Kerala High Court
K.Hussain vs Faseeda Beegum on 26 July, 2019
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941
Mat.Appeal.No.885 of 2011
AGAINST THE ORDER IN OP 1054/2010 of FAMILY COURT, KOZHIKODE DATED
26-09-2011
APPELLANT/RESPONDENT:
K.HUSSAIN
S/O.MUHAMMED, KURUTHODIKA HOUSE, VALIYA PARAMBU,
MAMBURAM P.O.,MALAPPURAM DIST
BY ADVS.
SRI.K.D.BABU
SRI.G.SANTHOSH KUMAR (P).
RESPONDENT/PETITIONER:
FASEEDA BEEGUM
AGED 35 YEARS
D/O.SAIDALAVIKOYA, FASSEEDA MANZIL, VELIPURAM AMSOM,
DESOM P.O.RAMANATTUKARA, KOZHIKODE-673014
BY ADV. SRI.R.RAMADAS
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19.07.2019,
THE COURT ON 26.7.2019 DELIVERED THE FOLLOWING:
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Mat.A.No.885/2011
JUDGMENT
SHAFFIQUE, J This appeal is filed by the respondent in O.P.No.1054/2010 of the Family Court, Kozhikode. The original petition was filed by the respondent herein claiming return of 54 ½ sovereigns of gold ornaments and Rs.1,00,000/-. The Family Court granted as decree for 54 ¼ sovereigns of gold ornaments. The learned counsel for the appellant submitted that there is no evidence to prove that the respondent had so much quantity of gold ornaments available with her at the time of marriage or thereafter.
2. In fact, the case put up by the petitioner/wife was that at the time of marriage she was adorned with 75 sovereigns of gold ornaments, out of which 45 sovereigns were taken away by the appellant on different occasions. He had taken the gold ornaments for his business purpose and it was sold. He misused the same and the amount was lavishly spent. She was also being ill-treated and ultimately she had to leave the matrimonial home on 22.8.2008. On the said date she was physically tortured and the remaining 30 sovereigns of gold ornaments were demanded from her. Therefore she had to flee from the matrimonial home with her child. She also contended that at the time of marriage Rs.1,00,000/- was given as 3 Mat.A.No.885/2011 parental share and therefore she claimed the amount back along with 54 ½ sovereigns of gold ornaments.
3. Before the Family Court PW1 to PW3 were examined on behalf of the petitioner. RW1 was examined on behalf of the respondent. Exts.A1, A2, B1 to B4 and X1 are the documents relied upon. Ext.X1 evidenced that the Nikah was held on 4.11.2001, and is signed by PW1 and RW1 along with two other witnesses. The Kasi of the Mahal also signed it. In Ext.X1 it is noticed that the 'Mahar' was 9 ¼ sovereigns of gold ornaments which is given to RW1 by PW1. However, while being examined as RW1, the appellant has denied his signature in Ext.X1.
4. The contention urged by the respondent/appellant was that his wife was having only 8 sovereigns of gold ornaments which she had kept with herself and he had not appropriated any of her gold ornaments. During evidence, the case set up by the appellant was that his wife had a locker facility with South Malabar Gramin Bank, Chemmad barnch and it was operated by her on different dates and finally on 23.8.2008. The wife while being examined as PW1 denied having opened the locker facility. According to the husband it was a locker in their joint names which was taken for keeping gold ornaments. But, apparently he had not stated about the opening of locker facility in his objection and he had no case that any of the gold ornaments were kept in the locker. However, RW1 relied upon Ext.B4, 4 Mat.A.No.885/2011 a certificate issued by the South Malabar Gramin Bank, Chemmad baranch which indicates that the locker facility was operated by his wife and she had even opened the same on 23.8.2008, the next day on which she had left the matrimonial home.
5. The Family Court found that 9 ¼ sovereigns of gold ornaments is given as 'Mahar'. It is quite usual that 10 times the said quantity of 'Mahar' will be given as parental share for the bride. In this case, the respondent claimed that she was adorned with 75 sovereigns of gold ornaments at the time of marriage. It is true that no documents had been produced to prove that she had so much quantity of gold ornaments other than Exts.A1 and A2. Exts. A1 and A2 are given by a gold smith of Ramanattukara who had made so much quantity of gold ornaments. Evidence of PW1 is supported by her relatives PW2 and PW3. The Family Court found that the version of the petitioner/wife is believable and therefore granted a decree for return of 54 ¼ sovereigns of gold ornaments.
6. Apparently, both parties had not stated the true and correct facts before court. The pleadings does not indicate the correct version of the parties. From Ext.B4 it could be discerned that the respondent was having a locker facility with the South Malabar Gramin Bank and she had operated the same on a few days and finally on 23.08.2008. But while being examined as PW1, she denied having opened locker facility. The Branch Manager who issued Ext.B4 was not examined. 5 Mat.A.No.885/2011 But still, when a certificate had been issued stating that there was a locker facility in the name of the wife, it is rather clear that she was having sufficient quantity of gold ornaments and the contention of the appellant that she has only 8 sovereigns of gold ornaments is clearly belied.
7. Still RW1 in his evidence has stated that it was a joint locker and therefore it is also possible that he was also operating the locker. In other words both parties have not disclosed the actual state of affairs. While making a claim for such a huge quantity of gold ornaments and when the said fact is denied by RW1, the Family Court erred in directing return of 54 ¼ sovereigns of gold ornaments without sufficient proof. Taking into account the respective contentions of the parties and on our understanding that both sides have not clearly stated the true facts and also the fact that the petitioner wife had substantial quantity of gold ornaments and not 8 sovereigns as contented by the respondent/appellant, we are of the view that such a contention has been urged only to deny the liability to return the gold ornaments appropriated by the appellant. Therefore, we are of the view that though not 54 ¼ gold ornaments, the petitioner can be permitted to recover 25 sovereigns of gold or its value to be fixed by the trial court.
8. The appeal is allowed in part. The decree is modified to the following extent:
6Mat.A.No.885/2011
Instead of 54 ¼ sovereigns of gold ornaments, the petitioner is entitled to realise 25 sovereigns of gold ornaments or its present market value as directed by trial court. If the gold ornaments are not returned, the petitioner will be entitled to receive interest on the value of gold at the rate of 6% per annum from the date of decree. No costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
N.ANIL KUMAR
kp True copy JUDGE
P.A. To Judge.