Kerala High Court
Nassimudheen vs Laila Beevi on 27 January, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
MAT.APPEAL NO. 595 OF 2016
AGAINST THE JUDGMENT DATED 19.01.2016 IN OP NO.124 OF 2011 OF
FAMILY COURT, NEDUMANGAD
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APPELLANT/RESPONDENT:
NASSIMUDHEEN M.
AGED 67 YEARS
S/O. LATE MEERASAHIB, MADANNADA PANAYILVEEDU,THEKKADA,
VEMBAYAM VILLAGE, NEDUMANGAD.
BY ADV SMT.SHAMEENA SALAHUDHEEN
RESPONDENT/PETITIONER:
LAILA BEEVI
D/O. NABEESA BEEVI, AGED 59 YEARS, RESIDING AT SHYNA
COTTAGE, THEYCADU, VENJARAMOOD P.O., NELLANADU VILLAGE,
NEDUMANGADU.
BY ADVS.
G.P.SHINOD
GOVIND PADMANAABHAN
AJIT G ANJARLEKAR
ATUL MATHEWS
GAYATHRI S.B.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
27.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
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MAT. Appeal No.595 of 2016
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Dated this the 27th day of January, 2025
J U D G M E N T
Sathish Ninan, J.
The original petition filed by the wife as
petitioner against the husband for recovery of gold,
money and past maintenance was decreed by the Family
Court. The husband is in appeal. For the sake of
convenience the parties are hereinafter referred to as
"the husband" and "the wife".
2. The marriage between the parties was solemnized
on 22.01.1978. Three children were born in the wedlock.
According to the wife, at the time of marriage she was
provided with 35 sovereigns of gold ornaments,
₹ 50,000/- by way of Acharam and ₹ 1 lakh by way of
pocket money. The husband misappropriated the gold and
money. The relationship got strained. The original
petition was filed seeking recovery of the gold or its
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value, the money entrusted and also past maintenance.
3. The husband filed counter contending that, at
the time of marriage the wife was wearing only 10
sovereigns of gold ornaments and that no money or
Acharam was given to him as claimed. The allegation of
misappropriation of gold and money was denied. It was
further contended that the wife and children are
maintained by him.
4. The Family Court, held that the wife is entitled
to recover 30 sovereigns of gold, the pocket money and
Acharam as claimed by her. It was also held that the
wife is entitled for past maintenance at the rate of
₹ 3,500/- per month from 10.02.2008.
5. We have heard learned counsel Smt.Shameena
Salahudheen on behalf of the appellant-husband and
Smt.Gayathri S.B. On behalf of the respondent-wife.
6. At the very outset it is to be noticed that the
marriage between the parties was on 22.01.1978. The
parties have been living separately from February 2008
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and the Original Petition is filed on 31.01.2011. The
above is of significance while appreciating the nature
of evidence that could be adduced/available with regard
to the claim after such long lapse of more than 33 years
since the date of marriage.
7. The wife claimed that at the time of marriage
she was given 30 sovereigns of gold. The husband does
not contend that the wife was not having any gold at
all. According to him she was wearing only 10 sovereigns
of gold ornaments. In his cross-examination he deposed
that it was his approximation. The relevant deposition
reads thus :-
"F{X ]-h³ B-`-c-W-§Ä A-Wn-ªn-cp-óp (Q) D-t±-iw 10þ\v
AI-¯v B-bn-t« tXm-ón-bpÅq."
The father of the petitioner was a police constable. It
is in evidence that the father and mother had various
items of immovable properties. The wife has a claim that
her uncles also provided financial assistance for the
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conduct of marriage. It has been brought out in evidence
that her uncles are involved in business .
8. PW2 is a neighbour of the wife and they are very
close family friends. He has deposed about the ornaments
and money given at the time of marriage. The Family
Court on appreciation of the evidence of PWs.1 and 2
noticed that they are reliable witnesses. The Family
Court which had the opportunity to watch the demeanor of
the witnesses, found the evidence of PWs.1 and 2 to be
reliable and acceptable. Their depositions were read
over. However nothing could be pointed out to discredit
them.
9. In the circumstances, it can only be found that
the conclusions arrived at by the Family Court is
justified.
10. With regard to the claim for maintenance, all
that has been awarded is past maintenance at the rate of
₹3,500/- per month. The husband as CPW1 has admitted in
his cross-examination that since December, 2010 except
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₹1,000/- no amount has been paid to the wife. He
admitted that he is presently residing with the second
wife and that the monthly expenses would be ₹ 5,000/-.
He has also deposed that towards food, clothing and
medicine a further amount of ₹ 3,000/- is also required.
It is taking into consideration of all the above that
the Family Court fixed monthly maintenance at the rate
of ₹3,500/- per month. The amount fixed is only
reasonable and warrants no interference.
11. There is a further claim of an amount of
₹ 45,000/- towards value of a scooter, of which the wife
is the registered owner. It is not in dispute that the
scooter was purchased availing Bank loan. The claim of
the wife is that she has been repaying the installments
payable to the Bank. However, it is to be borne in mind
that it is her specific case that she has no source of
income and on such averments has claimed monthly
maintenance of ₹ 3,500/-. Therefore, the contention of
the wife that she had been repaying the Bank loan with
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which the scooter was purchased cannot be accepted. In
the circumstances, the claim of the wife for the value
of the scooter, could not have been granted. The Family
Court has not taken into consideration the above aspect
while upholding the said claim. The decree granted with
regard to the same is liable to be set aside.
In the result, this appeal is allowed in part. The
decree and judgment of the Family Court in so far as it
granted a decree for an amount of ₹ 45,000/- towards the
value of scooter is set aside. The said amount is liable
to be deducted from ₹8,21,000/- decreed in favour of the
wife by the Family Court. In all other respects the
decree and judgment of the Family Court are affirmed. No
costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
