Bombay High Court
Hitesh Veerendra Shah vs Ms. Deepti D/O Amarchand Mehta on 20 January, 2017
Author: Vasanti A. Naik
Bench: Vasanti A Naik, V.M. Deshpande
fca189.14.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
FAMILY COURT APPEAL NO.189/2014
WITH
CROSS-OBJECTION NO.39/2012
---------------------------------------------------------------------------------------------------
FAMILY COURT APPEAL NO.189/2014
APPELLANT: Ms. Deepti d/o Amarchand Mehta
(Ori. Petitioner) (Earlier Smt. Deepti w/o Hitesh Shah),
aged about 36 years, Occupation : Household,
Resident of "Amarswaroop", Jain Ratna
Amarchandbhai Mehta Marg, Bhajimandi,
Itwari, Nagpur.
...VERSUS...
RESPONDENT : Shri Hitesh s/o Virendralal Shah,
(Ori. Respondent) aged about 42 years, Occupation : Business,
Resident of Veer Mahal No.328135,
3rd Block, Rajaji Nagar, BANGALORE - 560 010.
-----------------------------------------------------------------------------------------------------
Mrs. Rajshree Dewani, Advocate for appellant
Shri Masood Shareef, Advocate for respondent
-----------------------------------------------------------------------------------------------------
WITH
CROSS-OBJECTION NO.39/2012
APPELLANT/ Hitesh Veerendra Shah,
OBJECTOR : aged about 40 years, Occupation : Service,
Original Respondent Resident of No.328/35, 3rd floor, 58-Cross,
on R.A. Respondent 3rd Block, Rajaji Nagar,
in instant appeal Bangalore - 560010.
...VERSUS...
::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 :::
fca189.14.odt
2
Original Petitioner: Ms. Deepti d/o Amarchand Mehta
on R.A. Appellant (Earlier Smt. Deepti w/o Hitesh Shah),
in instant appeal aged about 36 years, Occupation : Household,
R/o "Amarswaroop", Jain Ratna
Amarchandbhai Mehta Marg, Bhajimandi,
Itwari, Nagpur.
-----------------------------------------------------------------------------------------------------
Shri Masood Shareef, Advocate for objector/original respondent
Mrs. Rajshree Dewani, Advocate for original petitioner/appellant
-----------------------------------------------------------------------------------------------------
CORAM : SMT. VASANTI A NAIK, AND
V.M. DESHPANDE, JJ.
DATE : 20.01.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this family court appeal, the appellant has challenged the judgment of the Family Court, dated 27/12/2011 as far as it rejects the claim of the appellant for a direction against the respondent to return her stridhan articles as per the list.
2. Few facts giving rise to the family court appeal are stated thus :-
The appellant-wife (hereinafter referred to as the "appellant" for the sake of convenience) was married to the respondent- husband (hereinafter referred to as the "respondent") on 11/12/2000 at Nagpur as per Hindu rites and customs. According to the appellant, several gift ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 3 articles including jewellery, clothes and household items were gifted to the appellant by her family members, relatives and friends. It is the case of the appellant in the petition filed by her for a decree of divorce, return of the stridhan and grant of permanent alimony that after the solemnization of the marriage, the respondent and his family members treated her with cruelty. The appellant had pleaded that she had carried the entire stridhan articles to her matrimonial house at Bangalore and the respondent misappropriated the property and used it as his own. The appellant had pleaded that her mother-in-law retained her gold ornaments and the silver articles after the solemnization of the marriage and she was not permitted to use the same. The petition filed by the appellant for a decree of divorce, return of the stridhan and grant of permanent alimony was partly decreed by the Family Court by the judgment dated 06/08/2004. The Family Court held that the appellant was entitled to a decree of divorce and the marriage solemnized between the parties was dissolved. The Family Court, however, refused to direct the respondent to return the stridhan articles and also to grant permanent alimony in favour of the appellant. Since the prayer made by the appellant for grant of permanent alimony and the return of the stridhan articles was rejected, the appellant filed first appeal bearing No.649 of 2004. The first appeal was partly allowed by this court by the judgment ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 4 dated 14/06/2010. This court remanded the matter to the Family Court for deciding the entitlement of the appellant for the return of the stridhan articles. The matter was remanded to the Family Court and the Family Court, by the judgment dated 27/12/2011, partly allowed the petition filed by the appellant for the return of the stridhan articles and directed the respondent to pay a sum of Rs.2,00,000/- to the appellant. While holding so, the Family Court held that the appellant was not successful in proving that the stridhan articles, as mentioned in the list, were lying with the respondent. The Family Court held that the appellant was not entitled to the return of the stridhan articles as per the list. After having held so, the Family Court directed the respondent to pay a sum of Rs.2,00,000/- to the appellant to compensate her towards the stridhan. The part of the judgment of the Family Court that dismisses the claim of the petitioner for return of the stridhan articles mentioned in the list exhibit-50, or the monetary value thereof to the extent of Rs.10,60,545/- is challenged by the appellant in this family court appeal. The respondent has filed the cross-objection against the decree for a sum of Rs.2,00,000/-.
3. Mrs. Dewani, the learned counsel for the appellant, submitted that the Family Court was not justified in holding that the appellant was not successful in proving that all the stridhan articles mentioned in the list were gifted to the appellant, when the appellant had ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 5 produced ample evidence on record in the form of photographs, the bill of the jeweller and other evidence to prove that the articles were gifted to her and the said articles were carried by the appellant to her matrimonial house at Bangalore. It is submitted that in Gujarati families, normally, the articles gifted to a girl during her marriage are handed over to her mother-in-law and the married girl would not retain the same. It is stated that the photographs produced by the appellant on record clearly show that several pieces of jewellery were gifted to the appellant. It is stated that there is no evidence on record, much less any cogent evidence to prove that the articles gifted to the appellant, including the jewellery were removed by the appellant while she left the matrimonial home in October, 2001 to return to Nagpur. It is stated that the appellant has examined the photographer, the chartered accountant and the salesman in the shop of a reputed jeweller from whom the jewellery was purchased to prove that the jewellery to the extent of Rs.1,89,500/- was purchased for gifting it to the appellant at the time of the marriage. It is submitted that the chartered accountant examined by the appellant has proved the balance- sheet showing that an amount of Rs.1,89,500/- was paid to the jeweller towards the gold jewellery. It is submitted that the photographer is examined to prove the photographs which show that certain gold jewellery was gifted to the appellant during her wedding and she was ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 6 wearing it. It is stated that the respondent has admitted in his cross- examination that before the mediator in the proceedings in the High Court, in the first appeal, the appellant had signed on a list of articles and had admitted that some of the articles mentioned in the list were with him. It is stated that the respondent has stated in his examination-in-chief that some gold coins and some other articles were gifted to him by the parents of the appellant. It is submitted that the Family Court could not have held in the circumstances of the case that the appellant was unsuccessful in proving that the articles mentioned in the exhibits, including the gold and silver jewellery was gifted to the appellant at the time of marriage and the said articles were lying with the respondent. It is stated that the Family Court was not justified in holding that since the appellant had not stated in the evidence as to how she carried the stridhan articles to the matrimonial home, there is reason to disbelieve the case of the appellant.
4. Shri Shareef, the learned counsel for the respondent, supported the judgment of the Family Court, as far as it rejected the claim of the appellant for return of the stridhan articles. It is submitted that after having held that the appellant had failed to prove that the stridhan articles were lying with the respondent and after having answered the issue in regard to the return of the stridhan articles to the appellant ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 7 against her, the Family Court was not justified in directing the respondent to pay a sum of Rs.2,00,000/- to the appellant towards stridhan. It is stated that if the Family Court was of the view that the appellant was unsuccessful in proving that the stridhan articles were gifted to her and the same were lying with the respondent, there was no propriety in the order of the Family Court to pay a sum of Rs.2,00,000/- to the appellant towards stridhan. It is submitted that the list of articles was never tendered by the appellant in the Family Court, during the pendency of the petition filed in the year 2004. It is submitted that for the first time, the list of the articles was produced before the Family Court after the matter was remanded, by fabricating the same. It is submitted that if the appellant had sought for the return of the articles in the proceedings filed by her in the year 2004, it was necessary for the appellant to have produced the list along with the documents tendered by her and the appellant should have also produced the bill of the jeweller in support of the same in the first round of litigation. It is submitted that the list of articles, the bill of the jeweller and the other documents were tendered by the appellant for the first time on record in the year 2011 in support of the claim for return of the stridhan that was allegedly gifted to the appellant at the time of the marriage, in the year 2000. It is submitted that the Family Court has rightly come to the conclusion that there is no ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 8 material on record to show that the stridhan articles were carried by the wife to the matrimonial home and they are lying at Bangalore with the respondent. It is submitted that the evidence of the chartered accountant would not help the appellant, as the chartered accountant is the cousin of the appellant and he has not signed the balance-sheet sought to be proved by him. It is submitted that the appellant had fabricated some documents and placed the same on record in the year 2011 in support of her claim for return of the stridhan articles in the proceedings filed by her in the year 2004. The learned counsel sought for the dismissal of the appeal filed by the appellant and also prayed that the decree passed against the respondent for paying a sum of Rs.2,00,000/- to the appellant towards stridhan be set aside.
5. On hearing the learned counsel for the parties and on a perusal of the original record and proceedings, it appears that the following points arise for determination in this family court appeal.
(I) Whether the appellant is successful in proving that the stridhan articles mentioned in the list at exhibit-50 are lying with the respondent and that they should be returned to her ?
(II) Whether the Family Court was justified in directing the respondent to pay a sum of Rs.2,00,000/- to the appellant towards the stridhan articles?
::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 9 (III) What order?
6. To answer the aforesaid points, it would be necessary to consider the relevant pleadings of the parties and the evidence tendered by them. The pleadings in regard to the return of the stridhan articles are brief. The appellant has pleaded that at the time of the solemnization of the marriage on 11/12/2000 and even thereafter on certain occasions gifts and articles, including ornaments, clothes and household articles were gifted to the appellant by her parents, relatives and friends. According to the appellant, after the solemnization of the marriage, the stridhan articles were carried to Bangalore to her matrimonial home and the gold jewellery and the silver articles were handed over to the mother- in-law of the appellant. It is pleaded that when the appellant returned to her parental home in October, 2011, she did not bring the stridhan along with her to her parental home and the stridhan was retained in her matrimonial home. The appellant has pleaded that the respondent has misappropriated the property-stridhan which was gifted to the appellant at the time of marriage, as it was lying in the matrimonial home after the appellant returned to her parental home in October, 2001. It is pleaded that the appellant was not permitted to wear the gold jewellery and use the other articles gifted to her at the time of marriage even at the time of ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 10 the marriage of her brother-in-law and on certain occasions where it was necessary to wear it. The wife had pleaded that the gold jewellery and the silver articles were never in the custody of the appellant and they were in the custody of her mother-in-law. The facts pleaded by the appellant in her petition are seriously denied by the respondent. The respondent has denied that the gifts, as mentioned in the list of articles, were gifted to the appellant at the time of the marriage and thereafter. It is denied that after the marriage, the appellant handed over the gold jewellery and the silver articles to her mother-in-law. It is pleaded by the husband that the appellant had kept her gold jewellery in her cupboard in the matrimonial home and had carried the said jewellery along with her to her parental home, when she returned to Nagpur in October, 2001. It is pleaded that the appellant had left the matrimonial home in October, 2001 with an intention not to return to the same and hence she had carried the valuables along with her and, therefore, the case of the appellant that she had carried only the necessary items along with her while leaving the matrimonial home in October, 2001, was denied.
On the aforesaid pleadings of the parties, the issues were framed by the Family Court. The appellant examined herself and examined her brother Nilesh. The appellant examined a photographer, a chartered accountant, who is her cousin, a salesman from the shop of the ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 11 jeweller from where the appellant had said to have purchased the jewellery and her uncle Rajendra Mehta. The respondent had examined himself.
7. It would now be necessary to consider whether the Family Court has erred in holding that the appellant was unsuccessful in proving that the articles mentioned in the list at exhibit-50 were indeed gifted to her at the time of her marriage and that she had transported them to her matrimonial home at Bangalore and that they were lying in the house of the respondent when she left the matrimonial home in October, 2001, never to return. It would be necessary to note that in the petition filed by the appellant in the beginning of the year 2004, for a decree of divorce and for the return of the stridhan articles, the appellant had not filed a list of the stridhan articles. Exhibit-11 was filed in the said proceedings on 04/03/2004. Exhibit-11 is an application for directions to the respondent to return the stridhan articles. We have perused the original record and the proceedings. Though it is mentioned in the application, that the respondent should be directed to return the stridhan articles mentioned in the list, a list of articles is not annexed to exhibit-11. We do not find that the list of stridhan articles was filed in the proceedings in the year 2004 before the Family Court till the Family Court had decided the said petition on 06/08/2004. The notice exhibit-19, that is a legal notice appears to ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 12 have been served by the appellant on the respondent before filing the petition for divorce and the return of the stridhan articles. A copy of the notice was filed on record and was exhibited as exhibit-19. There is no list appended to the said notice, though a reference is made to the same. Till the Family Court decided the proceedings filed by the appellant, on 06/08/2004, the list of stridhan articles was not tendered by the appellant in the Family Court, though there is a mention in the affidavit of the appellant that the stridhan articles mentioned in the list tendered by her should be returned to her. We find from the order-sheet dated 04/03/2004 that only Exhibit-11, i.e. an application for directions to return the stridhan articles was filed on the said date and the order-sheet does not mention that the list of stridhan articles was also filed. After the matter was remanded in pursuance of the judgment dated 14/06/2010, the appellant appears to have filed the list at exhibit-50 for the first time. In this background, it would be necessary to consider whether the appellant has come to the court with clean hands with a prayer for return of the stridhan articles. The Family Court has recorded a finding that both the appellant and the respondent have not approached the court with clean hands. We find that the family court has rightly recorded the finding that the parties have not approached the court with clean hands. If indeed the articles mentioned in the list at exhibit-50 were gifted to the ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 13 appellant at the time of the marriage and thereafter, it was necessary for the appellant to place the list on record in the proceedings filed by her in the year 2004. We have already held that such a list was not filed by the appellant on record in the year 2004. The appellant has admitted in her cross-examination that no such list was prepared at the time of her marriage and a copy of the same was never handed over to the respondent or his family members. The evidence of Nilesh, the brother of the appellant, however, contradicts this material statement. The brother of the appellant has admitted in his evidence that two lists were prepared and one of the lists was handed over to the respondent and the other was retained by them. If the list was not prepared at the time of the marriage, we fail to understand as to how the items mentioned in the list could be mentioned in the list of articles. It is surprising that when a girl and a boy have to suffer unbearable pain and loss on the severance of the marital ties, claims are made by the girl for extremely trifle articles, which in our view have no value, as compared to the loss that is suffered by the parties. It is necessary to mention a few articles that are mentioned in the list at Exhibit-50, in this judgment to point out as to how the appellant has claimed the amount, in lieu of the stridhan articles from the respondent. An amount of Rs.1,250/- is sought for 21 petticoats, an amount of Rs.400/- for one sweater, Rs.500/- for a water jug without mentioning the ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 14 material of which it is made of, table lamp Rs.500/-, stainless steel glass (one piece) Rs.45/-, bangle box worth Rs.350/-, cloth torans three in numbers, Rs.750/-, hair pin with pouch Rs.2,000/-, saree hangers 24 in numbers Rs.250/-, saree covers 12 in numbers Rs.250/-, overnight kit 2 in numbers Rs.500/-, oil bottle made of steel one in number Rs.150/-, undergarments 8 in numbers Rs.5,000/-, imitation jewellery 10 pieces Rs.5,000/-, token cash that was given to the appellant Rs.5,000/-, a bed worth Rs.1,100/-, hair dryer one piece Rs.2,500/-, wall clock 2 pieces Rs.700/-, mukhwas one box Rs.400/-, dry fruit box one piece Rs.250/-, alarm clock Rs.500/-, thermos flask one piece Rs.800/-, Milton khao-pio set and lemon set, each Rs.500/-, pouch (one) Rs.1000/-, flower show piece (one) Rs.250/-, hot tiffin box (one) Rs.500/-, chappals (four) Rs.2000/-, coloured bangles Rs.700/-, cash (again) Rs.10,000/-, etc. Apart from the aforesaid items, certain claims are made towards the gold jewellery, silver articles and some other articles that were said to have been gifted to the appellant towards the stridhan. Normally, we would not have referred to these articles in such a fashion in our judgment, but we were really pained on reading the list that was filed by the appellant for the first time in the court, 11 years after the solemnization of the marriage with a view to seek the aforesaid amount from the husband, in lieu of the stridhan articles. We are not shocked or surprised with the ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 15 manner in which such claims are being made by the girls, after the marital ties are broken. Without understanding about the great loss that is caused to the parties both financially and mentally, we are more concerned more about the mental agony here, claims are made for petty articles or even the articles which have a life of only a few months. A stainless steel glass for example, could be misplaced in any household. Why should the return of such articles be sought when the life is ruined after the separation. If the list of articles was not prepared at the time of marriage, as admitted by the appellant herself in her cross-examination, we fail to gauge from whose memory these articles are mentioned in the long list that is tendered by the appellant before the Family Court for the first time in the year 2011. If valuable articles are gifted to the wife at the time of the marriage and if those valuable articles are retained by the husband and his family members, we can understand that a wife should make a claim for return of those articles. In this case we find that 90% of the articles that are mentioned in the list are extremely trifle articles that are not of any use to the respondent or even his family members. If the lists were not prepared at the time of the marriage, we fail to follow as to how the appellant or her family members would remember such petty things, eleven years later. The parents of a girl, while they give their daughter in marriage, would never dream that their daughter would come back to ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 16 them, never to return to her matrimonial house and, therefore, normally, the parents would not prepare the list of such petty articles, which are always gifted to the girl without keeping a note as to what these articles are. The parents of some girls may even not remember about every gold or silver article which they gift to their daughter, as nobody would ever dream at the time of the marriage that their daughter would return to their home after severing the ties with her husband. If this list was not prepared at the time of the marriage, we believe that this list is fabricated by the appellant with a view to seek the amount of Rs.10,60,545/- from the respondent. We have several reasons for holding so. In the year 2004, when the proceedings were filed by the appellant, she had not tendered this list in those proceedings. In those proceedings, she had not tendered the bill of the jeweller, which she has produced for the first time after 2011. It is worth mentioning that though the marriage was solemnized on 11/12/2000, the jeweller's bill is dated 23/12/2000. How could a jeweller's bill bear a date which is subsequent to the date of the marriage. We fail to fathom this specially, when the transaction is claimed to be a cash transaction. If the jewellery was gifted to the appellant at the time of the marriage, that would presuppose that the said jewellery was prepared and handed over to the appellant or her parents before the marriage was solemnized. If that be so, we fail to gauge as to how the jeweller was paid ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 17 with the amount of Rs.1,89,500/- for the jewellery mentioned in the said bill on 23/11/2000 and that too by a cash transaction. There is reason to believe, in the circumstances of the case that documents were fabricated by the appellant with a view to ensure that the claim of the appellant that particular jewellery was gifted to the appellant at the time of the marriage is proved. The appellant has relied on the balance-sheet to prove the cash transaction. The appellant has examined her own cousin, the chartered accountant to prove the balance-sheet. It would be conspicuous to note the admissions of this witness in his cross-examination. It is worthwhile to further note that the balance-sheet does not bear the signature or the seal of the chartered accountant. The certificate of the chartered accountant, that was placed on record bears the signature of the chartered accountant, but does not bear his seal. There are some corrections in the certificate and the chartered accountant admits that though these corrections are made by him, he has not endorsed his signature in respect of the corrections. This witness candidly admits in his cross-examination that it is true that the seal and signature are always required to be affixed on a balance-sheet as well as the certificate, if they are to be proved and if they are authentic. The cross-examination of the chartered accountant shatters the case of the appellant. The fact that the chartered accountant is the cousin of the appellant and that he has not signed the balance-sheet or ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 18 affixed his seal on the same shows that this document is also manufactured with a view to prove the case of the appellant, that an amount of Rs.1,89,500/- was indeed paid to the jeweller, on 23/11/2000. The Family Court has rightly held that, if the appellant wanted to prove the case in this regard, the appellant should have produced some material to show that some amount was withdrawn from the accounts in the bank or the income tax return should have been filed to prove the correctness of the statements made by the appellant in regard to the payment of the amount of Rs.1,89,500/- to the jeweller on 23/12/2000. We are sorry, that a case is sought to be built by the appellant by fabricating the documents that certain gold and silver articles and several other household and other articles were gifted to the appellant at the time of the marriage. In the aforesaid set of facts, the Family Court has rightly held that the appellant has not proved that the gold and silver articles, as are stated to have been gifted to her, were indeed gifted to her at the time of the marriage and were carried by her to the matrimonial home and they are retained by the respondent at Bangalore. That almost every document, that is filed by the appellant before the Family Court, in support of her claim for return of the stridhan articles is filed in the year 2011 and not initially, when the proceedings were filed by the appellant in the year 2004 or till the judgment of the Family Court dated ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 19 14/06/2010 was rendered. The photographer's evidence would not be of much help. The photographer is examined only to prove the photographs and the CD that is placed by the appellant on record. We do not find anything from the photographs to prove the case of the appellant that the jewellery, in the list at exhibit-50 was indeed gifted to the appellant. The Family Court has noted the material discrepancies in the evidence of the appellant by referring to some of the documents. We do not find that the appellant was wearing the jewellery to the extent of the same, that is claimed by the appellant vide list at exhibit-50. We find that the appellant is wearing as much gold jewellery, as a normal girl from a middle class family would wear at the time of her marriage. The Family Court has rightly held that though a reference is made to the token cash gifted to the appellant at the time of the marriage the worth of the token cash is shown as Rs.5,000/-. We have already mentioned herein above and we reiterate that we are not very pleased with the manner in which the list is prepared by the appellant and the claims are made by her in respect of extremely trifle and petty articles that are allegedly gifted by the appellant's relatives and friends to her at the time of her marriage. We find that at one place in the list Rs.5,000/- is mentioned as cash and at the other place in the list, again a sum of Rs.10,000/- is mentioned as cash gift. We do not know as to why at two places in the list different ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 20 sums are mentioned as cash gifted to the appellant. We find that hurriedly, the list is prepared after nearly ten years with a view to seek the amount as per the inflated claims made in the list. We are sure that some articles mist have been gifted to the appellant at the time of the marriage and some articles must have been gifted to her even after the solemnization of the marriage, but there is no cogent and convincing evidence from the side of the appellant to prove that the articles were indeed placed in the custody of her mother-in-law and they are still lying in the matrimonial house. The Family Court has rightly held in the circumstances of the case that the appellant had not succeeded in proving that the stridhan articles are lying in the matrimonial house.
8. Apart from the other aspect, the Family Court further found and rightly to so that in the transcript of the C.D. at Exh.53, it is mentioned that the transcript was made from 20:56 hrs. to 20:30 hrs. The Family Court rightly held that if the transcript is prepared from the C.D., then it is difficult to believe that the transcript would go back from 20:56 hrs. to 20:30 hrs. The Family Court has therefore rightly held that it could not be said whether the transcript was properly prepared by the photographer. On an appreciation of the material on record, specially the fact that the appellant had not produced the relevant material before the Family Court before the proceedings were first decided by the judgment, ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 ::: fca189.14.odt 21 dated 6.8.2004, including the list of articles of stridhan, it would be necessary to hold that the Family Court was justified in holding that the appellant had failed to prove her case. It is necessary to note that though a mention is made by the appellant, when the evidence was recorded in the proceedings in the year 2004 that the list of articles was filed by her, the list of articles is not to be found in the record. It is not the case of the appellant that the list of articles was filed by the appellant but the same is removed from the record by someone. It is also not the case of the appellant that the order-sheet, dated 4.3.2004 that makes a reference of Exh.11 and does not make a reference to the filing of the list of articles of stridhan, is incorrect. No objection was ever raised by the appellant before the Family Court in the earlier round of litigation that the list of articles was indeed tendered by the appellant in the Court before the matter was decided on 4.8.2004 but the same is not to be found on record or there is no mention of the same in the order-sheet dated 4.3.2004. It is conspicuous to note that while the five other documents were exhibited in pursuance of the evidence of the appellant in the earlier round of litigation, the list of articles is not exhibited and is not referred, along with the other documents that are exhibited in view of the evidence, tendered by the appellant in the examination-in-chief. ::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 :::
fca189.14.odt 22
9. In the circumstances of the case, we do not find any error in the judgment of the Family Court, directing the respondent to pay a sum of Rs.2,00,000/- to the appellant. Though normally the Family Court should not have issued such a direction after holding that the appellant had not proved her case that the entire stridhan was lying in the matrimonial house after she left the same and that she was entitled to the same. However, since the Family Court found that there was some fault on the part of the respondent also and since both the parties had not come to the Court with clean hands, the Family Court rightly tried to compensate the appellant a little, despite the failure on the part of the appellant to prove that the articles mentioned in the list were indeed gifted to the appellant and the same were lying with the respondent.
10. Hence, for the reasons aforesaid, we dismiss the family court appeal as well as the cross-objection. In the circumstances of the case, there would be no order as to costs.
JUDGE JUDGE
Khunte &
Wadkar
::: Uploaded on - 06/02/2017 ::: Downloaded on - 27/08/2017 13:52:55 :::