Kerala High Court

E.Shabana Tezni vs Kannanthody Shameer on 21 February, 2025

Author: Devan Ramachandran

Bench: Devan Ramachandran

MAT.A NO. 622 OF 2020              1             2025:KER:14976



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
                                       &
              THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
  FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
                        MAT.APPEAL NO. 622 OF 2020
         AGAINST THE ORDER IN OP NO.349 OF 2011 OF FAMILY COURT,
MALAPPURAM

APPELLANTS/PETITIONERS:

          1    E.SHABANA TEZNI
               AGED 36 YEARS
               DAUGHTER OF EDAPPATTA ABDUL SALAM,
               EDAPPATTA HOUSE, VANIYAMBALAM P.O, MALAPPURAM.

          2   HANA SHAMEER
              AGED 16 YEARS
              D/O OF KANNANTHODY SHAMEER,EDAPPATTA HOUSE,
              VANIYAMBALAM P.O, MALAPPURAM. (MINOR REPRESENTED
              BY THE MOTHER, 1ST APPELLANT)
              BY ADVS.
              P.K.NIJOY
              SMT.C.PRABITHA
              SRI.REJOICE B.CHEMBAKASSERIL


RESPONDENTS/RESPONDENTS:

     1        KANNANTHODY SHAMEER
              SON OF KHALID HAJI,(LATE), AGED 42 YEARS,
              OPP. JUMA MASJID, PATHAIKKARA P.O, PERINTHALMANNA,
              MALAPPURAM.

     2        METHALAYIL KHAIRUNEESA
              WIFE OF KHALID HAJI (LATE), OPP. JUMA MASJID,
              PATHAIKKARA P.O, PERINTHALMANNA, MALAPPURAM.

     3        SHAJEER, AGED 41 YEARS
              S/O KHALID, KANNAMTHODI HOUSE, PATHAYIKKARA AMSOM
              DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT
 MAT.A NO. 622 OF 2020          2             2025:KER:14976

            [ADDL. R3 IS IMPLEADED AS PER THE ORDER DATED
            29/05/2024 IN IA 1/2024 IN IA 1/2020 IN MAT. APPEAL
            622/2020]



            BY ADVS.
            P.MOHAMED SABAH
            SAIPOOJA
            SADIK ISMAYIL
            R.GAYATHRI
            M.MAHIN HAMZA
            ALWIN JOSEPH
            BENSON AMBROSE
            SRI K M FIROZ


      THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
4.2.2025, THE COURT ON 21.02.2025 DELIVERED THE FOLLOWING:
 MAT.A NO. 622 OF 2020             3                2025:KER:14976




      DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
           -------------------------------------------
                Mat.Appeal No.622 of 2020
           -------------------------------------------
            Dated, this the 21st February 2025

                             JUDGMENT

M.B.Snehalatha.J

In this appeal, the challenge is to the judgment and decree in

O.P.No.349/2011 of Family Court, Malappuram which declined the

1st appellant's claim for return of gold ornaments and past

maintenance from the respondents.

2. Parties in this appeal shall be referred to by their rank in

O.P.No.349/2011.

3. Facts necessary for the disposal of this appeal are as

follows:

The marriage between the 1 st petitioner and the 1 st

respondent who are Muslims was contracted on 30.9.2001 and she

was taken to the matrimonial home on 21.7.2002. Second

petitioner is the child born to them in the said wedlock. Second

respondent is the mother of 1st respondent. At the time of fixing

the marriage, the father of the 1 st respondent had made a demand

for 200 sovereigns of gold ornaments. 1st petitioner's father had MAT.A NO. 622 OF 2020 4 2025:KER:14976

given 150 sovereigns of gold ornaments to her at the time of

marriage. After the marriage, 1 st respondent and his father got it

weighed and thereafter they complained that the total weight of

the gold ornaments was only 147 sovereigns as against their

demand for 200 sovereigns and they demanded 53 sovereigns

more. Pursuant to the said demand, in September 2002,

petitioner's father again gave 53 sovereigns of gold ornaments to

her. Respondents harassed the petitioner for not bringing a car as

dowry. At the time when the 1st petitioner had gone to her

parental home for delivery, her entire gold ornaments were in the

possession of the 2nd respondent who is the mother of 1 st

respondent. Respondents misappropriated the entire gold

ornaments of the 1st petitioner and utilised it for expanding their

business namely the medical shop and the optical shop run by

them. 1st petitioner is entitled to get back her 203 sovereigns of

gold ornaments or its present market value from the respondents.

Respondents are also liable to return ₹7 lakhs spent by the father

of the petitioner for doing the interior works of the new house

constructed by R1 and for purchasing the household appliances for

the said house. 1st respondent has not maintained the petitioners

from 23.3.2010 onwards and therefore petitioners are entitled to MAT.A NO. 622 OF 2020 5 2025:KER:14976

get maintenance at the rate of ₹10,000/- each per month from

23.3.2010 to 22.3.2011.

4. Respondent resisted the petition and refuted the

allegations contending that they have not taken any gold

ornaments of the 1st petitioner. There was no demand for gold as

alleged. The allegation that the 1st petitioner was given 150

sovereigns of gold ornaments at the time of marriage and the

allegation that respondents weighed her gold ornaments and

demanded more gold ornaments etc. are false. 1st petitioner had

kept all her gold ornaments with herself and she had worn all her

gold ornaments at the time when she had gone to her parental

home for delivery. 2nd respondent was not in possession of any

gold ornaments of the 1st petitioner. There was no cruelty or

harassment from the part of the respondents. 1st petitioner insisted

for divorce and accordingly, the marriage was dissolved on

24.11.2010 at her instance. No amount was spent by the 1 st

petitioner's father for the interior works or towards the cost of

home appliances as alleged and respondents are not liable to pay

any such amount. 1st respondent is not liable to pay any amount

towards maintenance as claimed.

5. After trial, the learned Family Court disallowed the claim MAT.A NO. 622 OF 2020 6 2025:KER:14976

for the return of gold ornaments and the claim for return of ₹7

lakhs. The claim of the 1st petitioner for past maintenance was

also disallowed. The learned Family Court granted a decree for

₹60,000/- towards past maintenance to the 2nd petitioner/child.

6. Heard the learned counsel for petitioners and the

learned counsel for respondents.

7. The point for consideration in this appeal is whether the

impugned judgment and decree of the Family Court need any

interference by this Court.

8. Admittedly, the marriage between the 1st petitioner and

the 1st respondent was contracted on 30.9.2001 and thereafter 1 st

petitioner was taken to her matrimonial home on 21.7.2002.

2nd petitioner is the child born to them in the said wedlock.

9. The case of the petitioner is that at the time of

marriage, 150 sovereigns of gold ornaments were given to her by

her parents and subsequently, when the respondents harassed her

by saying that the gold brought by her was not sufficient, her

father again gave her 53 sovereigns of gold ornaments in

September 2002 and thus she had 203 sovereigns of gold

ornaments. Her case is that her entire 203 sovereigns of gold

ornaments were in the possession of 2 nd respondent who is the MAT.A NO. 622 OF 2020 7 2025:KER:14976

mother of the 1st respondent and the respondents misappropriated

the entire gold ornaments and utilised it for expanding the

business run by the 1st respondent.

10. It is a settled position of law that the standard of proof

in matrimonial cases would be the same as in civil cases and the

court has to decide cases based on preponderance of probabilities.

It is also a settled position of law that the controversy in most of

the matrimonial cases has to be decided on the basis of oral

evidence.

11. Bearing in mind the above-settled position of law

regarding the standard of proof in matrimonial cases, let us

consider whether the petitioner has succeeded in establishing her

case that the respondents misappropriated her gold ornaments

weighing 203 sovereigns as contended by her.

12. To substantiate 1st petitioner's case that she was given

150 sovereigns of gold ornaments from her house at the time of

marriage, she has produced Ext.A2 series wedding photos and

Ext.A3, Ext.A3(a) series bills.

13. It has come out in evidence that the 1st petitioner hails

from an affluent family and her father was well-employed abroad.

Ext.A2 series wedding photos would show that 1 st petitioner was MAT.A NO. 622 OF 2020 8 2025:KER:14976

wearing a lot of gold ornaments on her wedding day. Respondents

have no case that the ornaments worn by the 1 st petitioner, as

seen in the said photos were not gold. Respondents have also no

case that 1st petitioner's family had no financial capacity to give

150 sovereigns of gold ornaments. Therefore, this Court finds no

reason to disbelieve the version of the 1st petitioner that at the

time of marriage, she was given 150 sovereigns of gold

ornaments. Though 1st petitioner would contend that subsequent

to the marriage, her father again gave 53 sovereigns of gold in

September 2002, there is no acceptable evidence for the same.

14. In the Original Petition, petitioner's case is that at the

time when she had gone for delivery to her parental home, her

entire gold ornaments had been kept by the 2nd

respondent/mother-in-law at the matrimonial home and the

respondents misappropriated the entire gold ornaments and

utilised it for expanding the business run by the 1st respondent.

15. Respondents, on the other hand, would contend that

there was no occasion or purpose for them to take her gold

ornaments and to misappropriate the same. It is their case that

whatever gold ornaments she had, she had taken it with her at the

time when she had gone to her parental home for delivery.

MAT.A NO. 622 OF 2020 9 2025:KER:14976

16. Nowhere in the Original Petition, 1 st petitioner has

mentioned, when she entrusted the gold ornaments to the 2 nd

respondent. She has not even mentioned the year or month of the

alleged entrustment. Apart from the pleading that at the time

when she had gone to her parental home for delivery, the entire

gold ornaments had been kept by the 2nd respondent, she has not

made mention in which month and year she had gone for delivery

of the child. Neither in the pleadings nor at the time of evidence,

1st petitioner has given any particulars regarding the alleged

entrustment of the gold ornaments with the 2nd respondent.

Though the petitioner would contend that respondents

misappropriated her gold ornaments and utilised the proceeds of

the same for expanding the business of the 1st respondent, she

failed to adduce any evidence in respect of the same. In this

context, it is worthwhile to mention the conduct of the 1 st

petitioner and her father in prosecuting C.C.No.529/2011 before

the Judicial First Class Magistrate Court, Perithalmanna which was

a case instituted by the 1st petitioner against the respondents

alleging offences under Sections 498A, 406 and 506(ii) r/w Section

34 of IPC. Ext.B3 is the certified copy of the deposition of the 1 st

petitioner's father who was examined as PW1 in the said case.

MAT.A NO. 622 OF 2020 10 2025:KER:14976

Ext.B3 would show that in C.C.No.529/2011, which was filed by

the 1st petitioner alleging that respondents subjected her to cruelty

and misappropriated her gold ornaments, the father of the 1 st

petitioner who was examined as PW1 testified before that Court

that they have no complaints against the accused. When

confronted with Ext.B3, 1st petitioner's father who was examined

as PW1 in this case has admitted that he had testified that they

have no grievance against the accused. Ext.B4 namely the

certified copy of the judgment in C.C.No.529/2011 would show

that respondents herein, who are the accused in the said case

were acquitted by the learned Magistrate Court.

17. It is a settled position of law that in order to grant a

decree for return of gold ornaments, there must be evidence

regarding specific pleadings and evidence regarding the

entrustment of gold ornaments and in the absence of any proof

regarding entrustment, the relief cannot be granted.

18. In a claim for return of gold ornaments and money by

the wife, she has to prove the entrustment. The initial burden to

prove the entrustment is on the petitioner/wife and if she

discharges the initial burden then the onus of proof shifts to the

husband and in-laws as the case may be. The mere assertions of MAT.A NO. 622 OF 2020 11 2025:KER:14976

the petitioner/wife without any evidence at all are not sufficient to

grant a decree.

19. Petitioner has not succeeded in establishing her case

that respondents misappropriated any gold ornaments as alleged

by her. Therefore, we find no reason to interfere with the finding

of the learned Family Court that the 1 st petitioner is not entitled to

get a decree for return of any gold ornaments much less 203

sovereigns from the respondents.

20. Now with regard to the claim for return of ₹7 lakhs.

Though the 1st petitioner has claimed an amount of ₹7 lakhs from

the respondents towards the amount spent by her father for the

interior works of the house constructed by the 1 st respondent and

claimed an amount of ₹2 lakhs towards the amount spent by her

father for purchasing home appliances to the said house, she failed

to adduce any evidence to substantiate the said claim. Therefore,

we find no reason to interfere with the finding of the learned

Family Court that she is not entitled to get any such amounts from

the respondents.

21. Petitioners have claimed ₹10,000/- each per month

towards past maintenance for the period from 23.3.2010 to

22.3.2011. According to PW1, 1st respondent failed to pay any MAT.A NO. 622 OF 2020 12 2025:KER:14976

amount as maintenance to them during the said period. She has

also produced Exts.A4, A5 and A6 series school fee receipts in

support of her case that it was she who was paying the school fees

of the 2nd petitioner.

22. The learned Family Court granted a decree directing

the 1st respondent to pay a sum of ₹60,000/- towards the arrears

of maintenance to the 2nd petitioner/child for a period of 12 months

at the rate of ₹5,000/- per month and declined the claim of the 1 st

petitioner with a finding that she is not entitled to get arrears of

maintenance under her personal law.

23. Though the 1st respondent has raised a contention that

he had looked after the affairs of the petitioners during the period

from 23.3.2010 to 22.3.2011, he failed to establish the same by

adducing acceptable evidence. Therefore, we find that 1 st

respondent is liable to pay an amount of ₹10,000/- per month as

maintenance for the period of 12 months. Thus the 1 st petitioner is

entitled to get an amount of ₹1,20,000/- towards past

maintenance for the period from 23.3.2010 to 22.3.2011.

In the result, Mat.Appeal is allowed in part as follows:

a) The judgment and decree of the Family Court,

Malappuram declining the relief of return of gold MAT.A NO. 622 OF 2020 13 2025:KER:14976

ornaments and cash of ₹7 lakhs claimed by the petitioner

stands confirmed.