IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 Mat.Appeal.No. 407 of 2009(C) ---------------------------- OP.184/2008 of FAMILY COURT, THIRUVALLA .................... PETITIONER: --------------- DHANYA R. NAIR, AGED 22, W/O. SANTHILALA, POTHUMATHRA CHENCHERI PARAMBIL HOUSE, PADINJAREKARA MURI, NEDUMPURAM VILLAGE, THIRUVALLA TALUK, NOW RESIDING AT ROHINI HOUSE, NADDUVELIE MURI, THALAVADI VILLAGE, KUTTANADU TALU BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENTS: --------------- 1. SANTHILAL, AGED 27 YEARS, S/O. SASI, PRASANTHI HOUSE, NORTH ARYAD P.O., ALAPPUZHA, 2. K. SASI, AGED 53 YEARS, PRASANTHI HOUSE, NORTH ARYAD P.O., ALAPPUZHA 3. VASANTHI AGED 44 YEARS, W/O. SASI, PRASANTHI HOUSE, NORTH ARYAD P.O., ALAPPUZHA. BY ADV. SRI.N.RAGHURAJ FOR R1-3 SMT.K.AMMINIKUTTY FOR R1-3 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2010, THE COURT ON 11/02/2010 DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat. Appeal. NO: 407 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11 th day of February, 2010. JUDGMENT Joseph Francis J., This appeal is filed by the petitioner in O.P. 184 of 2008 on the file of the Family Court, Thiruvalla. Respondents 1 to 3 herein are the respondents 1 to 3 in that O.P. , which was filed under Section 7 of the Family Court Act for recovery of 115 ½ sovereigns of gold ornaments. 2. According to the petitioner, 1st respondent is her husband who married her as per custom of the community on 30.10.2005 at the Sreekrishna Swamy Temple, Ambalapuzha. Thereafter, they lived together as man and wife at the residence of the respondents. Respondents 2 and 3 are the father and mother respectively of the 1st respondent. In connection with the marriage, as agreed at the time Mat. A. No: 407 of 2009 :2: of negotiation, the petitioner was given 101 sovereigns of gold ornaments as her share and she had few other ornaments weighing 14 sovereigns obtained as presentation. Thus she was wearing 115 ½ sovereigns of ornaments at the time of marriage. 3. After marriage, while living together, the 1st respondent misbehaved towards her and he had illicit relationship with other women. On the very next day of marriage the respondents collected all her ornaments except a thali chain, another chain and 2 bangles. Later while she was carrying the 1st respondent had illicit relationship with other ladies and thus the petitioner was constrained to leave to her parental house. The 1st respondent then came to her house and apologised; and believing his words she accompanied him and resided together. A female child was born out of the wedlock on 28.6.2006. The 1st respondent was then used to alcohol and he assaulted the petitioner physically. She was driven out of the house on 31.7.2007. Again they reunited and lived in a rental building at Nedumpram from 1.2.2007. There was no Mat. A. No: 407 of 2009 :3: substantial change in the attitude of the 1st respondent and he appropriated the remaining ornaments also. She was then manhandled and was left at her parental house on 15.2.2008. The marital relationship has collapsed and the petitioner is entitled to get back the ornaments or its value. Accordingly the claim for Rs.9,81,750/-. 4. The 1st respondent remained ex-parte. Respondents 2 and 3 filed a joint written statement contending as follows:- The petition is not maintainable. Petitioner is not entitled to any reliefs as against these respondents. There was no negotiation in connection with the marriage and it was fixed as the petitioner and the 1st respondent were closely familiar even earlier to the marriage and as desired by the petitioner herself. If she had any ornaments at the time of marriage, those are even now remaining with her. 5. The allegation that these respondents appropriated her ornaments on the next day of marriage is denied. These respondents never interfered in any of the matters including the Mat. A. No: 407 of 2009 :4: shifting of residence. The petitioner herself wanted to avoid the company of these respondents and thus she prevailed upon the 1st respondent to live in a rental building. There is no cause of action against these respondents and they are not liable to pay any amount as claimed in the petition. The present attempt is only to snatch way the immovable properties on the pretext of attachment. Accordingly the respondents pray for dismissal of the petition. 6. Before the Family Court, PWs 1,2 and CPW1 were examined and Exts. A1 to A5 were marked. The learned Family Court on considering the evidence dismissed the petition, without cost on finding that there is no convincing evidence to prove the entrustment of gold ornaments with respondents 2 and 3 and that the entrustment of the entire gold ornaments with the 1st respondent is not proved. Against that judgment the petitioner filed this appeal. 7. We heard the learned counsel for the appellant and the learned counsel for the respondents. 8. The learned counsel for the appellant submits that the Mat. A. No: 407 of 2009 :5: lower Court ought to have allowed the O.P. atleast against the first respondent as he is ex parte and there is clear evidence to show the entrustment of gold ornaments with him. The learned counsel for the appellant further submits that the court below refused to grant decree against 1st respondent mainly on the ground that the petitioner has not taken any steps to get the details of the gold ornaments pledged with the banks. The specific case of the appellant is that at the time of marriage, 115 ½ sovereigns of gold ornaments were given to the appellant by her parents and on the very next day of the marriage itself the said gold ornaments except daily wearing thali chain, another chain and two bangles were taken by the respondents and in many times respondents pledged those ornaments in different banks and private financial institutions. 9. Ext. A1 photo album produced by the appellant would show that at the time of marriage, the appellant was wearing a number of gold ornaments. PW2 produced Exts.A2 to 5 to show the amount spent by him for the marriage of the appellant. The Mat. A. No: 407 of 2009 :6: learned counsel for the appellant submits that appellant has produced photocopy of receipts issued from Indian Overseas Bank, Federal Bank and Muthoot Finance Limited, which would go to show that the respondents pledged the gold ornaments belonging to the appellant on the different occasions for the business purpose of the 1st respondent. The learned counsel for the appellant submitted that though original receipts were handed over to the counsel for the appellant appearing before the Family Court, none of the documents were produced in Court for reasons best known to the said counsel. 10. The learned counsel for the appellant submitted that the main prayer of the appellant is to remand the case to the Family Court for the purpose of proving those documents to show that respondents pledged the gold ornaments belonging to the appellant. The learned counsel for the respondents has raised an objection in allowing the prayer for remand particularly as against the second respondent. Considering the facts and circumstances of the case, the prayer for remand has to be allowed, in the interests of justice. Mat. A. No: 407 of 2009 :7: Accordingly this appeal is allowed. The judgment in O.P. No. 184 of 2008 on the file of the Family Court, Thiruvalla is set aside and that O.P. is remanded back to the Family Court, Thiruvalla with a direction to dispose of the O.P. afresh after giving sufficient opportunity to both sides to adduce further evidence. The parties are directed to appear before the Family Court on 15.3.2010. The parties are directed to suffer their respective costs in this appeal. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/