Naisam @ Sabu vs Azeenamol A

Amit Rawal, J.

Present appeal is directed against the judgment and decree of the Trial Court dated 13.06.2023 rendered in O.P.No.742/2015 whereby the claim of the respondent-wife along with minor child for return of 35 sovereigns of gold ornaments and past maintenance at the rate of Rs.2,000/- (Rupees two thousand only) each and future maintenance at the rate of Rs.3,000/-(Rupees three thousand only) has been allowed.

The facts in brief for the adjudication of the present appeal are as under:

The marriage between the appellant and respondent No.1 was performed on 17.03.2013 at the residence of the respondent-wife in accordance with the customary rites and ceremonies pertaining to Muslim religion and lived together for sometime. Out of the wedlock, 2nd respondent was born. It is pertinent to mention that both the parties to the marriage were divorcees, it was their second marriage. Respondent alleged that at the time of the marriage besides 35 sovereigns of gold, a sum of Rs.2 lakh was also given and entrusted two gold bangles each to appellant Nos.2 and 3. Various other allegations were made, there was dispute between them and parties started living separately. Appellant, husband is working as a driver in Qatar. In response to the notice, appellant-husband contested the aforementioned petition by denying the marriage and alleged that there was only a living relationship. The entrustment of 35 sovereigns of gold besides Rs.2 lakhs was also denied. But the factum of production order passed in respect of proceedings initiated under Section 12 of the PWDV Act was not denied.

In support of the case respondent-wife examined herself as PW1 and brought on record the documents Exts.A1 to A10 consisting marriage certificate issued by the Local Registrar of Marriage, marriage certificate issued by the Administrator, savings bank pass book, pledge receipts, certified copy of the Lok Adalath Award in O.P.No.999/2011 of Family Court and certified copy of the order passed in M.C.No.62/2016, etc. and examined PW1 to PW3. Husband examined himself as RW1 and two witnesses RW2 and RW3 and brought on record three documents Ext.B1 to B3 ie., copy of the complaint filed before the Judicial First Class Magistrate, copy of FIR No.1314/2015 and additional statement and third party exhibits Exs.X1, X1(a), X1(b) and X1(c) ie., relevant pages of pledge book of Anugraha Finance, Chadayamangalam were also produced.

On the basis of the evidence, both oral and documentary much less cross examination, Court found that the respondent-wife had been able to prove the allegations and passed the decree in the following manner:

The 1st and 2nd respondents are directed to return 35 sovereigns of gold ornaments or its market value at the time of payment to the 1st petitioner;

The first respondent is directed to pay maintenance at the rate of Rs.2,000/- per month each for the petitioners 1 and 2 from 29.07.2014 till the date of judgment and thereafter they are entitled to get maintenance at the rate of Rs.3,000/- per month each.

All other claims against the respondents including 3rd respondent are dismissed.

The petitioner is allowed to realize the decree amount along with costs from the respondents 1 and 2 and their assets.

Learned counsel appearing on behalf of the appellant in support of the memorandum of appeal raised the following submissions:

Trial Court failed to notice that the respondent-wife has not been able prove the entrustment of 35 sovereigns of gold in fact, she was wearing only seven sovereigns of gold. The quantity is on a higher side. The marriage certificate though was admitted by the husband but that would not disclose the status of husband and wife being it was second marriage between the two. His income is not that much and would not be able to pay the past maintenance at the rate of Rs.2,000/- each and future maintenance Rs.3,000/- each after 29.07.2014.

We have heard the learned counsel for the appellant and appraised the paper book.

The testimony of PW1 reveals that respondent-wife was at the time of marriage actually wearing 35 sovereigns of gold ornaments. Ext.A8 reveals that 35 sovereigns of golds were in her possession at the time of marriage, despite her extensive cross examination, appellant only tried to make out a case that it was a case of an estimation. However, the Trial Court on noticing the cross examination of the appellant's witnesses found that all the bills and estimation was of 07.03.2013 whereas the marriage was performed on 17.03.2013. Appellant had also been able to pledge the gold ornaments received from the respondent-wife and this fact come in the testimony of PW2, the proprietor of Anugraha Finance. Version in chief was not discredited despite extensive cross examination. It also surfaced that the gold ornaments pledged were released and were in the custody of the appellant. All these factors weighed in the mind of the court below in allowing the OP in the manner extracted above.

We do not find any illegality and perversity or misreading of the oral evidence to form a different opinion than the one arrived at by the trial court. Appeal sans merit accordingly dismissed.