HAJARA Vs. SAJID

JUDGEMENT

(1.) Petitioner in O.P.323/2009 on the file of the Family Court, Kozhikode is the appellant in Mat.Appeal No.209/2010, while respondent in the same case is the appellant in Mat.Appeal No.220/2010. For the convenient sake, I am refereeing the status of the parties as referred to in the lower court.

(2.) The case of the petitioner in the petition was that, the marriage between the petitioner and the respondent was solemnised on 13.02.2005 as per the custom prevailing among the Muslim community. According to the petitioner, at the time of marriage, 70 sovereigns of gold ornaments were given to the petitioner by her father and relatives and also one rado watch was presented to the respondent by her mother. Further an amount of Rs. 1,00,000/- was also given to the respondent as cash at the time of marriage. After marriage, she went to the matrimonial home and started residing with the respondent. After two days of marriage, the respondent had told her that, her father had agreed to give 150 sovereigns of gold ornaments and Rs. 1,00,000/- and he insisted to get the balance gold ornaments of 80 sovereigns and cash of Rs. 1,00,000/- and if it is not obtained, she will not be allowed to reside peacefully in the house. When she expressed the inability of her parents to heed the demand, she was illtreated by the respondent and his family members, both physically and mentally. They were teasing her stating that she was not beautiful and they agreed for the marriage only because of the offer made by her father and he would have got better bride and would have got better dowry. While so, she became pregnant and they did not give any proper treatment and in fact, the respondent had kicked on her stomach. During September 2005, she was taken to her parental house and thereafter neither the respondent nor his family members came to her house to see her. Though she was admitted in the hospital for delivery and this fact was informed to the respondent, he and his family members did not come to the hospital and did not meet the delivery expenses as well. When she delivered a child, though this was informed, neither the respondent nor his relatives came to see the child. Since the respondent did not take her to the matrimonial home even after the delivery, the parents of the petitioner took her to the respondents house during 1st week of February, 2006, but they did not allow her to enter into the house. In spite of the intervention of mediators namely Peringelakunnathu Soophy Haji, P.K.Kunjammed Haji, Karuvandavida Kunjammed, they were not prepared to take the petitioner and the child. The respondent went to Gulf on 30.08.2006. Thereafter during August 2008, he came back from Gulf and as per the mediation held at the instance of her father's brother Kunjabdulla, he told that, he will take her back to his house during his next visit. Accordingly on 18.08.2008 she was taken to the matrimonial home along with the child by her father's brother Kunjabdulla and she was left at the matrimonial home. On 30th September 2008, respondent came from Gulf and behaved with the petitioner affectionately for two or three days. Thereafter his attitude changed. She found 65 sovereigns of gold ornaments kept in the almirah (except five grams used for her personal use), were missing and when she asked about the same with the respondent, he did not give any proper answer and started behaving cruelly towards her. She was not given food properly. It was later revealed that the respondent had mis-appropriated 65 sovereigns of gold ornaments. She was sent to her parental home thereafter on 9th January 2009. Thereafter she was not given any maintenance, she filed a complaint before the Judicial First Class Magistrate Court, Nadapuram, seeking certain claims under the provisions of the Protection of women from Domestic Violence Act against the respondent. The respondent had not returned the gold ornaments mis-appropriated by him. So she filed the petition for return of 65 sovereigns of gold ornaments or its value of Rs. 7,08,000/- and Rs. 22,000/- being the value of rado watch and Rs. 1,00,000/- the amount given as cash at the time of marriage.

(3.) Respondent entered appearance and filed counter statement. He admitted the marriage on 13.02.2005 and birth of the female child in that wedlock. He denied the allegation that at the time of marriage, 70 sovereigns of gold ornaments and a rado watch was given and as requested by him, her father had given Rs.One lakh cash. He had also denied the allegation that, after two days of marriage, he told her that her father had agreed to give 150 sovereigns of gold ornaments and Rs.one lakhs and asked her to get the remaining gold and amount and started ill-treated her etc., The nature of allegation regarding cruelty alleged against him and his sisters were denied by him and also denied the allegation that when she became pregnant, he insisted to abort the child and when she refused the same, she was ill-treated by them. The allegation that, till she was taken to her house for delivery during September 2005, she was ill-treated by him and his family members is not correct. He had also denied the allegation that he did not go to the hospital when she was admitted in the hospital for delivery and thereafter when she delivered the child and he did not meet the delivery expenses. He also denied the allegation that, even after three months of delivery, she was not taken to his house and during February, 2006 when she came to his house along with the child and her mother, she was not allowed to enter into the house and there was a mediation and in the mediation also, they did not care to take her back etc. The allegation that during August, 2008, her father's brother Kunjabdulla met him and he told them that he will come during next month and at that time, she can be taken to the house and on 18th August, 2008, she was taken to his house and left there by her paternal uncle etc., is not correct and hence denied. The allegation that from 30th September 2008, for two days, he was affectionate to her and thereafter when she found the missing of 65 sovereigns of gold ornaments kept in the almirah and asked about the same, he started treating her cruelly etc., is not correct and hence denied. He had also denied the allegation that he had beaten her and the child and when this was informed to her parents, her father came and took her to their house on 09.01.2009. There was no financial position for the petitioner's parents to provide gold ornaments as claimed by her. She insisted to stay in her house and whenever the respondent was not in India, she used to go to her house. On 30.09.2008, when he told that she should avoid travelling with her relative Muthalib during his absence, she picked up quarrel and left the house with the ornaments and the dress to her house. He attempted a mediation involving the respectable persons of the locality namely K.M.K. Abdulla Haji, Varayalil Kunjabdulla and K.P.Ibrahim, but she was not prepared to come and she wanted a 'talaq', for which he was not agreeable. She filed a false complaint before Judicial First Class Magistrate Court, Vadakara as Crime No.204/2009 and he was arrested and remanded to custody and there after he was released on bail. In fact she had taken his passport as well. After release from the jail, he contacted one of the mediators Sri.KMK Abdulla Haji and told him about his pathetic condition and wanted the passport, the petitioner had admitted that she had taken the passport. So he filed a complaint before the Judicial First Class Magistrate Court, Vadakara regarding theft of the passport and that was pending investigation. She was residing separately without any reasonable cause and he was not liable to return any gold ornaments. The patents of the petitioner had no financial capacity to give 70 sovereigns of gold ornaments, at the most she would have been given only 30 sovereigns of gold ornaments and he had not appropriated the same and not received any amount as claimed and he is not liable for any of the relief claimed. He prayed for dismissal of the petition.