Asmira vs Abdul Gafoor K.K
2021 Latest Caselaw 19144 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
       THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
                 MAT.APPEAL NO. 326 OF 2013
 AGAINST THE ORDER/JUDGMENT IN OP 250/2011 OF FAMILY COURT,
                    VADAKARA, KOZHIKODE
APPELLANT/S:

          ASMIRA, AGED 30 YEARS,
          D/O.KUNHALI HAJI, HOUSEWIFE,
          RESIDING AT KUNIYIL, VALAYAM AMSOM DESOM,
          POST VALAYAM, VATAKARA TALUK,
          KOZHIKODE DISTRICT, KERALA STATE.
          BY ADVS.
          SRI.B.KRISHNAN
          SRI.R.PARTHASARATHY
          SRI.RAJESH V.NAIR
          SMT.SEEMA


RESPONDENT/S:

          ABDUL GAFOOR K.K., AGED 40 YEARS,
          S/O. ASSAINAR HAJI K.K.,
          POST BOX 5947, DOHA QATAR
          (REPRESENTED BY POWER OF ATORNEY HOLDER
          FATHER MR. KOOLIKKANDIYIL ASSAINAR HAJI,
          S/O.AHMED HAJI, SWASTHAM, 75 YEARS,
          EDACHERI AMSOM DESOM, VATAKARA TALUK)
          BY ADVS.
          SRI.V.G.ARUN
          SRI.T.R.HARIKUMAR
          SMT.S.R.NEETHU RAJ


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal No.326/2013            2



                               JUDGMENT

A. Muhamed Mustaque, J.

The dispute in this appeal is in regard to the claim made by

the appellant for the recovery of 100 sovereigns of gold

ornaments from the respondent. The Family Court, Vatakara,

dismissed the claim mainly relying on Ext.B1 and supported by

the oral testimony of RW2, an independent witness.

2. The appellant's case is that her father was working in a

gulf country and gave her 100 sovereigns of gold ornaments.

According to the appellant, this was misappropriated by the

respondent during the subsistence of marriage. The marital

relationship has come to an end, and the respondent remarried.

The Family Court granted the divorce in a petition filed by the

appellant. That was tried along with this matter. A common

judgment was passed granting dissolution of the marriage and

dismissing the present claim raised in this appeal.

3. There cannot be much dispute in regard to the gold

ornaments available with the appellant at the time of marriage.

This was supported by Ext.A1 passport and other documents

produced by the appellant. However, there was a serious issue in

regard to the entrustment and misappropriation by the

respondent.

4. The Family Court mainly relied on Ext.B1 document.

Ext.B1 is the statement of Asmira made on 08.01.2011 in the

presence of RW2. RW2 acted as a mediator. He was an office-

bearer of the local mosque. RW2 gave evidence in tune with the

mediation settlement referred to in Ext.B1. In the mediation, the

appellant appears to have accepted the entire gold ornaments

were with her.

5. RW2 along with another person Thazhekunu

Kunhammad Haji are signatory to Ext.B1. The appellant also

signed Ext.B1. The respondent also made an attempt to prove

Ext.B1. However, the Family Court did not accept the same,

stating that it was highly belated. We need not disbelieve Ext.B1,

especially in the light of the oral testimony of RW2, who is a local

mosque member. The details of the jewellery were mentioned in

Ext.B1. The appellant has no case that the respondent took all the

gold ornaments after the execution of Ext.B1. In the light of the

oral testimony of RW2 supporting Ext.B1, we are of the view that

the case put forward by the appellant that the entire gold

ornaments were taken away by the respondent is unbelievable.

There are no other materials available to support the case of the

appellant that the gold ornaments were entrusted to the

respondent and misappropriated by him. We, therefore, dismiss

this appeal. No order as to costs.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

DR. KAUSER EDAPPAGATH, JUDGE ln