Dismissed

Asmira v. Abdul Gafoor K.K.

Kerala HC13 Sept 2021Mat.Appeal/326/2013

Case brief

AI extract

What is this about?

This appeal challenges the Family Court's dismissal of a claim for recovery of 100 sovereigns of gold ornaments allegedly misappropriated by the respondent. The High Court upheld the dismissal, relying on a mediation settlement statement (Ext.B1) and witness testimony that the gold remained with the appellant.

What did the court decide?

Claim for recovery of 100 sovereigns of gold ornaments was dismissed.

Asmira Vs Abdul Gafoor K.K. — Matrimonial and Divorce | Kerala HC (2021)

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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.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 13^TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943 MAT.APPEAL NO. 326 OF 2013

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AGAINST THE ORDER/JUDGMENT IN OP 250/2011 OF FAMILY COURT, VADAKARA, KOZHIKODE

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APPELLANT/S:

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ASMIRA, AGED 30 YEARS, D/O.KUNHALI HAJI, HOUSEWIFE, RESIDING AT KUNIYIL, VALAYAM AMSOM DESOM, POST VALAYAM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.

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BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR SMT.SEEMA

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RESPONDENT/S:

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ABDUL GAFOOR K.K., AGED 40 YEARS, S/O. ASSAINAR HAJI K.K., POST BOX 5947, DOHA QATAR (REPRESENTED BY POWER OF ATORNEY HOLDER FATHER MR. KOOLIKKANDIYIL ASSAINAR HAJI, S/O.AHMED HAJI, SWASTHAM, 75 YEARS, EDACHERI AMSOM DESOM, VATAKARA TALUK) BY ADVS. SRI.T.R.HARIKUMAR SMT.S.R.NEETHU RAJ

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.326/2013 2

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JUDGMENT

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A. Muhamed Mustaque, J.

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The dispute in this appeal is in regard to the claim made by the appellant for the recovery of 100 sovereigns of gold ornaments from the respondent. The Family Court, Vatakara, dismissed the claim mainly relying on Ext.B1 and supported by the oral testimony of RW2, an independent witness.

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The appellant's case is that her father was working in a gulf country and gave her 100 sovereigns of gold ornaments. According to the appellant, this was misappropriated by the respondent during the subsistence of marriage. The marital relationship has come to an end, and the respondent remarried. The Family Court granted the divorce in a petition filed by the appellant. That was tried along with this matter. A common judgment was passed granting dissolution of the marriage and dismissing the present claim raised in this appeal.

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Mat.Appeal No.326/2013 3

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There cannot be much dispute in regard to the gold ornaments available with the appellant at the time of marriage. This was supported by Ext.A1 passport and other documents produced by the appellant. However, there was a serious issue in regard to the entrustment and misappropriation by the respondent.

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The Family Court mainly relied on Ext.B1 document. Ext.B1 is the statement of Asmira made on 08.01.2011 in the presence of RW2. RW2 acted as a mediator. He was an officebearer of the local mosque. RW2 gave evidence in tune with the mediation settlement referred to in Ext.B1. In the mediation, the appellant appears to have accepted the entire gold ornaments were with her.

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RW2 along with another person Thazhekunu

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Kunhammad Haji are signatory to Ext.B1. The appellant also signed Ext.B1. The respondent also made an attempt to prove

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Mat.Appeal No.326/2013 4

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Ext.B1. However, the Family Court did not accept the same, stating that it was highly belated. We need not disbelieve Ext.B1, especially in the light of the oral testimony of RW2, who is a local mosque member. The details of the jewellery were mentioned in Ext.B1. The appellant has no case that the respondent took all the gold ornaments after the execution of Ext.B1. In the light of the oral testimony of RW2 supporting Ext.B1, we are of the view that the case put forward by the appellant that the entire gold ornaments were taken away by the respondent is unbelievable. There are no other materials available to support the case of the

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appellant that the gold ornaments were entrusted to the respondent and misappropriated by him. We, therefore, dismiss this appeal. No order as to costs.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE Sd/DR. KAUSER EDAPPAGATH, JUDGE

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Asmira v. Abdul Gafoor K.K.

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Asmira v. Abdul Gafoor K.K.

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