Allowed

Ummer v. Saifunneesa

Kerala HC24 Jun 2019Mat.Appeal/296/2012

Case brief

AI extract

What is this about?

This appeal by the husband and his parents challenged a Family Court order directing them to return gold ornaments and money to the wife. The court allowed the appeal, holding that the husband was personally liable for gifts entrusted to him, and the appellants were not liable. The decree against the appellants was set aside.

What did the court decide?

Decree against appellants regarding return of ornaments and money set aside; decree against husband confirmed.

Ummer Vs Saifunneesa — Maintenance and Alimony | Kerala HC (2019)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941

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Mat.Appeal.No.296 of 2012

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AGAINST THE ORDER IN OP 486/2010 of FAMILY COURT, MALAPPURAM DATED 29-02-2012

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APPELLANTS/2ND AND 3RD RESPONDENTS:

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1 UMMER, AGED 65 YEARS S/O. KUNHAYIDRU, RAMANALUKKAL HOUSE, P.O.CHEMBRA,CHEMBRA AMSOM DESOM, TIRUR TALUK.

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2 KUNHIKKADIYUMMA, AGED 55 YEARS W/O. UMMER, RAMANALUKKAL HOUSE, P.O. CHEMBRA, CHEMBRA AMSOM DESOM, TIRUR TALUK.

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BY ADV. SRI.V.N.SUNIL KUMAR

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RESPONDENT/PETITIONER AND 1ST RESPONDENT:

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1 SAIFUNNEESA, AGED 31 YEARS, D/O. MUHAMMAD, THAYYILKOTHAKATH HOUSE., P.O. B.P. ANGADI, THALAKKAD AMSOM DESOM, TIRUR TALUK-676537.

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2 SALEEM AGED 37 YEARS

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S/O. UMME, RAMANALUKKL HOUSE, P.O., CHEMRA, CHEMBRA AMSOM DESOM, TIRUR TALUK-676521.

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BY ADV. SRI.C.M.MOHAMMED IQUABAL

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Mat.A.No.296/2012

JUDGMENT

SHAFFIQUE, J

This appeal is filed by respondents 2 and 3 in O.P.No.486/2010 of the Family Court, Malappuram. The original petition is filed by the 1^st respondent herein seeking return of gold ornaments and money. According to her, at the time of her marriage with the 1^st respondent/husband, her parents had handed over Rs.1,50,000/- as her parental share and 45 sovereigns of gold ornaments were given to her. The entire money and gold ornaments were appropriated by the respondents. She also claimed past maintenance at the rate of Rs.4,000/- per month from the 1^st respondent.

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Respondents 2 and 3 denied the allegations. The 1^st respondent/husband remained ex-parte. The Family Court directed the appellants herein to return 45 sovereigns of gold ornaments and Rs.1,50,000/- maintenance was awarded against the 1^st respondent which is not under challenge in this appeal.

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The main contention urged by the learned counsel for the appellants is that there is no entrustment or appropriation of gold ornaments or money as alleged and therefore the court below is not justified in granting a decree against the appellants. If at all there is any entrustment or appropriation of money and gold, her husband alone is responsible and such a liability cannot be mulcted upon the

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Mat.A.No.296/2012

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appellants. The 1^st respondent herein wife has pleaded in the original petition that Rs.1,50,000/- was entrusted to the 1^st respondent by her parents. If the money is entrusted to the 1^st respondent, definitely it is his obligation to account for the same and respondents 2 and 3 cannot be made liable to refund the same. The court below hence committed error in directing the appellants to return Rs.1,50,000/-

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As far as the gold ornaments are concerned the contention urged by the appellants was that the marriage was fixed by the 1^st respondent/husband himself. The 1^st respondent herein, wife is the sister of his friend. They never demanded any money or gold from the side of the bride or family and they have not made any note of the gold ornaments she was having, which she kept with herself.

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In the petition the wife had pleaded that out of her gold ornaments, 10 sovereigns of gold ornaments were entrusted to the husband for the purpose of meeting the expenditure for going abroad and balance were entrusted to respondents 2 and 3, i.e., appellants herein at the instance of 1^st respondent for meeting various expenditure. This fact has been denied by the appellants in their objection. Other than the oral testimony of PW1 there is no other evidence to prove the entrustment of gold to the appellants. That apart, the 1^st appellant had given evidence as RW1 clearly stating that he was not entrusted with any of her gold ornaments.

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When a wife had certain quantity of gold ornaments which

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Mat.A.No.296/2012

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were admittedly available with her, if it is on the direction of 1^st respondent/husband that she had given the gold ornaments to respondents 2 and 3/appellants herein, it is for the 1^st respondent to account for the same. That apart, there is no evidence to prove that the appellants had appropriated the same for any particular purpose. Further the original petition is filed 6 ½ years after the date of separation which itself is an indication that subsequently a false case has been made out against the appellants herein. Therefore we are of the view that the Family Court committed serious error in granting a decree against the appellants, whereas it is justified in granting a decree against the 1^st respondent/husband as he remains ex-parte.

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In the result, the appeal is allowed. The decree against the appellants/respondents 2 and 3 shall stand set aside. In all other respects the decree shall stand confirmed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

N.ANIL KUMAR

True copy

JUDGE

P.A. To Judge.

Ummer v. Saifunneesa

Case brief

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Ummer v. Saifunneesa

Case brief

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