Dismissed

Shamila v. Faisal

Kerala HC20 Nov 2023Mat.Appeal/416/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal against a Family Court order that partially allowed a wife's claim for recovery of gold ornaments and other amounts. The appellate court upheld the trial court's finding that specific entrustment evidence was lacking and found no perversity in the limited monetary recovery granted.

What did the court decide?

Condonation of delay and the matrimonial appeal were dismissed, upholding the trial court's partial allowance of ₹43,000 with interest.

Shamila Vs Faisal — Matrimonial and Divorce | Kerala HC (2023)

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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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 20^TH DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 MAT.APPEAL NO. 416 OF 2023

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AGAINST THE JUDGMENT AND DECREE PASSED BY THE HON'BLE FAMILY COURT, IRINJALAKUDA, THRISSUR DISTRICT IN O.P.NO. 639/2017, DATED 01.06.2022.

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APPELLANT/PETITIONER:

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SHAMILA, AGED 34 YEARS, W/O FAISAL (S/O. PICHATHARA VEETTIL ABDUL KHADER), NORTHERN SIDE OF JTS SCHOOL, KOTHAPARAMBU DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, D/O. THARUPEEDIKAYIL VEETTIL ABDULLA, KADALAYI DESOM, KARUMATHRA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN – 680 123. BY ADV K.V.RASHMI

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RESPONDENTS/RESPONDENTS:

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1 FAISAL, AGED 35 YEARS, S/O PICHATHARA VEETTIL ABDUL KHADER, NORTHERN SIDE OF JTS SCHOOL, KOTHAPARAMBU DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN – 680 668. 2 ABDUL KHADER, AGED 76 YEARS, S/O. PICHATHARA VEETTIL MUHAMMED, NORTHERN SIDE OF JTS SCHOOL, KOTHAPARAMBU DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN – 680 668.

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C.M.A.No.1/2023 & Mat Appeal No.416 of 2023

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3 FATHIMA ABDUL KHADER, AGED 71 YEARS, W/O. PICHATHARA VEETTIL ABDUL KHADER, NORTHERN SIDE OF JTS SCHOOL, KOTHAPARAMBU DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN – 680 668.

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.M.A.No.1/2023 & Mat Appeal No.416 of 2023

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AMIT RAWAL & C.S.SUDHA, JJ.

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C.M.A.No.1/2023 & Mat Appeal No.416 of 2023

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Dated this the 20^th day of November, 2023

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J U D G M E N T

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Amit Rawal, J.

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The present appeal is directed against the judgment and decree dated 01/06/2022 in O.P.No.639 of 2017 of the Family Court, Irinjalakuda, whereby the claim of the appellant/wife for return of 85 sovereigns of gold ornaments has been partly allowed, along with an application seeking condonation of delay of 335 days in filing the appeal.

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2 . The marriage between the appellant and respondent as per the Muslim rites was performed on 25.07.2015. No issues are born out of the wedlock. From 25.08.2015 they have been living separately. In other words, they lived together only one month. Appellant instituted O.P.No.635/2017 for dissolution of marriage but for the reasons best known, withdrew the

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same. In O.P.No.639/2017 preferred after two years of the separation, claim

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was confined to 85 sovereigns of gold alleged to have been entrusted not only to the respondent/husband but his parents, i.e., respondent no.2 and 3

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in the present appeal and also before the trial court in the aforementioned

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C.M.A.No.1/2023 & Mat Appeal No.416 of 2023

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O.P. In support of the evidence filed an affidavit of proof and placed on record certain bills. However, in the cross-examination, it surfaced that she was only in possession of 10 sovereigns of the gold and remaining were entrusted to the in-laws as well as the husband. But to a specific question, answered that in-laws are impleaded only on the ground that they were harassing her. Trial court noticing the case law on the point like Bhaskaran v. Radha, 2019 (3) KHC 960 (DB) and various other judgments, denied the claim of return of gold ornaments except for ordering a return of ₹43,000/along with the interest at the rate of 9% which was found to have been proved.

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3 . Learned counsel ap pearing on behalf of the appellant submitted

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that the court below has misread the contents of the bills as the series of the bills would reflect that the claim was i n consonance with the contents of the bills. Placing on record of the bills was sufficient in discharge of the proof. The respondent/husband did not deny the same and the court below only relied upon the contents of the cross-examination which cannot be a sermon for adjudication of the laws.

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4 . We have heard counsel for the appellant and appraised the paper book and of the view that there is no force on merit. Besides the

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C.M.A.No.1/2023 & Mat Appeal No.416 of 2023

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claim for return of the gold ornaments, claim qua return of i-phone and certain other amounts was also made. Subjected to cross-examination the court also found that not only the claim for return of the i-phone much less the entrustment was false but even return of the gold ornaments, as in the cross-examination her deposition was that the in-laws were impleaded only on account of the harassment. The petition filed on a vagueness and without any concrete or direct evidence definitely would fail, precisely this is what has been noticed and done by the trial court. We do not find any illegality or perversity in the judgment regarding the rejection of the claim with regard to the entrustment of gold ornaments and find that partially allowing the O.P. with regard to return of ₹43,000/- with interest is perfectly legal and justifiable.

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Accordingly, C.M.A.No.1/2023 of condonation of delay as well as the appeal are dismissed.

Sd/-

AMIT RAWAL JUDGE

Sd/-

C.S.SUDHA JUDGE

Shamila v. Faisal

Case brief

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Shamila v. Faisal

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