IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY ,THE 08TH DAY OF NOVEMBER 2018 / 17TH KARTHIKA, 1940
Mat.Appeal.No. 719 of 2011
AGAINST THE ORDER IN OP 1018/2009 of FAMILY COURT, MALAPPURAM
DATED 08-07-2011
APPELLANT/RESPONDENT:
IBRAHIM, S/O LATE RAYIN,
THONDIPULAN HOUSE, MANKADA P.O., PULIKKALPARAMBU,
PERINTHALMANNA TALUK, MALAPPURAM DISTRICT,
PERINTHALMANNA POLICE STATION.
BY ADVS.
SRI.SAJU.S.A
SRI.JAMSHEED HAFIZ
RESPONDENT/PETITIONER:
KHADEEJA, D/O MUHAMMED,
PILATHODAN HOUSE, KADANNAMANNA P.O., KARKKIDAKAM,
MANKADA AMSOM, KARKKIDAKAM DESOM, PERINTHALMANNA,
TALUK, MALAPPURAM DISTRICT, PERINTHALMANNA
POLICE STATION, PIN-679 324.
BY ADVS.
SRI.M.G.ASHOKAN
SRI.V.T.MADHAVANUNNI
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
06.08.2018, THE COURT ON 08.11.2018 DELIVERED THE FOLLOWING:
Mat.Appeal No.719/11
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JUDGMENT
Shaffique, J.
This appeal is filed by the respondent in OP No.1018/2009 of
the Family Court, Malappuram. He challenges order dated
8/7/2011 by which a claim made by his wife seeking return of
gold ornaments, money, value of household utensils and furniture
had been allowed by the Family Court.
2. The short facts that have arisen in the matter are as
under and the parties are referred to as shown in the OP unless
otherwise stated.
3. Petitioner and the respondent were married on
8/12/1996 as per the law and custom prevailing among the
Muslim community. Three children were born in the wedlock.
After the birth of the second child, respondent expressed an
intention to contract a second marriage. According to her, she
was brutally attacked by the respondent for not giving her
consent to contract another marriage. She again became
pregnant and she went to her parental home. The respondent
also went back to Gulf as he was employed abroad. He came
back after 10 months and thereafter he married a lady by name
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Suhara. The third child was born after 24 days from the date of
the said marriage. On account of the aforesaid incident,
matrimonial disputes had arisen and ultimately she had to leave
the matrimonial home on 11/11/2009. In the said circumstances,
she sought for return of 75 sovereigns of gold ornaments, which
was given to her at the time of marriage, an amount of `50,000/-
which was paid at the time of marriage, `36,188/- being value of
household utensils given by her parents and an amount of
`1,65,000/- being value of furniture given to her by her parents.
4. In the objection filed by the respondent, he denied
having appropriated any of her gold ornaments, money, or other
articles. He alleged that the petition has been filed only for
blackmailing him and his family which was instigated by the
relatives of the petitioner.
5. Before the Family Court, petitioner was examined as
PW1 and two witnesses were examined as PW2 and PW3.
Respondent was examined as RW1. Exts.A1 to A5 were marked
on behalf of the petitioner and Exts.B1 to B9 on behalf of the
respondent.
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6. We heard the learned counsel appearing on either
side.
7. The question to be considered is whether the Court
below was justified in granting a decree as stated above. The
petitioner on her behalf has adduced evidence in accordance with
the averments in the petition.
8. PW2 is the father of PW1. He deposed that he was in
Gulf and later he had come back and is having a quarry of his
own. He deposed that at the time of marriage, they demanded 75
sovereigns of gold ornaments and `50,000/-. The girl was given
75 sovereigns of gold ornaments and `50,000/- was paid at the
time of marriage. He himself had paid the amount. The girl was
wearing all the ornaments. He also stated that 41½ sovereigns
were made in Velayudhan’s Jewellery and 33½ sovereigns were
purchased from Thadathil Jewellery. Later, he required some more
money for house construction and respondent pledged some gold
ornaments. After construction of the house, they have given
furniture and household utensils. He thereafter made a demand
that he wants to have a second marriage and she was being
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harassed. He married again. At the time when he married, she
was lying after her caesarean operation. He also stated having
given complaints to the police. During cross examination he said
that complaint was given to the mosque committee, But he
admitted that nothing has been stated regarding gold ornaments.
Cross examination proceeded on the basis that the documents
produced for purchasing gold were fabricated. Further cross
examination proceeded with regard to the value of furniture and
household articles. But nothing has been bought out to discredit
the said version.
9. PW3 is a carpenter. He had made furnitures for PW1’s
house. He deposed that PW1’s father had taken him and he had
made furniture for `1,60,000/-. He was also cross examined and
the suggestion was that there is no document to prove the said
fact.
10. RW1 in his evidence had taken a contention in
accordance with the averments he had made. Other contention
urged was that petitioner had filed MC No.68/2009 under the
Protection of Women from Domestic Violence Act, 2005 and in the
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said petition, claim had been made for the very same property
and money. Further he has also denied that there was any
discussion regarding money or gold ornaments. He was not
entrusted with any gold ornaments and she had not brought
either 75 sovereigns or any other gold ornaments. It is stated
that the album containing the photographs and all articles
belonging to her were taken with the help of police on
28/11/2009. About 20 kits of properties were taken from his
house. He further stated that he is a strong believer of the
religion and according to him any gold ornaments above 10
sovereigns are to be given as ‘sakkath’ (donation) and therefore
he had insisted that she should not have more than 10
sovereigns of gold ornaments and she should not use the same.
According to him, he only noticed that she was having a pair of
gold ear rings, one set of anklets, one chain, another chain given
by the respondent and a few bangles and two rings. Altogether
the weight would come to 10 sovereigns. He further contended
that her family did not have the capability to give 75 sovereigns
of gold ornaments and `50,000/- as alleged. He also denied
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having received any articles worth `36,188/- or furniture valuing
`1,65,000/-. He submitted that the family of the petitioner despite
his objection had given them a sofa, a dining table, 6 chairs, two
wooden cots, one cupboard and a bed along with a few
aluminum/steel utensils. It was given voluntarily. He had no
objection in the petitioner taking back all those articles. He
further submitted that his relatives had given some gift articles
and petitioner had scheduled those gift articles also. He also
stated that those articles which was brought by the petitioner’s
relatives could be taken back and this fact has been mentioned to
the mahal committee. But they have not taken any steps for the
same. According to him, he is even ready and willing to give
back all the furniture and other articles given by her family
members and even those received as gift. But he is not willing to
pay its value. During evidence he had reiterated the aforesaid
facts. He also has stated that he had married the petitioner as
she was from a poor family.
11. In the light of the aforesaid contention, the first
question to be considered is whether the petitioner’s family had
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the financial capacity to provide the gold ornaments and the
money as claimed by them.
12. Ext.A1 series are bills dated 5/12/2006 for purchase of
various household articles. The total value of this would come to
`36,188/-. It is given in the name of one Mohammed. Ext.A2 is a
handwritten script dated 4/12/1996. This document is produced
to prove purchase of gold ornaments weighing 268.300 grams.
But this is not a bill and it does not show as to who had prepared
it. No witness had been examined to prove this document. Ext.A3
is again another handwritten script dated 5/12/1996. This
apparently had been produced to prove purchase of 331.410
grams of ornaments which indicates that 328 grams of gold was
given and an additional 3.410 grams was added to make the
ornaments. The making value is written as `11,144/- and it is
given by K.Velayudhan and Sons Jewellery. This document also is
not properly proved and the person who had given this
handwritten script has not been examined.
13. PW1 in her cross examination stated that she comes
from a family of 5 boys and 3 girls. At the time of marriage,
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respondent was employed abroad and after marriage she was
living in the respondent’s house for about 10 years and there was
no problem. A new building was constructed after getting loan
from various persons. They lived together in that house for a
week. Thereafter, she was ill-treated and therefore complaints
were filed before the Court and police station. She further stated
that the children are studying near the family house of the
respondent. She further deposed that `50,000/- was paid on the
date of nikah, 25 sovereigns of gold ornaments were purchased
from a jewellery at Mankada. Gold was purchased from a place at
Ramapuram. It was purchased from a person by name
Ramapuram Velayudhan. Velayudhan had written it in a white
paper and it is not in a letter pad. He does not have a registration
number. Certain gold ornaments were made after purchasing gold
from outside. Her father alone knows the details. She does not
know the correctness of the documents that have been
produced. She further stated that her father was working in a
quarry. She also stated that the gold was taken for construction of
the house. Thereafter he had not taken any gold ornaments. She
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further stated that all the gold ornaments were entrusted to her
husband’s mother, but she is not a party.
14. This is an instance where though the respondent had
taken a contention that petitioner’s family was not having the
financial capacity to pay an amount of `50,000/- or provide 75
sovereigns of gold ornaments, other than producing Exts.A2 and
A3, to prove purchase/making of gold ornaments, there is no
other evidence. Of course PW1 and PW2 had stated about the
same.
15. In the evidence of PW2, he admits that he was in Gulf
for some time and later he was running a quarry. He further
deposed that two of his children are in gulf and the eldest one is
a teacher. Another person is a contractor. Though he stated that
41½ sovereigns were made from Velayudhan’s jewellery and 33½
sovereigns were purchased from Thadathil Jewellery, as far as
Ext.A2 is concerned, it is only a handwritten script without any
authorship. Ext.A3 may show that about 331.410 grams of gold
ornaments were made. But nothing has been stated from where
the gold was acquired. During cross examination, he stated that
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though a complaint was given to the Mosque Committee, nothing
has been mentioned regarding the gold. He also stated that
photographs were not taken at the time of marriage. He stated
that he does not intend to examine the gold dealers and the main
contention urged is that documents were fabricated. When he
was asked whether there is any witness for payment of `50,000/-,
he said there are no witnesses and there is no requirement for
any such witness. The cross examination proceeded on the basis
that the documents were fabricated and the other claims are to
be rejected.
16. As far as the acquisition of gold ornaments are
concerned, we do not think that Exts.A2 and A3 can be relied
upon, especially when the person who made the gold ornaments
or the jeweller had not been examined and the documents also
do not instill confidence in this Court.
17. Respondent’s contention is that he insisted that she
should not wear more than 10 sovereigns of gold ornaments, he
being an orthodox muslim person following religious traits. But,
during cross examination of PW1, she stated that gold was taken
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for the purpose of construction of house and after that he had not
taken any gold ornaments. She further deposed that after the
house warming ceremony also, gold was taken stating that the
gold has to be kept in a locker.
18. It is also in evidence that the house was constructed in
the year 2006. According to the petitioner, until it was taken for
the construction of house, the gold were kept in the custody of
respondent’s mother. When there is a specific contention that
the gold was taken for construction of the house and this
contention has been denied, the respondent ought to have
adduced some evidence to prove that the house was constructed
with his own funds or from some other source. Of course, the
value of 75 sovereigns of gold by itself may not be enough to
prove the said fact. But still, some evidence ought to have been
adduced to prove that he was in possession of necessary funds to
construct the house without taking the gold ornaments of the
petitioner. His evidence consists of the pleadings in MC
No.68/2009 filed by the petitioner before the Judicial First Class
Magistrate Court-I Perinthalmanna. But it is relevant to note that
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in Ext.B1, she had specifically stated that she was given 75
sovereigns of gold ornaments and `50,000/- was given at the
time of marriage. She had also stated that her father had given
her furniture and other utensils worth `2 lakhs. Her complaint is
that she and her three children have no place of residence and he
had transferred his property in the name of his second wife. He
had also produced Ext.B4 which is an answer to certain questions
under the Right to Information Act. This is produced to prove that
Velayudhan and Sons Jewellery has no registration for purchase
or sale of gold and registration was taken since 16/2/2008. Ext.B5
is a similar document. Ext.B7 is a copy of the FIR and FI
statement on the basis of which a complaint came to be filed
against the respondent for offence u/ss. 498A and 406 r/w S.34
IPC. In Ext.B7 also, she had stated that at the time of marriage
she was given 75 sovereigns and `50,000/- was handed over to
the respondent. Ext.B8 is another complaint given by the
respondent to the Superintendent of Police. As already stated,
though he had produced several documents to disprove the
allegations raised, nothing has been stated regarding source of
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funds for construction of the house. In the light of the aforesaid
facts, we are of the view that the case set up by the petitioner
has to be believed. Though the documents produced are not
sufficient enough to prove that she was given 75 sovereigns of
gold ornaments, the oral testimony of PW1 and PW2 is
substantiated by the fact that respondent had not attempted to
prove that he was in possession of sufficient funds for
construction of house and that there was no necessity to take her
ornaments. From the evidence of PW1 and PW2, when we are
satisfied that the version of the petitioner is believable, it is
proved that an amount of `50,000/- had been paid at the time of
marriage itself. Hence, we confirm the findings of the Family
Court.
19. As far as the household articles are concerned,
respondent offered to return all the furniture and other materials.
But, despite taking such a contention, no attempt had been made
to return such articles. Petitioner had claimed `36,188/- for
household utensils and `1,65,000/- as the value of furniture.
Regarding the furniture and household utensils, since substantial
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time had elapsed, the household articles and furniture have its
own depreciation. The OP itself was filed in the year 2009, i.e.,
after 3 years from the date of providing such articles and by the
time, most of the furniture and utensils would have depreciated.
20. As far as the value of utensils are concerned, the same
is proved by Ext.A1 series. Of course, respondent has a
contention that this is a fabricated document. The author of
Ext.A1 series has not been examined. But still, the respondent
had admitted having received several furniture and also
household utensils. He had virtually admitted and agreed that he
would return the same. During the pendency of the lis, he could
have taken steps to return the same. But no action had been
taken for the same. Therefore, he is liable to compensate the
petitioner for the said articles. But, as already stated, at a
depreciated value and not the actual value. The fact that
furniture was given is proved by the evidence of PW3. He is an
independent witness and there is no reason to doubt his
credibility.
21. Taking into account the total claim, we are of the view
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that the claim in respect of furniture and household utensils can
be reduced by 50%. Therefore, the value of household utensils to
be returned is estimated at `36,188 x 50% `18,094/- and the
value of furniture to be returned is estimated at `1,65,000 x
50% `82,500/-. The said amount along with `50,000/- shall be
returned with interest @6% per annum.
In the result, the appeal is partly allowed. The value of
household utensils is reduced to `18,094/- (Rupees Eighteen
thousand and ninety four only) and the value of furniture is
reduced to `82,500/- (Rupees Eighty two thousand five hundred
only). In all other respects, the decree shall stand confirmed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
P.SOMARAJAN
Rp //True Copy// JUDGE
PS to Judge