MUJEEB RAHMAN AND OTHERS Vs. SAUDA AND OTHERS

JUDGEMENT

(1.) Against the order passed in O.P.No.92/2010 of the Family Court, Malappuram, respondents 1 to 3 who are the husband and in-laws of the petitioner came up with this appeal.

(2.) The said original petition was filed for return of the 10 sovereigns of gold ornaments which were given at the time of marriage, past maintenance for the petitioner and her minor child and also for return of an amount of Rs. 2,00,000/- entrusted with the husband in connection with her marriage. The learned Family Court Judge, after consideration of oral evidence tendered by PWs 1 and 2 and the oral evidence tendered by the first respondent husband RW1 and the documentary evidence of Exts.A1 to A5, B1 to B6, allowed the application fixing past maintenance to the first petitioner at the rate of Rs. 3,000/-, the minor child at the rate of Rs. 600/- for a period of 10 months totalling an amount of Rs. 36,000/- and allowed recovery of an amount of Rs. 2,00,000/- and return of 10 sovereigns of gold ornaments or Rs. 1,22,800/- being the value of gold ornaments with interest at the rate of 9% per annum from the date of petition till realisation of the same. The petitioner along with her father had given oral evidence. There may not any occasion for the respondent to maintain his estranged wife and child who were living separately. The oral evidence adduced by the petitioner and her father in the absence of other evidence can be safely accepted. Probability of non-payment for maintenance to the estranged wife and child when living separately apart from her husband would prima facie evident and unless there is satisfactory evidence to prove the contra can be safely relied on when stood as supported by the oral evidence of her father. The question whether they are interested witness who had given interested version may not have much role in assessing the probability of non-maintenance. The learned Judge had taken into consideration the cost of living as well as the status of the petitioner and the first respondent and fixed the past maintenance at Rs. 3,000/- to the first petitioner and Rs. 600/- to the second petitioner minor child. What is fixed by the Family Court is only a meagre amount, which do not call for any interference by this Court.

(3.) Regarding the payment and entrustment of amount of Rs. 2,00,000/-, it is the specific case of the petitioner that it was given to the first respondent just before the marriage in accordance with the custom prevailing in the community. The oral evidence tendered by the petitioner stood as supported by the oral evidence given by her father and they have also produced Exts.A1 to A5 to show the entrustment of the amount. It is the specific case that at the time of her marriage her brother was not in a position to withdraw amount from his NRI account. So he borrowed an amount of Rupees two lakhs from one of his relatives and the liability was subsequently discharged for which Exts.A1 to A5 documents were produced. The practice prevailed in the community coupled with the documentary evidence Exts.A1 to A5 and oral evidence of the petitioner and her father would be sufficient to satisfy the initial burden lies on the petitioner in the absence of contra evidence.