Kerala High Court
Manalikkal Salahudheen vs Ummusalma on 9 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal No.693 of 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 9TH DAY OF JUNE 2025 / 19TH JYAISHTA, 1947
MAT.APPEAL NO. 693 OF 2015
AGAINST THE ORDER DATED 25.03.2015 IN OP NO.972 OF 2013 OF
FAMILY COURT, TIRUR
APPELLANTS/RESPONDENTS:
1 MANALIKKAL SALAHUDHEEN
AGED 30 YEARS
S/O.HAMZA, MANALIKKAL HOUE, KODHINHI ROAD,
CHEMMAD PO, TIRURANGADI, MALAPPRUAM DISTRICT
2 HAMZA
MANALIKKAL HOUE, KODHINHI ROAD, CHEMMAD PO,
TIRURANGADI, MALAPPRUAM DISTRICT
3 KHADEEJA
W/O.HAMSA,MANALIKKAL HOUE, KODHINHI ROAD, CHEMMAD PO,
TIRURANGADI, MALAPPRUAM DISTRICT
4 SAMEERALI
S/O.HAMZA,MANALIKKAL HOUE, KODHINHI ROAD, CHEMMAD PO,
TIRURANGADI, MALAPPRUAM DISTRICT
BY ADV SHRI.K.P.SUDHEER
RESPONDENT/PETITIONER:
UMMUSALMA, AGED 23 YEARS
D/O.SAIDALAVI, ENNISSERI HOUSE, VELLYAMBURAM,
Mat.Appeal No.693 of 2015
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THAYYALINGAL PO, MALAPPURAM DISTRICT 676 320.
BY ADVS.
SRI.AUGUSTINE JOSEPH
SRI.GEORGE RENOY
SRI.K.S.ROCKEY
SRI.TONY AUGUSTINE
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
04.06.2025, THE COURT ON 09.06.2025 DELIVERED THE FOLLOWING:
Mat.Appeal No.693 of 2015
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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Mat.Appeal No.693 of 2015
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Dated this the 9th day of June, 2025
JUDGMENT
P.Krishna Kumar, J.
In a petition filed by the wife, the Family Court, Tirur,
directed the appellants, the husband and the in-laws, to pay
Rs. 6,78,000/- towards the value of 30 sovereigns of gold
ornaments and further permitted the wife to recover Rs.
1,50,000/- from them. The court also directed the first
appellant to pay the respondent Rs. 52,000/- as past
maintenance for 13 months @ Rs. 4,000/- per month. The said
order is under challenge in this appeal.
2. The respondent and the first appellant were married
on 8.5.2011. The respondent contended that 30 sovereigns of
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gold ornaments and Rs. 1,50,000/- were entrusted to the
appellants one month after their marriage, but the gold
ornaments and the amount were misappropriated by the
appellants without her knowledge. She also stated that she
was unable to maintain herself and that the first appellant
had sufficient means to maintain her, as he, being an auto-
rickshaw owner, had an income of Rs. 30,000/- per month.
Accordingly, the respondent sought recovery of the market
value of the gold ornaments as on the date of petition, the
money entrusted, and past maintenance for 13 months.
3. The appellants denied the above allegations.
According to them, the gold ornaments worn by the respondent
at the time of her marriage were only around 15 sovereigns.
The assertion that money and gold ornaments were entrusted
to the appellants, was stoutly denied by them. On the day of
Bakrid in 2013, the respondent went to her home and
thereafter did not return despite repeated requests by the
first appellant, and thus she is not entitled to claim any
maintenance, it is contended.
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4. We have heard the learned counsel appearing on both
sides.
5. It is argued by the learned counsel for the
appellants that, even as per the case of the respondent, she
was not in a position to entrust 30 sovereigns of gold
ornaments to the appellants, as 5 sovereigns of gold were
merely lent to her by her father at the time of marriage. It
is also argued that there is no direct evidence to prove the
entrustment of Rs. 1,50,000/- with the appellants. On the
other hand, the learned counsel for the respondent submitted
that the trial court had considered all these aspects and
yet found in favour of the respondent based on the evidence
of PW1 to PW3 and the documentary evidence.
6. First, let us consider the quantity of gold
ornaments which might have been possessed by the respondent
at the time of her marriage. The respondent states that, at
the time of marriage, she had 30 sovereigns of gold
ornaments. Out of this, 21 ½ sovereigns were purchased by
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her father from a jewellery shop named Nakshatra Gold. She
produced Ext.A1 document to prove her contention. The above
document and the oral evidence of PW1 to PW3 substantiate
that 159.03 gms of gold ornaments worth Rs. 3,68,875/- were
purchased for the respondent on 6.5.2011. This comes to
around 20 sovereigns of gold. She further deposed that 3½
sovereigns of gold ornaments were gifted to her by the wife
of her brother. We find her sworn deposition that she got 3½
sovereigns from her sister-in-law at the time of her
marriage, reliable. In short, the respondent is able to show
that 23 ½ sovereigns of gold ornaments were at her disposal
at the time of her marriage. Another 5 sovereigns is claimed
to have been lent by a relative. It can only be a temporary
arrangement. There is no case that it has not been returned.
Therefore, the said quantity cannot be reckoned.
7. Though it was vehemently contended by the learned
counsel for the appellants that there is no convincing proof
of the entrustment of the gold ornaments, after going
through her evidence, we find no difficulty in relying on
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the testimony of the respondent to the extent that she
entrusted some of her gold ornaments to her in-laws after
the marriage. The trial court, having had the advantage of
observing the demeanour of both the parties and the
witnesses, accepted the oral testimony of PW1 to PW3 in
preference to the evidence presented by the appellants. We
find no reason to take a different course.
8. Furthermore, regard being had to the ordinary course
of human conduct, it is only reasonable to infer that the
respondent would have had at least 5 sovereigns of gold
ornaments for her daily wear with her.
9. In the light of the foregoing discussion, it is
reasonable to conclude that the respondent has succeeded in
proving the entrustment of the remaining gold ornaments,
namely 18½ sovereigns (i.e., 20 + 3½ - 5 = 18½) to the
appellants.
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10. It is settled law that when the court orders
recovery of gold ornaments or, in the alternative, their
market value, the current market value prevalent at the time
of realisation should be awarded, even if no such relief is
specifically sought in the petition (see Syamini S. Nair and
Others v. Sreekanth R., 2022 (3) KHC 145). The market value
fixed in the impugned order is not consistent with the above
proposition. Therefore, the impugned order requires
interference.
11. As regards the entrustment of Rs. 1,50,000/- with
the appellants, we find that the oral evidence adduced by
the respondent is not sufficient to accept such a
contention. The consistent case of the respondent is that
the said amount was given to the appellants by her father.
Yet, he did not mount the witness box. The respondent has no
explanation for not examining her father. When the
respondent withheld the best evidence in that regard, we
find no foundation for her claim. The trial court omitted
this crucial aspect as well. Therefore, the direction in the
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impugned order to that extent is also liable to be set
aside.
12. The past maintenance for 13 months was ordered by
the Family Court on being satisfied that the first appellant
had neglected to pay maintenance to the respondent. The
justification pointed out by the first appellant is that the
respondent did not return to his company despite his
repeated demands. Nevertheless, he has not instituted any
proceedings for restitution of conjugal rights. The
respondent testified that she was subjected to cruelty by
the first appellant, which compelled her to stay away.
Considering the evidence available before the court, we are
of the view that the first appellant is liable to pay past
maintenance. However, taking into account the fact that he
was only an autorickshaw driver/owner, we deem it
appropriate to limit the monthly amount to Rs. 2,500/-,
particularly in view of the fact that the trial court had
ordered future maintenance @ Rs. 4,000/- per month and there
is no challenge against it.
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In the result, the appeal is partly allowed. The
respondent is entitled to recover 18½ sovereigns of gold
ornaments from the appellants or to recover its market value
prevalent at the time of recovery, but without any interest
on it. The direction for recovery of Rs. 1,50,000/- is set
aside. The order for past maintenance @ Rs. 4,000/- per
month is reduced to Rs. 2,500/- per month for a period of 13
months, with 6% interest. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
