Kerala High Court
Suhara vs Hamza on 21 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal Nos.1199/2015, 1184/2016
1
2025:KER:53012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
MAT.APPEAL NO. 1199 OF 2015
AGAINST THE ORDER DATED 16.07.2015 IN OP NO.915 OF
2013 OF FAMILY COURT, TIRUR
APPELLANT/PETITIONER:
SUHARA
AGED 34 YEARS
D/O. MUHAMMED, CHANGARAMCHOLA VEEDU,
P.O.CHERUSOLA,RANDATHANI,
MALAPPURAM DISTRICT.
(WITHIN THE KOTTACKAL POLICE STATION LIMIT)
BY ADV SMT.DEEPA NARAYANAN
RESPONDENTS/RESPONDENTS:
1 HAMZA
AGED 42 YEARS
S/O. MUHAMMED, PUTHUPARAMBIL VEEDU,
KANHIPPURA, P.O.KARIPPOL,
MALAPPURAM DISTRICT, PIN-676 552.
2 MUHAMMED
AGED 70 YEARS
S/O. MARAKKAR,
PUTHUPARAMBIL VEEDU, KANHIPPURA,
P.O.KARIPPOL,
Mat.Appeal Nos.1199/2015, 1184/2016
2
2025:KER:53012
MALAPPURAM DISTRICT.
(WITHIN THE VALANCHERRY
POLICE STATION LIMIT),
PIN-676 552.
BY ADVS.
SRI.R.KRISHNAKUMAR (CHERTHALA)
SHRI.JITHIN LUKOSE
SRI.P.SAMSUDIN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
10.07.2025, ALONG WITH MAT.APPEAL NO.1184/2016, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.1199/2015, 1184/2016
3
2025:KER:53012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 21ST DAY OF JULY 2025 / 30TH ASHADHA, 1947
MAT.APPEAL NO. 1184 OF 2016
AGAINST THE ORDER DATED 16.07.2015 IN OP NO.915 OF
2013 OF FAMILY COURT, TIRUR
APPELLANT/1ST RESPONDENT:
HAMZA
AGED 43 YEARS, S/O.MUHAMMED,
PUTHUPARAMBIL VEEDU, KANHIPPURA,
P.O.KARIPPOL, MALAPPURAM DISTRICT
BY ADV SRI.R.KRISHNAKUMAR (CHERTHALA)
RESPONDENTS/PETITIONER & 2ND RESPONDENT:
1 SUHARA
AGED 35 YEARS, D/O.MUHAMMED,
CHANGARAMCHOLA VEEDU, P.O.CHERUSOLA,
RANDATHANI, MALAPPURAM DISTRICT
2 MUAHMMED
AGED 71 YEARS, S/O.MARAKKAR,
PUTHUPARAMBIL VEEDU, KANHIPPURA,
P.O.KARIPPOL, MALAPPURAM DISTRICT
Mat.Appeal Nos.1199/2015, 1184/2016
4
2025:KER:53012
BY ADVS.
SHRI.K.C.ANTONY MATHEW
SMT.ANJU CLETUS
SHRI.JITHIN LUKOSE
SRI.P.SAMSUDIN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
10.07.2025, ALONG WITH MAT.APPEAL.NO.1199/2015, THE COURT ON
21.07.2025 DELIVERED THE FOLLOWING:
Mat.Appeal Nos.1199/2015, 1184/2016
5
2025:KER:53012
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal Nos.1199/2015 & 1184/2016
= = = = = = = = = = = = = = = = = =
Dated this the 21st day of July, 2025
JUDGMENT
P.Krishna Kumar, J.
A petition filed by the wife for recovery of gold
ornaments and money against her husband and father-in-
law was allowed by the Family Court as against the
husband, who remained ex parte. The Family Court
dismissed the petition against the father-in-law. The
husband and wife challenge the said order, aggrieved by
the respective adverse decree. For the sake of
convenience, the parties will be hereinafter referred to
as they were arrayed in the original petition.
2. The petitioner and the first respondent were
married on 05.11.1998, and two children were born to
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
them in their wedlock. The petitioner contended that 110
sovereigns of gold ornaments belonging to her were
misappropriated by the first and second respondents.
According to her, she received 100 sovereigns of gold
ornaments at the time of her marriage from her parents,
and 10 sovereigns from the first respondent as 'Mahar'.
The first respondent also obtained Rs. 2,20,000/- from
her parents. Initially, the first and second respondents
obtained 80 sovereigns of gold ornaments from her by
representing that it was necessary for purchasing a
residential plot. Later, after the first respondent went
abroad in 2007, the second respondent obtained the
remaining 30 sovereigns from her and sold them, she
contended.
3. The second respondent denied the entire set of
allegations and contended that the petition was filed in
collusion with his son, the first respondent, with a
view to obtaining money from him. He further stated that
he was unaware of any of the contentions raised in the
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
petition. According to him, the petitioner and the first
respondent are still living together along with their
children, and while the first respondent was abroad, he
used to send money to the petitioner, which reflects
their cordial relationship. It is further stated that
the first respondent has completely severed ties with
the second respondent, and since the second respondent
is aged and unable to maintain himself, he filed a
maintenance case against the first respondent before the
Family Court.
4. In the appeal preferred by the first respondent,
he pleaded that his non-appearance before the court was
neither deliberate nor wilful, as he was working in
Jeddah at the relevant time. According to him, he did
not receive any notice of the proceedings initiated by
the wife, but came to know of the impugned order only
when he reached his native place on 03.09.2016, and
thereafter preferred the present appeal. He further
stated that unless he is given an opportunity to contest
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
the matter on merits, it would cause serious prejudice
to him.
5. We have heard the learned counsel appearing for
all the parties.
6. The learned counsel appearing for the first
respondent handed over a copy of the first respondent's
passport to show that he was abroad during the relevant
period. It was also contended that as he had overstayed
abroad beyond the visa period, he was even imprisoned
and later deported. It is further urged that he may be
given an opportunity to contest the matter on merits.
7. Though the first respondent has not produced any
convincing materials to substantiate his contention that
he was abroad throughout the relevant period, it remains
undisputed that he went abroad after 2007. This is
evident from the very pleadings of the petitioner.
Though the second respondent contended that the first
respondent used to reside with his wife and children
when he occasionally visited his homeland, we are
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
persuaded to accept the submissions made by the learned
counsel appearing for the first respondent, since the
general policy of law is to provide an opportunity to
parties to contest cases on merit, wherever possible.
However, considering the extraordinary delay that
occurred in this matter and the loss of invaluable
judicial time, the appeal can be allowed only upon
payment of costs.
8. As far as the appeal preferred by the petitioner
challenging the dismissal of the petition against the
second respondent is concerned, the question is whether
the second respondent is liable to return any gold
ornaments or money to the petitioner.
9. According to the petitioner, she received 100
sovereigns of gold ornaments from her parents and 10
sovereigns from the first respondent as 'Mahar' at the
time of marriage. There is no documentary evidence to
prove that she received such a quantity of gold
ornaments at the time of her marriage. In cross-
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
examination, she stated that the entire gold ornaments
were purchased from Alukkas Jewellery by her father, but
the bill was found missing. This fact is also not
mentioned in the original petition. Thus, the oral
evidence of the petitioner and her father is the only
material upon which the trial court found that she had
110 sovereigns of gold. The trial court did not rely on
the photograph produced by the petitioner, holding that
the quantity of gold could not be assessed from it.
10. The petitioner produced Ext.P1, a photograph
taken on the occasion of the marriage, to corroborate
her contentions. She specifically stated in her petition
that she went to the matrimonial home adorned with the
entire 110 sovereigns of gold ornaments. Significantly,
she did not furnish any details of the gold ornaments in
the petition filed before the Family Court. She also did
not provide those details in the proof affidavit
submitted during the trial, despite being fully aware
that the second respondent had stoutly denied her
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
allegations regarding the gold ornaments. Curiously,
during cross-examination, she attempted to improve her
case by describing the gold ornaments, stating that she
had omitted to provide the details in the original
petition. According to her, she had the following gold
ornaments at the time of her marriage:
"15 പവൻ ച യ ൻ, 8 പവൻ ച റ യ ച യ ൻ, 6 പവൻ ക റ ക ചകട , 2
പവനചറ ച റ യ മ ല, 10 പവനചറ അരപട, 5 പവനചറ കകച യൻ, 6
പവനചറ പ ദസര , 6 പവനചറ ഒര വള, 5 പവനചറ 2 വള, 4 പവനചറ 4
വള, 4 പവനചറ ഒര വള, 1/2 പവൻ വ തമ ള 4 മമ ത ര , 2 മ ഡ
കമൽ 1/2 പവൻ വ ത , മവചറ ഓമര പവനചറ 10 വള, ഓമര പവൻ
വ തമ ള 14 വളകള ണ യ ര ന . സ'ർണത നചറ വ ച ണ യ ര ന 2
പവന ണ."
The description of gold ornaments as stated above does
not tally with the gold ornaments appearing in Ext.P1
photograph. On a careful perusal of Exhibit P1, we are
unable to accept the petitioner's claim that she adorned
110 sovereigns of gold ornaments at the time of her
marriage. From the photograph, it appears she was
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
wearing 6 or 7 chains/necklaces, 12 to 14 bangles,
rings, earrings, one hand chain, and a hip chain. On our
rough estimation, it appears that she might have
possessed approximately 60 sovereigns of gold ornament.
It is important to note that the petitioner deposed in
cross-examination that all her ornaments are visible in
Ext.P1. Prima facie, the petitioner failed to
substantiate that she possessed 110 sovereigns of gold
ornaments at the time of her marriage. However, it is
reasonable to hold that she had 60 sovereigns of gold at
that time.
11. Another significant aspect noted in the
petitioner's evidence is the inconsistent stand taken by
her in the pleadings and during the oral evidence. She
stated:
"നച- ര വ ട സലവ ശര യ യ ട ചണന പറഞ1,2 എത3കകകൾ
ഒന ഹർ ക ര യ ചട സ'ർണ ഭരണങള ൽ 80 പവൻ
സ'ർണ ഭരണങൾ എട ത വ ൽക കയ ണ ചയങ ല വട സലവ
വ ങ കയ ണ യ -."
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
Thus, the allegation made by the petitioner against the
second respondent is only that, together with the first
respondent, he obtained 80 sovereigns of gold ornaments
from her. This stand was maintained even in her proof
affidavit. Further, she had no case in her pleadings
that she ever entrusted the gold ornaments with the
second respondent. However, during cross-examination,
she came up with an altogether different case. She then
stated:
"80 പവൻ എടുത്തതത് രണണണ്ടാംഎതൃകകക്ഷിയണണത്. എനക്ഷികണ്ടാം ഭ ർ ത്തണ വക്ഷി നണ്ടാം കൂടക്ഷി വവീടുണ്ടാം
സ്ഥലവണ്ടാം വണങണനണണത് 80 പവൻ എടുത്തതത്.
........
വക്ഷിവണഹണ്ടാം കഴക്ഷിഞ്ഞ അനത് തനന 100 പവൻ ആഭരണണ്ടാം രണണണ്ടാം എതൃകകക്ഷിനയ
ഏൽപക്ഷിചക്ഷിരുന. പ്രസവത്തക്ഷിന പപണകുപമണൾ എനക്ഷികത് തക്ഷിരക്ഷിച്ചു തനക്ഷിരുന."
We therefore find no reason to accept her contention
against the second respondent regarding the alleged 80
sovereigns of gold ornaments.
12. The petitioner further contended in the
original petition that after the first respondent went
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
abroad, the second respondent mentally and physically
harassed her, demanding more dowry, and forcibly took 30
sovereigns of gold ornaments from her. In cross-
examination, she stated that the second respondent had
taken the gold ornaments from her personal almirah,
which she witnessed and objected to. These aspects were
not stated in the original petition. She was also unable
to specify the date, month, or even the year of the
alleged incident. Notably, she did not raise any
complaint in respect of this allegation until she filed
the original petition before the Family Court, Tirur, in
2013.
13. In the above circumstances, we find the
second respondent's evidence to be more reliable than
that of the petitioner. When he gave evidence as RW1, he
denied all allegations. Though he was thoroughly cross-
examined, his version remained unshaken. Despite
specifically denying the incidents relating to the
alleged forcible taking of 30 sovereigns of gold and the
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
misappropriation of 80 sovereigns, not even a single
question was put to him in cross-examination challenging
his version--other than a general suggestion at the end
that he, along with the first respondent, had received
gold ornaments from the petitioner.
14. The learned Family Judge considered all
relevant aspects and correctly arrived at the said
conclusion. Accordingly, we find no illegality in the
impugned order by which the petition against the second
respondent was dismissed. Hence, the appeal is liable to
be rejected.
15. In the result, Mat. Appeal No. 1184/2016 is
allowed. The impugned order as against the first
respondent/husband is set aside. The original petition
as against him is restored to file, on the condition
that the first respondent/husband shall pay Rs.10,000/-
(Rupees Ten Thousand only) to the petitioner/wife within
three weeks and produce proof thereof before the Family
Court, Tirur. The first respondent/husband and the
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
petitioner/wife shall appear before the Family Court on
18/08/2025. Considering the extraordinary delay that has
occurred in this matter, we expect that the Family Court
will dispose of the case at the earliest.
Mat. Appeal No. 1199/2015 is dismissed. No order as
to costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
Mat.Appeal Nos.1199/2015, 1184/2016
2025:KER:53012
APPENDIX OF MAT.APPEAL 1184/2016
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE EMERGENCY CERTIFICATE
BEARING NO. X0630219 ISSUED BY THE
REPUBLIC OF INDIA TO THE
APPLICANT/APPELLANT
