IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 MFA.No. 700 of 2001() --------------------- OP.529/1996 of FAMILY COURT,KOZHIKODE .................... APPELLANT/PETITIONER: ----------- M.T.BABY GIRIJA, AGED 35 YEARS, D/O. GOVINDAN, MOORANTHODIKAYIL HOUSE, P.O. KARAD, VIA-FEROKE COLLEGE, KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/RESPONDENT: ------------- P. SATHYANANDAN, AGED 45 YEARS, S/O. ELEDATH APPU, LINE MAN, TELEPHONE EXCHANGE, BEYPORE, NOW RESIDING AT AALAPAT HOUSE, PO. ARAKKINAR, VIA. MARAD BEACH, KOZHIKODE. BY ADVS. SRI.V.V.SURENDRAN FOR R SRI.P.A.HARISH FOR R THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON 02/09/2008 DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A.NO. 700 OF 2001 ---------------------------------------------------------------- Dated this the 2nd day of September, 2008 JUDGMENT Harun-Ul-Rashid, J. The petitioner in O.P. No.529 of 1996 on the file of the Family Court, Kozhikode is the appellant. The above Original Petition is filed by the wife against the respondent/husband for return of gold ornaments and other items. The Family Court dismissed the Original Petition holding that the petitioner failed to prove that the respondent was in possession of the items and hence, this appeal. The parties herein are referred to as the petitioner and respondent as in the Original Petition. 2. The marriage between the parties was solemnised on 5.4.1981. Two children were born in the wedlock. It is the case of the petitioner that at the time of marriage, her parents gave her 19 1/2 sovereigns of gold ornaments and household articles worth Rs.13,495/-. The petitioner had also filed M.C. No.381 of 1993 for maintenance and O.P. No.351 of 1993 for custody of the first child. The respondent/husband filed objection denying the averments in the petition. He further contended that the petitioner herself had taken the gold ornaments and had constructed a building in her name. Before the Family Court, the petitioner/wife was M.F.A.NO.700/2001 2 examined as PW.1 and two other witnesses were examined as PWs.2 and 3. The respondent/husband was examined as RW.1 and Exts.B1 and B2 were marked on his side. Exts.B1 and B2 are the copies of M.C. Nos.131 of 1990 filed before the Judicial First Class Magistrate's Court, Manjeri and 381 of 1993 filed before the Family Court, Kozhikode. At page 5 of Ext.B1, it is stated that the respondent/husband had sold 12 sovereigns of gold ornaments and utilised the amount for purchasing a property in his name inspite of the objection of the petitioner. The Family Court concluded that if the respondent had taken 19 1/2 sovereigns of gold ornaments, the petitioner could have stated so in Ext.B1and that the inconsistency of her case shows the sign of falsehood. The Family Court further held that the the petitioner has no case that the respondent had taken 19 1/2 sovereigns of gold ornaments. 3. On a perusal of Exts.B1 and B2, we are of the view that the reason stated by the Family Court for rejecting the claim of the petitioner is not correct. The petitioner had pleaded in M.C. No.131 of 1990 that 12 sovereigns of gold ornaments were sold by the respondent and the sale proceeds were utilised by him for purchasing a property in his name. The said pleading in Ext.B1, according to us, is in no way inconsistent with the case set up by the petitioner in the Original Petition. The petitioner only M.F.A.NO.700/2001 3 stated that 12 sovereigns of gold ornaments were misappropriated by the respondent. That pleading does not affect her case that 19 1/2 sovereigns of gold ornaments given to her at the time of marriage were taken by the respondent. She had only mentioned about 12 sovereigns of gold ornaments. Exts.B1 and B2 are only cases filed for maintenance for the petitioner and her child and it is not necessary to give details of the gold ornaments in those cases. 4. The Family Court also relied on Ext.B2 and observed that the petitioner has no case that 19 1/2 sovereigns of gold ornaments given to her at the time of marriage were taken by the respondent. In paragraph 4 of Ext.B2, it is stated by the petitioner that due to certain family problems created by the mother and sisters of the respondent, she and the respondent/husband were forced to shift their residence and the respondent had sold her gold ornaments to purchase a property and to put up a residential building. It is also pleaded in Ext.B2 that the property was purchased in the name of the petitioner and a house was constructed therein and that due to the persuasion of the family members of the respondent, the said property was sold and another property was purchased in the name of the respondent/husband against the wishes of the petitioner. On a perusal of Exts.B1 and B2, it cannot be said that the petitioner has no M.F.A.NO.700/2001 4 case that her gold ornaments were taken away by the respondent. It is quite possible that 12 sovereigns were utilised for purchase of the property and the balance might have been used for some other purpose. In such circumstances, the finding of the Family Court that the petitioner has no consistent case is not a finding entered on proper evaluation of the evidence. The Family Court accepted the evidence of RW.1 and disbelieved the evidence of PWs.1 to 3 and held that there is absolutely no convincing or reliable evidence to prove that the petitioner had 19 1/2 sovereigns of gold ornaments at the time of marriage which in the above circumstances requires a fresh appreciation. In the facts and circumstances stated above, it has become necessary to reappreciate the evidence. The impugned order is, therefore, set aside and the matter is remanded for fresh consideration. We direct the Family Court, Kozhikode to consider the matter afresh and pass orders in accordance with law 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.700/2001 5 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. M.F.A.NO. 700/2001 JUDGMENT 2nd SEPTEMBER, 2008 M.F.A.NO.700/2001 6