Rahim vs Jameela on 10 February, 2014

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Kerala High Court

Rahim vs Jameela on 10 February, 2014

The captioned appeal is filed by the respondent against the judgment of the Family Court, Thrissur in O.P.No.218 of 2010, dated 10.02.2014. By the said judgment, the Family Court allowed the respondent to recover 30 sovereigns of gold ornaments from the appellant or its equivalent value of Rs.3,75,000/- and the appellant was directed to pay the same within a period of two months, failing which interest at the rate of 6% per annum was directed to be paid to the equivalent value of gold ornaments from the date of petition till realization, and further directed the appellant to return the household articles or its equivalent value of Rs.45,000/- to the respondent within two months from the date of judgment failing which 6% interest was directed to be paid from the date of petition till realization.

2. Necessary facts required for the disposal of the appeal are as follows:

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3. The marriage between the appellant and the respondent was solemnized on 22.02.1998, as per the rites and custom prevailing in the Muslim community. Two children were begotten in the wedlock. The respondent had obtained 30 sovereigns of gold ornaments, cash of Rs.50,000/- and household articles in connection with the marriage of the respondent from her father. The said gold ornaments, cash and household articles were entrusted with the appellant and his parents as trustees. But the appellant and his parents had misappropriated the same. It is the further contention of the respondent that the gold ornaments, money and household articles were presented to the respondent by her parents to have fruitful enjoyment of the same by the respondent alone, and the appellant and his parents have no manner of right to misappropriate the same.

4. That apart, it is contended by the respondent that the life of the respondent in the house of the appellant was miserable. The appellant and his parents harassed the respondent both mentally and physically, demanding more dowry. Since the respondent could not tolerate the harassment meted out by the appellant and his parents, the Mat. Appeal No.673 of 2014 3 respondent had compelled her parents to purchase 10 cents of land in the joint name of the appellant and the respondent. But, in spite of all these, harassment of the appellant continued. Many a time, the appellant refused to provide food to the respondent. In spite of the cooperation extended by the respondent and her family members, harassment continued and while the respondent was four months pregnant, she was kicked by the appellant on her lower abdomen, consequent to which the pregnancy was terminated. That apart, severe physical and mental harassment of the appellant continued and thereupon the respondent left the matrimonial home and resided with her parents till 11.10.2002, on which date, certain mediators intervened and persuaded her to join the matrimonial home of the appellant. It is also the case of the respondent that harassment continued even then. That apart, it is contended that on 13.12.2002, appellant and others harassed the respondent and thereby compelled her to secure more dowry from her parents. On 15.12.2002, the respondent was brutally manhandled by the appellant and others in the presence of her brother and consequent to the injury suffered thereto, she underwent treatment in Chelakkara Government Mat. Appeal No.673 of 2014 4 Hospital as an inpatient. Due to the intolerable physical and mental harassment, respondent had left the matrimonial home along with minor daughter Nazeema.

5. Ever since the respondent started residing in her parental home, the appellant has not paid any maintenance to the respondent or their minor daughter, consequent to which, she had filed M.C.No.276 of 2003 and the respondent and her minor child were allowed Rs.500/- and Rs.300/- respectively by the Family Court. It is the specific contention of the respondent that since 30 sovereigns of gold ornaments, Rs.50,000/- and certain household articles were entrusted to the appellant as a trustee, he has no manner of right to misappropriate the same and is bound to return the same as and when demanded by the respondent. It is the case of the respondent that since appellant failed to return the same, she has no other alternative than to seek relief from the Family Court.

6. The appellant has filed objection to the said Original Petition refuting the allegations, claims and demands. The specific contention raised by the appellant was that respondent was not presented with any gold ornaments, cash and Mat. Appeal No.673 of 2014 5 household articles during their marriage. The same were not entrusted with the appellant and his parents. It is also the specific contention of the appellant that both of them lived in the matrimonial home as man and wife harmoniously for some time. The physical and mental harassment alleged to be meted out by the appellant on various occasions were stoutly denied by the appellant and further contended that such allegations are made falsely and without any basis. It is also contended that such allegations are made in order to prejudice the mind of the court and thereby attempt to secure the decree as sought for in the Original Petition. That apart, it is also contended that 10 cents of property was purchased by the appellant in the joint name of the appellant and the respondent due to love and affection he always had to the respondent and the contrary allegations made in the Original Petition are not true or correct. The allegation with regard to the statement in the Original Petition that due to the cruelty meted out by the appellant the respondent was compelled to leave the matrimonial home was also denied specifically. The appellant has also disputed the allegations made by the respondent that the appellant or his family members were retaining the gold Mat. Appeal No.673 of 2014 6 ornaments and household articles alleged to be belonging to the respondent. The receipt of Rs.50,000/- was also denied by the appellant.

7. Taking into account the rival contentions raised by the parties, the following points were raised by the Family Court for consideration:

"i. Whether the petitioner is entitled for the return of gold ornaments or its equivalent value?

ii. Whether the petitioner is entitled for the return of household articles or its equivalent value?

iii. Whether the petitioner is entitled for the refund of cash?

iv. Reliefs and costs?".

8. Respondent has adduced evidence as PW1 and she has examined three witnesses on her side, Pws-2 to 4. Exts.A1 to A4 documents, which are photographs, copy of order in M.C.No.276 of 2003, copy of arrest warrant issued in C.M.P No.593/2013 and copy of F.I.R were marked. Appellant has not produced any evidence. He has examined himself as RW1.

9. The trial court, after evaluating the pleadings and the evidence on record, has arrived at a finding that the respondent is entitled to a decree for 30 sovereigns of gold Mat. Appeal No.673 of 2014 7 ornaments or its equivalent value and also the value of household articles or its equivalent value with further direction for realization of interest. The claim for Rs.50,000/- made by the respondent was declined holding that there is no evidence to establish such a claim raised by the respondent.

10. Heard learned counsel for the appellant and the respondent.

11. The prime contention advanced by the learned counsel for the appellant is that the specific pleading of the respondent in the Original Petition with regard to the gold ornaments is that, the same was entrusted to the appellant and his parents as a trustee and since the said ornaments were retained by the appellant and his parents as trustees, they are bound to return the same as and when demanded by the respondent. But, while adducing evidence in cross- examination, respondent has deposed to a specific question as to how the gold ornaments were distributed among the parties, the answer provided by the respondent was that 30 sovereigns of gold ornaments was entrusted with Khader, father of the appellant. It was deposed that it was entrusted to Khader on various occasions, but further added that it was given Mat. Appeal No.673 of 2014 8 together. It was also deposed by her that she does not remember the date on which the gold was entrusted. It was further deposed that the gold was given to Khader as per the demand made by him. She has also specifically deposed that the gold was entrusted with the appellant after the birth of the first child. To a further question regarding the purpose for which the gold was demanded, the specific answer given by the respondent was that there was a loan against the house of Khader and for the purpose of the same, the gold was demanded. That apart, it was deposed that the demand for gold was raised by stating that the loan is to be wiped off. It is also deposed by PW1 that she does not remember the quantity of gold entrusted on each occasions. Further, it is specifically deposed by her that Khader sold the gold ornaments and the same was utilized for the purpose of wiping off the loan amount.

12. Learned counsel for the respondent, per contra, has submitted that it is specifically pleaded in the Original Petition that the gold ornaments were entrusted with the appellant as well as his parents and therefore the appellant who is responsible as one among the trustees is bound to return the Mat. Appeal No.673 of 2014 9 same. It is also contended that even if in the evidence, the respondent has deposed that the gold ornaments were entrusted to the father of the appellant, a duty is cast upon the appellant to return the same being the dutiful son of the father. It is also the specific contention of the learned counsel for the respondent that even if it is alleged that the entrustment of the gold ornaments is joint, since the appellant is one of the trustees, he is bound to return the same even in the absence of the parents of the appellant in the party array. So also, it is contended that the house where the appellant resides even though it is belonging to Khader, appellant is entitled to succeed to the same and therefore even if assuming that the gold ornaments were sold by Khader for wiping off the loan transaction, there is no illegality on the part of the court below in passing a decree against the appellant.

13. Anyhow, the Family Court has taken note of the contradictory evidence tendered by the respondent against the specific pleadings made in the Original Petition that the gold was entrusted with the appellant and his parents as a trustee. However the Family Court has patched up the discrepancy that arose between the pleading and the deposition of PW1 by Mat. Appeal No.673 of 2014 10 providing an interpretation that the appellant has no case in the counter statement that the entrustment of gold ornaments with his father was without his consent and knowledge. It is also assumed by the Family Court that no wife will entrust the gold ornaments with her father-in-law without the knowledge and consent of the husband and therefore the arguments advanced by the appellant's counsel to the contrary, pointing out a vital discrepancy in the pleading and the evidence is without any merit. It is thus, the Family Court has found that the respondent is entitled to return of 30 sovereigns of gold ornaments.

14. We have gone through the evidence tendered by the respondent and the appellant before the court below. Even assuming that, strict evidence as provided under the Evidence Act may not be applicable to the Family Court in view of the provisions contained under the Family Courts' Act, still the Family Court has to enter the findings on the basis of reasonable evidence tendered by the parties and also taking into account the pleadings and rival contentions raised. In our view, the specific pleading offered by the respondent in the Original Petition is that the gold was entrusted to the appellant Mat. Appeal No.673 of 2014 11 and his parents as trustees and they are bound to return the same as and when demanded by the respondent. In the Original Petition or in the proof affidavit, the respondent did not have a case that the gold ornaments were entrusted by her with Khader, father of the appellant in order to wipe off the loan taken by him against the construction of the residential building. If that was the actual case, there was no occasion for the respondent to plead in the Original Petition that the entrustment was made to the appellant and his parents as trustees. In cross-examination against the pleading and quite contrary to the same, the respondent has deposed that the gold was entrusted to Khader after the birth of the first child in order to wipe off the loan amount. According to us, the deposition so made by the respondent is diametrically opposite to the pleadings made in the Original Petition. Furthermore, while adducing evidence, the case projected in the pleading that, the gold ornaments were entrusted with the appellant and his parents was completely changed and deposed that the gold ornaments were entrusted to Khader, father of the appellant in order to wipe off the liabilities under the loan transaction. So, by the deposition given by PW1, the Mat. Appeal No.673 of 2014 12 entrustment story is vanished and the same is transformed as handing over of gold ornaments to Khader to wipe off the loan amount secured by him from the Bank and that too after the birth of the first child. On an evaluation of the evidence tendered by PW1, it is categoric and clear that the entrustment is no more in existence as pleaded in the Original Petition, but was replaced by a different transaction of handing over of the gold ornaments to the father of the appellant in order to wipe off the loan transaction. Moreover, the inconsistency in the pleading and the deposition of the respondent with regard to the nature of entrustment made, makes us suspicious about the entrustment of the gold ornaments to the appellant or his parents. Even though at one point of time, respondent has deposed that the gold ornaments were entrusted in different instalments, the next moment, she adds that the same was handed over together. But, during the further stage of cross- examination, she deposed that she does not remember the quantity of gold handed over on each occasion. The inconsistencies in the evidence so tendered is material in nature to believe the testimony of the respondent as PW1. Mat. Appeal No.673 of 2014 13

15. Apart from all these inconsistencies in evidence, no re-examination of the respondent was conducted. Moreover, even though the vital pleading with regard to the entrustment of gold ornaments in the Original Petition was transformed into handing over of the gold ornaments to the father of the appellant for wiping off loan amount, no manner of questions were put with regard to the said contradictions, material and vital while the appellant was cross-examined by the counsel for the respondent. Therefore, the vital contradiction in the pleading and deposition of PW1, inconsistency in the oral evidence tendered by PW1 and the lapses on the part of the respondent to make any attempt even to correct such inconsistencies in the pleadings and evidence and further absence of cross-examination of the appellant with regard to these aspects are vitally affecting the case projected by the respondent in the Original Petition. In that view of the matter, we are of the considered opinion that there was no evidence before the Family Court to sustain the claim put forth by the respondent with regard to the entrustment of the gold ornaments by the respondent with the appellant and his parents. Moreover, if the respondent had a case that the gold Mat. Appeal No.673 of 2014 14 ornaments were handed over to the father of the appellant for wiping off the loan amount, he was a necessary party to the proceedings and ought to have sought a decree against him also.

16. Even though the finding of the court below is that, the appellant has not disputed the entrustment of gold ornaments with his father, is without his consent and knowledge, we are unable to subscribe to the said view of the Family Court in view of the specific pleading in the objection disputing the entrustment of the gold ornaments itself, by the appellant. When the whole transaction is disputed and that there is no case projected by the respondent with regard to handing over of the gold ornaments to the father of the appellant, there was no occasion for the appellant to dispute the same in such a fragmented manner.

17. Even though PW2 and PW3 were examined to substantiate the case put forth by the respondent that the gold ornaments were entrusted to the appellant, PW2 has deposed that the respondent was wearing gold ornaments at the time of marriage, but she had only hearsay information that 30 sovereigns of gold ornaments were given to the respondent, as Mat. Appeal No.673 of 2014 15 present. Even though Pw2 and PW3 were believed by the court below in order to arrive at a finding with regard to the entrustment of the gold ornaments, in view of the inconsistencies and the discrepancy of the pleadings and evidence tendered by PW1, no much weight can be attributed to the evidence of PW2 and PW3, concerning the entrustment of gold ornaments. Viewed in that background, the inconsistent nature of evidence tendered by PW1 makes the evidence tendered by PW2 and PW3 becomes untrustworthy and can only be seen as evidence tendered in tune with the pleadings put forth by the respondent. So also, since the evidence of PW1 has become untrustworthy and unbelievable, the foundation of evidence tendered by PW2 and PW3 vanishes.

18. For the aforesaid reasons, we set aside the decree granted by the Family Court to the respondent to recover 30 sovereigns of gold ornaments or its equivalent value and thereby the claim of the respondent in the Original Petition with respect to the same is declined.

19. So far as entrustment of the household articles are concerned, the respondent herself was examined in that regard Mat. Appeal No.673 of 2014 16 and further Pws2 and 4 have categorically deposed with regard to the entrustment of the said articles while the family members visited the house of the respondent. The said aspect is not much disputed by the appellant while tendering evidence. The appellant even went to the extent of stating that if the articles are there in his house, the respondent is entitled to take the same with her. That apart, the ceremony of visiting the kitchen in the house of the appellant, which is a custom prevailing in the community is not disputed by the appellant. Therefore, we do not find any reason to interfere with the decree passed by the Family Court to return the household articles or its equivalent value of Rs.45,000/-.

20. Therefore, the appeal is partly allowed by setting aside the decree of the Family Court directing the appellant to return 30 sovereigns of gold ornaments or its equivalent value and to that extent, the Original Petition before the Family Court will stand dismissed. Needless to say, the decree passed by the Family Court with respect to return of household articles or its equivalent value will remain intact.

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The appeal is therefore allowed partly.

Sd/-

C.K. ABDUL REHIM JUDGE Sd/-

SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-

05.02.2016

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