ABDUL BASHEER Vs. MUJAHITHA P

JUDGEMENT

(1.) The sole respondent in OP.No.157/2009 on the file of the Family Court, Malappuram is the appellant herein. The original petition was filed by the respondents herein for past maintenance, recovery of gold ornaments and other monetary reliefs. The first respondent herein is the wife of the appellant and their marriage was solemnized on 26.12.2004 and at the time of marriage, the appellant has agreed to provide 3 sovereigns as maher. At the time of marriage, 35 sovereigns of gold ornaments were given to the first respondent herein by her father and after the marriage, they started residing together in the house of the appellant. The second respondent was born in that wedlock. According to the first petitioner in the original petition, apart from the appellant herein his mother Ayisha, brother Abdul Razack and married sisters Saleena, Synaba and Jameela were also residing in that house. Though his sisters were married and they were living in the matrimonial home, since their husbands were working abroad and they used to be in this house always. Since the father of the appellant died earlier, the management of the house was done by the mother of the appellant. While the first respondent became pregnant, she was ill treated by the appellant and his family members. She was not given proper treatment. She was even blamed for becoming pregnant earlier than others in the family. She was made to do all the works in the house though she was advised bed rest by the doctor and the same was not provided. She was not allowed to complete her degree course by the family members of the appellant. Out of the 35 sovereigns of gold ornaments, 20 sovereigns of gold ornaments were taken by the appellant for his purpose and the same has not been returned. The fact that the appellant was a physically handicapped person affected by polio was not disclosed at the time of marriage. Suppressing this fact the marriage was conducted. She was taken to her house at the time of 7 th month of her pregnancy and thereafter they did not come and enquire about her. She delivered the child on 6 th November, 2005 from Tirur Mission Hospital. The expenses for delivery and subsequent expenses for treatment were not met by the appellant and that was met by her family members. She was taken to the matrimonial home after 60 days of delivery as per custom. Though the child was having some illness, the same has not been looked after by the appellant or his family members. They were ill treating her stating that they would have got more dowry etc. She was sent out of the house and thereafter they were not providing any maintenance. She had filed a complaint as CMP.No.7829/2008 alleging offences under Sections 406 and 498 A read with Section 34 of the Indian Penal Code and that is pending before the Judicial First Class Magistrate Court, Tirur. She had spent nearly Rs.25,000/- for her treatment and Rs.15,000/- for her delivery expenses. She requires Rs.7,000/- for maintenance for herself and Rs.3,000/- for the child. No amount was paid from 3.7.2008 to 18.2.2009. So she is entitled to get Rs.75,000/- towards past maintenance and Rs.2,29,600/- towards value of gold ornaments if the appellant is not returning the gold ornaments and also Rs.40,000/- towards delivery and other treatment expenses. So she prayed for allowing the claim and decreeing the petition.

(2.) The appellant who is the respondent before the Court below entered appearance and filed written statement admitting the marriage and birth of the child but denied the allegations of cruelty and other allegations. He had denied the allegation that 3 sovereigns were fixed as 'mahr' at the time of marriage. He had also contended that the first respondent was not given 35 sovereigns of gold ornaments and she was having only less than 15 to 20 sovereigns of gold ornaments which she had taken when she left the house. He had denied the allegation that family members were cruel to her. In fact, the brother of the appellant was residing separately and his sisters were given in marriage and they are residing in their matrimonial home and they are not residing along with the appellant as alleged. The allegation of cruelty on the ground of demanding more dowry is also not correct and hence denied. Since he being a leader to Mujahideen sect, there was no practice of demanding dowry at the time of marriage as they were against the same. The allegation that delivery expenses were met by the first respondent and her family members and she was not treated and expenses were met by them etc are not correct and hence denied. Her delivery was admitted by him and he has paid the hospital charges in connection with her delivery. The allegation that 20 sovereigns of gold ornaments were taken by him and pledged the same for his purpose is also not correct and hence denied. All the gold ornaments were taken by her when she left the house. She was not having any illness as alleged. She never required any treatment after the delivery as claimed. So the petitioners in the original petition are not entitled to get any reliefs as claimed. He was a teacher in a school and getting only less income and with that, he will have to maintain her mother as well. The quantum of maintenance claimed is exorbitant. So he prayed for dismissal of the petition.

(3.) Pws 1 to 4 were examined and Exts.A1 to A4 series, A5, A6, A6(a), A7, A8 series, A9 to A11, A12 series, A13 series, A14 series and A15 series were marked on the side of the respondents herein. The appellant was examined as RW1 and Exts. B1 to B7 series were marked on his side. After considering the evidence on record, the court below found that the first respondent had proved that 20 sovereigns of gold ornaments were taken by the appellant and the same were not returned and he is liable to return the same. The Court below also found that the medical expenses claimed were not met by the respondent in the Court below and he is liable to pay that amount also. The Court below also fixed the monthly maintenance payable at Rs.3,700/- to the first petitioner and Rs.800/- to the second petitioner for a period of 7 months and granted a decree for Rs.33,750/- at that rate and decreed the suit accordingly. Aggrieved by the same, the present appeal has been preferred by the appellant/respondent before the Court below.