Shanija vs Sudheer

Sophy Thomas, J.

The petitioners in OP No.950 of 2009 on the file of Family Court, Nedumangadu, who are the wife and minor child of the respondent, are the appellants herein, challenging the judgment and decree, for declining some of the reliefs claimed by them.

The appellants filed OP No.950 of 2009 for recovery of money, gold, movables and, also for maintenance. The Family Court granted a decree for Rs.25,000/-only as her patrimony, and all other prayers were rejected. In fact, 35 sovereigns of gold ornaments and cash worth Rs.1,50,000/- were entrusted with the respondent/husband, and moreover, a Rado Watch worth Rs.8,000/- and movables including a fridge worth Rs.30,000/- were also entrusted with him. She sought maintenance @ Rs.3,000/- for herself and Rs.2,000/- for her child.

The respondent/husband opposed her petition contending that, she was given only 15 sovereigns of gold ornaments and patrimony of only Rs.25,000/- from her family at the time of marriage. Her gold ornaments were never entrusted with him, and he never misused the same. He was a headload worker, and his wife did not like to stay with him, even after birth of a child. She filed MC No.264 of 2009 and obtained maintenance order under Section 125 of Cr.P.C. Suppressing that fact, she claimed maintenance from him in the above OP also. No movables or Rado Watch were given to him. So, he prayed for dismissal of the OP.

The Family Court formulated necessary issues, and thereafter the parties went on trial. PWs 1 to 7 were examined from the side of the appellants and DWs 1 and 2 were examined from the side of the respondent. Exts.X1 to X10 and D1 to D7 were marked.

On analysing the facts and evidence, the learned Family Court Judge found that the respondent/husband was liable for the patrimony amount of Rs.25,000/- only, and all other reliefs prayed for in the O.P were declined. Hence this appeal.

Now, we are called upon to answer whether there is any illegality, irregularity or impropriety in the impugned judgment warranting interference by this Court.

Heard learned counsel for the appellants, and learned counsel for the respondent.

Regarding the maintenance claim, the respondent would submit that, the applicants had already filed M.C No.264 of 2009 before Family Court, Nedumangad, and with the consent of both parties, that M.C was disposed of, on condition that the respondent shall pay maintenance to his wife and child @ Rs.750/- and Rs.500/- respectively from 01.04.2010. The respondent produced Ext.D3, copy of the order in MC No.264 of 2009. The respondent would say that, he is paying that amount without any default, but suppressing that fact, the appellants filed O.P No.950 of 2009 claiming maintenance from him. That statement seems to be correct, in the light of Ext.D3. They have no case that the respondent defaulted payment of maintenance as ordered in Ext.D3. If they have got a case that the maintenance ordered in that M.C was liable to be enhanced, they could have very well approached the Family Court for enhancement, through appropriate proceedings. So, the Family Court rightly found that they were not eligible to get any order for maintenance in the above OP. That finding need not be disturbed.

Regarding the movables, according to the appellants, a Rado Watch worth Rs.8,000/- and movables worth Rs.30,000/-including a fridge were entrusted with the respondent. Regarding the Rado Watch, there is no evidence to support her case. Even the photographs of the marriage were not produced, at least to show that the respondent was wearing a Rado Watch at the time of marriage. Regarding the movables, the respondent would say that, on a complaint filed by his wife before the Panchayath, all her movables were taken back from the house of the respondent. Ext.D4 was produced by the respondent to show that, the movables of the 1st appellant/wife were taken away, in the presence of the Panchayath member and local people. So, as far as the Rado Watch and movables are concerned, the finding of the Family Court is only to be confirmed.

Now coming to the gold ornaments and cash, the case of the 1st appellant was that, she was given 35 sovereigns of gold ornaments and Rs.1.5 lakh from her family at the time of marriage. But, the respondent would submit that, she was wearing only 15 sovereigns of gold ornaments at the time of marriage, and the patrimony given was only Rs.25,000/-.

Ext.X1 is the form filled up by the guardian of the bridegroom before his Jama-ath i.e. Kachani Muslim Jama-ath, prior to the marriage. That document is signed by the respondent/husband as admitted by him. In column No.12 of that document, it is mentioned that the patrimony was 35 sovereigns of gold. In column No.13, the mahar is mentioned as 24 gms of gold. But, on going through Ext.X1 document, the entries in column Nos.12 and 13 are having a different handwriting from the other writings in that document. Ext.X2 is the form given signed by the father of the bride before his Jama-ath i.e Tholicode Muslim Jama-ath. But, in that form, nothing is mentioned regarding the patrimony given to the bride. Ext.X8 is the copy of the marriage register of Tholicode Muslim Jama-ath where the marriage of the 1st appellant and respondent was solemnised on 14.05.2006. In that document also, nothing is mentioned regarding the patrimony given to the wife from her family. But, the mahar was recorded as 24 gms of gold. DW2, the Secretary of Tholicode Jama-ath, deposed before court that, as per the records issued from his Jama-ath, the patrimony is not recorded. So, there is no documentary evidence to support the case of the appellants that 35 sovereigns of gold ornaments and Rs.1.5 lakh in cash were the patrimony given to the wife from her family at the time of marriage. But, there is admission from the part of the respondent that, he had received Rs.25,000/- from the family of the 1st appellant as patrimony. So, the Family Court rightly decreed that amount, to be realised from the respondent. So, the judgment and decree with respect to that amount, is liable to be confirmed.

Now with respect to the gold ornaments, as we have seen, though Ext.X1 document signed by the respondent shows the patrimony as 35 sovereigns of gold, it is doubtful, as it is written in a different handwriting, than the remaining writings in that document. The appellants did not produce any documents to prove purchase of 35 sovereigns of gold ornaments in connection with the marriage. No photographs were produced by the wife to show that she was wearing that much of gold at the time of her marriage. Her case is that, immediately after the marriage, her entire gold ornaments were received by the mother of the respondent, and after two months of the marriage, he sold away 15 sovereigns of gold. Later, 15 sovereigns of gold ornaments were pledged by him. At the same time, she would admit that, about 10-15 sovereigns of gold ornaments were with her, and her husband had taken away her 20 sovereigns of gold ornaments. She produced Exts.X5 to X7 documents to show the pledging of gold ornaments by her husband.

PW4, the proprietor of Adithya Financiers, deposed that the respondent pledged 76.9 gms of gold as per Ext.X5 document and it was released on 10.02.2009. He further stated that, since the respondent was not familiar to him, Smt.Saboora, who was their customer earlier, signed that document for a reference. Smt.Saboora is none other than the mother-in-law of the respondent. PW4 categorically stated that, the gold ornaments were pledged by the respondent and he himself got it released, after remitting the amount. The respondent has signed Ext.X5 document and the learned Family Court Judge found that the signature of the respondent in his written statement as well as in Ext.X5 were similar.

PW5 is the Proprietor of Aiswarya Finance and he deposed before court that, the respondent pledged gold ornaments in his institution as per Exts.X6 and X7 documents. He was introduced by Smt.Saboora, as the respondent was not familiar to him. As per Ext.X6, 68.6 sovereigns of gold ornaments were pledged and as per Ext.X7, 8 grams of gold ornaments were pledged. Those ornaments were released by the respondent on 10.02.2009, after remitting the full amount as deposed by PW5. Either in the written statement or in his deposition before court, the respondent had not given any explanation regarding Exts.X5 to X7 documents, or about his signature found in those documents. His case is of a flat denial, and according to him, whatever gold ornaments the 1st appellant was having, were with her only, and he never misused or misappropriated the same. When there was a specific allegation from the part of the 1st appellant that her gold ornaments were pledged by the respondent, and she produced documents and witnesses to substantiate their case, she discharged her initial burden regarding the misappropriation of gold ornaments by the respondent. Then it was the burden of the respondent to prove it otherwise explaining the circumstance under which those documents happened to be executed. The respondent failed to discharge that burden, and so, the learned Family Court Judge ought to have accepted the case of the appellant, at least to the extent of gold covered by Exts.X5 to X7 documents. Since all those gold ornaments were released on the same day i.e. 10.02.2009, there is no question of overlapping, regarding the ornaments pledged.

The total weight of the ornaments covered by Exts.X5 to X7 is 163.5gms (20.44 sovereigns). So, it more or less tallies with the case of the 1st appellant that she was possessing 15 sovereigns of gold, and the husband took away 20 sovereigns of gold. So, the learned Family Court Judge ought to have granted a decree for the gold ornaments covered by Exts.X5 to X7 documents, since the respondent failed to refute those documents and the evidence tendered by PWs 4 and 5. So, to that extent, the judgment and decree of the Family Court is liable to be modified.

Hence the impugned judgment and decree is modified to the extent that, the 1st appellant is entitled to recover 20.44 sovereigns of gold ornaments from the respondent.

So, the Mat.Appeal is liable to be allowed in part. Retaining the earlier decree dated 24.03.2011, the respondent is directed to return 20.44 sovereigns of gold ornaments to the 1st appellant within a period of two months from the date of this judgment. In default, the 1st appellant is entitled to recover the market value of that gold as on the date of realisation.

In the result, the Mat. Appeal is allowed in part, modifying the decree to the extent as above. No order as to costs.