M.K. JUBAIRIYA Vs. ABUSALIH

JUDGEMENT

(1.) This appeal is preferred against the order in O.P. No. 27/2005 of the Family Court, Kozhikode. Appellant is the wife who preferred the above petition in the Family Court, Kozhikode for realisation of money and gold ornaments from her husband and father-in-law, who are respondents in this appeal. The above petition was dismissed by the learned Judge of the Family Court. The appellant's case in the court below was that her marriage with the 1st respondent was solemnized on 9-3-1998 as per Muslim Customary Rites and two children born to them in that wedlock. At the time of marriage, the appellant had 55 sovereigns of gold and her father gave seventy five thousand rupees to the 1st respondent at Kodempuzha Mosque. Few days after marriage, the 1st respondent demanded twenty five thousand rupees more, to pay off the debt and liabilities in connection with his sister's marriage. So, she obtained Rs. 20,000 from her house and gave it to the 1st respondent. While residing so, the appellant's father purchased 4 cents of land in Ramanattukara Village in her name and constructed a house therein. The said property and house therein was sold due to the pressure of the respondents for a sum of Rs. 1,42,000 and the sale consideration was shown as Rs. 30,000 and the 2nd respondent received the amount and he purchased a property in his name. Now, the 1st respondent married another women and neglected the appellant and her children. The appellant's children had also ten sovereigns of gold ornaments. All money and gold ornaments were misappropriated by the 1st respondent. Hence, the appellant filed the above O.P., in the Family Court for realizing 55 sovereigns of gold ornaments, Rs. 95,000 received by the respondents from the appellant and also Rs. 1,42,000 received by the respondents as sale consideration of the property. The respondents strongly resisted the above contention in the lower court, but they admitted the marriage and birth of two children. According to the respondents, the appellant's father never paid Rs. 75,000 to the 1st respondent, since he was in love with the appellant and there was no demand for gold or money. The appellant had only 20 sovereigns of gold ornaments at the time of marriage and the 1st respondent had given 21/2 sovereigns of gold chain to the appellant as 'mahar'. The 1st respondent never demanded any amount for his sister's marriage and appellant never brought Rs. 20,000 from her father. The allegation that the appellant's father purchased four cents of property and constructed a house therein and that was given to the appellant is false. According to them, the 2nd respondent, father of the 1st respondent, sold the joint property in his name and in the name of his wife in R.S. No. 72/1 at Karimkallayi desom and purchased four cents of land and house in the name of the appellant at Choorakkad. According to the respondents, the appellant and the 1st respondent together leased a house for their residential purpose for that she paid a sum of Rs. 1,00,000. After the lease period, mat amount was returned to the appellant's father with the consent of the 1st respondent. Therefore, they are not bound to pay any amount or return any gold ornaments.

(2.) In the court below both parties adduced oral and documentary evidence, the appellant's evidence consist of oral testimony of P.W. 1 and P.W. 2 and Exts. A-1 to A-3 (Exts. A-4 to A-6 marked by this Court). The respondents' evidence consist of oral testimony of R.W. 1 to R.W. 3 (Exts. B-1 to B-3 marked by this Court on the side of the respondent). After analyzing the evidence on record, the learned Judge of the Family Court dismissed the petition. Aggrieved by that, she preferred this appeal.

(3.) The learned counsel appearing for the appellant contended that the evidence of P.W. 1 reveals the actual facts of the case at the time of marriage. The court below concluded that non-production of the bill of the gold ornaments and photos of marriage affected the credibility of the case and that observation is not according to law. The quality of the evidence shows that sufficient gold ornaments and money were given to the respondents at the time of marriage. No documents are available in the possession of the appellant to prove the quantity of the gold. The court below thoroughly mistakened the transaction. The appellant also urged that the defence put forwarded by the respondents is improbable in all respects.