Smt. Rajeshri Wd/O Vinod Tumane vs Shri. Ramprasad S/O Pandurang ...
2017 Latest Caselaw 5231 Bom

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                                                      1

                     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. 

     --------------------------------------------------------------------------------------------------
                       Ms Amruta A. Ghonge, Counsel for the appellant 
                       Shri H.N. Potbhare, Counsel for the respondents 
     --------------------------------------------------------------------------------------------------

                                                    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.

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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

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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

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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

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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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(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

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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

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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