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Ibrahim vs Ibrahim on 8 November, 2018

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
-:2:-

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
Mat.Appeal No.719/11
-:3:-

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.

Mat.Appeal No.719/11
-:4:-

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
Mat.Appeal No.719/11
-:5:-

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
Mat.Appeal No.719/11
-:6:-

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
Mat.Appeal No.719/11
-:7:-

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
Mat.Appeal No.719/11
-:8:-

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,
Mat.Appeal No.719/11
-:9:-

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
Mat.Appeal No.719/11
-:10:-

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
Mat.Appeal No.719/11
-:11:-

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
Mat.Appeal No.719/11
-:12:-

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
Mat.Appeal No.719/11
-:13:-

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
Mat.Appeal No.719/11
-:14:-

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
Mat.Appeal No.719/11
-:15:-

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
Mat.Appeal No.719/11
-:16:-

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

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