SIVARAMAN V.S Vs. SINDHU P.V

JUDGEMENT

(1.) UNDER challenge in this appeal preferred by the husband is the order passed by the Family Court in I.A. No.4474/2007. The above I.A. was an application under Section 27 of the Hindu Marriage Act filed in O.P. No.1052/2006. The reliefs sought of in the original petition were for a decree of divorce on the ground of desertion and a decree of nullity of marriage on the ground that the marriage has not been consumed due to the impotent of the respondent/husband. The original petition was disposed of by the learned Family Court granting a decree of divorce on the ground of desertion. It appears to us that while taking up the original petition for disposal, the Family Court did not notice the pendency of I.A. No.4474/2007. Therefore, the court took up I.A. No.4474/2007 and conducted enquiry into the same. In that enquiry, there was evidence only on the side of the respondent/wife. The evidence consisted of Exts.A1 to A2 and the oral evidence of PW 1. Absolutely no counter evidence was adduced by the appellant husband.

(2.) IN this appeal various grounds are raised and we have heard the submissions of Sri.Vinod Bhat learned counsel for the appellant and those of Smt.Sadhana Kumari Eswari who took notice on behalf of the respondent as she had already entered appearance in connection with an application for condoning the delay caused in the matter of filing the appeal. 4. Mr.Vinod Bhat would assail the impugned order firstly on the ground that the same should not have been passed as the application is not maintainable. According to the learned counsel in the main original petition itself there was a prayer for return of money and gold ornaments. The original petition was disposed of by the Family Court dismissing that relief. Situation being so, the court below is not justified in entertaining an interlocutory application in which prayer for return of money and gold ornaments has been made. The learned counsel further requested that at any rate as the impugned order has been passed solely on the basis of the evidence adduced by the respondent/wife, an opportunity be granted to the appellant to adduce evidence for substantiating the contentions which are raised in the I.A. 5. Smt.Sadhana Kumari submits that it is not correct to say that in the original petition there was a prayer for return of money and gold ornaments. In the original petition prayer was only for divorce and for declaration of nullity of marriage. The application was filed long before the original petition was disposed of. It was an omission on the part of the court not to have taken up the I.A. and dispose of the same before the Original Petition was disposed of. No prejudice has been caused to the appellant by passing the impugned order. Though the appellant was absent, the appellant's father was all along present. In fact, the appellant's father was prosecuting the defence of the appellant. 6. We have given our anxious consideration to the rival submissions addressed at the Bar. As already indicated, the prayers in the original petition was for a decree of divorce and for a decree of nullity of marriage. I.A. No.4474/2007 was filed by the respondent long before the original petition was disposed of . The Family Court ought to have taken up that I.A and passed orders on the same either before the original petition was disposed of or simultaneously with the original petition . We are not inclined to accept the argument of Mr.Vinod Bhat that the I.A. ought not to have been entertained by the learned Family Court as it was a mistake on the part of the Family Court not to have taken up the I.A. earlier. 7. Now coming to the merit of the matter we find that it is solely relying on the evidence adduced by the respondent that the impugned order has been passed. We feel that an opportunity can be afforded to the appellant to adduce counter evidence to the evidence adduced by the respondent in I.A. NO.4474/2007. We are, however, inclined to grant such opportunity only on conditions. We are of the view that the appellant should discharge his monetary liability under the impugned order completely and should also pay Rs.1,500.00 as cost to the respondent as a condition for being given an opportunity to adduce counter evidence. 8. Hence, we set aside the impugned order to the extent it directs the appellant to return seven sovereigns of gold ornaments to the respondent on condition that the appellant pays to the respondent a sum of Rs.5,000.00 together with interest at the rate of 12 % p.a. from 9/11/2007 till the date of payment along with a further sum of Rs.1,500.00 as cost. If the above payment is made by the appellant within a period of two months from today and receipt is produced before the court below, the court below will post I.A. No. 4474/2007 for further enquiry. Opportunity will be afforded to the appellant to adduce evidence regarding the respondent's claim for return of seven sovereigns of gold ornaments. The issue regarding the appellant's eligibility to return of seven sovereigns of gold ornaments to the respondent will be decided on the basis of the evidence already on record and further evidence which comes to be adduced by the appellant pursuant to this order. The learned Family Court will expedite matters and will pass revised order in the I.A. to the extent the same pertains to return of seven sovereigns gold ornaments early and at any rate within two months of this order becomes operative i.e within two months of the appellant producing receipt against the payment of the amounts ordered as above.