IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 MFA.No. 439 of 2000(A) ---------------------- OP.613/1998 of FAMILY COURT,KOZHIKODE .................... APPELLANT/PETITIONER: ----------- SAFIYA, D/O. UNNI MOYI, OMASSERI HOUSE, THIRUVAMPADY AMSOM DESOM, THIRUVAMPADY. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT/RESPONDENT: ------------- K.C. MUHAMMED, S/O. SEEMANKUTTY, KARIMPILIKKAD HOUSE, KODIYATHOOR AMSOM DESOM, P.O. CHERUVADI, MUKKOM. BY ADV. SRI.BABU S.NAIR THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A.NO. 439 OF 2000 ---------------------------------------------------------------- Dated this the 29th day of July, 2008 JUDGMENT Harun-Ul-Rashid, J. The petitioner in O.P. No.613 of 1998 on the file of the Family Court, Kozhikode is the appellant. She filed the said Original Petition for return of gold ornaments and money. The Family Court by order dated 4.12.1999 dismissed the Original Petition finding that there is no convincing or reliable evidence in support of her case. Hence, this appeal. The parties herein are referred to as petitioner and respondent as in the Original Petition. 2. The marriage between the petitioner and respondent was solemnised on 22.1.1984. It is the case of the petitioner that at the time of marriage, she was given 25 sovereigns of gold ornaments and an amount of Rs.25,000/- and that within one month of the marriage, the respondent/husband misappropriated the entire gold ornaments and money. It is her further case that subsequently she was driven out of the house on 24.10.1997 demanding more dowry. Hence, she filed the Original Petition M.F.A.NO.439/2000 2 for return of Rs.25,000/-and the gold ornaments worth Rs.80,000/-. 3. The respondent/husband opposed the petition and contended that the petitioner was not given 25 sovereigns of gold ornaments and Rs.25,000/- at the time of marriage as alleged and that the parents of the petitioner had no capacity to give the amount or so much of gold ornaments. He further contended that at the time of marriage, the petitioner/wife had only 8 sovereigns of gold ornaments and she is in possession of the same. He denied having received Rs.25,000/- and also the allegation that the petitioner was driven out of the house. Before the Family Court, the petitioner examined four witnesses including herself as PW.1 and Exts.A1 to A3 were marked on her side. The respondent was examined as RW.1. No documentary evidence was produced by him. 4. The factum of marriage is admitted. It is also admitted by the parties that they are living separately from the month of October, 1997. PW.1 produced Ext. A1 slip to prove that she had the ornaments as stated in the petition. The Family Court observed that Ext.A1 by itself is insufficient to prove the said fact. The father of the petitioner who was examined as PW.2 also tendered evidence regarding the purchase of gold ornaments from the goldsmith. The goldsmith was examined as PW.3. M.F.A.NO.439/2000 3 The Family Court observed that there was inconsistency in the evidence tendered by PWs.2 and 3 and that the petitioner was not in possession of any bill showing the purchase of gold ornaments. 5. It is common knowledge that people do not ask for bills even from leading shops in order to avoid charges towards tax. The Family Court ought not to have insisted on producing the bill to prove purchase of gold ornaments and that too from a goldsmith. The finding that Ext.A1 is a suspicious document is a finding entered on surmises. The learned Family Court Judge was too technical in evaluating the evidence which resulted in making observations against the petitioner and her witnesses. PW.4 was also examined on the side of the petitioner to prove that the respondent had sold the gold ornaments . The Family Court found fault in not examining Koyammu to whom, according to PW.4, the gold ornaments were sold. After evaluating the evidence, the Family Court held that there is no evidence to prove that the respondent/husband had taken the gold ornaments and the money as alleged in the Original Petition. 6. Considering the entire facts and circumstances of the case, we are of the view that the evidence tendered by the petitioner and her witnesses needs to be reappreciated and reevaluated for the purpose of arriving at a M.F.A.NO.439/2000 4 correct decision. As we have stated earlier, most of the reasons stated for discarding the evidence adduced by the petitioner are technical and negative in nature. The matter, therefore, requires reconsideration. It is seen that in the Original Petition, the value of 25 sovereigns of gold ornaments is shown as Rs.80,000/-. The appellant/petitioner is at liberty to amend the Original Petition stating the present value of the gold ornaments. In the result, the order under challenge is set aside and the case is remanded to the Family Court, Kozhikode for fresh consideration. The Family Court shall pass final orders within a period of six months from the date of receipt of a copy of this judgment. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A.NO.439/2000 5 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. M.F.A.NO. 439/2000 JUDGMENT 29th July, 2008 M.F.A.NO.439/2000 6