Partly allowed

Faizal Babu P.A. v. Shakeela C.A.

Kerala HC21 Jun 2023Mat.Appeal/109/2013

Case brief

AI extract

What is this about?

This matrimonial appeal challenged a decree ordering the husband to return 34 sovereigns of gold. The Court modified the decree, deducting 15 sovereigns for the wife's reasonable daily wear, and ordered the return of 19 sovereigns. It awarded market value at Rs.20,000 per sovereign with 6% interest.

What did the court decide?

Appellants liable to return 19 sovereigns of gold or market value @ Rs.20,000/- per sovereign with 6% interest in default.

Faizal Babu P.A. Vs Shakeela C.A. — Matrimonial and Divorce | Kerala HC (2023)

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INTHEHIGHCOURTOFKERALAATERNAKULAM
PRESENT
THEHONOURABLEMR.JUSTICEA.MUHAMEDMUSTAQUE
&

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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 21^ST DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 MAT.APPEAL NO. 109 OF 2013 AGAINST THE ORDER/JUDGMENT IN OP 287/2009 OF FAMILY COURT, PALAKKAD

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APPELLANTS/RESPONDENTS:

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1 FAIZAL BABU P.A. SHUBAGRAHA, VENNAKKARA, NURANI P.O., PALAKKAD, KERALA, PIN-678004.

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2 ABDUL RAHIMAN.P.U. SHUBAGRAHA, VENNAKKARA, NURANI P.O., PALAKKAD, KERALA, PIN-678004.

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BYADVSMT.M.P.SUNITHABEEGUM

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PETITIONER/COMPLAINANT

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SHAKEELAC.A.
HOUSENO.98,CHANDRANAGARCOLONY,
CHANRANAGARP.O.,PALAKKAD,KERALA,
PIN-678007.

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BYADVS.
SRI.NAGARAJNARAYANAN
SRISAJALP.E.
SRI.I.J.AUGUSTINE
SRI.BENOJCAUGUSTIN
SMT.J.KASTHURI
SRI.SAIJOHASSAN
SRI.SEBINTHOMAS

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THISMATRIMONIALAPPEALHAVINGBEENFINALLYHEARDON
12.06.2023,THECOURTON21.06.2023DELIVEREDTHE
FOLLOWING:

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Mat.Appeal No.109 of 2013

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A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.

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Mat.Appeal No.109 of 2013

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Dated this the 21^st day of June, 2023

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J U D G M E N T

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Sophy Thomas, J.

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This appeal has been preferred by the respondents in OP No.287 of 2009 on the file of Family Court, Palakkad, impugning the judgment and decree dated 07.03.2012.

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OP No.287 of 2009 was filed by the wife for recovery of 61 sovereigns of gold ornaments entrusted with her husband and his father. They opposed the petition contending that, the wife was given only 50 sovereigns of gold at the time of marriage, and they returned 49 sovereigns to her in April, 2007, and hence nothing remains to be returned.

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The parties went on trial, by examining PWs 1 to 3 and marking Exts.A1 and A2 from the side of the wife and RW1 from the side of the husband. Exts.X1 and X1(a) were marked as

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witness exhibits.

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After analyzing the available facts and evidence, learned

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Family Court Judge decreed the OP in part, directing the appellants herein to return 34 sovereigns of gold ornaments or its market value @ Rs.20,000/- per sovereign, within one month, and in default, to pay interest @ 6% per annum from the date of decree till realisation. Challenging that judgment and decree, this appeal has been preferred.

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Now we are called upon to find out whether there is any illegality or impropriety in the impugned judgment, warranting interference by this Court.

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Heard learned counsel for the appellants and learned counsel for the respondent.

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The 1^st appellant and the respondent are husband and wife and their marriage was solemnised on 08.05.2005 as per Muslim rites and custom. The respondent/wife would say that, she was given 110 sovereigns of gold ornaments from her family, at the time of marriage, and within a short period after marriage, her

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entire gold ornaments were received by the appellants for keeping it safe, in bank locker, except some ornaments, which were in her daily use. Due to matrimonial cruelties meted out to her, she was not able to continue in her matrimonial home and so, she returned to her paternal house in April, 2007. At that time, 49 sovereigns of gold ornaments were returned to her by her father-in-law, on signing a stamped document. But, the balance 61 sovereigns were not returned to her, and hence, she filed the OP.

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The respondent/wife relied on Ext.A2 photographs to show that, at the time of marriage, she was wearing 110 sovereigns of gold. PW2-a neighbour was also examined to support her case that, at the time of marriage, her father had given her 110 sovereigns of gold. PW3-the Secretary of her Mahal produced Ext.X1 register showing the patrimony agreed to be given for the marriages conducted under the auspices of that Mahal, during the period 2004 to 2010. The relevant entry with respect to the marriage of the 1^st appellant and respondent is Ext.X1(a) and it is mentioned there that, the gold was 110

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sovereigns. It is pertinent to note that, PW3 was not cross-examined by the appellants. So, the testimony of PW3 and Ext.X1(a) stand unchallenged.

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Learned counsel for the appellants challenged Ext.X1 register saying that, except Ext.X1(a), all other pages in that register are written in Malayalam and only Ext.X1(a) is written in English. But, they have no case that Ext.X1 register was manipulated by the Secretary of the Mahal, and they have no such case when PW3 was in the box.

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The appellants have got another contention that, the usual practice in Mahal is to donate Rs.100/- per sovereign to the Masjid. In Ext.X1(a), the donation to the Masjid is shown as Rs.5,000/-. So, according to them, it will prove their case that, the gold ornaments given to the respondent from her family was only 50 sovereigns. But, on going through Ext.X1 register, it could be seen that, there was no uniformity in donating amounts to Masjid,

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and it was not in accordance with the gold ornaments given to the bride. For example, in an entry in Ext.X1 dated 05.04.2009, for

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the marriage of one Mr.Azeez and Rafeena, the gold ornaments given were 20 sovereigns; but, the donation to the Masjid was Rs.5,000/-. If the amount to be paid was Rs.100/- per sovereign, the payment to Masjid should have been only Rs.2,000/-. So, we cannot come to the conclusion that, the gold ornaments given to the respondent was only 50 sovereigns, as the donation to Masjid was only Rs.5,000/-. Moreover, there is specific entry in Ext.X1(a) that the gold ornaments involved were of 110 sovereigns.

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The respondent is admitting receipt of 49 sovereigns of gold ornaments in April, 2007. She would say that, even after receipt of 49 sovereigns, there was balance of 61 sovereigns to be returned. She would also say that, she had signed a stamped document on receipt of 49 sovereigns of gold ornaments. But, she failed to get that document marked in evidence, to show that, still there were 61 sovereigns of gold to be returned to her, even after giving back 49 sovereigns of gold.

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Ext.A1 is the extract of the petition register of Town South Police Station, Palakkad dated 30.04.2008. It was on the

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basis of a complaint filed by the wife. In that document, the 1^st appellant/husband had agreed that, as an advance for returning the gold ornaments of the wife taken by him, he had given a cheque for Rs.50,000/-, and the balance will be given within one year. Admittedly, that settlement was in the year 2008 after returning 49 sovereigns of gold ornaments to the wife in April, 2007. If the total gold to be returned to the wife was only 49 sovereigns, he ought not have given cheque for Rs.50,000/-, as part payment towards the gold ornaments taken by him, and he might not have agreed to pay the balance within one year. So, obviously, even after returning 49 sovereigns of gold to the respondent, the husband was retaining some gold ornaments with him, and that is why he signed Ext.A1 document before the Police Station. Though RW1-husband tried to wriggle out from the contents of Ext.A1 saying that, after getting his signature, that document was manipulated etc., there is no reason to disbelieve Ext.A1 document, as it was executed on settling the issues between the husband and wife, before the Police Station.

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Mat.Appeal No.109 of 2013

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The available facts and circumstances, coupled with Exts.A1, A2, X1 and X1(a), were sufficient to show that, even after returning 49 sovereigns of gold, the appellants were retaining some of the gold ornaments of the respondent. Learned Family Court Judge, after analysing the evidence, found that the appellants were liable to return 34 sovereigns of gold to the respondent. But the learned Judge omitted to deduct the ornaments admittedly kept with the respondent/wife, when she entrusted her ornaments with the appellants. True, she has not stated the weight of gold she had kept with her. A Muslim wife who was given away in marriage giving 110 sovereigns of gold ornaments cannot be expected to part with her entire gold ornaments with the husband and in-laws for keeping in bank locker. She might have been keeping reasonably sufficient ornaments with her for her daily wear and also to attend functions. It is pertinent to note that, though her claim was for 61 sovereigns of gold, the Family Court awarded only 34 sovereigns, but there is no appeal against that decree from her part. So, obviously, the

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appellants were not possessing her 61 sovereigns of gold ornaments as claimed by her. If she had got any grievance, she ought to have filed an appeal against that decree. The parties know the truth, but they are suppressing the truth to wreak their vengeance against each other. When the parties are not giving the real picture about the quantity of gold kept or taken away by them, the courts will be taken for a ride based on assumptions and guess work. In normal course, a Muslim wife, who was having 110 sovereigns of gold ornaments, might have been keeping at least 14-15 sovereigns of gold with her for her use. She was admitting before court that, she was having anklet, earsteads etc. with her. But, even then, her claim was for the entire 61 sovereigns of gold, being the balance after receipt of 49 sovereigns. So, that will speak against the genuineness of the claim put forward by her. So, we are inclined to deduct 15 sovereigns of gold from 34 sovereigns granted by the Family Court. After deducting 15 sovereigns of gold which might have been kept with her, she is eligible to get the balance 19 sovereigns of gold, or its market value @

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Mat.Appeal No.109 of 2013

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Rs.20,000/- per sovereign with interest @ 6% in case of default.

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In the result, the appeal is allowed in part, modifying the impugned judgment and decree to the extent that the appellants are liable to return 19 sovereigns of gold to the respondent within one month from today and in default, they have to pay the market value @ Rs.20,000/- per sovereign with interest @ 6% per annum from the date of original decree i.e. 07.03.2012 till the date of realisation. No order as to costs.

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Sd/-

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A.MUHAMED MUSTAQUE JUDGE

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Sd/-

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SOPHY THOMAS JUDGE

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smp

Faizal Babu P.A. v. Shakeela C.A.

Case brief

What is this about?

What did the court decide?

Faizal Babu P.A. v. Shakeela C.A.

Case brief

What is this about?

What did the court decide?

What the court decided

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