Bombay High Court

Ravindra S/O Gulabrao Jakate vs Sau. Kalpana W/O Ravindra Jakate ... on 27 February, 2017

Bench: V.A. Naik

                                                        1                         fca297.14.odt

             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
 ---------------------------------------------------------------------------------------------------
 Shri S. G. Joshi, Advocate for appellant.
 Shri C. A. Joshi, Advocate for respondents.
 --------------------------------------------------------------------------------------------------
                                   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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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

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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

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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





                                               5                      fca297.14.odt

     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

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.