Kerala High Court
Sheela.K.K vs N.G.Suresh on 2 December, 2020
Author: Bechu Kurian Thomas
Bench: S.V.Bhatti, Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA,
1942
Mat.Appeal.No.358 OF 2019
AGAINST THE JUDGMENT IN OP 2199/2017 DATED 11-01-2019 OF
FAMILY COURT,THRISSUR
APPELLANT/2nd PETITIONER:
SHEELA.K.K.,
AGED 52 YEARS, D/O. K.A. KUMARAN,
KURUMBOOR (H) 3721/A,
10TH CROSS 13B MAIN, H.A.L., II STAGE,
BANGLORE - 560 008
BY ADV. SRI.S.K.BALACHANDRAN
RESPONDENT/RESPONDENT:
N.G.SURESH,
AGED 58 YEARS, S/O. N.S.GANGADHARAN,
NANDIYIL HOUSE,
"SNEHA" KARIYAM, SREEKARYAM P.O.,
THIRUVANANTHAPURAM,
NOW TAKING REST AT KARUNA SAI,
VELLANAD P.O.,
THIRUVANANTHAPURAM - 695 043
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat. Appeal No.358/19 -:2:-
JUDGMENT
Dated this the 2nd day of December, 2020 Bechu Kurian Thomas, J.
The appellant is the wife of the respondent. She had preferred O.P. No.2199 of 2017 before the Family Court, Thrissur, seeking maintenance as well as the return of gold ornaments. Though the respondent remained absent and was set ex parte, the Family Court, by order dated 11.1.2019, dismissed the original petition, challenging which this appeal is preferred.
2. The only reason on which the claim for recovery of gold ornaments was dismissed by the Family Court was that the divorce between the parties took place in 2011 and that on the dissolution of marriage, the trusteeship ended and that the limitation period for recovery of gold ornaments started from the date of dissolution of marriage. It was held that the petition for recovery of gold ought to have been filed within three years from 17.11.2011. Since the original petition was preferred six years after the divorce, claim for gold ornaments was held to be barred by limitation. The maintenance claimed in the petition was also Mat. Appeal No.358/19 -:3:- refused on the ground that the same was filed six years after the dissolution of marriage and that, once divorce is granted, maintenance cannot be claimed, except under the provisions of Section 125 Cr.P.C.
3. When the matter came up for admission, by order dated 13.11.2019, a Division Bench of this Court referred the question as to whether the bar of limitation under Section 10 of the Limitation Act is operative against the claim for recovery of gold ornaments by the divorced wife to a Full Bench for an authoritative consideration.
4. The referred question was considered by a Full Bench of this Court and by judgment dated 24.9.2020 reported in Sheela K.K. v. N.G.Suresh (2020 (5) KHC 455) it was held that if there is an entrustment of gold ornaments by the wife to the husband or his parents, a trust gets created in which event the trustee or trustees, as the case may be, are liable to return the same and there is no limitation for claiming the same by the wife/divorced wife.
5. In view of the aforesaid findings of the Full Bench of this Court, the order under appeal in so far as it relates to the claim for return of gold ornaments cannot stand the test of law. Mat. Appeal No.358/19 -:4:- The issue was decided by the Family Court solely on the ground of limitation.
6. The order was rendered by the Family Court without adducing any evidence. Though it is claimed by the counsel for the appellant that a proof affidavit was filed, it is seen from the appendix to the impugned order that such a proof affidavit has not been taken on record or marked. We have no other option other than to remand the case for fresh consideration.
7. The learned Counsel for the appellant submitted that appellant is not pursuing the claim for maintenance. In view of the said submission, we refrain from considering the claim for maintenance in this appeal and leave the question of law open. The finding of the Family Court relating to the claim for maintenance shall stand concluded as relating to the parties in this case.
8. In such circumstances, even though the respondent remained absent throughout, in the Family Court as well as in this Court, we allow this appeal in part and remand the case for de novo consideration relating to the claim of return of gold ornaments. The finding of the Family Court relating to the claim for maintenance is not open for reconsideration. The Family Mat. Appeal No.358/19 -:5:- Court shall consider the case as directed above, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.
Sd/-
S.V.BHATTI JUDGE Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/True Copy/ PS to Judge