fca24.17.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.24/2017
APPELLANT: Smt. Rajeshri wd/o Vinod Tumane,
(Original aged 35 years, Occ - Housewife,
Petitioner on R/o C/o Smt. Rekha Prakash Larokar,
R.A.) House No.400, New Nakasha Lashkaribag,
Nagpur - 440 008.
...VERSUS...
RESPONDENTS : 1. Shri Ramprasad s/o Pandurang Tumane,
(Original aged 62 years, Occ - Business (Mutton shop).
Respondent
on R.A.) 2. Sau. Sulochana w/o Ramprasad Tumane,
aged - 57, Occ - Household.
Both R/o Rajeev Gandhi Chauk,
Near Dr. Upgandhalwar House, Rajura,
Tah. Rajura, Distt. Chandrapur.
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Ms Amruta A. Ghonge, Counsel for the appellant
Shri H.N. Potbhare, Counsel for the respondents
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 31.07.2017 ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.) By this family court appeal, the appellant challenges the judgment of the Family Court dated 26/5/2016 insofar as it rejects the claim of the appellant for returning gold and silver ornaments. ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:18:20 :::
fca24.17.odt 2 The appellant had filed the proceedings under Section 27 of the Hindu Marriage Act against her father-in-law and her mother-in-law for return of Stridhan articles. According to the appellant, the marriage between her and Vinod Tumane was solemnized on 29/4/2004 at Rajura in District Chandrapur. The husband of the appellant had expired on 29/5/2012 due to illness. A son was born from the wedlock between the appellant and Vinod in the year 2005. It is pleaded by the appellant in the petition filed by her in the year 2013 under Section 27 of the Hindu Marriage Act against her father-in-law and mother-in-law for return of Stridhan articles that at the time of the marriage her parents had gifted the articles like television, refrigerator, sofa set, wooden bed, gold and silver ornaments and the other articles mentioned in the list appended to the application. It is pleaded in the application filed by her for return of Stridhan articles that she was residing away from the husband from 2009 and all the aforesaid articles were in the custody of her husband initially and then in the custody of her in-laws. The appellant pleaded that the financial condition of the appellant and her mother was very weak and it was difficult for the appellant to survive without any income. The appellant therefore sought for a direction against the respondents to return the Stridhan articles. A list of the gift articles presented by the parents of the appellant at the time of marriage was annexed to the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:18:20 ::: fca24.17.odt 3 application.
The respondents filed the reply to the application and admitted that the appellant had married Vinod in the year 2004 and Vinod had expired on 29/5/2012. It is pleaded that the appellant did not attend the funeral of the husband and also did not take care of the husband after 2009 though he was suffering from serious illness. It is pleaded that the appellant left the company of the husband when he was seriously ill. The respondents denied that after the death of the husband of the appellant they have the custody of the articles mentioned in the list annexed to the application. The respondents pleaded that in the year 2009 when the appellant left the matrimonial home, she carried her gold and silver ornaments with her. It is pleaded that the appellant had lodged a false criminal complaint against the husband as well as the relatives on his side. It was denied that the financial condition of the appellant was weak. It is pleaded that the respondents are ready to handover the articles that are lying in their custody. A pursis was filed by the respondents on record to reiterate their statement that the appellant could remove her belongings including the articles that were left by her in the matrimonial house.
On the aforesaid pleadings of the parties, the Family Court framed the issues. The appellant filed the evidence on affidavit. It was ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:18:20 ::: fca24.17.odt 4 only stated in the evidence which is extremely short that her parents gave several gift articles including television, refrigerator, sofa set, wooden bed and gold and silver articles and the list was annexed. Certain other documents were also placed on record, but since they were not proved they were marked as articles. The wife was not cross-examined on behalf of the respondents. On an appreciation of the material on record, the Family Court partly allowed the application filed by the appellant and directed the respondents to return the articles except the gold and silver ornaments. The part of the judgment of the Family Court that rejects the prayer of the appellant for return of the gold and silver ornaments is challenged by the appellant in this family court appeal.
Ms Ghonge, the learned Counsel for the appellant submitted that the Family Court was not justified in rejecting the prayer of the appellant for return of the gold and silver ornaments. It is submitted that the evidence of the appellant remained unchallenged as she was not cross-examined on behalf of the respondents. It is submitted that the Family Court ought to have held on the basis of the unchallenged evidence of the appellant that the appellant had proved that Stridhan articles mentioned in the list appended to the application under Section 27 of the Act were in the custody of the respondents and the respondents were liable to return the same to the appellant. It is ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:18:20 ::: fca24.17.odt 5 submitted that several receipts were placed by the appellant before the Family Court to show that the gold and silver ornaments were purchased by the father and the mother of the appellant for gifting the same at the time of the marriage of the appellant.
On the other hand, it is submitted on behalf of the respondents that the case of the appellant that the gold and silver ornaments are lying in the custody of the respondents is false and baseless. It is submitted that when the appellant left the matrimonial home she had carried her gold and silver ornaments with her. It is stated that it was also not the case of the appellant in the complaint filed by her against the husband and her in-laws under Section 498 A of the Penal Code that the gold and silver ornaments were not returned to her by her husband and her in-laws. It is stated that in the circumstances of the case, the Family Court had rightly directed the respondents to return the other articles to the appellant except the gold and silver ornaments.
On hearing the learned Counsel for the parties and on a perusal of the record and proceedings, it appears that the following points arise for determination in this family court appeal.
(1) Whether the appellant proves that the gold and silver ornaments are in the custody of the respondents and whether they are liable to return the same to the appellant ?
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fca24.17.odt 6 (2) What order ?
In regard to the claim of the appellant for return of gold and silver ornaments, the pleadings and the evidence is very brief. It is only stated by the appellant in her pleadings that her Stridhan articles including the refrigerator, sofa set, wooden bed, television, gold and silver ornaments and the other articles mentioned in the list are in the custody of the respondents. The said statement is reiterated by the appellant in her examination-in-chief. No doubt the appellant is not cross-examined on behalf of the respondents. The Family Court, however, on an appreciation of the evidence on record did not believe the case of the appellant that the gold and silver ornaments were lying in the custody of the respondents and they were not removed by the appellant when she left the matrimonial home in the year 2009. The Family Court held that the case of the appellant that all the items mentioned in the list were lying with the respondents cannot be accepted as gospel truth. The Family Court held that normally a wife who leaves matrimonial home to join the company of her parents with an intention of not returning to the matrimonial home would take her jewellery along with her. The Family Court held that the appellant had left the matrimonial home in the year 2009 permanently. Though the respondents had filed a pursis before the Family Court that the appellant may come to the matrimonial home and ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:18:20 ::: fca24.17.odt 7 take away the articles that were lying in their custody, the appellant did not take any steps whatsoever to remove the Stridhan articles that were admittedly in the custody of the respondents. Even after passing of the judgment of the Family Court on 26/5/2016, the appellant has not executed the order of the Family Court by removing the articles that are lying in the custody of the respondents. The Family Court observed that despite the filing of the pursis, the appellant did not visit her matrimonial home to collect the articles that were admittedly in the custody of the respondents. Though by a specific order dated 2/12/2013 the respondents were directed to return a gas cylinder of Indane company and a regulator that was registered in the name of the appellant, the appellant did not bother to remove the same from the matrimonial home. On an appreciation of the material on record, the Family Court found that though the appellant had filed a criminal case against her husband and her in-laws under Section 498 A of the Penal Code, in the complaint, it was not the case of the appellant that the respondents and the husband of the appellant had seized her gold and silver ornaments and they were not ready to return the same. The appellant has also included her Mangalsutra in the list. It is difficult to believe that a married woman from an orthodox lower middle class family would not wear the Mangalsutra when she left the matrimonial home. We have perused the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:18:20 ::: fca24.17.odt 8 original record and proceedings. Though the marriage between the appellant and Vinod was solemnized in the year 2004, some of the receipts show that the gold and silver ornaments were purchased much later in the year 2009. If the appellant had left the matrimonial home in the year 2009, there was no occasion for her to purchase gold and silver ornaments and place them in the custody of her husband and the respondents. On a proper appreciation of the evidence on record, the Family Court has rightly directed the respondents to hand over the Stridhan articles except the gold and silver ornaments. The appellant has not made out any case for interference with the order of the Family Court.
In the result, the family court appeal is dismissed with no order as to costs.
JUDGE JUDGE
Wadkar
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