Sihabudheen vs Saheera
2021 Latest Caselaw 17342 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                              &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                 MAT.APPEAL NO. 655 OF 2016
AGAINST THE ORDER IN OP 202/2013 OF FAMILY COURT, MALAPPURAM


APPELLANTS/RESPONDENTS:

    1     SIHABUDHEEN
          S/O. ALAVIKUTTY, ADAKUNNATH HOUSE,
          EDAYOOR NORTH POST, MAVANDIYOOR-676 552,
          MALAPPURAM DISTRICT.

    2     AYISHAKUTTY
          W/O. ALAVIKUTTY, ADAKUNNATH HOUSE,
          EDAYOOR NORTH POST, MAVANDIYOOR-676 552,
          MALAPPURAM DISTRICT.

          BY ADVS.
          SRI.K.M.SATHYANATHA MENON
          SMT.KAVERY S THAMPI


RESPONDENTS/PETITIONERS:

    1     SAHEERA
          D/O.ABU, KARIMBYARTHODI HOUSE, MOORKKANAD,
          POST VENGAD, PERINTHALMANNA TALUK,
          MALAPPURAM DISTRICT-679 338.
 Mat.Appeal No.655/16 & RP(FC) No.340/16

                               -:2:-



    2      FATHIMA SANHA (MINOR)
           AGED 5 YEARS, REPRESENTED BY HER GUARDIAN-
           MOTHER,1ST RESPONDENT.

           BY ADVS.
           SRI.ABDUL JALEEL.A
           SMT.M.A.SULFIA



     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 11.08.2021, ALONG WITH RPFC.340/2016, THE COURT ON
25.08.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal No.655/16 & RP(FC) No.340/16

                               -:3:-

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                      RPFC NO. 340 OF 2016
AGAINST THE ORDER IN MC 148/2013 OF FAMILY COURT, MALAPPURAM
REVISION PETITIONER/RESPONDENT:

           SIHABUDHEEN
           S/O.ALAVIKUTTY, ADAKUNNATH HOUSE,
           EDAYOOR NORTH POST, MAVNDIYOOR-676552,
           MALAPPURAM DISTRICT.

           BY ADVS.
           SRI.K.M.SATHYANATHA MENON
           SMT.KAVERY S THAMPI


RESPONDENTS/PETITIONERS:

    1      SAHEERA
           D/O. ABU, KARIMBYARTHODI HOUSE, MOORKKANAD,
           POST VENGAD, PERINTHALMANNA TALUK,
           MALAPPURAM DISTRICT, PIN-679338.

    2      FATHIMA SANHA (MINOR),
           AGED 5 YEARS, REPRESENTED BY HER
           GUARDIAN-MOTHER 1ST RESPONDENT.

           BY ADVS.
           SRI.ABDUL JALEEL.A
           SMT.M.A.SULFIA

     THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 11.08.2021, ALONG WITH Mat.Appeal.655/2016,
THE COURT ON 25.08.2021 DELIVERED THE FOLLOWING:
 Mat.Appeal No.655/16 & RP(FC) No.340/16

                               -:4:-




                        J U D G M E N T

Dated this the 25th day of August, 2021

Kauser Edappagath, J.

The above appeal and revision petition arise from a

common order passed by the Family Court, Malappuram (for short

"the court below") in OP No.202/2013 & MC No.148/2013 dated

29/10/2015.

2. OP No.202/2013 has been filed by the wife and child

against the husband and mother-in-law for return of gold

ornaments, cash and past maintenance. MC No.148/2013 has

been filed by the wife and child against the husband for future

maintenance. The marriage between the husband and the wife

was solemnized on 21/6/2009 as per the religious rites prevalent

among Muslim community. In the wedlock, a child who was

arrayed as 2nd petitioner, was born in 2014. According to the wife,

30 sovereigns of gold ornaments and cash of `1,00,000/- were

given to her at the time of marriage. It is alleged that on the next

day of marriage, her mother-in-law, who has been arrayed as the Mat.Appeal No.655/16 & RP(FC) No.340/16

2nd respondent in OP No.202/2013, took away the entire gold

ornaments under the guise of safe custody. It is further alleged

that the husband and his mother misappropriated the entire

ornaments and money for their personal needs. In so far as the

claim for maintenance is concerned, it is alleged that the wife has

no means to maintain herself or the child and the husband, in

spite of sufficient means, failed to maintain her and the child.

According to the wife, the husband is a mason earning at least

`700/- per day. Besides, he is engaged in real estate business as

well. The wife claimed past as well as future maintenance at the

rate of `6,000/- for her and `2,500/- for the child per month.

3. The husband and his mother filed counter statement

denying the case of the wife that she was given 30 sovereigns of

gold ornaments and `1,50,000/- at the time of marriage, which

were misappropriated by them for their personal needs. They

further contended that the wife is staying separately on her own

volition and hence, she cannot claim any maintenance from the

husband. It is also contended that the husband is working only as

a helper in cement work, he gets employment only for two days

in a week and the income he gets on a day is `500/- only. Mat.Appeal No.655/16 & RP(FC) No.340/16

4. Both the petitions were tried jointly by the court below.

The wife was examined as PW1, her father was examined as

PW2 and an independent witness was examined as PW3. Exts.A1

to A5 were marked on the side of the wife. The husband was

examined as RW1. After trial, the court below allowed both the

petitions. The husband and his mother were directed to return

`6,93,600/- being the market value of 30 sovereigns of gold

ornaments as well as `1,50,000/- to the wife. The court below

also granted past maintenance @`2,500/- per month to the wife

and `1,500/- per month to the child and future maintenance

@3,000/- per month to the wife and `2,500/- per month to the

child. Challenging the order in OP No.202/2013, the husband and

mother preferred Mat.Appeal No.655/2016 and challenging the

order in MC No.148/2013, the husband preferred RP(FC)

No.340/2016. Since both matters are interconnected, we dispose

of them by this common judgment.

5. Heard both sides.

6. The definite case of the wife is that at the time of her

marriage in the year 2009, she was given 30 sovereigns of gold

ornaments and `1,50,000/- as cash by her parents and relatives Mat.Appeal No.655/16 & RP(FC) No.340/16

and on the next day, the husband's mother took away the entire

gold ornaments from her under the guise of safe custody. It is

her further case that her husband and mother misappropriated

the gold ornaments and money for their personal needs. In order

to prove the entrustment of gold ornaments, cash and its

misappropriation, the wife herself gave evidence as PW1. She

deposed in tune with the pleadings. The evidence of PW1 gets

corroboration from the evidence of PW2 and PW3. PW2 is none

other than the father of PW1. PW3 is an independent witness and

relative. Both PW2 and PW3 clearly gave evidence that at the

time of marriage, PW1 was given 30 sovereigns of gold

ornaments and `1,00,000/- as cash which were given to the

husband and mother and they misappropriated the same. Even

though PWs 1 to 3 were cross-examined at length, nothing

tangible has been extracted from their testimony to discredit

their evidence. The Division Bench of this court recently in

Rajesh v. Deepthi (2021 (4) KLT 455) has held that it is a

customary practice in our country, particularly in our State,

among all the communities, that parents would give gold

ornaments to their daughters at the time of marriage as a token Mat.Appeal No.655/16 & RP(FC) No.340/16

of love and, thus, it would be unrealistic for a court to insist for

documentary evidence regarding ornaments that had changed

the hands at the time of marriage. It was further held that the

court can act upon oral evidence if it is found reliable and

trustworthy. It was further held that it is also quite common that

when the bride moves to the house of the groom after the

marriage, she takes all her ornaments and entrusts the same,

except a few required for daily wear, to her husband or in-laws for

safe custody and that, such entrustment also could be

established by the sole testimony of the wife. It was also held

that once such entrustment is made, a trust gets created and,

being a trustee, the husband or his parents, as the case may be,

is liable to return the same. Another Division Bench of this Court

in Leelamma N.P. v. M.A.Moni (2017 (3) KHC 340) has held

that once it is proved that gold ornaments were entrusted by the

wife to the husband, the burden is on the husband to prove as to

what happened to the gold ornaments.

7. The oral testimony of PW1 to PW3 gets corroboration

from Exts. A3 and A4 series. Ext. A3 is an estimate evidencing the

purchase of gold ornaments. Ext.A4 series are the photographs Mat.Appeal No.655/16 & RP(FC) No.340/16

taken on the wedding day. It would show that the bride was

wearing gold ornaments at the time of marriage. As stated

already, the oral evidence given by PWs 1 to 3 is trustworthy and

credible to prove the case set up by the wife that 30 sovereigns

of gold ornaments and `1,50,000/- cash received by her at the

time of marriage were entrusted to the husband and her mother.

As stated in the above decisions, on such entrustment, a trust

gets created and, being a trustee, the husband and his mother

are liable to return the same. The husband and his mother failed

to establish as to what happened to the gold ornaments and

cash. For all these reasons, we endorse the finding of the court

below that the husband and his mother are liable to return the

value of the gold ornaments and cash of `1,00,000/- to the wife.

No interference is called for on the said finding.

8. The evidence on record would show that at the time of

marriage, the wife was a college going student. There is nothing

on record to show that the wife has any job or steady income.

The child was only 2 years old at the time of filing the original

petition. Now, the child is aged 7 years old. According to the wife,

the husband is a mason by profession and is getting `700/- per Mat.Appeal No.655/16 & RP(FC) No.340/16

day. The wife further asserts that the husband is also a real

estate broker and getting a sizeable income from it. According

to the husband, he is working only as a helper and getting `500/-

a day. At any rate, he admits that he is getting `500/- per day.

The husband is legally and morally liable to maintain his own wife

and child. There is nothing on record to show that the husband

has discharged his liability to maintain them. The quantum of

maintenance awarded by the court below appears to be very

reasonable taking into account the requirement of the wife and

the child and the capacity of the husband. Hence, we find no

reason to interfere with the order passed in MC No.148/2013 as

well. Both appeal and revision fail and they are only to be

dismissed.

Accordingly, we dismiss the appeal as well as revision

petition. No costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp Contd...11.

Mat.Appeal No.655/16 & RP(FC) No.340/16

The amount Rs.1,00,000/- (Rupees One lakh only)

mentioned in the 2nd paragraph (Page No.4), 6th paragraph (Page

No.7), 7th paragraph last portion (page No.9) of the judgment

dated 25.8.2021 in Mat.Appeal 655/2016 and RP(FC) 340/2016

stands corrected as Rs.1,50,000/- (Rupees One lakh fifty

thousand only) as per order dated 27/09/2021 vide IA 1/2021 in

Mat.Appeal 655/2016 and Crl.M.A.1/2021 in RP(FC) 340/2016.

Sd/-

Joint Registrar