IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Mat.Appeal.No. 222 of 2004() ---------------------------- OP.447/2003 of FAMILY COURT, MANJERI .................... APPELLANT/PETITIONER: -------------------------- BENAZIR, 28 YEARS, D/O. HAMZA @ BAPPU, PULIKKALAKATH (H), PURATHOOR AMSSOM, DESOM, P.O. PADINHAREKKARA, (VIA) KOOTTAYIL, MALAPPURAM DISTRICT, PIN-676 562. BY ADV. SRI.P.CHANDRASEKHAR SMT.P.B.RASHEEDA RESPONDENT: --------------- N. HAMEED, 36 YEARS, S/O. MOIDEENKUTTY, NEDUMPALLI (H), P.O.K. PURAM, MULAKKAL, NIRAMARATHOOR AMSOM, KERALADHEESWARAURAM DESOM, NIRAMARATHOOR PANCHAYATH. ADV. SRI.PULIKKOOL ABUBACKER THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No.222 OF 2004 ----------------------------------------------------- DATED THIS THE 2nd DAY OF JUNE, 2009 J U D G M E N T Basant, J. This appeal has been preferred by the claimant/wife against the dismissal of her claim against the respondent/husband for return of 75 sovereigns of gold ornaments (or the value thereof) and an amount of Rs.75,000/- allegedly given to the husband at the time of marriage. 2. The marital relationship was admitted. But, it was denied that any ornaments or cash were retained by the husband. Admittedly, the marriage has now been dissolved and the claim under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, is pending before the Magistrate. The parties went to trial on the above contentions. The claimant/appellant/wife examined herself as PW1. The power of attorney holder of the husband was examined as RW1. Exhibits A1 and A2 series were marked. 3. The learned Judge of the Family Court, considering the Mat.A.No.222/04 -2- oral evidence of PW1 and RW1 and the documents produced came to the conclusion that the claimant has not succeeded in establishing her claim for return of ornaments/amounts. Accordingly, the learned Judge proceeded to pass the impugned order. 4. Before us, the learned counsel for the appellant and the respondent/husband have advanced their arguments. The learned counsel for the appellant/claimant only prays that a reasonable further opportunity may be granted to the appellant to substantiate her claim. The appellant/claimant had mentioned the names of witnesses in the original petition. But, those witnesses had not been examined. A further opportunity may be indulgently granted to the appellant to adduce further evidence, it is prayed. 5. The learned counsel for the respondent, on the contrary, submits that there is no merit or grace in the prayer for the luxury of a further opportunity. In an appeal, when permission is sought to lead further evidence after remand, it is incumbent upon the appellant to explain to the appellate court Mat.A.No.222/04 -3- the circumstances under which such relevant evidence could not be adduced at the appropriate stage. If there be no valid explanation, such claimant/appellant is not entitled to any further opportunity, contends the learned counsel. The learned counsel further points out that the same contention was raised in a prosecution under Section 498A IPC and the court had found against that contention in the judgment passed in such prosecution. 6. The learned counsel for the respondent further points out that evidence was recorded of the appellant as PW1 on 3.8.2004. The evidence of the appellant was closed. Thereafter , the case was posted to 4.8.2004. The case was adjourned to 9.8.2004 and on 9.8.2004, RW1 was examined and cross- examined. Thereafter the case was posted for orders to 24.8.2004. The judgment was ultimately pronounced only on 8.9.2004. From 3.8.2004 to 8.9.2004, there was no request whatsoever from the appellant that any opportunity must be given to the appellant to adduce further evidence. Nay, a reading of the deposition of PW1 clearly shows that she was Mat.A.No.222/04 -4- cross-examined on the aspect that no witnesses were being examined and she had asserted (see page No.5 of the deposition) that she does not want to examine any witnesses. No list of witnesses was filed also. It was, therefore, evidently not a case of denial of opportunity. It was clearly a case where the appellant did not want to adduce any evidence. We are not satisfied, in these circumstances, that any further opportunity to adduce evidence need be granted to the appellant. The prayer for such a further opportunity cannot be countenanced. No other contentions are raised. On the available materials, we are satisfied that the impugned judgment does not warrant interference. 7. This Mat.Appeal is, in these circumstances dismissed. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn