Kerala High Court
Shameena Devassy vs Peter P.O on 22 August, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935
Mat.Appeal.No. 568 of 2012 ()
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AGAINST THE JUDGMENT IN OP 205/2012 of FAMILY COURT, MUVATTUPUZHA
DATED 22-08-2012
APPELLANT(S)/PETITIONER:
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SHAMEENA DEVASSY,
D/O. DEVASSY, AGED 36, MALEKKUDY HOUSE
ELAMBAKAPPILLY.P.O, AIMURY KARA, KURUPPUMPADY.
BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.GEORGE VARGHESE KIZHAKKAMBALAM
RESPONDENT(S)/RESPONDENT:
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PETER P.O.
AGED 36, S/O. LATE OUSEPH, PADIKKAKUDY HOUSE
KOMBANAD.P.O, KAIPPALLY, KURUPPUMPADY.
R BY ADV. SRI.D.ANIL KUMAR
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 22.11.2013,
THE COURT ON 20-12-2013 DELIVERED THE FOLLOWING:
ANTONY DOMINIC & P.D.RAJAN, JJ.
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Mat.A.No.568 of 2012
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Dated this the 20th day of December, 2013
JUDGMENT
Antony Dominic, J.
1. This appeal is against an order passed by the Family Court, Muvattupuzha in O.P.205/12 filed by the appellant. The OP was filed by her claiming to recover 16 sovereigns of gold ornaments, included in Schedule A to the petition, to recover Rs.19,200/- and for the return of video cassette and photo album specified in B Schedule to the petition.
2. The marriage between the appellant and the respondent was on 8.10.2000. According to the appellant, at the time of marriage, she had 33 sovereigns of gold ornaments and the respondent was given Rs.29,200/-. Out of this, Rs.10,000/- was borrowed by her father and the remaining amount of Rs.19,200/- was with the respondent.
3. It is the common case of the parties that pursuant to the judgment dated 4.11.2008 of this Court in O.P.492/01 filed by Mat.A.568/12 2 the respondent, the marriage between the parties was declared a nullity. It was subsequently that on 24.9.2010, the appellant filed O.P.1696/10 before the Family Court, Ernakulam for the release of the gold and money, mentioned above. Subsequently, on the establishment of the Family Court, Muvattupuzha, the case was transferred to that court, which re-numbered it as O.P.205/12. In the objection filed by the respondent, it was stated by him that he was not given the gold ornaments claimed and whatever she had is still with her. He contended that he was paid Rs.20,000/- and that out of that amount, Rs.10,000/- was borrowed by her father. He also contended that he had spent Rs.30,000/-, including the balance amount of Rs.10,000/-, for the treatment of the appellant. He also denied the allegation that he had any video cassette or photo album with him. Therefore, according to the respondent, the petition was liable to be dismissed.
4. Before the Family Court, on behalf of the appellant, PWs.1 and 2 were examined and on behalf of the respondent, RWs.1 and 2 were examined. Exts.A1 and A2 and B1 to B3 were marked. Mat.A.568/12 3 Finally, the Family Court passed the impugned judgment directing the respondent to pay Rs.10,000/- to the appellant and in all other respects, her claim was rejected. It is this judgment that is impugned before us.
5. Heard the learned counsel for the appellant and the learned counsel appearing for the respondent.
6. As far as the claim of the appellant for the recovery of 16 sovereigns of gold ornaments is concerned, apart from the oral claims made, which was totally denied by the respondent, the only documentary evidence relied on was Ext.A2, an estimate issued by a jeweller. This document, however, did not contain any seal, signature or the acknowledgment of the jewellery. Further, the weight and description of the ornaments also differ substantially with the description and weight given in the schedule to the petition. Further, while the case of the appellant was that the ornaments were purchased from the jewellery called Joy Alukkas, Ext.A2 was issued by Alukkas Jewellery, Ernakulam. It was on account of these Mat.A.568/12 4 inconsistencies that the Family Court declined to place reliance on Ext.A2.
7. Further, the marriage was dissolved by the judgment rendered on 4.11.2008 in O.P.492/01. However, the appellant filed the present OP only on 24.9.2010. If the appellant had a genuine claim against the respondent, there is no reason why she should have delayed the petition by more than two years and that also improbablise the case claimed by her.
8. She also relied on Ext.A1, a complaint allegedly filed before the police. She also relied on Ext.A1(a) which is the receipt issued by the police acknowledging A1. However, Ext.A1(a) receipt is dated 22.11.2008, whereas, according to her, Ext.A1 was dated 15.11.2008. If as a matter of fact, Ext.A2 was filed on 15.11.2008, the receipt would not have issued on 22.11.2008. It was therefore that the Family Court concluded that A1(a) receipt could not have been issued in relation to Ext.A1.
Mat.A.568/125
9. As far as her claim for recovery of Rs.19,200/- is concerned, apart from the oral claim which was disputed by the respondent, there was no other evidence. Therefore, as far as this claim of the appellant is concerned, there was only oath against oath. It was in such circumstances that, based on the case pleaded by the respondent, he was directed to repay the balance amount of Rs.10,000/- that he had with him.
10.On an overall appreciation of the entire materials available in this case, we are not persuaded to conclude that the judgment of the Family Court suffers from any illegality justifying interference in this appeal.
Appeal fails. It is therefore dismissed.
Sd/-
ANTONY DOMINIC, Judge.
Sd/-
P.D.RAJAN, Judge.
kkb.