* 1 * FCA-123/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 123 OF 2009 IN PETITION NO. A-1583 OF 2005 AND PETITION NO. B-39 OF 2006 Mrs. Leena Varghese Aged 23 years, Occ-Service Residing at 17/1, Old Air India Colony, Kalina, Santacruz (East) Mumbai-400 029 ........Appellant V E R S U S Mr. Kuttikattu Varghese Pappachan Aged 30 years, Occ-Service Residing at : 101, Dosti Pearl II Near Stella Petrol Pump, Manikpur, Vasai (W), Thane .....Respondent *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* Mr. Mohan Pillai, adv.for the appellant. Mr. S.M. Mirajkar, adv.for the respondent. *-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-**-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-* CORAM: - A.P. DESHPANDE, & SMT. R.P. SONDURBALDOTA, JJ. JUDGMENT RESERVED ON :- 21st APRIL, 2010. JUDGMENT PRONOUNCED ON :- 4th MAY, 2010. * 2 * FCA-123/2009 JUDGMENT : [ Per :- Smt. R.P. SondurBaldota, J ] 1. The appellant wife prefers this appeal from the judgment and decree passed by the Family court dated 6th May, 2008 which is common to Petition No.-A-1583 of 2005 and Petition No.B-39 of 2006 filed by her. Petition No.A-1583 of 2005 was for divorce under Section 10(1)(vii)(x) of the Divorce Act and for damages. Petition No.B-39 was for return of articles, jewellery and money. The impugned judgment partly decrees the first petition for divorce, whereas, dismisses the second petition. 2. The marriage of the parties barely lasted for one month. They got married on 4th April, 2005 and separated on 2nd May, 2005. It is the appellant’s case that during this brief period of less than one month, she was subjected to mental cruelty by the respondent which entitled her for divorce on that ground. The respondent on the other hand also claimed that he was subjected to mental cruelty by the appellant by refusing to consumate the marriage. During the course of the evidence, the appellant admitted that throughout her stay with the respondent including the honeymoon trip to Kerala, their marriage was not consumated. The respondent then in his evidence stated that he respected the wish of the appellant for a divorce and was willing to concede to a decree of divorce. In view of these facts, the Family court took note of the young age of the parties and also their desire, granted decree of divorce not on the ground of crue] * 3 * FCA-123/2009 1. lty under Section 10(1)(x), but, under Section 10(1)(vii) of the Divorce Act read with Order 12 Rule 6 CPC. Since the appellant’s prayer for divorce in the first petition has been granted by the impugned decree, there is no question of challenging the same in the present appeal. As regards the second prayer sought in the first petition seeking damages of Rs.10,00,000/-, the Family Court found that, throughout in the evidence of the appellant there was not a single word that due to the conduct of the respondent, she suffered any mental or physical agony and trauma. It therefore held that she is not entitled to any damages on any count. 3. Perusal of the memo of appeal, as also, the arguments advanced on the appeal by the learned counsel for the appellant, shows that the main grievance of the appellant in the present appeal is dismissal of the second petition filed by the appellant seeking return of articles, jewellery and money. The facts alleged in that petition stated in brief are that : . Prior to the marriage, father of the appellant had given a loan in the sum of Rs.5,00,000/- to the respondent and his father, which they had agreed to return as early as possible. According to the appellant, the amount of Rs.5,00,000/- is her father’s hard earned money from his 40 years of service with Air India and Indian Air Force. She also claims that after the marriage on 7th April, 2005 when she went to the matrimonial home she was wearing the wedding saree, all the gold * 4 * FCA-123/2009 ornaments which was given to her by her father. The petition contains a list of as many as 15 ornaments. On 12th April, 2005 when the parties were to go to Kerala for honeymoon, the appellant desired to exchange few of the ornaments. Therefore, she had taken the same alongwith her. The ornaments so exchanged are 4 Big Khadas at Item No.9 and hand ornaments attached with Gold Rings (Pocha) at Item No.13. The articles at Items No.14 and 15 are the Chain and a Bracelet which was allegedly given to the respondent. The appellant alleges that on 1st May, 2005 the mother of the respondent took custody of her ornaments on the pretext of safe keeping and has not returned the same to her. According to her, all her ornaments are still lying at the matrimonial home. 4. The respondent in his written statement admitted the loan transaction between the appellant’s father, himself and his father. However, according to him, he had returned the entire amount to the appellant’s father by arranging for the amount through his friends and relatives. As regards the ornaments, the respondent denied all the allegations made by the appellant in her petition. It is his contention that when the petitioner came to her matrimonial home on 20th April, 2005 she had left all her jewellery at her parents place and had not carried anything to the matrimonial home. 5. The Family Court rejected the claim of the appellant in respect of the ornaments in view of the admission given by her in the cross- * 5 * FCA-123/2009 examination that her jewellery is lying at her parents house. The appellant admitted that her father had come to the matrimonial home alongwith two friends in a car and had taken away all her clothes and articles. In view of this admission in the cross-examination, in our opinion, the Family Court has rightly rejected the claim of the appellant for return of the ornaments. In any case, it is not the case of the appellant that the ornaments are in the custody of the respondent. It is her specific case in the petition that the ornaments were taken away by the mother of the respondent on the pretext of keeping the same in safe custody and all the ornaments are with her. In that circumstance, the appellant could not have filed the petition for return of the articles against the respondent alone without joining his mother as a party to the proceedings. In the circumstances, the Family Court was right in rejecting the claim of the appellant for return of the ornaments. 6. As regards the transaction of loan, admittedly the appellant is not a party to the transaction. The amount of Rs.5,00,000/- was given by father of the appellant to the respondent and his father. Therefore, the appellant could not have filed any proceedings for refund of that amount. She can have no locus-standi in the matter. It is the father of the appellant alone who can proceed against the respondent and his father for refund of the loan amount. Mr. Pillai, the learned counsel for the appellant, submits that, the Family Court however has not * 6 * FCA-123/2009 rejected the claim of the appellant for return of the amount of Rs. 5,00,000/- on the ground of the lack of locus-standi on her part. The Family Court apparently has rejected the claim on merits observing that the appellant held back the best evidence available with her i.e. the evidence of her father. The appellant has not examined her father in support of her claim. Mr. Pillai, submits that, the appellant was denied an opportunity to lead the evidence in view of the order dated 13th June, 2007 passed by the Family Court. By that order, the Family Court had treated the evidence of the appellant as closed, as she was consistently absent from the Court on the earlier three dates. Mr. Pillai also draws our attention to the order dated 7th August 2007, by which the Family court rejected the application filed by the appellant for setting aside the order dated 13th June 2007 to submit that Family Court was in error in drawing an adverse inference against the appellant for not examining her father in the proceedings. In our opinion, even if father of the appellant were to be examined as a witness in the proceedings, the question of locus-standi does not get answered. The appellant would still be not able to maintain action for recovery of loan given by her father to the respondent and his father. In all the above circumstances, the impugned judgment and order does not need any interference at our hands. Hence, the appeal is dismissed. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]