11.

Respondent/husband relied upon the evidence of RW1 and RW2

Exts.B1 to B20 documents were marked.

5. Learned counsel for the appellant/wife contended that
Mat.Appeal No.475/10 conn.cases

-:7:-

there is sufficient evidence to prove payment of `11 lakhs at the

time of marriage and Court below committed serious error in not

granting a decree for the said amount. Reliance had also been

placed to the judgment in SectionBexy Michael v. A.J.Michael [2010

(4) KHC 376 (DB)] and Pankajakshan Nair v. Shylaja [2017( 1)

KHC 620 (DB)].

6. First we shall consider the claim for maintenance-past

and future. According to the wife, she was unemployed and had

no source of income. She has to take care of two minor children

and the parties got separated on account of the matrimonial

cruelty and she was compelled to file a complaint u/s 498A of SectionIPC.

According to her, her husband was doing bakery business in

Madras and owns shops and his income is about `50,000/- per

month. He denied the said fact and allege that he is only a coolie

worker. The Family Court found that the parties come from a

socially upward class and therefore the contention that the

husband does not have sufficient income cannot be believed.

Further a case was filed by the wife seeking return of gold

ornaments, money and maintenance. He had gone to the extent

of filing a petition for restitution of conjugal rights. Respondent
Mat.Appeal No.475/10 conn.cases

-:8:-

contended that he is only a coolie worker, but even according to

him, he had been sending money order as evident from Exts.B5

to B17. He was sending money at the rate of `1,000/- every

month. All these payments are being made during 2009 after the

couple got separated. The contention that he is a coolie worker is

not supported by any material. Even otherwise, the Court below

had directed only payment of `5,000/- for all the petitioners

together as past maintenance for five months and future

maintenance, which according to us, is not on the higher side.

Even a coolie worker in the State of Kerala is able to derive

sufficient income for maintaining his family and therefore, we do

not think that the amount awarded as future maintenance is on

the higher side.

7. Next we have to consider the claim for return of gold

ornaments and money. Wife had taken up a plea that at the time

of marriage, she was given 100 sovereigns of gold ornaments. It

was her second marriage. Even during the first marriage, her

family members had purchased 100 sovereigns of gold

ornaments which is evident from Ext.A1 series. The first nikah

was held on 11/11/2001 and divorce was granted on 3/5/2002. As
Mat.Appeal No.475/10 conn.cases

-:9:-

evidence to prove that she was having 100 sovereigns of gold

ornaments, in addition to A1 series, they produced Ext.A10

photographs which relate to the ornaments given as mahar which

according to the husband is 10 sovereigns. In the pleading,

petitioner had stated that the nikah was conducted by giving a

mahar of 10 sovereigns. After marriage, they have been

demanding more gold and dowry and in the meantime, her 100

sovereigns of gold ornaments and `2 lakh given as parental share

were appropriated by the respondent. Further, in order to

augment his business, respondent had taken an amount of `7

lakhs on several occassions from her father. That apart, on

26/6/2008, at the instance of the respondent, she had received

an amount of `2 lakhs from her father and it was given to her

husband. The money or the ornaments were not returned and

that apart, they have been demanding more gold and money.

She further stated that she had to flee from the matrimonial

home. She further contended that she was given 7 sovereigns as

mahar and she was entitled for further 3 sovereigns as well.

Ext.B20 is a photograph produced by the respondent which would

clearly show that the bride was having sufficient ornaments
Mat.Appeal No.475/10 conn.cases

-:10:-

though it may not be possible to state the actual quantity of gold

ornaments she had.

8. In the objection he denied that 10 sovereigns was

fixed as mahar whereas according to him 1 sovereign was fixed

as mahar. Even on a perusal of Ext.A10 series photographs, it

could be seen that the mahar was a chain and it cannot be 1

sovereign at all. Therefore, the contention that the mahar was

only 1 sovereign is absolutely baseless. That apart, he had

blanketly denied that the wife was having 100 sovereigns of gold

and that he received payment of any amount. He does not say

the quantity of gold she had at the time of marriage. This is quite

improbable. But it is rather clear from the evidence of PW1 to

PW4, Ext.B20 and the blanket denial of the respondent, the

Family Court was justified in stating that she had 100 sovereigns

of gold ornaments. It was also found by the Family Court that at

the time of marriage, the girl was only 17 years old and she was

having 107 sovereigns of gold ornaments which include the

mahar and therefore it is quite improbable that she might be

keeping the gold ornaments with herself. During cross-

examination of the respondent, he stated that photographs were
Mat.Appeal No.475/10 conn.cases

-:11:-

not taken. In cross-examination, he further reiterated that 1

sovereign was given as mahar and no photograph was taken

during nikah. When he was shown the photograph, he admitted

that those were the photographs of the nikah and he admitted

that the chain which was given as mahr can be seen in the

photograph. He further stated that the bill was with him. When a

suggestion was made that the said chain weighed 7 sovereigns,

he denied the said fact. He further admitted that at the time of

marriage, petitioner had several ornaments, but he does not

know how much ornaments she had. He further deposed that

according to the petitioner, she had 20 sovereigns. He further

admitted during cross-examination that he had not stated either

in the counter or in the chief affidavit that while his wife left the

matrimonial home, she had taken away all her gold ornaments.

9. Further evidence of PW2 to PW4 supports the version

of the petitioner. From an over all consideration of the evidence,

and taking into account the preponderance of probabilities, it is

clear that she had 100 sovereigns of gold ornaments at the time

of marriage and the contention urged by the respondent cannot

be believed. Further, she was only 17 years of age at the time of
Mat.Appeal No.475/10 conn.cases

-:12:-

marriage and therefore, it is always possible that the gold

ornaments are entrusted to the custody of her husband. Being a

business man, he would have appropriated the same as well and

therefore the Family Court was justified in directing return of gold

ornaments or its value.

10. Now coming to the claim for payment of money, the

Family Court observed that there is no evidence to prove the

source of money. When a claim is made for return of money and

when the factum of payment is disputed, some material should

be produced to prove the source of funds. Of course, the case has

to be considered on the basis of preponderance of probabilities,

but still in the absence of any material to prove the source of

funds, it may not be possible to grant a decree. The Family Court

having observed so, declined the same for valid reasons and it is

not possible for us to arrive at a conclusion that the said view is

perverse in order to take a different view. When the Family Court

had rejected the claim based on sufficient reason, we do not think

it necessary to interfere with the said judgment.

11. The husband had challenged order in OP No.239/2009

which was a petition filed for restitution of conjugal rights. The
Mat.Appeal No.475/10 conn.cases

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Family Court found that the wife had to remain separately from

the husband on account of matrimonial cruelty and there was

more demand for money and gold. Under such circumstances,

when it is found that there are valid reasons for the wife to

remain away from the matrimonial home, we do not think it

necessary for us to interfere with the said order as well.

In the result, Mat.appeals and RP(FC) are dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

ASHOK MENON

Rp //True Copy// JUDGE

PS to Judge

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