Allowed

Saneera @ Suneera v. Abdurahiman Haji

Kerala HC6 Feb 2018Mat.Appeal/563/2008

Case brief

AI extract

What is this about?

In this matrimonial appeal, the High Court of Kerala examined claims for bride gifts, gold ornaments, and maintenance. The Court dismissed the maintenance claim due to alleged payments by the husband. It also rejected the claim for gold ornaments due to witness contradictions but allowed a specific claim for Rs. 4,00,000 regarding pre-wedding payments.

What did the court decide?

Mat. Appeal No.563/2008 dismissed; Mat. Appeal No.723/2007 allowed in part; decree for Rs. 4,00,000 in favour of the wife with interest at 7% p.a.

Saneera @ Suneera Vs Abdurahiman Haji — Succession and Inheritance | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MR. JUSTICE A.M.BABU

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TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939

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Mat.Appeal No. 563 of 2008

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AGAINST THE JUDGMENT IN OP 339/2007 of FAMILY COURT, MALAPPURAM DATED 19-11-2007

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APPELLANT(S)/APPELLANTS

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1 SANEERA @ SUNEERA 34 YEARS, D/O.ABDUL KADER, KOORIPARAMBIL THEKKUMPATT,, KATTIPPARUTHI AMSOM VALANCHERI DESOM, P.O., VALANCHERI, TIRUR TALUK PIN 676552,, MALAPPURAM DISTRICT.

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2 SHAKEERA, 14 YRS, (MINOR), D/O.SANEEERA @ SUNEERA,

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3 SHABEERA, 11 YRS. (MINOR) D/O.SANEERA @ SUNEERA.

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4 SHAHEERA, 8 YRS (MINOR) D/O.SANEERA @ SUNEERA,, (MINOR PETITIONERS ARE REPRESENTED BY GUARDIAN MOTHER, 1ST PETITIONER).

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BY ADVS.SRI.T.K.SAIDALIKUTTY SRI.LAL K.JOSEPH SMT.SHEENA SAMUEL SRI.A.A.ZIYAD RAHMAN

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RESPONDENT(S)/RESPONDENT:

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ABDURAHIMAN HAJI, 42 YEARS,

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S/O.BAVUNNI HAJI, KARUTHEDATH PARAMBIL HOUSE,, KALADI AMSOM KDANCHERI DESOM P.O KADANCHERI,, BEHIND G.H.S.SCHOOL, KADANCHERI, PONANI TALUK, 677582.

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BY ADV. SRI.K.SANEESH KUMAR BY ADV. SRI.G.UNNIKRISHNAN

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2018 ALONG WITH MAT.APPEAL 723/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.Harilal & A.M.Babu, JJ.

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====================================

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Mat.Appeal Nos.723/2007 & 563/2008

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====================================

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Dated this the 6^th day of February, 2018.

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JUDGMENT

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A.M.Babu, J.

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1.There were three proceedings between the same

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parties before the family court, Malappuram. They were O.P. No.338/2007, O.P. No.339/2007 and M.C. No.579/2007. The family court dismissed all the proceedings. Mat. Appeal Nos.723 of 2007 and 563 of 2008 are directed against the dismissal of O.P. No.338/2007 and O.P. No.339/2007 respectively. We refer to the parties as shown in O.P. No.339/2007.

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2.The case of the petitioners is briefly stated

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below: The 1^st petitioner was married to the respondent. The marriage was solemnized on

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Mat.appeal723/2007 & 563/2008

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30.06.1992. Petitioners 2 to 4 are the children born in the wedlock. The 1^st petitioner had 75 sovereigns of gold ornaments at the time of her marriage. She brought the same to her matrimonial home. 2,00,000/- was given to the respondent by the father of the 1<sup>st</sup> petitioner just before the marriage. The gold ornaments of the 1<sup>st</sup> petitioner were taken and appropriated by the respondent. He is liable to return the gold ornaments and the amount of 2,00,000/-. There was another payment of `2,00,000/- by the 1^st petitioner to the respondent in 2003. It was given for the construction of the house of the respondent. For the construction of the said house, the father of the 1^st

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Mat.appeal723/2007 & 563/2008

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petitioner had given timber worth

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approximately `2,00,000/-. The respondent is working abroad. He is not providing maintenance to his wife and children. He is

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not providing maintenance to them since March, 2007. Petitioners 1 to 4 are entitled to maintenance at the rates of 4,500/-, 4,000/-, 3,500/- and 3,000/- per month respectively. They are entitled to 32,500/as past maintenance. They are also entitled to 1,80,000/- being the future maintenance for one year at the same rates.

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3.The respondent appeared and contested the cases

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through his power of attorney holder. The contentions can be summarised as follows: There was no payment of money before or at the time

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Mat.appeal723/2007 & 563/2008

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of the marriage or even thereafter. The father

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of the 1st petitioner did not give timber or any other construction materials, much less worth approximately `2,00,000/-. The 1st

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petitioner did not have 75 sovereigns of gold ornaments. The respondent did not take or appropriate the money and ornaments of the 1^st petitioner. The former has been maintaining his wife and children all along. The 1st petitioner is living away from the respondent

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for no fault of his. She is not entitled to such separate residence.

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4.The family court consolidated the two original petitions and M.C.579/2007 for trial. PWs 1 to 3 were examined on the side of the petitioners. The power of attorney holder of the respondent

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Mat.appeal723/2007 & 563/2008

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-:5:-

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gave evidence as RW1. No document was

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exhibited.

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5.The family court dismissed all the proceedings.

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The said court held that there was no evidence whatsoever to prove the claim of the first petitioner for money and gold ornaments. Certain discrepancies in the evidence were pointed out by the court below to dismiss the claim of the first petitioner. Maintenance was denied on the ground that the same was paid in lump by the respondent.

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6.We heard Shri.T.K.Saidalikutty and Shri. G.Unnikrishnan, the learned counsel for the

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petitioners and the respondent respectively.

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7.We shall first consider the claim for maintenance. The respondent is the man. His lady is the first petitioner. Their children

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Mat.appeal723/2007 & 563/2008

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are the other petitioners. The children were

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minors when maintenance was sought. The respondent is employed in a gulf country. His income there is within his exclusive knowledge among the parties to the proceedings. He did not go to the witness box to state what his precise income was. He did not choose to swear that he was all along maintaining his wife and children. But what all he should do had been

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done by PWs 1 and 2, namely, the first petitioner and her father.

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8.It has become an admitted fact during trial that the respondent was sending money to the first petitioner not only while they were residing together, but also even after their separate stay. PW 2 is the father of the first petitioner. PW2 admitted in black and white in

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Mat.appeal723/2007 & 563/2008

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cross-examination that the respondent was sending money to the first petitioner through bank. It is also his evidence that the money so sent used to be withdrawn by the first petitioner. PW2 said that he also used to go to the bank along with his daughter for withdrawing money. Even after commencement of separate living, said PW2, the respondent sent from abroad 45,000/- to the first petitioner. Going by the evidence of PW2, the total amount received by the first petitioner from the respondent through bank was over 5,00,000/-. There has been a feeble attempt to make it appear that the amounts were so sent in connection with the construction of the house of the respondent. But PW2 did not depose so. Therefore we are without any material to accept

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Mat.appeal723/2007 & 563/2008

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the argument that the money was sent in connection with the construction of the house. That apart, PW1 who is the first petitioner admitted in her cross-examination that the amount of `5,00,000/- would take in the

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maintenance of herself and her children. Handsome sums were sent by the respondent for

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the maintenance of the petitioners. The respondent cannot be coloured as a person who refused or neglected to maintain his wife and children. He has been maintaining them even after his relationship with his wife went unfriendly. Therefore we do not find any space to grant a decree directing payment of any amount as past maintenance, or any amount as future maintenance for a period of one year. The claim for future maintenance is limited to

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Mat.appeal723/2007 & 563/2008

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a period of one year only. We concur with and

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confirm the decree dismissing the claim for maintenance.

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9.The claim in the other original petition is a claim for money and value of gold ornaments. The total claim is 11,07,000/-, of which 6,00,000/- is contended to be the amount given to the respondent by the first petitioner or her father on three occasions. The value of gold ornaments claimed is `5,07,000/-.

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It is true that the respondent did have a

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duty to adduce rebuttal evidence. It is also true that he did not do that. That fact can be taken notice of only if the evidence produced by the 1^st petitioner is sufficient and

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satisfactory.

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We shall first consider the claim for value

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Mat.appeal723/2007 & 563/2008

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of 75 sovereigns of gold ornaments. According

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to the 1^st petitioner, she wore 75 sovereigns of gold ornaments at the time of her marriage. It

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is also her case that all her ornaments were taken and appropriated by the respondent. The respondent did not deny the quantum of gold ornaments the first petitioner had. But he did deny the taking and appropriation of any gold ornament of hers. We shall discuss the pleadings and evidence.

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Going by the pleadings of the 1^st petitioner, the gold ornaments of hers were taken by the respondent not on a particular day, but on two or three occasions. That was the definite case alleged in the petition. That definite case was not taken to trial when PW1 went to the witness box. She did not state

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Mat.appeal723/2007 & 563/2008

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in her affidavit filed in lieu of examination-

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in-chief as to when precisely was her gold ornaments were taken by the respondent. But she had a definite case during crossexamination. She spoke in cross-examination that every ornament of hers was given to her husband for safe keeping on the first night itself. It was her further evidence that she

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did not at all see those arguments thereafter. According to her, what she understood was that her husband took those ornaments one by one and sold. That was indeed not the specific case pleaded. When she was confronted in crossexamination with her own pleadings, she even had denied those pleadings. She spoke that it was incorrect to say that her gold ornaments were taken from her during different times.

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Mat.appeal723/2007 & 563/2008

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She stated that her such version in her own proof-affidavit was wrong. She again asserted that her 75 sovereigns of gold ornaments were taken from her on the first night itself. She once again stated that she did not see those ornaments thereafter ever. Then she stated that there was no particular reason for not stating so in the petition. The pleadings and evidence of the first petitioner are miles apart and therefore cannot be relied on.

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PW2, the father of PW1, perhaps without knowing the changed version of his daughter, spoke in court in tune with the pleadings of his daughter. PW2 spoke in cross-examination that the total quantity of gold ornaments was 75 sovereigns. He asserted that none of the ornaments was taken by the respondent during

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Mat.appeal723/2007 & 563/2008

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the initial days of the marriage. It was also

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the evidence of PW2 that when he was visited by his daughter during the initial days of marriage, she had with her all the ornaments of hers. According to PW2, thereafter the ornaments were taken in two or three years. Thus, PW2 too contributed to spoil the case of the first petitioner on her claim for value of gold ornaments.

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The evidence of PWs 1 and 2 are mutually contradictory and totally unsatisfactory. Their evidence is beyond repairs. The definite pleading had been abandoned by the party. The father of the party sticked on to the pleading. The evidence of PWs 1 and 2 does not at all impress us on the claim for value of gold ornaments. Therefore there was no scope for

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Mat.appeal723/2007 & 563/2008

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the respondent to give any rebuttal evidence on

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that claim. The claim for value of gold ornaments was rightly rejected by the family court.

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The 1^st petitioner has three money claims against the respondent. We shall first consider the last claim. That was a claim for 2,00,000/-. The contention is that timber and other building materials worth approximately 2,00,000/- were given to the respondent by the father of the first petitioner. A money claim should be precise. It cannot be approximate. The court cannot grant a decree directing to pay an approximate amount. Therefore the said claim was bad and could not be entertained. Order VII rule 2 of CPC provides that where the plaintiff seeks the recovery of money, the

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Mat.appeal723/2007 & 563/2008

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plaint shall state the precise amount claimed. The petition of the first petitioner does not state a precise amount so far as the value of timber and other building materials are concerned. The quantity of such materials allegedly supplied is also not stated in the petition. The said claim is also liable to be dismissed.

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The other two claims are for 2,00,000/each. According to the first petitioner, at the time of her marriage 2,00,000/- was given as agreed to earlier. The evidence of PW1 on the said claim is of no use. For, she admitted that she did not witness the payment of `2,00,000/- by her father to the respondent just before the marriage.

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But PW2, the father of PW1, in clear terms

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Mat.appeal723/2007 & 563/2008

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deposed in court about the payment of 2,00,000/-. He spoke that it was agreed to before marriage that 2,00,000/- and 75

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sovereigns of gold ornaments should be given from the bride's side to the other side. According to PW2, he reached the house of the respondent two or three days before the marriage along with two relatives and a friend. PW2 spoke that the amount was directly handed over to the respondent at his house. The friend referred to by PW2 was PW3. PW3 also

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spoke to the handing over of `2,00,000/- by PW2 to the respondent. In cross-examination as

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well both PWs 2 and 3 maintained the stand that `2,00,000/- was given by PW2 to the respondent. No damage could be caused in the crossexamination of either PW2 or PW3 to their

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Mat.appeal723/2007 & 563/2008

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evidence suggesting payment of `2,00,000/-. Both of them spoke that the money was packed in a plastic bag and that the bag was handed over. However, according to PW1, the bundle of notes was wrapped in a paper and the said packet was kept in the plastic bag. PW3 spoke that the bundle of notes was not wrapped in paper. This was the only discrepancy which was highlighted and magnified by the trial court to deny the claim of the first petitioner for two lakhs rupees. We do not at all consider the said socalled discrepancy or inconsistency as a discrepancy or inconsistency sufficient to spoil the claim of the first petitioner. That apart, the payment was in June, 1992 and the witnesses gave evidence in October, 2007. When witnesses depose to a fact which had taken

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Mat.appeal723/2007 & 563/2008

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place about 1 ½ decades ago, such discrepancy or inconsistency is bound to happen. We accept the evidence of PWs 2 and 3 that there was a payment of `2,00,000/- by the former to the respondent two or three days before the marriage.

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The respondent did not give any rebuttal evidence. His failure to give rebuttal evidence should be taken note of. It is true that he was working abroad. It may be inconvenient for him to come all the way from Sharjah to the family court at Malappuram to give evidence. But it was certainly not impossible. The evidence of the power of attorney holder is not a substitute for the evidence of the respondent who, going by the evidence, received the amount of `2,00,000/-.

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Mat.appeal723/2007 & 563/2008

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We decree the said claim of the first

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petitioner.

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The first petitioner has another claim for 2,00,000/-. So far as that claim is concerned she got an easy walkover. She spoke that she received from her father 2,00,000/- and that she handed it over to the respondent. The said evidence of PW1 was not touched in crossexamination. No single question was put to challenge the payment of 2,00,000/- in 2003 by the first petitioner to the respondent. Therefore the evidence of PW1 that she received 2,00,000/- from her father and gave it to her husband should be taken as admitted at the trial. The respondent did not give rebuttal evidence. We have no hesitation to decree the said claim too.

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Mat.appeal723/2007 & 563/2008

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We dispose of the appeals as under:

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Mat.Appeal No.563 of 2008 is dismissed without costs. Mat.Appeal No.723 of 2007 is allowed in part. O.P.No.338/2007 on the file of the family court stands decreed in favour of the wife and against the husband for a sum of `4,00,000/- (four lakhs only). The amount shall carry interest at the rate of 7% per annum from the date of suit till realisation. The appellant in Mat.Appeal 723/2007 shall be entitled to proportionate costs throughout.

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Sd/- K.Harilal, Judge Sd/- A.M.Babu, Judge

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sl/9.2.2018

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/true copy/ P.S. To Judge

Saneera @ Suneera v. Abdurahiman Haji

Case brief

What is this about?

What did the court decide?

Saneera @ Suneera v. Abdurahiman Haji

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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