LEENA VARGHESE Vs. KUTTIKATTU VARGHESE PAPPACHAN

JUDGEMENT

(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 cruelty 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.) 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- 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.