Disposed

Fazil Represented by Power of Attorney Holder, Ummer v. Faseela

Kerala HC15 Sept 2023Mat.Appeal/442/2023

Case brief

AI extract

What is this about?

In a matrimonial appeal challenging a Family Court order for the return of gold ornaments and maintenance, the High Court upheld the trial court's findings based on preponderance of evidence but modified the interest rates applicable to the wife and child.

What did the court decide?

Interest rate on arrears of maintenance and child support reduced from 7.5% to 6% per annum from the date of decree.

Fazil Represented by Power of Attorney Holder, Ummer… — Maintenance and Alimony | 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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FRIDAY, THE 15^TH DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945

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MAT.APPEAL NO. 442 OF 2023

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AGAINST THE COMMON JUDGMENT IN OP 664/2017 OF FAMILY COURT, MALAPPURAM

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APPELLANT/RESPONDENTS:

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1 FAZIL, AGED 36 YEARS, THANIYAN HOUSE, ELAMKULAM AMSOM, PALATHOLE DESOM, KUNNAKKAVU P.O., CHERUKARA VIA, MALAPPURAM DISTRICT, KERALA - 679 340 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, UMMER THANIYAN HOUSE, ELAMKULAM AMSOM, PALATHOLE DESOM, KUNNAKKAVU P.O., CHERUKARA VIA, MALAPPURAM DISTRICT, KERALA - 679 340. 2 UMMER AGED 63 YEARS, S/O. POKKU, THANIYAN HOUSE, ELAMKULAM AMSOM, PALATHOLE DESOM, KUNNAKKAVU P.O., CHERUKARA VIA, MALAPPURAM DISTRICT, KERALA, PIN - 679340 3 ABOOBAKKAR SIDHIQUE, AGED 37 YEARS, S/O THANIYAN HOUSE, ELAMKULAM AMSOM, PALATHOLE DESOM, KUNNAKKAVU P.O, CHERUKARA VIA, MALAPPURAM DISTRICT, KERALA. - REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, UMMER THANIYAN HOUSE, ELAMKULAM AMSOM, PALATHOLE DESOM, KUNNAKKAVU P.O., CHERUKARA VIA, MALAPPURAM DISTRICT, KERALA, PIN - 679340 4 RUKHIYA,AGED 57 YEARS, W/O. UMMER, THANIYAN HOUSE, ELAMKULAM AMSOM, PALATHOLE DESOM, KUNNAKKAVU P.O., CHERUKARA VIA, MALAPPURAM DISTRICT, KERALA, PIN - 679340 BY ADVS. SHERRY J. THOMAS ANTONY NILTON REMELO JOEMON ANTONY

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Mat. Appeal No.442 of 2023

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RESPONDENTS/PETITIONERS:

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1 FASEELA, AGED 31 YEARS, D/O. ABDUL MAJEED, PUKKATTUTHODI HOUSE, MANNENKAYA QUARTERS, AANAMANGAD P.O. PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679357

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2 MUHAMMED JASIL, AGED 8 1/2 YEARS, MINOR, REPRESENTED BY MOTHER FASEELA, 1ST PETITIONER, RESIDING AT POOKOTTUTHODI HOUSE, MANNENKAYA QUARTERS, ANAMANGAD POST, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN - 679357

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BY ADV SHAMEENA SALAHUDHEEN

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat. Appeal No.442 of 2023

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AMIT RAWAL & C.S.SUDHA, JJ.

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------------------------------------------------------Mat. Appeal No.442 of 2023 ---------------------------------------------------Dated this the 15^th day of September, 2023

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JUDGMENT

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Amit Rawal, J.

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The present appeal is preferred by the husband challenging the order dated 20/12/2022 in O.P.No.664/2017 whereby direction has been issued to return 17 sovereigns; ₹1,00,000/- to the wife and ₹36,000/- to the child towards the arrears of maintenance with interest at the rate of 7.5% from the date of the petition till the date of the decree and thereafter at the rate of 6% per annum from the date of the decree.

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Succinctly the facts in brief are – the marriage between the first appellant and the first respondent was performed on 13/01/2013 as per the Islamic rites. They lived as husband and wife and out of the wedlock, 2^nd respondent- child was born on 05/10/2013, who is now 10 years old. At the time of the marriage, 25 sovereigns of gold ornaments were given to the wife along with ₹2 lakhs. Appellants despite having received the said amount, treated the 1^st respondent with cruelty. All the gold ornaments given at the time of marriage were handed over to the appellants.

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On 16/03/2013 the first appellant went abroad. The family

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Mat. Appeal No.442 of 2023

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members not only harassed but also physically assaulted the 1^st respondentwife on bringing less dowry and demanded more money. Father of the first respondent paid a sum of ₹1,00,000/- to the 3^rd appellant. Since the harassment of the in-laws was unabated, the first respondent was compelled to leave the house on 15/12/2015. Husband abandoned the wife and married another lady and withheld 224.1 grams of gold ornaments. M.C.No.210/2017 for interim maintenance has also been filed along with O.P No.664/2017. However, as there is no challenge, we would not like to deal with the facts and the order passed in the said M.C. The 1^st respondent-wife examined herself as PW1 and examined her father as PW2. Station House Officer of the Perninthalmanna Police Station was examined as RW1 and the first appellant examined himself as RW1. 1^st respondent-wife brought on record Exts.A1 to A5 whereas the appellants, Exts.B1 to B16. Family Court considered the following issues -

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I. whether the respondents in O.P.664/2017 have withheld the ornaments of the first petitioner and if so, what is the quantity of the ornaments so withheld.

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II. Whether the payments of Rs.3,00,000/- is true?

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III. Whether petitioners in O.P.664/2017 is entitled to get arrears of maintenance and if so, what is the reasonable amount?

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Mat. Appeal No.442 of 2023

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IV. What are the monthly allowances if any payable by the respondent in M.C.210/2017 to the petitioners?

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Ext.A1 was the bill issued by 'Anaswara Gold' in respect of

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160.1 grams of ornaments dated 10/01/2013. Ext.B1 is the complaint given to the police whereby FIR bearing No.674/2017 was registered and Ext.B2 is a petition in M.C.No3/2020 filed by the 1^st respondent-wife invoking the provisions of the Domestic Violence Act. On the basis of the aforementioned evidence, trial court awarded return of 17 sovereigns of gold and ₹1 lakh to the wife and ₹36,000/- to the 2^nd respondent/minor child.

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Learned counsel appearing on behalf of the appellants submitted that there was no mention of entrustment of ₹2 lakhs in the petition filed under the provisions of the Domestic Violence Act and the said assertion came for the first time only in the present O.P. Wife admitted that 3 sovereigns of gold ornaments as mehar were given and she was willing to return the same, provided the gold ornaments given by her parents be ordered to be returned. Trial court without properly assessing the evidence and appreciating the facts, directed that the appellants to return the market value of 17 sovereigns of gold ornaments on the date of payment or realization + 8% of market value towards the making charges.

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Mat. Appeal No.442 of 2023

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No doubt the first appellant is working abroad but that would not mean that he has means and capacity to pay. The appellants had also given a gold ornament. No distinction has been drawn vis-a-vis the gold ornaments handed over by the husband's side. There was serious discrepancies and contradictions in the testimony of PW1 vis-a-vis the cross examination which has also not been looked into and there is a misdirection of both oral and documentary evidence.

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On the other hand, learned counsel appearing on behalf of the respondent-wife submitted that the bill showed that 45 sovereigns were purchased and the court had subtracted the sovereigns given as mehar and ordered for return of 17 sovereigns. Though did not believe the testimony of return of ₹2 lakhs for which a cross appeal has already been filed which is under objection, had ordered for return of ₹1 lakh along with interest at the rate of 7.5% and 6% to the wife and ₹36,000/- to the child. The respondent-wife through Ext.B2, categorically stated that a sum of ₹1 lakh was paid subsequently and therefore there could not be any assertion or averments in the petition under domestic violence for handing over of ₹2 lakhs. There was specific averments in Ext.B2 under the domestic violence for handing over 24 sovereigns. It was further urged that the judgment of the court below is based on the preponderance of the evidence

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Mat. Appeal No.442 of 2023

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and do not call for interference and urged this Court for dismissal of the appeal.

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We have heard the learned counsel for the parties and appraised the paper book. The trial court noticed that the age of the first respondent at the time of the marriage was just 17 years and in a marriage it cannot be believed that she was not entrusted with any gold ornaments particularly in respect of the marriage performed in Kerala. In the schedule, the weight of the anklet shown was 31 grams. Each bangle weighed 1 sovereign and ear-studs, 4 grams. Presumption is also drawn that the wife was permitted to use the maher chain, two bangles, ear-studs and anklets. By excluding the aforementioned items, the court arrived at a finding that the respondent-wife was entitled to return of 17 sovereigns instead of 25. But the first appellant is working in UAE and have a substantial income to bear the cost of ₹1 lakh as ordered. There is no contradiction in the testimony of the 1^st respondent-wife for, she clarified in the cross examination that a sum of ₹1 lakh was paid subsequent to the filing of the petition under Protection of Women from Domestic Violence Act. There is a categoric admission of wife with regard to the receipt of 3 sovereigns as maher. The court subtracted 3 sovereigns and also by taking into consideration the weight of the other ornaments, arrived at a finding of 17

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Mat. Appeal No.442 of 2023

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sovereigns.

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We are of the view that the findings given by the court is

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based on the preponderance of the evidence and do not call for interference except that while ordering return of ₹1 lakh, interest at the rate of 7.5% per annum from the date of petition till the decree has been ordered and thereafter at the rate of 6%. We deem it appropriate to reduce the rate of 7.5% as ordered by the trial court from the date of the decree till realization to 6%. Similarly, there shall be change with regard to the rate of interest to the maintenance granted to the child which shall be reduced from 7.5% to 6%.

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With the aforementioned modification, the appeal stands disposed

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off.

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Sd/- AMIT RAWAL JUDGE

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Sd/- C.S.SUDHA JUDGE

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Jms

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Mat. Appeal No.442 of 2023

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APPENDIX OF MAT.APPEAL 442/2023

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PETITIONER EXHIBITS Exhibit1 THE TRUE COPY OF THE COMMON JUDGMENT DATED 20-12-2022 IN THE ORIGINAL PETITION NO. 664/2017 OF THE FAMILY COURT, MALAPPURAM

Fazil Represented by Power of Attorney Holder, Ummer v. Faseela

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Fazil Represented by Power of Attorney Holder, Ummer v. Faseela

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