Kerala High Court
Musthafa vs Shaharban on 18 July, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:53770
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
MAT.APPEAL NO. 20 OF 2020
AGAINST THE JUDGMENT DATED 19.06.2019 IN OP NO.104 OF
2013 OF FAMILY COURT, MALAPPURAM
APPELLANTS/RESPONDENTS:
1 MUSTHAFA
AGED 47 YEARS
S/O. LATE MUHAMMED
2 KUNHAYISHA
AGED 66 YEARS
W/O. LATE MUHAMMED
BOTH ARE RESIDING AT VALARTHODI HOUSE,
KADUNGAPURAM P.O, PALLIKULAMBU, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT, PIN 679 321
BY ADVS.
SHRI.P.VENUGOPAL
SMT.T.J.MARIA GORETTI
RESPONDENT/PETITIONER:
SHAHARBAN, AGED 37 YEARS
D/O. ALAVI, KARUVAKKOTTIL HOUSE, KOLATHUR P.O,
ERUMATHADAM, PERINTHALMANNA TALUK, MALAPPURAM
DISTRICT , PIN 679 338
BY ADV SRI.K.RAKESH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
11.7.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
Mat.A No.20 of 2020 2
DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
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Mat.Appeal No.20 of 2020
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Dated this the 18th July, 2025
JUDGMENT
M.B.Snehalatha, J In this appeal, the appellants, who are R1 and R2 in O.P.No.104/2013 of Family Court, Malappuram, assails the judgment and decree in the said Original Petition which directed them to return the gold ornaments and cash claimed by the respondent herein.
2. For the sake of convenience, the parties shall be referred to by their rank in O.P No.104/2013.
3. Petitioner/wife filed the Original Petition for return of gold ornaments and cash, contending that at the time of her marriage with the 1st respondent, which was solemnized on 19.9.1999, she was given 50 sovereigns of gold ornaments by her parents. Apart from that, her parents also gave ₹1 lakh to the 1 st respondent. As insisted by the 1st respondent, petitioner entrusted all her gold ornaments to the 2nd respondent/mother-in- law, excluding one bangle, anklet and necklace for her daily wear. Subsequent to the marriage, petitioner's father gave an amount of ₹2 lakhs to the 1st respondent for the purpose of arranging a visa to him to go abroad. Respondents misappropriated 48 sovereigns Mat.A No.20 of 2020 3 of gold ornaments entrusted to them. Respondents also misappropriated 10½ sovereigns of gold ornaments gifted by her parents to her minor daughters. They pledged certain gold ornaments in the bank and thereafter sold it for their own purposes. Respondents subjected the petitioner to cruelty and ill- treated her demanding more gold and cash. Due to the mental and physical torture of the respondents, petitioner had to leave the matrimonial home along with her minor children and she is residing in her parental house. Respondents are liable to return the market value of 58½ sovereigns of gold and cash of ₹3 lakhs misappropriated by them.
4. Respondents resisted the claim by contending that at the time of marriage, petitioner had only few gold ornaments; that the petitioner had told the respondents that she was wearing certain imitation ornaments on her wedding day. Further, it was contended that whatever gold ornaments petitioner had, it was in her custody and the respondents are not aware as to whether the ornaments of the petitioner were gold or not; that the respondents have not misappropriated any gold ornaments of the petitioner and the allegations to the contrary are false and incorrect. Respondents also denied the receipt of Rs.3 lakhs allegedly given by the father of the petitioner. They denied the Mat.A No.20 of 2020 4 liability to pay any gold or cash to the petitioner.
5. Before the trial court, petitioner got herself examined as PW1. PW2 and PW3 were also examined on her side and Ext.A1 series marked. 1st respondent got himself examined as RW1.
6. After evaluating the evidence, both oral and documentary, the Family Court allowed the petition, directing the respondents to return 58 ½ sovereigns of gold ornaments and cash of ₹3 lakhs to the petitioner.
7. Aggrieved by the judgment and decree, respondents have filed this appeal contending that the Family Court went wrong in appreciating the evidence in its correct perspective; that the finding of the Family Court that the gold ornaments and cash were misappropriated by the respondents is a wrong finding and contrary to the evidence on record. It was contended that there is no evidence to prove the entrustment of gold and cash and its misappropriation and therefore the Family Court went wrong in granting a decree in favour of the petitioner.
8. Per contra, the learned counsel for the petitioner supported the findings of the Family Court and contended that the evidence adduced both oral and documentary, would show that the gold given to the petitioner from her house at the time of her Mat.A No.20 of 2020 5 marriage, the cash given to the 1st respondent and the gold gifted by her parents to her minor daughters were misappropriated by the respondents and therefore there are no reasons at all to interfere with the impugned judgment and decree.
9. The point for consideration is whether the impugned judgment and decree of the Family Court warrants any interference by this Court.
10. Admittedly, the marriage of the petitioner and 1 st respondent was solemnized on 19.9.1999, and two girl children were born in the said wedlock. The specific version of the petitioner is that at the time of fixing the marriage, respondents had demanded 50 sovereigns of gold ornaments and cash of ₹1 lakh and accordingly her parents gave 50 sovereigns of gold to her on her wedding day. In addition to that, cash ₹1 lakh was handed over to the 1st respondent. Further, she has testified that after the marriage, her father had given an amount of ₹2 lakhs to her husband for the purpose of his going abroad and arranging a visa for him. Her further case is that on the wedding day itself, respondents took all her gold ornaments except one bangle, anklet and necklace for her daily wear, under the guise of safekeeping. According to her, she entrusted her 48 sovereigns of gold ornaments to the 2nd respondent/mother-in-law, as insisted by the Mat.A No.20 of 2020 6 1st respondent/husband. She has further testified that the gold ornaments weighing 10½ sovereigns which was gifted by parents to her minor daughters were also misappropriated by respondents 1 and 2. Thus according to PW1, respondents 1 and 2 misappropriated the entire 58 ½ sovereigns of gold ornaments belonging to her and her children and they are liable to return 58½ sovereigns of gold ornaments to her. Apart from that 1 st respondent is also liable to return ₹3 lakhs given to him by her father. She has further testified that she was subjected to cruelty and ill-treatment by the respondents demanding more gold and cash and due to the ill-treatment she had to leave the matrimonial home and to return to the parental home along with her two minor daughters.
11. PW3 who is the paternal uncle of PW1 has testified that during the time of the marriage of the petitioner, her father was abroad and therefore, PW3 along with his another brother Hamza conducted the marriage of the petitioner. He has testified that at the time of marriage, petitioner was given 50 sovereigns of gold ornaments. Apart from that an amount of ₹1 lakh was given to the 1st respondent on the wedding day. He has further testified that the gold ornaments were purchased from Halan Jewellery.
Mat.A No.20 of 2020 7
12. PW2 who is another uncle of the petitioner has testified that due to the ill treatment meted out by the petitioner, she had to leave the matrimonial home and she is residing in her parental home.
13. First respondent who was examined as RW1 has testified that at the time of marriage, petitioner had only few gold ornaments; that she has not entrusted any gold ornaments to the respondents. According to him, he has neither received ₹1 lakh on the date of marriage nor received ₹2 lakhs for the purpose of going abroad as spoken to by PW1. He has also testified that there were no acts of cruelty from his part as spoken to by PW1. According to him, the entire gold ornaments of the petitioner are with her. He has further testified that it was he who purchased gold ornaments for his minor daughters and the same was sold by the petitioner.
14. The specific case of the petitioner is that she entrusted her 48 sovereigns of gold ornaments to the respondents. According to her, she entrusted the gold ornaments to the 2nd respondent, who is her mother-in-law as insisted by the 1st respondent/husband. To substantiate her contention that she had brought 50 sovereigns of gold ornaments to her matrimonial home, she has produced Ext.A1 series photographs. Respondents Mat.A No.20 of 2020 8 have no case that Ext.A1 series photographs are fake or fabricated. During cross examination, when Ext.A1 series photos were shown to RW1, he has categorically admitted that the petitioner had worn ornaments as seen in Ext.A1 series photos. It has come out in evidence that at the time of the marriage of the petitioner, her father was working abroad and he had sufficient financial capacity to give 50 sovereigns of gold ornaments to the petitioner. Though RW1 in his affidavit in lieu of examination in chief would say that petitioner had worn fancy ornaments on her wedding day and she had told him about the said fact, during cross examination, he would say that she did not say so and the averments to the contrary made in his affidavit is incorrect. The suggestion put to PW1 during her cross examination that her family was in a better financial position than that of the family of the respondent also belies the case of the respondents that petitioner was not given 50 sovereigns of gold ornaments as spoken to by her. On an analysis of the evidence, we find that the version spoken to by PW1 that at the time of marriage, she was given 50 sovereigns of gold ornaments by her parents is believable and acceptable, than the case of the respondent that she was wearing imitation ornaments on her wedding day. Ext.A1 series photographs coupled with the versions of Pws 1 and 2 also fortifies Mat.A No.20 of 2020 9 the case of the petitioner that her parents had given 50 sovereigns of gold ornaments to her at the time of marriage and this Court finds no reason to unsettle the finding of the Family Court that petitioner was given 50 sovereigns of gold ornaments from her house at the time of marriage and she had brought the said gold ornaments to her matrimonial home.
15. The specific version of PW1 is that on the wedding day itself, 1st respondent/husband insisted her to entrust the gold ornaments to his mother, namely the 2nd respondent for safe custody and accordingly, except one bangle, anklet and necklace used for her daily wear she entrusted 48 sovereigns of her gold ornaments with the 2nd respondent.
16. This Court has reiterated the position of law that in a claim for return of gold ornaments and patrimony by the wife, the courts have to rely on the principle of preponderance of probabilities in such cases and have to decide the case based on what most likely to have happened in the given the facts and circumstances and available evidence. The transfer of gold ornaments and other valuables usually occurs in the presence of family and relatives and not through any formal document. Therefore, the courts have to adopt a humane and practical approach while dealing with the claim for return of gold ornaments Mat.A No.20 of 2020 10 by the wife against the in-laws.
17. PW1 has categorically testified that she entrusted the gold ornaments to the 2nd respondent as insisted by the 1 st respondent for safe keeping. 2nd respondent/mother-in-law has not chosen to enter into the witness box to deny the version given by PW1 and to speak her case on oath.
18. It is only probable that during the subsistence of the marriage, the valuables of the newly wedded girl will be entrusted with her husband and his parents and it would not be reasonable and prudent to insist on the production of the documents for such entrustment which took place in a family.
19. Though the respondent would contend that the entire gold ornaments of the petitioner are with herself, the said version is not believable and the respondent failed to establish that the entire gold ornaments of the petitioner are with her. There is no valid and plausible explanation on the side of the respondents as to what happened to the gold ornaments brought by the petitioner to her matrimonial home. Therefore, this Court finds no reason to interfere with the finding of the Family Court that she is entitled to get back her 48 sovereigns of gold ornaments from respondents 1 and 2 or its value.
20. The next aspect for consideration is whether the Mat.A No.20 of 2020 11 respondents are liable to return 10 ½ sovereigns of gold ornaments claimed by the petitioner, which according to her was the gold ornaments of her minor daughters misappropriated by the respondents. Her specific case is that her parents had gifted 10½ sovereigns of gold ornaments to her minor children and the same was misappropriated by the respondents and he utilised it for his own purposes.
21. First respondent has not disputed the case of the petitioner that their minor daughters had 10½ sovereigns of gold ornaments. His case is that it was he who purchased gold ornaments for his minor daughters and the same was sold by the petitioner for her own purposes. Thus, it stands established that the minor children of the parties had 10½ sovereigns of gold ornaments and the same was sold. The version given by the petitioner that the gold ornaments were gifted to her minor daughters by her parents is more probable and acceptable than the case of the 1st respondent that it was he who purchased the gold ornaments for his minor daughters. When we examine the evidence on record on the touchstone of the probabilities, the case of the petitioner that the gold ornaments of the minor children were sold by the respondents is more probable and acceptable than the case of the respondent that the petitioner, namely the Mat.A No.20 of 2020 12 mother of the minor children sold the said gold ornaments of the children. We find no reason to interfere with the finding of the Family Court that respondents 1 and 2 are liable to return 10 1/2 sovereigns of gold ornaments of the children misappropriated by them.
22. The next point for consideration is whether 1 st respondent is liable to return ₹3 lakhs to the petitioner. The specific case of the petitioner is that on the wedding day, an amount of ₹1 lakh had been given to the 1 st respondent as patrimony and she is entitled to get it back. The version of PW1 that an amount of ₹1 lakh was given to the 1st respondent on the date of marriage is corroborated by the version of PW3, who is the father's brother of the petitioner, who conducted the 'Nikah' in the absence of petitioner's father who was then working abroad. The version of PW1 and PW3 that an amount of ₹1 lakh was given on the date of marriage is found to be reliable and acceptable and 1 st respondent is liable to return the amount of ₹1 lakh to the petitioner as rightly held by the trial court.
23. The remaining aspect for consideration is whether the petitioner is entitled to realise ₹2 lakhs allegedly paid to the 1st respondent for the purpose of his going abroad for a job. Though the petitioner would contend that her father had given ₹2 Mat.A No.20 of 2020 13 lakhs to the 1st respondent for the purpose of sending him abroad and for arranging visa, except the oral version of PW1 there is no reliable evidence to substantiate the said claim. Hence, we find that petitioner is not entitled to realize ₹2 lakh claimed by her.
24. In the result appeal allowed in part as follows:
a) The judgment and decree of the Family Court directing the respondents 1 and 2 to return 48½ of gold ornaments or its value is hereby confirmed.
b). The judgment and decree of the Family Court directing the respondents 1 and 2 to return 10½ of gold ornaments or its value is hereby confirmed.
c). The judgment and decree directing the 1st respondent to pay ₹3 lakhs to the petitioner with interest at 7% per annum is modified as follows:
1st respondent is directed to pay ₹1 lakh to the petitioner with 7% interest per annum from the date of the Original Petition till realisation.
Sd/-
DEVAN RAMACHANDRAN JUDGE Sd/-
M.B.SNEHALATHA JUDGE ab