Kerala High Court
Musthafa vs Shaharban on 18 July, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:53770
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
MAT.APPEAL NO. 20 OF 2020
AGAINST THE JUDGMENT DATED 19.06.2019 IN OP NO.104 OF
2013 OF FAMILY COURT, MALAPPURAM
APPELLANTS/RESPONDENTS:
1 MUSTHAFA
AGED 47 YEARS
S/O. LATE MUHAMMED
2 KUNHAYISHA
AGED 66 YEARS
W/O. LATE MUHAMMED
BOTH ARE RESIDING AT VALARTHODI HOUSE,
KADUNGAPURAM P.O, PALLIKULAMBU, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT, PIN 679 321
BY ADVS.
SHRI.P.VENUGOPAL
SMT.T.J.MARIA GORETTI
RESPONDENT/PETITIONER:
SHAHARBAN, AGED 37 YEARS
D/O. ALAVI, KARUVAKKOTTIL HOUSE, KOLATHUR P.O,
ERUMATHADAM, PERINTHALMANNA TALUK, MALAPPURAM
DISTRICT , PIN 679 338
BY ADV SRI.K.RAKESH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
11.7.2025, THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
Mat.A No.20 of 2020 2
DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
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Mat.Appeal No.20 of 2020
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Dated this the 18th July, 2025
JUDGMENT
M.B.Snehalatha, J
In this appeal, the appellants, who are R1 and R2 in
O.P.No.104/2013 of Family Court, Malappuram, assails the judgment
and decree in the said Original Petition which directed them to return
the gold ornaments and cash claimed by the respondent herein.
2. For the sake of convenience, the parties shall be
referred to by their rank in O.P No.104/2013.
3. Petitioner/wife filed the Original Petition for
return of gold ornaments and cash, contending that at the time of
her marriage with the 1st respondent, which was solemnized on
19.9.1999, she was given 50 sovereigns of gold ornaments by her
parents. Apart from that, her parents also gave ₹1 lakh to the 1 st
respondent. As insisted by the 1st respondent, petitioner
entrusted all her gold ornaments to the 2nd respondent/mother-in-
law, excluding one bangle, anklet and necklace for her daily wear.
Subsequent to the marriage, petitioner's father gave an amount of
₹2 lakhs to the 1st respondent for the purpose of arranging a visa
to him to go abroad. Respondents misappropriated 48 sovereigns
of gold ornaments entrusted to them. Respondents also
misappropriated 10½ sovereigns of gold ornaments gifted by her
parents to her minor daughters. They pledged certain gold
ornaments in the bank and thereafter sold it for their own
purposes. Respondents subjected the petitioner to cruelty and ill-
treated her demanding more gold and cash. Due to the mental
and physical torture of the respondents, petitioner had to leave
the matrimonial home along with her minor children and she is
residing in her parental house. Respondents are liable to return
the market value of 58½ sovereigns of gold and cash of ₹3 lakhs
misappropriated by them.
4. Respondents resisted the claim by contending
that at the time of marriage, petitioner had only few gold
ornaments; that the petitioner had told the respondents that she
was wearing certain imitation ornaments on her wedding day.
Further, it was contended that whatever gold ornaments petitioner
had, it was in her custody and the respondents are not aware as
to whether the ornaments of the petitioner were gold or not; that
the respondents have not misappropriated any gold ornaments of
the petitioner and the allegations to the contrary are false and
incorrect. Respondents also denied the receipt of Rs.3 lakhs
allegedly given by the father of the petitioner. They denied the
liability to pay any gold or cash to the petitioner.
5. Before the trial court, petitioner got herself
examined as PW1. PW2 and PW3 were also examined on her side
and Ext.A1 series marked. 1st respondent got himself examined
as RW1.
6. After evaluating the evidence, both oral and
documentary, the Family Court allowed the petition, directing the
respondents to return 58 ½ sovereigns of gold ornaments and
cash of ₹3 lakhs to the petitioner.
7. Aggrieved by the judgment and decree,
respondents have filed this appeal contending that the Family
Court went wrong in appreciating the evidence in its correct
perspective; that the finding of the Family Court that the gold
ornaments and cash were misappropriated by the respondents is a
wrong finding and contrary to the evidence on record. It was
contended that there is no evidence to prove the entrustment of
gold and cash and its misappropriation and therefore the Family
Court went wrong in granting a decree in favour of the petitioner.
8. Per contra, the learned counsel for the petitioner
supported the findings of the Family Court and contended that the
evidence adduced both oral and documentary, would show that
the gold given to the petitioner from her house at the time of her
marriage, the cash given to the 1st respondent and the gold gifted
by her parents to her minor daughters were misappropriated by
the respondents and therefore there are no reasons at all to
interfere with the impugned judgment and decree.
9. The point for consideration is whether the
impugned judgment and decree of the Family Court warrants any
interference by this Court.
10. Admittedly, the marriage of the petitioner and 1 st
respondent was solemnized on 19.9.1999, and two girl children
were born in the said wedlock. The specific version of the
petitioner is that at the time of fixing the marriage, respondents
had demanded 50 sovereigns of gold ornaments and cash of ₹1
lakh and accordingly her parents gave 50 sovereigns of gold to her
on her wedding day. In addition to that, cash ₹1 lakh was handed
over to the 1st respondent. Further, she has testified that after the
marriage, her father had given an amount of ₹2 lakhs to her
husband for the purpose of his going abroad and arranging a visa
for him. Her further case is that on the wedding day itself,
respondents took all her gold ornaments except one bangle, anklet
and necklace for her daily wear, under the guise of safekeeping.
According to her, she entrusted her 48 sovereigns of gold
ornaments to the 2nd respondent/mother-in-law, as insisted by the
1st respondent/husband. She has further testified that the gold
ornaments weighing 10½ sovereigns which was gifted by parents
to her minor daughters were also misappropriated by respondents
1 and 2. Thus according to PW1, respondents 1 and 2
misappropriated the entire 58 ½ sovereigns of gold ornaments
belonging to her and her children and they are liable to return
58½ sovereigns of gold ornaments to her. Apart from that 1 st
respondent is also liable to return ₹3 lakhs given to him by her
father. She has further testified that she was subjected to cruelty
and ill-treatment by the respondents demanding more gold and
cash and due to the ill-treatment she had to leave the matrimonial
home and to return to the parental home along with her two minor
daughters.
11. PW3 who is the paternal uncle of PW1 has
testified that during the time of the marriage of the petitioner, her
father was abroad and therefore, PW3 along with his another
brother Hamza conducted the marriage of the petitioner. He has
testified that at the time of marriage, petitioner was given 50
sovereigns of gold ornaments. Apart from that an amount of ₹1
lakh was given to the 1st respondent on the wedding day. He has
further testified that the gold ornaments were purchased from
Halan Jewellery.
12. PW2 who is another uncle of the petitioner has
testified that due to the ill treatment meted out by the petitioner,
she had to leave the matrimonial home and she is residing in her
parental home.
13. First respondent who was examined as RW1 has
testified that at the time of marriage, petitioner had only few gold
ornaments; that she has not entrusted any gold ornaments to the
respondents. According to him, he has neither received ₹1 lakh on
the date of marriage nor received ₹2 lakhs for the purpose of
going abroad as spoken to by PW1. He has also testified that
there were no acts of cruelty from his part as spoken to by PW1.
According to him, the entire gold ornaments of the petitioner are
with her. He has further testified that it was he who purchased
gold ornaments for his minor daughters and the same was sold by
the petitioner.
14. The specific case of the petitioner is that she
entrusted her 48 sovereigns of gold ornaments to the
respondents. According to her, she entrusted the gold ornaments
to the 2nd respondent, who is her mother-in-law as insisted by the
1st respondent/husband. To substantiate her contention that she
had brought 50 sovereigns of gold ornaments to her matrimonial
home, she has produced Ext.A1 series photographs. Respondents
have no case that Ext.A1 series photographs are fake or
fabricated. During cross examination, when Ext.A1 series photos
were shown to RW1, he has categorically admitted that the
petitioner had worn ornaments as seen in Ext.A1 series photos. It
has come out in evidence that at the time of the marriage of the
petitioner, her father was working abroad and he had sufficient
financial capacity to give 50 sovereigns of gold ornaments to the
petitioner. Though RW1 in his affidavit in lieu of examination in
chief would say that petitioner had worn fancy ornaments on her
wedding day and she had told him about the said fact, during
cross examination, he would say that she did not say so and the
averments to the contrary made in his affidavit is incorrect. The
suggestion put to PW1 during her cross examination that her
family was in a better financial position than that of the family of
the respondent also belies the case of the respondents that
petitioner was not given 50 sovereigns of gold ornaments as
spoken to by her. On an analysis of the evidence, we find that the
version spoken to by PW1 that at the time of marriage, she was
given 50 sovereigns of gold ornaments by her parents is believable
and acceptable, than the case of the respondent that she was
wearing imitation ornaments on her wedding day. Ext.A1 series
photographs coupled with the versions of Pws 1 and 2 also fortifies
the case of the petitioner that her parents had given 50 sovereigns
of gold ornaments to her at the time of marriage and this Court
finds no reason to unsettle the finding of the Family Court that
petitioner was given 50 sovereigns of gold ornaments from her
house at the time of marriage and she had brought the said gold
ornaments to her matrimonial home.
15. The specific version of PW1 is that on the wedding
day itself, 1st respondent/husband insisted her to entrust the gold
ornaments to his mother, namely the 2nd respondent for safe
custody and accordingly, except one bangle, anklet and necklace
used for her daily wear she entrusted 48 sovereigns of her gold
ornaments with the 2nd respondent.
16. This Court has reiterated the position of law that
in a claim for return of gold ornaments and patrimony by the wife,
the courts have to rely on the principle of preponderance of
probabilities in such cases and have to decide the case based on
what most likely to have happened in the given the facts and
circumstances and available evidence. The transfer of gold
ornaments and other valuables usually occurs in the presence of
family and relatives and not through any formal document.
Therefore, the courts have to adopt a humane and practical
approach while dealing with the claim for return of gold ornaments
by the wife against the in-laws.
17. PW1 has categorically testified that she entrusted
the gold ornaments to the 2nd respondent as insisted by the 1 st
respondent for safe keeping. 2nd respondent/mother-in-law has
not chosen to enter into the witness box to deny the version given
by PW1 and to speak her case on oath.
18. It is only probable that during the subsistence of
the marriage, the valuables of the newly wedded girl will be
entrusted with her husband and his parents and it would not be
reasonable and prudent to insist on the production of the
documents for such entrustment which took place in a family.
19. Though the respondent would contend that the
entire gold ornaments of the petitioner are with herself, the said
version is not believable and the respondent failed to establish
that the entire gold ornaments of the petitioner are with her.
There is no valid and plausible explanation on the side of the
respondents as to what happened to the gold ornaments brought
by the petitioner to her matrimonial home. Therefore, this Court
finds no reason to interfere with the finding of the Family Court
that she is entitled to get back her 48 sovereigns of gold
ornaments from respondents 1 and 2 or its value.
20. The next aspect for consideration is whether the
respondents are liable to return 10 ½ sovereigns of gold
ornaments claimed by the petitioner, which according to her was
the gold ornaments of her minor daughters misappropriated by the
respondents. Her specific case is that her parents had gifted 10½
sovereigns of gold ornaments to her minor children and the same
was misappropriated by the respondents and he utilised it for his
own purposes.
21. First respondent has not disputed the case of the
petitioner that their minor daughters had 10½ sovereigns of gold
ornaments. His case is that it was he who purchased gold
ornaments for his minor daughters and the same was sold by the
petitioner for her own purposes. Thus, it stands established that
the minor children of the parties had 10½ sovereigns of gold
ornaments and the same was sold. The version given by the
petitioner that the gold ornaments were gifted to her minor
daughters by her parents is more probable and acceptable than
the case of the 1st respondent that it was he who purchased the
gold ornaments for his minor daughters. When we examine the
evidence on record on the touchstone of the probabilities, the case
of the petitioner that the gold ornaments of the minor children
were sold by the respondents is more probable and acceptable
than the case of the respondent that the petitioner, namely the
mother of the minor children sold the said gold ornaments of the
children. We find no reason to interfere with the finding of the
Family Court that respondents 1 and 2 are liable to return 10 1/2
sovereigns of gold ornaments of the children misappropriated by
them.
22. The next point for consideration is whether 1 st
respondent is liable to return ₹3 lakhs to the petitioner. The
specific case of the petitioner is that on the wedding day, an
amount of ₹1 lakh had been given to the 1 st respondent as
patrimony and she is entitled to get it back. The version of PW1
that an amount of ₹1 lakh was given to the 1st respondent on the
date of marriage is corroborated by the version of PW3, who is the
father's brother of the petitioner, who conducted the 'Nikah' in the
absence of petitioner's father who was then working abroad. The
version of PW1 and PW3 that an amount of ₹1 lakh was given on
the date of marriage is found to be reliable and acceptable and 1 st
respondent is liable to return the amount of ₹1 lakh to the
petitioner as rightly held by the trial court.
23. The remaining aspect for consideration is
whether the petitioner is entitled to realise ₹2 lakhs allegedly paid
to the 1st respondent for the purpose of his going abroad for a job.
Though the petitioner would contend that her father had given ₹2
lakhs to the 1st respondent for the purpose of sending him abroad
and for arranging visa, except the oral version of PW1 there is no
reliable evidence to substantiate the said claim. Hence, we find
that petitioner is not entitled to realize ₹2 lakh claimed by her.
24. In the result appeal allowed in part as follows:
a) The judgment and decree of the Family
Court directing the respondents 1 and 2 to return
48½ of gold ornaments or its value is hereby
confirmed.
b). The judgment and decree of the
Family Court directing the respondents 1 and 2 to
return 10½ of gold ornaments or its value is
hereby confirmed.
c). The judgment and decree directing the
1st respondent to pay ₹3 lakhs to the petitioner
with interest at 7% per annum is modified as
follows:
1st respondent is directed to pay ₹1 lakh to the
petitioner with 7% interest per annum from the
date of the Original Petition till realisation.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
ab
