SIDHIQ S/O MOHAMMED Vs. P.K.SAKEENA

JUDGEMENT

(1.) This Appeal is directed against the order in O.P.No.893 of 2006 on the files of the Family Court, Kozhikode, which was passed in common with M.C.No.381 of 2006 on 29.04.2008. The respondent in the above O.P. is the appellant herein. The Original Petition as above was filed by the respondent herein on 28.12.2006, seeking for a decree for return of Rs.1,00,000/- with interest at the rate of 12% per annum and also for a declaration that the petition schedule property exclusively belonged to her and the appellant has no right whatsoever over the property. The respondent herein had also prayed for a mandatory injunction directing the appellant to hand over the original title deed and the prior title deeds of petition schedule property to her. Evidence was adduced in the Original Petition and M.C.No.381 of 2006 in common. The Family Court appreciated the evidence on record and allowed the M.C. as well as the O.P. A decree was passed in the O.P. in favour of the respondent for realisation of Rs.1,00,000/- from the appellant with interest at the rate of 9% from 28.12.2006, the date of the petition and thereafter at the rate of 6% till realisation from the appellant and his assets. It was also declared that the respondent has absolute right, ownership and possession over the petition schedule property. A mandatory injunction was also granted directing the appellant to hand over the title deed of the petition schedule property and its prior deeds within 30 days from 29.04.2008, the date of the order. Aggrieved by the order and decree passed as above, the appeal is filed seeking to set aside the same. The facts of the Original Petition being relevant for consideration of this Appeal are summarised hereinbelow:

(2.) The parties to this Appeal are hereinafter referred to as the respondent and the petitioner in accordance with their status in the Original Petition. The parties are Muslims and their marriage was solemnized on 21.01.2001 as per Muslim Religious rites. At the time of marriage, the petitioner was given Rs.1,00,000/- by her father and it was entrusted to the respondent. Petitioner was informed by the respondent that the said amount was spent for the renovation of the house wherein he was residing. 25 sovereigns of gold ornaments were also given to the petitioner by her father at the time of her marriage. After staying together for sometime, the respondent left for abroad to join his employment. A child was born in the wedlock. The petitioner had to live in the matrimonial home under the strict control of the parents of the respondent. The respondent's brother one Sakeer who was managing the affairs in the house forced the petitioner to do all the works in the house. The entire amount sent by the respondent from abroad were also lavishly spent by him for his personal needs. Both the brother of the respondent and his parents started ill treating the petitioner. When the petitioner informed the respondent about the torture meted out to her, he did not say anything. Out of the 25 sovereigns of gold ornaments given to the petitioner 20 sovereigns were sold for purchasing a landed property. Petitioner was told that the property was purchased in her name. The respondent abandoned the job at gulf and returned to the home town. He wanted the petitioner to shift their residence to some other place. He wanted to sell the property already purchased and to purchase another house and property. As directed by the respondent and his brother, the petitioner had signed some agreements. Thereafter the respondent informed the petitioner that the property was sold and the house alongwith landed property will be purchased shortly in her name. The petitioner was asked to sign the sale deed by the respondent and his brother. The petitioner had resisted to sign the document and took a stand that she would sign only if another land is purchased in her name. The brother of the respondent then tortured her physically. Thereupon she informed the matter to her father. He visited the matrimonial home to enquire about the same. The brother of the respondent insulted him and threatened stating that the petitioner will be forcibly taken to the office of the Registrar to get the documents registered. Being convinced of the situation and aggrieved, the father of the petitioner took her to his house. Thereafter, the petitioner alongwith her child started residing at the parental home fully depending on her father. On enquiry made thereafter, it was revealed to the father of the petitioner that the property was purchased in the joint names of the petitioner and the respondent utilising the money obtained after selling her gold ornaments. It was also found on the enquiry that the agreement for sale was prepared and signed by the respondent after receiving Rs.1,00,000/- as advance towards sale consideration. The amount thus obtained was spent by the respondent alongwith his brother. The respondent had never made any attempt to purchase a house and landed property as promised to the petitioner. It was also learnt that the respondent is proposing to pronounce "talaq" to the petitioner after getting the sale deed registered in his favour. A mediation talk was attempted wherein the mediators had pressed the respondent to give the money obtained from the sale of the property to the petitioner but, to petitioner's dismay, nothing materialised. On 12.05.2006 a Lawyer Notice was caused to be issued by the respondent to the petitioner on pretext that it was sent by the proposed purchaser of the property as per the agreement for sale. The petitioner had issued a reply notice on 18.05.2006, narrating the true facts. Another Lawyer Notice was caused to be served on the petitioner by the respondent on 23.05.2006 demanding restitution of conjugal rights, to which also a reply notice was sent by the petitioner on 03.06.2006. Maintenance was also demanded by the petitioner for herself and the child from the respondent. To the surprise of the petitioner, she was informed that the respondent has married another lady and started living together as husband and wife. The petitioner found herself unable to maintain and in that scenario was constrained to approach the Family court seeking various matrimonial reliefs from the respondent.

(3.) In the Original Petition, a counter statement was filed by the respondent admitting his marriage with the petitioner and birth of the child in the wedlock. The claims of the petitioner that her father had given Rs.1,00,000/- and 25 sovereigns of gold ornaments at the time of marriage, that the money given was utilised for renovation of his house, that the petitioner had to suffer ill treatment from her inlaws at the matrimonial home, that the brother of the respondent had utilised the money sent by him from abroad for his personal needs, that landed property was purchased after selling 20 sovereigns of gold ornaments belonging to the petitioner, that the signature of the petitioner was obtained by the respondent and his brother forcibly to create documents falsely, and that the father of the petitioner was insulted and abused by the brother of the respondent at the time of his visit to the matrimonial home were denied outrightly. It was contended particularly that the petitioner was given only 10 sovereigns of gold ornaments and that was retained by her. The father of the petitioner had pledged and later on sold the gold ornaments of the petitioner to meet his own requirements. It was further contended that his own earnings from the job abroad was utilised for purchasing the property and the same was registered in the joint names of himself and the petitioner out of his love and affection towards the latter. The petitioner herself left the matrimonial home on 24.04.2006 to live separated from him, without his consent and knowledge, solely out of her dislike to live with him. Though she was invited by the respondent to join him severally, she was reluctant to do so. An agreement for sale was not executed by the respondent after receiving Rs.1,00,000/- as alleged and he had never intended to pronounce "talaq" against the petitioner.