Biju v. Naini Joseph

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** **OP (FC).No.721 OF 2019** **AGAINST THE COMMON ORDERDATED 18.11.2019 IN I.A.NO.2408/2019 & I.A.NO.2409/2019 IN OP 752/2014 OF FAMILY COURT, IRINJALAKUDA** ## **PETITIONER/RESPONDENT :** **BIJU, AGED 46 YEARS, S/O.PULLAN DEVASSY KUTTY, VELLANCHIRA DESOM AND ALOOR VILLAGE, TRISSUR DISTRICT.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT/PETITIONER :** **NAINI JOSEPH, AGED 40 YEARS D/O.JOSEPH, CHULLIYADAN HOUSE, SREEMOOLANAGARAM DESOM, CHOVVOOR VILLAGE, PRESENTLY RESIDING AT CHULLIYADAN HOUSE, NEAR MADHAVAM BALIKA SADHANAM, SREEMOOLANAGARAM P.O., ALUVA TALUK, PIN-683 580.** **R1 BY ADV. SRI.NAGARAJ NARAYANAN R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.BENOJ C AUGUSTIN R1 BY ADV. SRI.RAFEEK. V.K. R1 BY ADV. SRI.U.M.HASSAN R1 BY ADV. SMT.P.PARVATHY R1 BY ADV. SMT.SURYA P SHAJI R1 BY ADV. SHRI.MANAS P HAMEED R1 BY ADV. SHRI.GAUTHAM MOHAN H.** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (FC).No.721 OF 2019 2 ## **JUDGMENT** ## **Harilal, J** The petitioner herein is the respondent in O.P.No.752/2014 on the files of the Family Court, Irinjalakuda. The aforesaid original petition was filed by the respondent herein seeking a decree directing the petitioner herein to pay the value of gold ornaments and certain amounts given by the father of the respondent at the time of marriage. The petitioner entered appearance before the Family court and filed objection disputing the entitlement of the respondent to get the said relief. Subsequently, the respondent had lodged a criminal complaint before the OP (FC).No.721 OF 2019 3 police alleging commission of offence punishable under Section 498A of the Indian Penal Code, which is also pending as C.C.No.2503/2015 on the files of the Judicial First Class Magristrate-I, Chalakudy. During the trial in the said criminal case, evidence was attempted to be tendered by the prosecution by examining the brother of the respondent to the extent that he has transferred amounts to the Bank account maintained by his father for purchasing the gold ornaments. The same was disputed by the petitioner. Hence a petition was filed before the Magistrate court seeking a direction to the respondent to furnish name as well as the details of the Bank account of her father, by which, the amounts were transferred by her brother. In OP (FC).No.721 OF 2019 4 response to the same, the respondent filed a statement before the Magistrate court furnishing the details of the Bank account of her father and the name of the Bank, evidenced by Ex.P1. Accordingly, the Manager of the Bank was summoned and was examined as a witness. The manager of the Bank produced details of the account statement disclosing that the said Bank account was inoperative and hence, there is no evidence with regard to the transfer of any amount as tendered by the respondent. The respondent attempted to tender the same evidence in O.P.No.752/2014 before the Family Court, by examining her brother as a witness. Hence in order to disprove the said contention especially in the light of the evidence produced OP (FC).No.721 OF 2019 5 before the Judicial First Class Magistrate-I, Chalakudy, the petitioner filed I.A.No.2408/2019 to reopen the evidence and I.A.No.2409/2019 to receive the list of witnesses to examine the Bank Manager as witness. After considering the objection raised by the respondent herein, the family court dismissed the said applications on a finding that no _bona fide_ reason is stated for reopening the evidence of the case and the same is only to delay the disposal of the original petition, which is under challenge in this O.P. (FC). 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 3. Admittedly, O.P.(FC) No.752/2014 was filed by the OP (FC).No.721 OF 2019 6 respondent herein, the wife of the petitioner, seeking a decree for realising the value of gold ornaments from the petitioner. Now the trial is over and the case is posted for final hearing and disposal. The present applications were filed with a prayer to reopen the case for examining the Bank manager to prove that the respondent's father's bank account was inoperative during the relevant period and thereby the evidence given by the brother of the respondent is unbelievable and no reliance can be placed on the evidence given by the brother of the respondent and the respondent also. 4. It is trite law that the evidence can be let in to prove the fact in issue or relevant fact only, OP (FC).No.721 OF 2019 7 according to Section 5 of the Indian Evidence Act. In an original petition for realisation of value of gold ornaments given to the bride, the first thing to be considered is whether the wife has entrusted the gold ornaments or money with the husband. 5. This Court in _**Abubakker Labba v. Shameena**_ **2018** **(3) KLT 196** held merely on the reason that the wife had worn gold ornaments at the time of marriage, cannot be considered as an entrustment with the husband and entrustment of the gold ornaments with the husband after the marriage must be specifically pleaded and proved for getting a decree for return of money or gold ornaments from the husband. Therefore, OP (FC).No.721 OF 2019 8 we are of the opinion that the source of money to purchase the gold ornaments is neither a fact in issue nor a relevant fact in an original petition for realisation of the value of gold ornaments from the husband. In view of the issue involved in this original petition, we find that the examination of the Bank Manager is not essentially required to determine the fact in issue involved in the original petition. 6. That apart, we further find that the statement of Bank account can be proved by obtaining certified copy of the same, as contemplated under the provisions in the Bankers Books Evidence Act, 1891. This judgment will not preclude the petitioner from resorting to such OP (FC).No.721 OF 2019 9 method as provided under the Bankers Books Evidence Act, 1891. With the above observations, this O.P.(FC) is dismissed. Sd/- **K.HARILAL, JUDGE** **-** sd/ **C.S.DIAS, JUDGE** AMV/004/03/2020 OP (FC).No.721 OF 2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE STATEMENT DATED 21.08.2019 FILED BY THE RESPONDENT BEFORE THE JUDICIAL MAGISTRATE OF 1ST CLASS AT CHALAKUDY.** - **EXHIBIT P2 TRUE COPY OF THE PETITION IA 2408/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT IRINJALAKUDA.** - **EXHIBIT P3 TRUE COPY OF THE PETITION IA 2409/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT IRINJALAKUDA.** - **EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXHIBITS P2 & P3 PETITIONS BEFORE THE FAMILY COURT AT IRINJALAKUDA.** **EXHIBIT P5 TRUE COPY OF THE COMMON ORDER DATED 18.11.2019 OF THE FAMILY COURT AT IRINJALAKUDA, IN IA 2408/19 AND IN IA 2409/19.** **RESPONDENTS EXHIBITS : NIL** **TRUE COPY P.A.TO JUDGE**