Kerala High Court
Greeshma K.C vs Santhosh.N on 5 March, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
MAT.APPEAL NO. 136 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 08.09.2020 IN OP NO.473 OF
2019 OF FAMILY COURT, THALASSERY
APPELLANT/PETITIONER:
GREESHMA K.C., AGED 31 YEARS
D/O. GANGADHARAN, KIZHAKKECHIRAYIL, PANALAD,
IRIKKUR P.O, KANNUR DISTRICT.
HEMALATHA
SRI.BINU GEORGE
RESPONDENT/RESPONDENT:
SANTHOSH.N, AGED 39 YEARS, S/O. RAGHAVAN,
NANTHYATH HOUSE, KUDAKKALAM, ERANHOLI P.O,
KANNUR DISTRICT, PIN-670 107
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
JUDGMENT
Devan Ramachandran, J.
The appellant calls into question the validity of the
Judgment of the learned Family Court, Thalasserry, in O.P.
473/2019 - which was filed by her, seeking return of 18
sovereigns of gold. The learned Family Court dismissed the
Original Petition, finding that the evidence on record was
insufficient to substantiate her claim.
2. Smt. M. Hemalatha, learned counsel appearing for the
appellant, argues that the available evidence establishes to a
substantial extent that the gold ornaments were, in fact, taken
forcibly away by her client's husband and in-laws; but conceded
that, apart from the oral testimony of PW1, she has not led any
other evidence or produced corroborating documents. She
argued that this is because, at the time when the Original Petition
was pending, her client was without financial and other support,
facing proceedings for divorce also; thus being not in a position
to offer the best evidence. She pointed out that, she has,
therefore, filed I.A. No. 1/2025, invoking the provisions of Order
XLI Rule 27 of the Code of Civil Procedure (CPC), producing
therewith certain additional documents to prove the actual
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nature, quality and quantity of the gold ornaments, as also
photographs to establish that she was wearing them at the time
of marriage.
3. Smt.Hemalatha then argued that, in fact, her client
has reliable information that the gold in question had been taken
away by the husband and pledged without her client's permission
by him with two Service Co-operative Banks, namely Kadirur
Service Co-operative Bank Ltd., Kannur District and Ponniam
Service Co-operative Bank Ltd., Thalassery; and added that, if
given an opportunity, she will be able to establish this by calling
witnesses and requisitioning relevant documents from the said
banks. She, therefore, prayed that, either this appeal be allowed;
or in the alternative, that her client be given an opportunity of
adducing additional evidence before the learned Family Court.
4. We notice from the endorsements on file that the
summons from this Court has been validly served on the
respondent. However, he is neither present in person, nor
represented through counsel; thus constraining us to dispose of
this appeal in his absence.
5. We have intently evaluated the judgment of the
learned Family Court and notice that it has relied on the evidence
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of the parties as PW1 and RW1 respectively, to conclude that the
allegation of the appellant, that her gold was "snatched away" by
the husband and in-laws on the date of marriage itself, has not
been properly established. For this, the learned Family Court
read the Original Petition, wherein, not even the date of the
alleged incident of "snatching" of the gold ornaments had been
averred; and held that, therefore, the statement of PW1 in her
chief examination for the first time, that it was done on the day of
marriage itself, is contrary to preponderance of possibilities. It
also found from the evidence of PW1 that she had gone to her
house after marriage six days later; and concluded that, hence
that her case that her gold had been "snatched" by her husband
and in-laws cannot be believed.
6. We have evaluated the evidence on record very
carefully.
7. No doubt, PW1 has averred specifically in her
testimony that, on the date of marriage itself, her gold ornaments
were taken away forcibly by her husband and in-laws; and that
she had objected to it. No doubt, in the Original Petition, though
she averred so specifically, but did not specify the date on which
it was done. In that sense, we cannot blame the learned Family
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Court in having concluded that there is something amiss in the
case projected by the appellant.
8. That apart, we are of the view that the learned Family
Court cannot be found to be in error in having held that if the
gold ornaments had been "snatched" from her, as alleged by the
appellant on the date of marriage, she would have either made a
complaint to the Police, or even to her parents, when she went
back to their house after six days; but that there is no evidence
on record to such effect either.
9. The afore being so said, we notice that certain
additional documents are now sought to be produced by the
appellant, being photographs, to establish that she was wearing
the gold in question; as also the bill from a jewellery which
enumerates the nature and quantity of the gold ornaments -
which she asserts aligns with the information in Annexure A1,
which the learned Family Court has found to be unacceptable for
the reason that it does not show that it was issued in her or her
parents' name. Of course, these are matters of evidence and
cannot be accepted by us without sufficient proof.
10. Add to the afore, it is the contention of
Smt.Hemalatha - learned counsel for the appellant - as is also
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averred by her in the affidavit in support of IA No.1/2025 - that
her client has now understood reliably that the gold in question
had been pledged by her husband in two different Co-operative
Banks as mentioned above; and that she will be able to establish
it by summoning witnesses from there and also by requisitioning
necessary documents. It is in such context that she has asked
alternatively for a remand.
11. When we evaluate the totality of the circumstances
projected, we are of the view that the evidence led by PW1 may
not be sufficient to establish her case fully, though we notice that
the additional documents on record may obtain some relevance to
what she is saying if they are proved as per law. Further, when
the respondent remains without appearing before us, we are of
the view that we will be justified in considering the alternative
plea impelled by the appellant for a remand.
12. We are persuaded to the afore also because the
question whether the gold ornaments had been pledged with two
different banks is in the realm of factual disputation, which will
require evidence to be gathered and witnesses to be examined,
which cannot be done without a remand. Furthermore, the
documents before us are in the original and hence Order XLI Rule
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27 of the CPC would come to apply, since the respondent has not
contested it yet; and in that perspective also, we are of the firm
view that this is a fit case where a remand of the matter becomes
inevitable.
13. In the afore circumstances, we allow this appeal and
set aside the impugned judgment and decree of the learned
Family Court; consequentially directing the learned Family Court
to reconsider and dispose of the Original Petition, after affording
necessary opportunity to both sides, including to lead additional
evidence, as expeditiously as is possible, but not later than 18
months from the date of receipt of a copy of this judgment.
14. Even though we do not normally fix time frames to
dispose of matters, we choose to do so in this case because the
Original Petition is in the year 2019.
To enable the afore, we direct the parties to appear
before the learned Family Court at 11 a.m. on 01.04.2025.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
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APPENDIX OF MAT.APPEAL 136/2021
PETITIONER ANNEXURES
Annexure A1 ORIGINAL LETTER DATED 13.01.2021 ISSUED FROM
KRISHNA JEWELS, THAVAKKARA, KANNUR
Annexure A2 COPIES OF PHOTOGRAPHS OF PETITIONER'S
MARRIAGE
