Shamila vs Faisal

Amit Rawal, J.

The present appeal is directed against the judgment and decree dated 01/06/2022 in O.P.No.639 of 2017 of the Family Court, Irinjalakuda, whereby the claim of the appellant/wife for return of 85 sovereigns of gold ornaments has been partly allowed, along with an application seeking condonation of delay of 335 days in filing the appeal.

The marriage between the appellant and respondent as per the Muslim rites was performed on 25.07.2015. No issues are born out of the wedlock. From 25.08.2015 they have been living separately. In other words, they lived together only one month. Appellant instituted O.P.No.635/2017 for dissolution of marriage but for the reasons best known, withdrew the same. In O.P.No.639/2017 preferred after two years of the separation, claim was confined to 85 sovereigns of gold alleged to have been entrusted not only to the respondent/husband but his parents, i.e., respondent no.2 and 3 in the present appeal and also before the trial court in the aforementioned O.P. In support of the evidence filed an affidavit of proof and placed on record certain bills. However, in the cross-examination, it surfaced that she was only in possession of 10 sovereigns of the gold and remaining were entrusted to the in-laws as well as the husband. But to a specific question, answered that in-laws are impleaded only on the ground that they were harassing her. Trial court noticing the case law on the point like Bhaskaran v. Radha, 2019 (3) KHC 960 (DB) and various other judgments, denied the claim of return of gold ornaments except for ordering a return of ₹43,000/-along with the interest at the rate of 9% which was found to have been proved.

Learned counsel appearing on behalf of the appellant submitted that the court below has misread the contents of the bills as the series of the bills would reflect that the claim was in consonance with the contents of the bills. Placing on record of the bills was sufficient in discharge of the proof. The respondent/husband did not deny the same and the court below only relied upon the contents of the cross-examination which cannot be a sermon for adjudication of the laws.

We have heard counsel for the appellant and appraised the paper book and of the view that there is no force on merit. Besides the claim for return of the gold ornaments, claim qua return of i-phone and certain other amounts was also made. Subjected to cross-examination the court also found that not only the claim for return of the i-phone much less the entrustment was false but even return of the gold ornaments, as in the cross-examination her deposition was that the in-laws were impleaded only on account of the harassment. The petition filed on a vagueness and without any concrete or direct evidence definitely would fail, precisely this is what has been noticed and done by the trial court. We do not find any illegality or perversity in the judgment regarding the rejection of the claim with regard to the entrustment of gold ornaments and find that partially allowing the O.P. with regard to return of ₹43,000/- with interest is perfectly legal and justifiable.

Accordingly, C.M.A.No.1/2023 of condonation of delay as well as the appeal are dismissed.