JAMALUDDEEN AND OTHER Vs. FATHIMA

JUDGEMENT

(1.) The appellant is the respondent in O.P. No.451 of 2008 and M.C. No.391 of 2008, on the files of the Family Court, Malappuram and this appeal is filed challenging the common judgment passed in the said Original Petition and Maintenance Case, after a joint trial. The parties are referred to as in the Original Petition.

(2.) The appellant/respondent and the respondent/ petitioner are husband and wife respectively. Their marriage was solemnized on 31.01.2001 and lived together till 27.02.2005. After the marriage, the marital relationship between the petitioner and the respondent got strained and they are living separately from 27.02.2005 onwards. According to the petitioner, at the time of marriage, she was given 75 sovereigns of gold ornaments and the respondent was given Rs. 1,00,000/- by cash on the date of nikkah. On the date of marriage itself, after reaching the house of the respondents, the petitioner entrusted all the gold ornaments with the 2nd respondent, the mother of the 1st respondent. Subsequently, out of the said 75 sovereigns of gold ornaments, the 2nd respondent has given 34 sovereigns of gold ornaments to the 1st respondent and he misappropriated the same and sold away to meet his own personal needs only. Thereafter, he treated the petitioner with cruelty and assaulted her physically several times, on demand of more gold ornaments and money. Four years back, she left the matrimonial home in connection with the death of her close relative and thereafter, the respondent has not made any attempt to bring back the petitioner to the matrimonial home and no amount was given towards her maintenance allowance. The respondent told her that unless the parents of the petitioner give 50 more sovereigns of gold ornaments, he will not bring back the petitioner to the matrimonial home; but the parents of the petitioner did not heed to the said demand. Thus, the petitioner was residing in her house with the parents from 27.02.2005 onwards. In the Original Petition, she prayed for granting a decree for realising Rs. 1,00,000/-, 34 sovereigns of gold ornaments and maintenance allowance for the period from 31.05.2005 to 31.05.2008 at the rate of Rs. 3,000/- per month.

(3.) Respondents filed a counter statement denying the averment that the petitioner had been given 75 sovereigns of gold ornaments and he was given Rs. 1,00,000/- by cash on the date of nikkah. According to him, at the time of marriage, the petitioner was wearing a few sovereigns of gold ornaments only. He denied the allegations that on the date of nikkah, the uncle of the petitioner entrusted Rs. 1,00,000/- with the second respondent. He denied the allegation that the petitioner entrusted 75 sovereigns of gold ornaments with the second respondent and the second respondent subsequently had given 34 sovereigns of gold ornaments to the first respondent and the first respondent had appropriated to the same to meet his personal needs. Further he denied the allegation that he was the drunkard and spendthrift. In short, he is not liable to return the gold ornaments or money as claimed by the petitioner. As regards claim of maintenance, he averred that the petitioner has filed a maintenance case against him claiming maintenance. According to him, he is not liable to pay any amount towards past maintenance allowance as he has divorced her by pronouncing talaq on 15.2.2008. With the aforesaid averments both parties went to trial and adduced both oral and documentary evidence. The petitioners were examined as PW1 and PW2 and produced Exts.A1 to A1 (I). The respondent was examined as RW1 and another witness was examined as RW2. But no document was produced in evidence. Exts.X1 and X2 were marked as third party document. After considering the aforesaid evidence, the Family Court passed the impugned common order granting a decree for realising Rs. 3,19,600/- as value of 34 sovereigns of gold ornaments, Rs. 72,000/- as maintenance allowance, (for 36 months at the rate of 2000 per month) and rejecting claim for Rs. 1,00,000/- which is alleged to have been paid on the date of nikkah. The legality and correctness of the said finding is challenged in this appeal.