Rafeeque vs Jasna

Sophy Thomas, J

The appellants herein are the respondents in O.P.No.369 of 2009 of Family Court, Palakkad. The petitioner therein was the wife of the 1st appellant. She filed that O.P for recovery of Patrimony amounting to Rs.50,000/- and gold ornaments weighing 54½ sovereigns, from the appellants who are her husband and parents in law. The parties belong to Muslim community and the marriage between the 1st appellant and the respondent was solemnized on 22.08.2004 as per Muslim Religious Rites and ceremonies. A child was born in their wedlock.

Fifty sovereigns of gold ornaments and Rs.50,000 in cash were gifted to her from her family at the time of marriage. Within 2 days of marriage, the cash was received by the appellants for clearing their debts. Her matrimonial life was miserable as the appellants harassed her demanding more gold and money, and alleging that her gold ornaments were not having 916 hallmark, and so they demanded to change her ornaments into 916 purity gold. For the child, 4½ sovereigns were given from her family and a teak almarah and a cot were also given from her family after her delivery. She had to leave her matrimonial home on several occasions unbearable with the matrimonial cruelties meted out to her by the appellants. On 23.01.2009, she demanded her gold ornaments and then she was thrown out of her matrimonial home. So she filed the above O.P.

The appellants objected entrustment of any money or gold ornaments by the respondent or her parents. No gold ornaments were given to the child as alleged by the respondent wife. She had a pre-marital illicit connection with one Mr. Rasheed and she eloped with him abandoning the child at the house of the appellants. So the 1st appellant pronounced Talaque on 06.04.2009. The respondent or her parents had no financial capacity to give Rs.50,000 or 50 sovereigns of gold ornaments as alleged.

PW1 and Ext.A1 to A3 were marked from the side of respondent wife and RW1 was examined from the side of the appellants. After analysing the facts and evidence on board, the family court allowed the petition in part, directing the appellants/respondents to return 30 sovereigns of gold or its market value @ Rs.20,000/- per sovereign with a default clause of interest @ 6%. Her claim for Rs.50,000/- and movables were found against and dismissed. The respondent wife has not challenged that judgment.

Aggrieved by the decree suffered for 30 sovereigns of gold ornaments the appellants preferred this appeal. According to them no gold ornaments were entrusted with them by the respondent. They have got a case that the respondent and her family were not having any financial capacity to give Rs.50,000/- in cash or 50 sovereigns of gold as alleged in the petition. The respondent is also admitting that she belongs to a poor family and by availing loan by her father the gold and money for her marriage was arranged. According to her, gold ornaments were purchased from Manjali jewellery  at  Palakkad  but  no  bills  are produced. Records  from  the  mahal  committee  also  is not produced to  prove  the  entry  if  any  regarding  gold ornaments given  to  the  bride  from  her  family  at the time  of marriage.  Her  father  was  not  examined  to prove  before court   that   he   had   availed   loan   to purchase 50 sovereigns  of  gold for  his  daughter apart from entrusting Rs.50,000/- in cash.

The case of the respondent seems to be a strange one, as her case is that the appellants who also belong to an ordinary family were demanding exchange of her gold ornaments to convert it into 916 gold. Her definite case is that she had filed a complaint before the Vanitha Cell, and as directed by the officials there, she converted her entire 50 sovereigns of gold ornaments into 916 gold and handed it over to the appellants. It is a matter of common knowledge, that when 50 sovereigns of gold ornaments having less purity is converted into 916 gold, we may not get the full 50 sovereigns. She has no case that she expended any more money from her pocket to get the full 50 sovereigns in 916 purity.

She produced Ext.A3 copy of complaint filed by her before Vanitha Cell to show that she was ill-treated and harassed by the appellants demanding 916 gold. According to her as directed by the officials of the Vanitha Cell her entire 50 sovereigns of gold were converted into 916 and it was handed over to the appellants, and that decision will find a place in the register of the vanitha cell. Though she obtained copy of the complaint under the Right to Information Act and produced it before the Family Court, the crucial document, i.e., the decision taken by the vanitha cell was not produced by her. When examined before Court she developed a new case, that as per the decision of the Vanitha Cell, only 10 sovereigns were given to the appellants. At the same time she would say that 50 sovereigns of gold were given earlier. She has not stated about the source of money for purchasing 10 sovereigns of 916 gold ornaments allegedly given to the appellants, as per the decision of the vanitha cell.

It is true that Ext.A1 series photographs will show that the respondent was adorned with ornaments at the time of marriage. But we are not able to find out whether those ornaments were real gold or not. The family Court based on the photographs and based on the statement of RW1 that the respondent was wearing fake ornaments at the time of marriage, simply granted a decree for 30 sovereigns of gold, without any factual foundation.  The  respondent  admitted  that after  she left her matrimonial home, she married one Mr.Rasheed and now she is living with him. The case of the appellants is that she left her matrimonial home to live with her paramour, abandoning the child, and no money or gold were ever entrusted with them. The Family Court found fault with the appellants in not stating in the counter that the respondent was wearing imitation gold at the time of the marriage. If there was no entrustment of gold the appellants may not know whether the ornaments worn by the respondent at the time of marriage was gold or not.

The respondent who alleged that she was wearing 50 sovereigns of gold ornaments at the time of marriage and entrusted the same with the appellants, is bound to prove the same before court. The omissions or latches if any in the defence may not improve the case of the petitioner which she has to prove on her own. Ext.A3 complaint is dated 03.08.2008. Their marriage was on 22.08.2004. Her case in the original petition was that, she converted her entire 50 sovereigns as directed by the officials of the Vanitha Cell and gave it to the appellants. So at that time her entire gold ornaments might have been with her so as to exchange it for 916 gold. But before court she changed her version and stated that as per the decision of the Vanitha Cell only 10 sovereigns of 916 gold were given to the appellants.

From the overall evidence and facts, it could be seen that the respondent do not have a clear case regarding the gold entrusted with the appellants. She failed to prove the source of income with which the gold was purchased. Her father was not examined to prove the weight of ornaments given to her. The entrustment of gold with the appellants is not at all proved. It is difficult to believe that the Police officials in the Vanitha Cell on receipt of a complaint alleging matrimonial cruelties demanding 916 gold, directed the complainant to convert her gold ornaments into 916, and to hand it over to the husband and in-laws who were ill-treating her.

Admittedly the child is with the appellants. According to respondent her parents had given 4 ½ sovereigns gold ornaments to the child and now she is claiming that gold also from the appellants. The appellants denied any such gold ornaments given to the child and even if it is admitted as true, demanding that gold by the respondent will show her greedy nature. Even if she was having any gold ornaments given from her family at the time of marriage, since there is no proof of entrustment with the appellants they are not liable to honour her claim. Admittedly she left her matrimonial home on 23.01.2009. The first appellant pronounced talaque on 06.04.2009. She filed the O.P. on 30.05.2009 that is after pronouncing the talaque. As there is no basis for the finding of the Family Court that the appellants are liable to return 30 sovereigns of gold ornaments to the respondent, the impugned judgment is liable to be set aside.

In the result, the appeal is allowed, dismissing O.P.No. 369 of 2009 of the Family Court, Palakkad. Parties shall bear their respective costs.