Nitesh vs Komal

The appellant herein has challenged the judgment of the Family Court No.3, Nagpur in Petition No.A-120/2010 directing the present appellant to return the cash amount, gift articles and jewellery mentioned in paragraph No.17 of the judgment within two months and also the cash amount of Rs.40,000/- towards cost of gift articles.

The appellant and the respondent married on 29.11.2008. The respondent-wife left the matrimonial house along with her father on 16.12.2008. She filed a petition bearing No.120/2010 for dissolution for marriage and claim for maintenance. The appellant and respondent both obtained the decree of divorce by mutual consent. However, question of maintenance, return of gift articles, jewellery, cash were left open for decision of the Court. The Family Court rejected her claim for maintenance and she has not challenged the decision of the Family Court in Petition No.A-120/2010 to the extent of maintenance. Thereafter she claimed gift articles, cash and ornaments.

The respondent-husband has resisted the petition vide written statement Exh.10. The appellant and the respondent both have adduced their evidence. During trial as stated above, the parties have partly settled the matter and accordingly, they agreed to dissolve the marriage by way of mutual consent. Accordingly, the settlement of both the parties were recorded and decree of divorce was passed. Thereafter respondent-wife has filed her additional affidavit vide Exh.18 and claimed permanent alimony as well as return of gift articles, cash and ornaments. They have adduced their evidence and on the basis of the evidence adduced and appreciating the same, the Family Court has directed the present appellant to return the cash amount, gift articles and jewellery on the amount of Rs.40,000/- towards the cost of gift articles.

Being aggrieved and dissatisfied with the same, present appeal is preferred by the appellant, on the ground that without having any evidence on record the Family Court has granted the relief to the respondent-wife by directing the appellant to hand over the cash amount of Rs.40,000/- and the gift articles.

Heard Mr. Sandeep Marathe, learned counsel for the appellant who submitted that the appellant and respondent already entered into the settlement and marriage is already dissolved, though respondent-wife has given a list of 67 articles in the petition which allegedly given to the appellant and his relatives. However, the same is not substantiated by any documentary evidence. He placed reliance on the evidence of appellant and submitted that the evidence of appellant sufficiently shows that no such articles are received by him in the marriage. The respondent-wife could not prove the same. The appellant has also examined his father. Similarly, respondent-wife has examined herself as well as her father and D.W.-3/Photographer. He submitted that the evidence of respondent and her father nowhere gives the description of the articles. Thus, merely on the basis of the oral evidence of respondent and her father, the appellant was directed to pay cash amount as well as articles which is illegal and therefore, the judgment and order of the Family Court deserves to be quashed and set aside.

Despite service of notice respondent-wife failed to appear and therefore, the appeal is proceeded by hearing learned counsel for the appellant.

After hearing both the sides, limited question which requires to be considered in this appeal is whether respondent-wife is entitled for any amount and the gift articles which she has claimed?

In support of the contention respondent-wife entered into the witness box and examined herself. She has categorically stated that her marriage was performed with the appellant on 29.11.2008. After marriage she went at the matrimonial house at Secunderabad along with her husband. However, their marriage could not be sustained and therefore, she filed a petition. She and appellant entered into the settlement terms and by way of pursis they withdrew the allegations levelled against each other and mutually agreed to obtain the decree of dissolution of marriage. She and her husband were residing separately since 17.02.2009. There was no cohabitation between her and husband during that period. Thus, there was no chance of reunion and therefore, they mutually agreed to separate from each other. It was further stated by her that her father has given articles, gift, jewellery gold articles and cash to her husband and his family at the time of marriage. She has also produced on record various receipts in support of her contention. She also relied upon the photographs which were obtained at the time of marriage and giving the gift articles to the relatives. She was cross-examined at length. During cross-examination it came on record that her father is a businessman and was managing the business. She denied that appellant was getting amount of Rs.3,000/- for the services he was rendering at Call Centre at Hyderabad. Thus, cross-examination is in respect of responsibilities which appellant is shouldering. As far as the gift articles are concerned, except denial nothing incriminating is brought on record to fortify her version.

The evidence of her father- Manohar Mulchand Manchandiya is also on the similar line. He was also cross-examined. During cross-examination it came on record that he is running a business since last 40 years but rests of the contention that the respondent-wife is assisting him in the business was denied by him.

DW-3/Sagar Subhash Mahule is also examined who was a photographer who has obtained the photograph in the marriage. The said bills of the photographs is proved through, this witness.

To counter this evidence of the respondent-wife the appellant-husband is also entered into witness box vide Exh.62 and reiterated the contention as stated by him in written statement. He stated that he is unable to work as due to ill health whereas respondent-wife is in service and earning for herself. No articles of gold, jewellery, gift or cash were given to him in the marriage and engagement. He was cross-examined. During cross-examination it came on record that he is a Graduate of Commerce, his sister is working. He has admitted during cross-examination that marriage was solemnized at Nagpur and the expenses of pendol as well as other expenses were borne by the father of the respondent-wife. He further admits that the engagement was also done at Nagpur and the expenses of engagement were also borne by father of the wife. The photographs of the Ring ceremony and Roka ceremony were obtained. The said photographs are at Exh.24 to 47 were accepted by him. He further admits that in a ring ceremony he has received gold ring, suit, watch, shoes and cash. He further admits that customary gift and cash were given to all relatives. His mother and sister also received gold earrings and cash. His mobile is of cost of Rs.10,000/-. He also admitted that list of the articles he has seen and he has already tick mark on the said articles. Thus, his cross-examination shows that he has not only admitted the photographs but he has admitted that he has received gold ring and other articles in a ring ceremony. His relatives also received the golden jewellery as well as the gift articles in the said marriage. The evidence of his father was also adduced. He also admitted that he has also tracked the list of articles whatever they have received during marriage.

The Family Court has appreciated the evidence and observed that evidence of the respondent-wife and her father reveals that most of their testimony has gone unchallenged. She and her father have specifically deposed about cash, gift articles and jewellery to the appellant and his family members at the time of engagement as well as at the time of marriage. The photographs showing that gift articles were given to the present appellant at the time of engagement and marriage ceremony are also produced on record. The said photographs are at Exh.24 to 47. These photographs are specifically admitted by the appellant during cross-examination. The photographer is also examined by the respondent-wife, who has also admitted that said photographs are obtained by him in the marriage. The cross-examination of the appellant also shows that he has specifically admitted that various golden ornaments watch and cash he has received during engagement ceremony as well as in the marriage. The receipts of purchase of the articles are also produced on record which are collectively at Exh.48. Thus, not only the oral evidence of respondent-wife, regarding receipt of cash, gift articles and jewellery. The said evidence is supported by the documentary evidence i.e. photographs and the various receipts which are produced on record.

Considering all above evidence the Family Court accepted the submission of the respondent-wife and considering the cost of articles shown by the respondent-wife directed the appellant to return those articles or in the alternative to pay its cost amounting Rs.40,000/-. Thus judgment and order passed by the Family Court is on the basis of the evidence adduced by the respondent-wife which is not only corroborated by the cross-examination of the appellant but also by the documentary evidence.

In view of that, I do not find any reason to interfere in the finding of the Family Court and hence, appeal being devoid of merits and liable to be dismissed.

Accordingly, we proceed to pass following order:-

Family Court Appeal is dismissed.

Pending applications, if any, also stand disposed of.