Kerala High Court
Suhara vs Hamza on 21 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal Nos.1199/2015, 1184/2016
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2025:KER:53012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
MAT.APPEAL NO. 1199 OF 2015
AGAINST THE ORDER DATED 16.07.2015 IN OP NO.915 OF
2013 OF FAMILY COURT, TIRUR
APPELLANT/PETITIONER:
SUHARA
AGED 34 YEARS
D/O. MUHAMMED, CHANGARAMCHOLA VEEDU,
P.O.CHERUSOLA,RANDATHANI,
MALAPPURAM DISTRICT.
(WITHIN THE KOTTACKAL POLICE STATION LIMIT)
BY ADV SMT.DEEPA NARAYANAN
RESPONDENTS/RESPONDENTS:
1 HAMZA
AGED 42 YEARS
S/O. MUHAMMED, PUTHUPARAMBIL VEEDU,
KANHIPPURA, P.O.KARIPPOL,
MALAPPURAM DISTRICT, PIN-676 552.
2 MUHAMMED
AGED 70 YEARS
S/O. MARAKKAR,
PUTHUPARAMBIL VEEDU, KANHIPPURA,
P.O.KARIPPOL,
Mat.Appeal Nos.1199/2015, 1184/2016
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2025:KER:53012
MALAPPURAM DISTRICT.
(WITHIN THE VALANCHERRY
POLICE STATION LIMIT),
PIN-676 552.
BY ADVS.
SRI.R.KRISHNAKUMAR (CHERTHALA)
SHRI.JITHIN LUKOSE
SRI.P.SAMSUDIN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
10.07.2025, ALONG WITH MAT.APPEAL NO.1184/2016, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.1199/2015, 1184/2016
3
2025:KER:53012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
MAT.APPEAL NO. 1184 OF 2016
AGAINST THE ORDER DATED 16.07.2015 IN OP NO.915 OF
2013 OF FAMILY COURT, TIRUR
APPELLANT/1ST RESPONDENT:
HAMZA
AGED 43 YEARS, S/O.MUHAMMED,
PUTHUPARAMBIL VEEDU, KANHIPPURA,
P.O.KARIPPOL, MALAPPURAM DISTRICT
BY ADV SRI.R.KRISHNAKUMAR (CHERTHALA)
RESPONDENTS/PETITIONER & 2ND RESPONDENT:
1 SUHARA
AGED 35 YEARS, D/O.MUHAMMED,
CHANGARAMCHOLA VEEDU, P.O.CHERUSOLA,
RANDATHANI, MALAPPURAM DISTRICT
2 MUAHMMED
AGED 71 YEARS, S/O.MARAKKAR,
PUTHUPARAMBIL VEEDU, KANHIPPURA,
P.O.KARIPPOL, MALAPPURAM DISTRICT
Mat.Appeal Nos.1199/2015, 1184/2016
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2025:KER:53012
BY ADVS.
SHRI.K.C.ANTONY MATHEW
SMT.ANJU CLETUS
SHRI.JITHIN LUKOSE
SRI.P.SAMSUDIN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
10.07.2025, ALONG WITH MAT.APPEAL.NO.1199/2015, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.1199/2015, 1184/2016
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2025:KER:53012
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal Nos.1199/2015 & 1184/2016
= = = = = = = = = = = = = = = = = =
Dated this the 21st day of July, 2025
JUDGMENT
P.Krishna Kumar, J.
A petition filed by the wife for recovery of gold ornaments and money against her husband and father-in- law was allowed by the Family Court as against the husband, who remained ex parte. The Family Court dismissed the petition against the father-in-law. The husband and wife challenge the said order, aggrieved by the respective adverse decree. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed in the original petition.
2. The petitioner and the first respondent were married on 05.11.1998, and two children were born to Mat.Appeal Nos.1199/2015, 1184/2016 6 2025:KER:53012 them in their wedlock. The petitioner contended that 110 sovereigns of gold ornaments belonging to her were misappropriated by the first and second respondents. According to her, she received 100 sovereigns of gold ornaments at the time of her marriage from her parents, and 10 sovereigns from the first respondent as 'Mahar'. The first respondent also obtained Rs. 2,20,000/- from her parents. Initially, the first and second respondents obtained 80 sovereigns of gold ornaments from her by representing that it was necessary for purchasing a residential plot. Later, after the first respondent went abroad in 2007, the second respondent obtained the remaining 30 sovereigns from her and sold them, she contended.
3. The second respondent denied the entire set of allegations and contended that the petition was filed in collusion with his son, the first respondent, with a view to obtaining money from him. He further stated that he was unaware of any of the contentions raised in the Mat.Appeal Nos.1199/2015, 1184/2016 7 2025:KER:53012 petition. According to him, the petitioner and the first respondent are still living together along with their children, and while the first respondent was abroad, he used to send money to the petitioner, which reflects their cordial relationship. It is further stated that the first respondent has completely severed ties with the second respondent, and since the second respondent is aged and unable to maintain himself, he filed a maintenance case against the first respondent before the Family Court.
4. In the appeal preferred by the first respondent, he pleaded that his non-appearance before the court was neither deliberate nor wilful, as he was working in Jeddah at the relevant time. According to him, he did not receive any notice of the proceedings initiated by the wife, but came to know of the impugned order only when he reached his native place on 03.09.2016, and thereafter preferred the present appeal. He further stated that unless he is given an opportunity to contest Mat.Appeal Nos.1199/2015, 1184/2016 8 2025:KER:53012 the matter on merits, it would cause serious prejudice to him.
5. We have heard the learned counsel appearing for all the parties.
6. The learned counsel appearing for the first respondent handed over a copy of the first respondent's passport to show that he was abroad during the relevant period. It was also contended that as he had overstayed abroad beyond the visa period, he was even imprisoned and later deported. It is further urged that he may be given an opportunity to contest the matter on merits.
7. Though the first respondent has not produced any convincing materials to substantiate his contention that he was abroad throughout the relevant period, it remains undisputed that he went abroad after 2007. This is evident from the very pleadings of the petitioner. Though the second respondent contended that the first respondent used to reside with his wife and children when he occasionally visited his homeland, we are Mat.Appeal Nos.1199/2015, 1184/2016 9 2025:KER:53012 persuaded to accept the submissions made by the learned counsel appearing for the first respondent, since the general policy of law is to provide an opportunity to parties to contest cases on merit, wherever possible. However, considering the extraordinary delay that occurred in this matter and the loss of invaluable judicial time, the appeal can be allowed only upon payment of costs.
8. As far as the appeal preferred by the petitioner challenging the dismissal of the petition against the second respondent is concerned, the question is whether the second respondent is liable to return any gold ornaments or money to the petitioner.
9. According to the petitioner, she received 100 sovereigns of gold ornaments from her parents and 10 sovereigns from the first respondent as 'Mahar' at the time of marriage. There is no documentary evidence to prove that she received such a quantity of gold ornaments at the time of her marriage. In cross- Mat.Appeal Nos.1199/2015, 1184/2016 10 2025:KER:53012 examination, she stated that the entire gold ornaments were purchased from Alukkas Jewellery by her father, but the bill was found missing. This fact is also not mentioned in the original petition. Thus, the oral evidence of the petitioner and her father is the only material upon which the trial court found that she had 110 sovereigns of gold. The trial court did not rely on the photograph produced by the petitioner, holding that the quantity of gold could not be assessed from it.
10. The petitioner produced Ext.P1, a photograph taken on the occasion of the marriage, to corroborate her contentions. She specifically stated in her petition that she went to the matrimonial home adorned with the entire 110 sovereigns of gold ornaments. Significantly, she did not furnish any details of the gold ornaments in the petition filed before the Family Court. She also did not provide those details in the proof affidavit submitted during the trial, despite being fully aware that the second respondent had stoutly denied her Mat.Appeal Nos.1199/2015, 1184/2016 11 2025:KER:53012 allegations regarding the gold ornaments. Curiously, during cross-examination, she attempted to improve her case by describing the gold ornaments, stating that she had omitted to provide the details in the original petition. According to her, she had the following gold ornaments at the time of her marriage:
"15 പവൻ ച യ ൻ, 8 പവൻ ച റ യ ച യ ൻ, 6 പവൻ ക റ ക ചകട , 2 പവനചറ ച റ യ മ ല, 10 പവനചറ അരപട, 5 പവനചറ കകച യൻ, 6 പവനചറ പ ദസര , 6 പവനചറ ഒര വള, 5 പവനചറ 2 വള, 4 പവനചറ 4 വള, 4 പവനചറ ഒര വള, 1/2 പവൻ വ തമ ള 4 മമ ത ര , 2 മ ഡ കമൽ 1/2 പവൻ വ ത , മവചറ ഓമര പവനചറ 10 വള, ഓമര പവൻ വ തമ ള 14 വളകള ണ യ ര ന . സ'ർണത നചറ വ ച ണ യ ര ന 2 പവന ണ."
The description of gold ornaments as stated above does not tally with the gold ornaments appearing in Ext.P1 photograph. On a careful perusal of Exhibit P1, we are unable to accept the petitioner's claim that she adorned 110 sovereigns of gold ornaments at the time of her marriage. From the photograph, it appears she was Mat.Appeal Nos.1199/2015, 1184/2016 12 2025:KER:53012 wearing 6 or 7 chains/necklaces, 12 to 14 bangles, rings, earrings, one hand chain, and a hip chain. On our rough estimation, it appears that she might have possessed approximately 60 sovereigns of gold ornament. It is important to note that the petitioner deposed in cross-examination that all her ornaments are visible in Ext.P1. Prima facie, the petitioner failed to substantiate that she possessed 110 sovereigns of gold ornaments at the time of her marriage. However, it is reasonable to hold that she had 60 sovereigns of gold at that time.
11. Another significant aspect noted in the petitioner's evidence is the inconsistent stand taken by her in the pleadings and during the oral evidence. She stated:
"നച- ര വ ട സലവ ശര യ യ ട ചണന പറഞ1,2 എത3കകകൾ ഒന ഹർ ക ര യ ചട സ'ർണ ഭരണങള ൽ 80 പവൻ സ'ർണ ഭരണങൾ എട ത വ ൽക കയ ണ ചയങ ല വട സലവ വ ങ കയ ണ യ -."
Mat.Appeal Nos.1199/2015, 1184/2016 13 2025:KER:53012 Thus, the allegation made by the petitioner against the second respondent is only that, together with the first respondent, he obtained 80 sovereigns of gold ornaments from her. This stand was maintained even in her proof affidavit. Further, she had no case in her pleadings that she ever entrusted the gold ornaments with the second respondent. However, during cross-examination, she came up with an altogether different case. She then stated:
"80 പവൻ എടുത്തതത് രണണണ്ടാംഎതൃകകക്ഷിയണണത്. എനക്ഷികണ്ടാം ഭ ർ ത്തണ വക്ഷി നണ്ടാം കൂടക്ഷി വവീടുണ്ടാം സ്ഥലവണ്ടാം വണങണനണണത് 80 പവൻ എടുത്തതത്. ........
വക്ഷിവണഹണ്ടാം കഴക്ഷിഞ്ഞ അനത് തനന 100 പവൻ ആഭരണണ്ടാം രണണണ്ടാം എതൃകകക്ഷിനയ ഏൽപക്ഷിചക്ഷിരുന. പ്രസവത്തക്ഷിന പപണകുപമണൾ എനക്ഷികത് തക്ഷിരക്ഷിച്ചു തനക്ഷിരുന."
We therefore find no reason to accept her contention against the second respondent regarding the alleged 80 sovereigns of gold ornaments.
12. The petitioner further contended in the original petition that after the first respondent went Mat.Appeal Nos.1199/2015, 1184/2016 14 2025:KER:53012 abroad, the second respondent mentally and physically harassed her, demanding more dowry, and forcibly took 30 sovereigns of gold ornaments from her. In cross- examination, she stated that the second respondent had taken the gold ornaments from her personal almirah, which she witnessed and objected to. These aspects were not stated in the original petition. She was also unable to specify the date, month, or even the year of the alleged incident. Notably, she did not raise any complaint in respect of this allegation until she filed the original petition before the Family Court, Tirur, in 2013.
13. In the above circumstances, we find the second respondent's evidence to be more reliable than that of the petitioner. When he gave evidence as RW1, he denied all allegations. Though he was thoroughly cross- examined, his version remained unshaken. Despite specifically denying the incidents relating to the alleged forcible taking of 30 sovereigns of gold and the Mat.Appeal Nos.1199/2015, 1184/2016 15 2025:KER:53012 misappropriation of 80 sovereigns, not even a single question was put to him in cross-examination challenging his version--other than a general suggestion at the end that he, along with the first respondent, had received gold ornaments from the petitioner.
14. The learned Family Judge considered all relevant aspects and correctly arrived at the said conclusion. Accordingly, we find no illegality in the impugned order by which the petition against the second respondent was dismissed. Hence, the appeal is liable to be rejected.
15. In the result, Mat. Appeal No. 1184/2016 is allowed. The impugned order as against the first respondent/husband is set aside. The original petition as against him is restored to file, on the condition that the first respondent/husband shall pay Rs.10,000/- (Rupees Ten Thousand only) to the petitioner/wife within three weeks and produce proof thereof before the Family Court, Tirur. The first respondent/husband and the Mat.Appeal Nos.1199/2015, 1184/2016 16 2025:KER:53012 petitioner/wife shall appear before the Family Court on 18/08/2025. Considering the extraordinary delay that has occurred in this matter, we expect that the Family Court will dispose of the case at the earliest.
Mat. Appeal No. 1199/2015 is dismissed. No order as to costs.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE sv Mat.Appeal Nos.1199/2015, 1184/2016 17 2025:KER:53012 APPENDIX OF MAT.APPEAL 1184/2016 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE EMERGENCY CERTIFICATE BEARING NO. X0630219 ISSUED BY THE REPUBLIC OF INDIA TO THE APPLICANT/APPELLANT