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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.297/2014
Ravindra s/o Gulabrao Jakate,
aged about 44 years, Occ. S.T. Driver,
r/o Shrikrushna Nagar, Akot,
Tq. Akot, Dist. Akola. .....APPELLANT
...V E R S U S...
1. Sau. Kalpana w/o Ravindra Jakate,
aged about 40 years, occ. Housewife,
2. Ku. Rani d/o Ravindra Jakate,
aged about 9 years, Minor through
her natural guardian mother i.e.
respondent no.1.
Both r/o c/o Motiram Tukaram Ahir,
Govind Nagar, Akola, Tq. Dist.Akola. ...RESPONDENTS
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Shri S. G. Joshi, Advocate for appellant.
Shri C. A. Joshi, Advocate for respondents.
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CORAM:- SMT. VASANTI A. NAIK AND
V. M. DESHPANDE, JJ.
DATED :- FEBRUARY 27, 2017 ORAL JUDGMENT (Per : Smt. Vasanti A Naik, J.) By this family court appeal, the appellant challenges the judgment of the family court dated 03.10.2013 directing the appellant to hand over the Streedhan, as mentioned in the operative part of the judgment or in the alternative to pay a sum of Rs.3,50,000/- to the respondent towards cost of the gold ornaments.
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2 fca297.14.odt The appellant and the respondents were married at Akola on 08.01.2002 as per the customs prevailing in their community. A female child was born from the wedlock. It is not in dispute that the respondent had filed a complaint against the appellant under Section 498-A read with Section 34 of the Penal Code and the appellant was convicted for the said offence by the judgment dated 03.07.2006. The appeal filed by the appellant against the said judgment is recently allowed and the appellant is acquitted. After the parties resided separately for some time, in the proceedings filed by the wife under section 9 of the Hindu Marriage Act for restitution of conjugal rights, the parties decided to reside together by entering into an agreement, on 01.10.2010. The appellant had agreed to return the gold ornaments-Streedhan to the respondent within one month. The parties resided together till 26.09.2011 and thereafter they again separated. After the separation, the respondent had filed the proceedings against the appellant before the family court for return of the Streedhan articles. By judgment dated 03.10.2010, the Family Court has partly allowed the petition filed by the respondent and directed the return of the gold ornaments or pay an amount of Rs.3,50,000/- to her in lieu of the Streedhan articles. The ::: Uploaded on - 15/03/2017 ::: Downloaded on - 27/08/2017 18:13:15 ::: 3 fca297.14.odt appellant has challenged the said judgment in the instant petition.
Shri Joshi, the learned counsel for the appellant submitted that the family court was not justified in allowing the petition filed by the respondent for return of the Streedhan articles when the Streedhan articles were returned to her in the presence of the witnesses. It is stated that the appellant had returned the Streedhan articles to the respondent in presence of his father and Shri Shalikram Bule and he had also examined Shalikram Bule in support of his case. It is stated that the family court has wrongly discarded the evidence of this witness on the ground that the appellant had not pleaded in the written statement that he had handed over the Streedhan articles to the respondent in presence of Shalikram Bule. It is stated that in paragraph 6 of the written statement, the appellant has specifically stated that the gold ornaments were returned to the respondent in the presence of Shalikram Bule. It is submitted that the family court has discarded the evidence of Shalikram Bule and the father of the appellant solely on the ground that there is no pleading in that regard in the written statement filed by the appellant. It is stated that the judgment of the family court proceeds on a mistaken belief that the appellant has not pleaded that gold ornaments were returned ::: Uploaded on - 15/03/2017 ::: Downloaded on - 27/08/2017 18:13:15 ::: 4 fca297.14.odt in the presence of Shalikram Bule and his father and has therefore allowed the petition filed by the respondent.
Shri C. A. Joshi, the learned counsel for the respondent fairly admits that it is pleaded by the appellant in paragraph 6 of the written statement that the gold articles were returned to the respondent in the presence of Shalikram Bule and his father. It is stated that the observations made by the family court are contrary to the pleadings of the appellant in the written statement. It is however stated that from the other evidence on record, which is not discussed by the family court, it could be proved that the gold ornaments were not returned to the respondent. It is stated that in the present case the matter could be remanded to the family court for deciding the petition filed by the respondent on merit in accordance with law.
On hearing the learned counsel for the parties, it appears that the following points arise for determination in this family court appeal:-
(i) Whether the family court was justified in partly allowing the petition filed by the respondent for return of the Streedhan articles?
(ii) Whether the matter is liable to be remanded to the
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family court?
(iii) What order?
It would not be necessary to consider the pleadings of the parties and the evidence tendered by them in detail while deciding this family court appeal. The family court has discarded the evidence of Shalikram Bule and also the father of the appellant solely on the ground that the appellant has not pleaded in the written statement that the gold ornaments were returned to the respondent in the presence of Shalikram Bule and his father. The family court has incorrectly observed in paragraph 14 of the judgment that the appellant has failed to plead that he had returned the gold ornaments to the respondent in the presence of Shalikram Bule. The said observation made by the family court is incorrect and is contrary to the facts on record. The appellant had clearly pleaded in the written statement that he had returned the gold ornaments to the respondent in the presence of Shalikram Bule and his father. These witnesses were material witnesses for substantiating the case of the husband. The family court has, however, wrongly discarded the evidence of these witnesses after observing that there is no pleading in the written statement that the ornaments were returned by the appellant to the respondent in ::: Uploaded on - 15/03/2017 ::: Downloaded on - 27/08/2017 18:13:15 ::: 6 fca297.14.odt their presence. Since, the judgment of the family court is based on the wrongful assumption of facts and since the family court has not considered the other evidence tendered by the parties on record, it would be necessary to set aside the order of the family court and remand the matter to the family court for deciding the petition filed by the respondent, in accordance with law.
Hence, for the reasons aforesaid, the family court appeal is partly allowed. The judgment of the family court is set aside. The matter is remanded the family court for deciding the petition filed by the respondent, in accordance with law. No order as to costs. The appellant is permitted to withdraw the amount deposited in this court.
The record and proceedings should be remitted to the family court at the earliest.
(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.) kahale ::: Uploaded on - 15/03/2017 ::: Downloaded on - 27/08/2017 18:13:15 :::