Kerala High Court
Ummuhabeeba vs Fahad V on 3 November, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal No.508 of 2019
and
Cross Objection No.128 of 2024
2025:KER:82479
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 3RD DAY OF NOVEMBER 2025 / 12TH KARTHIKA, 1947
MAT.APPEAL NO. 508 OF 2019
AGAINST THE JUDGMENT DATED 20.03.2019 IN OP NO.249 OF 2016 OF
FAMILY COURT,KOZHIKODE
APPELLANTS/RESPONDENTS IN O.P.NO.249/2016:
1 FAHAD V, S/O. ISMAYIL, VADAKKE VEETTIL,
FAROOK COLLEGE P.O,
VAZHAYUR ASMOM DESOM, MALAPPURAM.
2 JAMEELA, W/O. ISMAYIL,
VADAKKE VEETTIL, FAROOK COLLEGE P.O,
VAZHAYUR AMSOM DESOM, MALAPPURAM.
3 ISMAYIL,VADAKKE VEETTIL,
FAROOK COLLEGE P.O,
VAZHAYUR AMSOM DESOM, MALAPPURAM.
BY ADV SRI.E.NARAYANAN
RESPONDENTS/PETITIONER IN O.P.NO.249/2016:
UMMUHABEEBA,AGED 29, D/O. LATE HAMEED,
C/O. ABOOBAKKER, THARAYIL HOUSE,
PADATH PARAMBA, BEYPORE AMSOM DESOM,
BEYPORE P.O, KOZHIKODE-673015.
BY ADVS.
SRI.M.PROMODH KUMAR
SMT.MAYA CHANDRAN
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
29.10.2025, ALONG WITH CO.128/2024, THE COURT ON 03.11.2025
DELIVERED THE FOLLOWING:
Mat.Appeal No.508 of 2019
and
Cross Objection No.128 of 2024
2025:KER:82479
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 3RD DAY OF NOVEMBER 2025 / 12TH KARTHIKA, 1947
CO NO. 128 OF 2024
AGAINST THE JUDGMENT DATED 20.03.2019 IN OP NO.249 OF 2016 OF
FAMILY COURT,KOZHIKODE
CROSS OBJECTOR/RESPONDENT:
UMMUHABEEBA, AGED 35 YEARS
D/O LATE HAMEED., C/O ABOOBACKER
THARAYIL HOUSE,
PADATH PARAMBA,
BEYPORE AMSOM DESOM, BEYPORE. P.O.,
KOZHIKODE DISTRICT, PIN - 673015
BY ADVS.
SRI.M.PROMODH KUMAR
SMT.MAYA CHANDRAN
RESPONDENTS/APPELLANTS:
1 FAHAD V, AGED 44 YEARS
S/O ISMAYIL,VADAKKE VEETIL,
FAROOK COLLEGE P.O.,
VAZHAYUR AMSOM, DESOM,
MALAPPURAM., PIN - 673633
2 JAMEELA, AGED 64 YEARS
W/O ISMAYIL,VADAKKE VEETIL,
FAROOK COLLEGE P.O.,
VAZHAYUR AMSOM, DESOM,
MALAPPURAM., PIN - 673633
Mat.Appeal No.508 of 2019
and
Cross Objection No.128 of 2024
2025:KER:82479
3
3 ISMAYIL, AGED 71 YEARS
VADAKKE VEETIL,
FAROOK COLLEGE.P.O.,
VAZHAYUR AMSOM, DESOM,
MALAPPURAM, PIN - 673633
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 29.10.2025, ALONG WITH Mat.Appeal.508/2019, THE COURT
ON 03.11.2025 DELIVERED THE FOLLOWING:
Mat.Appeal No.508 of 2019
and
Cross Objection No.128 of 2024
2025:KER:82479
4
SATHISH NINAN & P.KRISHNA KUMAR, JJ
--------------------------------------
Mat.Appeal No.508 of 2019
and
Cross Objection No.128 of 2024
--------------------------------------
Dated this the 3rd day of November, 2025
JUDGMENT
P.Krishna Kumar.J
In the Original Petition filed by the respondent
herein before the Family Court, she was permitted to recover
52.955 sovereigns of gold ornaments from the appellants or,
in the alternative, a sum of Rs. 11,18,410 (Rupees Eleven
Lakh Eighteen Thousand Four Hundred and Ten only), as per
the judgment impugned in this appeal. Against the said
judgment, the husband is in appeal and the wife is in cross-
objection.
2. The marriage between the first appellant and the
respondent was solemnised on 15.06.2008. The respondent-wife
contended that at the time of marriage, she was wearing 65
sovereigns of gold ornaments, of which 53 sovereigns were
given to her by her parents and the remaining by her
and
Cross Objection No.128 of 2024
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relatives. She further contended that, a week after the
marriage, the gold ornaments were handed over to the
appellants for safe custody, but the ornaments were
misappropriated by the first appellant and his parents for
constructing the upper floor of their house and also for the
marriage of the first appellant's elder sister.
3. The first appellant denied the said allegations.
According to him, the respondent belonged to a poor family
and possessed less than 10 sovereigns of gold ornaments. He
further stated that the said ornaments were retained by the
respondent herself and that he had never utilised them for
the construction of the building or for his sister's
marriage.
4. The evidence in this case consists of the oral
testimony of PWs 1 and 2 and RW1, and the documents marked
as Exts. A1 to A11 and B1 to B3. After considering the oral
and documentary evidence, the learned Family Judge directed
the appellants to return 52.955 sovereigns of gold ornaments
or, in the alternative, to pay Rs. 11,18,410. The court
rejected the claim for 12 sovereigns of gold ornaments on
the ground that the respondent had failed to adduce any
and
Cross Objection No.128 of 2024
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evidence in support of that claim.
5. We have heard Sri E. Narayanan, the learned counsel
for the appellants, and Sri Pramodh Kumar M., the learned
counsel for the respondent.
6. Having considered the pleadings, the oral and
documentary evidence, and the submissions made at the Bar,
the point that arises for consideration is whether the
respondent is entitled to recover the gold ornaments from
the appellants as claimed.
7. Sri E. Narayanan, the learned counsel appearing for
the appellants, contended that when the wife has set up a
specific claim regarding the purpose for which the gold
ornaments were allegedly misappropriated by the appellants,
it was her bounden duty to substantiate the same with
convincing evidence. According to him, Exts. A6-A8 invoices
ought not to have been admitted in evidence, as they
contravene Rule 58(10) of the Kerala Value Added Tax Rules,
2005, which mandates a specific form for invoices issued for
the purchase of gold. Hence, those documents are liable to
be excluded from consideration, especially since PW2, the
alleged gold merchant, conceded in cross-examination that
and
Cross Objection No.128 of 2024
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the jewellery business is governed by the provisions of the
said Rules. The learned counsel further submitted that PW1
admitted in cross-examination that the gold ornaments were
purchased in her mother's name, whereas the invoices
produced before the court do not contain her mother's name.
In the above circumstances, it was contended that, in the
absence of any independent evidence to prove the alleged
misappropriation of the gold ornaments, the judgment under
challenge is liable to be set aside.
8. Adv. Sri Pramodh Kumar M., the learned counsel
appearing for the respondent, invited our attention to the
cross-objection filed by the wife and contended that the
court ought to have permitted her to recover the entire
quantity of gold ornaments claimed. He further submitted
that the court erred in fixing the value of the gold
ornaments at Rs. 11,18,410, instead of directing recovery
based on the value of gold at the time of actual recovery.
According to him, the respondent has adduced all the
necessary evidence to substantiate her claim.
9. The respondent produced Ext. A10, a photo album, and
Ext. A9 series of photographs, relating to their marriage.
and
Cross Objection No.128 of 2024
2025:KER:82479
During cross-examination, the appellants disputed only some
of the photographs. The questions put to the witness in this
regard are relevant. It is as follows:--
"Ext. A10 ആൽബത ല 1, 2 പ ജൽ ക ണന പ പ കല ണ
ദ വസപതയ ണ 3-)o പ ജ ളത ക ണതപ നലതയ 4-)o പ ജ ളത
ക ണദ വസലതയ മ ണ . 3 ഉ 4 ഉ പ ജ ല പ പ യ ൽ അ ങ രത ന യ
മക ണങൾ അണ ഞ എട ത പ പ യ ലണന റഞ ൽ ശര യല.
ആൽബത ല 2-)o പ ജ ൽ ഞ ന ഭർത വ പ.ർന ള പ പ യ 26-)o
പ ജ ൽഞ ന അമ വന പ.ർന ള പ പ യ മ ണ . കല ണ പ പ യൽ
അണ ഞ ക ണ ന ആഭരണങൾ ഏത ന യക 65 വൻ ക ണ ല എന
പകവ 25-30 വൻ ത2കപമ ക ണ2 എന റഞ ൽ ശര യല. "
First of all, the respondent produced Ext. A9 series of
marriage photographs as well, which were not disputed by the
appellants. A mere perusal of the Ext. A9 series of
photographs clearly shows that the respondent was wearing more
than 50 sovereigns of ornaments at the time of her marriage.
Secondly, the contentions raised by the appellants regarding
the quantity of gold ornaments possessed by the wife at the
time of marriage are wholly inconsistent. In the objection
filed against the original petition, they stated that she had
only 10 sovereigns of gold ornaments. However, when the first
appellant was examined as RW1, he stated in his chief
examination that she had 20 sovereigns of gold ornaments. As
noted above, when PW1 was cross-examined, it was suggested to
and
Cross Objection No.128 of 2024
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her that she possessed nearly 25 to 30 sovereigns of gold
ornaments.
10. The genuineness of Exts. A6-A8 invoices have to
be tested in the light of these circumstances. The said
documents were marked in evidence through PW2, the owner of
the jewellery shop. We find no merit in the contention that
merely because the invoices are not in the form prescribed by
the taxation authorities, they should be presumed to be
fabricated. Non-compliance with the statutory form may entail
penal consequences, but that by itself cannot be a ground to
challenge the authenticity of a document. Although the
respondent contended that her relatives had gifted her 12
sovereigns of gold ornaments, she chose not to examine any of
them or any other person acquainted with that fact. Therefore,
on considering the evidence of PW1 and PW2, together with Ext.
A6 to A8, we have no difficulty in concluding that the
respondent possessed at least 53 sovereigns of gold ornaments
at the time of her marriage.
11. The contention that the respondent failed to
and
Cross Objection No.128 of 2024
2025:KER:82479
prove the specific purposes for which the appellants
misappropriated the gold ornaments is also untenable. PW1
has specifically stated as follows:--
"65 വന ൽ ഏലതങ എത ർകക ണയ ലവക നപത വ ൽക നപത
ന ങൾ കണ പണ (Q) വ ൽക ൻ ലക ണ പ വ നത ഞ ൻ കണ ണ .
എവ ലടയ ണ ലക ണ പ യലതന എന കറ യ ല . എന ണ ലക ണ പ യത .
(Q) ഒന എത5കകയ ലട മ2ത സപ6 ദര യ ലട വ വ 6 സമയത ണ. ന7ട
അവര ലട വ7ട നലറ upstair ണ സമയത ണ . എതത വലനന റയ ൻ
കഴ യ പമ ? (Q) ക ത കല ണത നലറ സമയത ക ത വ7ട ണ
സമയത . "
She had also made similar allegations in her chief
examination. The answers elicited from the 1st Appellant/RW1
must be read along with this version. He admitted that one of
his sisters was married two years after his marriage with the
respondent. He also stated that their house was repaired
before his sister's marriage. The statement reads as follows:--
"ഫ സ ന എന 6 മ എന പ ര യ രണസപ6 ദര മ ർ എന ക ണ. 2010
ജ2 യ മ സത യ ര ന ഫ സ2ന എന സപ6 ദര യ ലട വ വ 6 . രണ
പ ര എനലറ ഇളയ സപ6 ദര മ ര ണ. ഫ സ2നയ ലട വ വ 6 കഴ ഞത
എനലറ വ വ 6 കഴ ഞ രണ വർഷ ത കഞപ? ൾ ആണ . ഫ സ2നയ ലട
വ വ 6ത ന മ പ@ ഞങൾ ത മസ ക ന വ7ട റ ?യർ ല.യB ര ന .
ഫ സ2നയ ലട വ വ 6ത ന വ7ട റ ?യറ ന 6രജ ക ര യ ലട സCർണ
ഉ പയ ഗ ച എന 6രജ ക ര വ ദ ക ന ക ര എന ക അറ യ . "
12. This Court, in Syamini S. Nair and Others v.
Sreekanth R. [2022 (3) KHC 145], held that even if an
and
Cross Objection No.128 of 2024
2025:KER:82479
alternative relief for the market value of gold ornaments as
on the date of recovery is not sought, in view of Rule 7 of
Order VII of the Code of Civil Procedure, the court has the
discretion to grant such relief in a claim for the return of
movable property, where the specific movable property is not
returned to the claimant pursuant to the directions of the
court. The relevant observation reads thus:
"36. Going by the above Rule, it shall not be necessary to ask for
general or other relief which may always be given as the Court may think
just, to the same extent as if it had been asked for. So, for doing
complete justice, the Court can grant a general or other relief even if
it was not asked, as if it had been asked for. This position has been
fortified by a Division Bench of this Court in Anilkumar K. v. Ajith and
Others [2012 (4) KHC 546 : 2012 (4) KLT 545 : 2012 (4) KLJ 624 : ILR 2012
(4) Ker. 632]. It was held in that decision that the general principle is
that every relief shall be stated specifically in the plaint. However,
the power of the Court to grant just and proper relief to a party without
its being specifically prayed for is also recognised by the second part
of Order VII Rule 7 CPC. When the Family Court was convinced of the
factum of entrustment of gold ornaments with the husband and in-laws in
trust for the wife, and they were not returned after long years of
entrustment, nothing prevents the Family Court from granting an
alternative relief by awarding the value of the gold ornaments as on the
date of payment. The rate of gold is readily available on the internet,
and hence there is no difficulty in calculating the market value as on
the date of payment. When the decree is for the return of the value of
gold as on the date of payment, obviously, it shall not carry any
interest."
In the present case, we find no reason to deny the respondent-
wife the right to recover the actual market value of the gold
ornaments, if the appellants fail to return them in specie.
and
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In the result, the appeal and the cross objection are
allowed in part. The appellants are directed to return 45
sovereigns of gold ornaments to the respondent within one
month from today, failing which the respondent shall be
entitled to recover the market value of 45 sovereigns of
gold ornaments as on the date of recovery from the
appellants and their assets.
Sd/-
SATHISH NINAN, JUDGE
Sd/-
P.KRISHNA KUMAR, JUDGE
dlk/30.10.
