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2013 DIGILAW 1001 (KER)

Gracy v. George

2013-11-19

ANTONY DOMINIC, P.D.RAJAN

body2013
Judgment : Antony Dominic, J. 1. This appeal is filed by the petitioner in OP No.756/07 on the file of Family Court, Thrissur. Appellant and the respondent are wife and husband and their marriage was on 4.2.1972. They have four children, who are all grown up and are well settled in life. 2. The appellant filed OP alleging that since 12 years of the marriage, respondent deserted her. According to her, at the time of marriage, she was given 40 sovereigns of gold ornaments, which were entrusted to the respondent and were misappropriated by him. She therefore sought return of 40 sovereigns of gold ornaments or its value. She had a further claim that she had expended Rs.4,00,000/-towards the marriage expenses of their daughter and that the same is also liable to be recovered from the respondent. 3. Before the Family Court, as also this Court, respondent remained absent. In spite of it, stating that there is dearth of evidence substantiating her claim for return of 40 sovereigns, the Family Court rejected her claim. Her claim for recovery of Rs.4,00,000/-was also rejected on the ground that it is time barred. It is aggrieved by this order, the appellant has filed this appeal. 4. We heard the learned counsel for the appellant and also gone through the records. 5. In so far as the claim of the appellant for return of 40 sovereigns of gold ornaments or its value is concerned, the appellant had specifically claimed her entitlement to be returned 40 sovereigns of gold ornaments. Despite service of notice, respondent did not appear before the Family Court or filed any objection contraverting the claim. In other words, the claim of the appellant was an uncontroverted one. In such a situation, the Family Court should have accepted the uncontroverted averments of the appellant and concluded the proceedings in favour of the appellant. On the other hand, in this case, Family Court has chosen to reject her claim, which cannot be approved. Therefore, we are unable to approve the reasoning of the Family Court rejecting the claim of the appellant for return of 40 sovereigns of gold ornaments. 6. In so far as the claim for recovery of Rs.4,00,000/-is concerned, even going by the claim of the appellant, the marriage was conducted 10 to 13 years before the filing of the petition. Therefore, we are unable to approve the reasoning of the Family Court rejecting the claim of the appellant for return of 40 sovereigns of gold ornaments. 6. In so far as the claim for recovery of Rs.4,00,000/-is concerned, even going by the claim of the appellant, the marriage was conducted 10 to 13 years before the filing of the petition. If that be so, the claim made by the appellant was clearly a time barred one. Therefore, the reasoning of the Family Court, rejecting the claim, does not call for any interference. Accordingly, we dispose of this appeal setting aside the order passed by the Family Court to the extent, the claim of the appellant for return of 40 sovereigns of gold ornaments is rejected. The OP will stand decreed entitling the appellant to realise 40 sovereigns of gold ornaments or its present market value, which we fix at Rs.20,000/- per sovereign. The appellant will also be entitled to 6% interest from today, till the date of realisation.