Daily Archives: August 24, 2012

Some tips to the un married … and married !! IF your wife steals your mother’s jewellery from your house the court may say “…..All the articles, including jewelry, were lying in the Almirah which was in their joint possession. Thus, it was for their common use and enjoyment…..” !!!!

 

Important learning : Your purse , money, mother’s jewellery, sister’s articles in your house are of course …. what shall I say ??? JOINT possession of AND common use and enjoyment of Husband and wife !!!! So you can’t complain ……

However IF you ..i.e male took away wife’s pin or hand kerchief … you may be charged under 420, 406 etc …. !!!

IF you are the husband and your wife threatens you with suicide , you have to run to the police station immediately and complain …. IMMEDIATELY please !!  If you file immediately you will get a scorn … IF you delay, case quashed !!

IF you are a husband and IF your wife steals Jewellery belonging to your mother, AND you run to the police station immediately and complain the court may say “…..All the articles, including jewelry, were lying in the Almirah which was in their joint possession. Thus, it was for their common use and enjoyment…..”

IF you are the husband and IF your father in law and co beat you up with goondas or some gulabi gang then you have to run to the police immediately …yes **immediately** and complain … IF NOT, wife and co will claim this is a counter blast !!!

HOWEVER wife and co can come and complain 498a (as a continuing offense) years after the incident !!! 😦

Now showing “…….abla nAri and horrible husbands !!! ….”

———- decree quashing husband’s complaints ———

Delhi High Court

Neeru Sharma & Ors vs The State (Nct, Delhi) & Anr on 3 May, 2011

IN THE HIGH COURT OF DELHI: NEW DELHI

+ CRL. M.C. NO. 72/2011

Judgment decided on: 3rd May, 2011

NEERU SHARMA & ORS. ….PETITIONERS Through: Ms. Sima Gulati and Ms.Sugam Puri, Advs. for the petitioner with petitioner No 1 in person.

Versus

THE STATE (NCT, DELHI) & ANR. ….RESPONDENTS Through: Mr. U.L. Watwani, APP for the State with SI Pratap Singh, P.S. Kirti Nagar.

Mr. Suresh Sisodia, Adv. for respondent No. 2 with respondent No. 2 in person.

Coram:

HON’BLE MR. JUSTICE A.K. PATHAK

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

 

A.K. PATHAK, J. (Oral)

1. By way of present petition under Section 482 Cr.P.C., petitioners seek setting aside of summoning order dated 30th September, 2010 passed by the learned Metropolitan Magistrate as also quashing of the complaint case titled “Dhirendra Singh Chhaunkar vs. Neeru Sharma and Ors.”, pending in the court of Metropolitan Magistrate.

2. Respondent No.2 has filed a complaint under Section 200 Cr.P.C. before the Metropolitan Magistrate (Trial Court) praying therein that petitioners be summoned, tried and punished for the offences under Sections 323/324/329/379/406/417/452 /468/506 and Section 120-B IPC. After recording pre- summoning evidence Trial Court has summoned the petitioners under Sections 379/506/34 IPC.

3. Petitioner No. 1 is wife; whereas petitioner No. 2 is father- in-law, petitioner No. 3 is mother-in-law, petitioner No. 4 is sister-in-law and petitioner No. 5 is brother-in-law of respondent No. 2 (complainant).

As per the complaint, petitioners Nos. 2 to 4 compelled the respondent No. 2 to marry petitioner No. 1 on 8th December, 2009 in Arya Samaj Mandir, Kirti Nagar, New Delhi. After the marriage, petitioner No. 1 and respondent No. 2 started living together.

However, petitioner No.1 started blackmailing, torturing and humiliating respondent No. 2 at the instigation of petitioner Nos. 2 to 5. She asked the respondent No. 2 to buy a flat for the petitioner Nos. 2 to 5 in the same locality. She told him to pay `20,000/- p.m. for maintenance of her parents. She threatened that in case her demands were not met, she would commit suicide and falsely implicate the respondent No.2.

On 11th April, 2010, respondent No. 2 found the gold and diamond jewelry of his deceased mother and `50,000/- in cash missing from the almirah. When he enquired from the petitioner No. 1 as to where the jewelry and cash had vanished, she replied that she had taken out the same at the instigation of her mother and sister and had passed it on to them. On 13th April, 2010, when respondent No. 2 asked the petitioner No. 1 to return the jewelry and cash, she called petitioner Nos. 2 to 5, who came there along with 5-6 muscle men and quarreled with him and beat him up. Thereafter, petitioner No. 1 left the matrimonial home with them. On 23 rd April, 2010, she again visited the matrimonial home along with petitioner Nos. 2 to 4 and asked him to transfer all his movable and immovable properties in her name. They threatened him with dire consequences in case their demands were not met. He approached police station Sunlight colony but no action was taken. Thereafter, petitioner No. 1 filed a complaint in Crime Against Women Cell (CAW Cell) on 4th June, 2010 alleging therein that she had been treated with cruelty by the respondent No. 2 on the point of dowry.

4. Learned counsel for the petitioners has vehemently contended that present complaint has been filed by the respondent No. 2 as a counterblast and in order to put pressure on the petitioner No.1. Petitioner No. 1 was treated with cruelty by the respondent No. 2. Sufficient dowry was given by the parents of petitioner No.1; however, respondent No. 2 was still not satisfied and demanded more dowry. He demanded `5 lacs from her on 9th /10th April, 2010. Respondent No. 2, with the help of his brother and sister, gave beatings to petitioner No. 1 in order to compel her to bring money from her parents. Brother-in-law and sister-in-law of petitioner No. 1 caught hold of her while friend of respondent No. 2, namely, Ganesh threw ash on petitioner No. 1 after performing some puja. Petitioner No. 1 was molested by the brother-in-law of respondent no. 2. On 13th April, 2010, petitioner no. 1 was beaten badly and was forced to leave the matrimonial home. Respondent No. 2 appeared before the CAW Cell on 11th June, 2010, 21st June, 2010, 30th June, 2010 and 7th July, 2010. He did not make any complaint before the concerned officials of the CAW Cell that his marriage was forcibly performed with petitioner No. 1 by extending threats, inasmuch as, during the arguments of bail application he took up a new plea that his marriage was not performed with the petitioner no. 1 and all the documents in this regard were forged and fabricated. In nutshell, counsel for petitioners has contended that present complaint has been filed in order to harass and victimize the petitioners. She has further contended that no prima facie case was made out against the petitioners since all the articles of either of the spouse remain in joint possession of husband and wife and even if wife takes some of the articles no case of theft can be said to have been made out. Reliance has been placed on Neelam and Ors. vs. State, 1988 (1) Crimes 545, 34(1988) DLT 152 and Harmanpreet Singh Ahluwalia and Ors. vs. State of Punjab and Ors., JT 2009(6) SC 375.

5. As against this, learned counsel for respondent No. 2 has contended that complaint filed by the petitioner No. 1 is a counterblast to the complaint filed by respondent No. 2. At this nascent stage complaint against the petitioners cannot be quashed. Allegations and counter allegations leveled by the parties have to be tested during the trial.

6. I have considered the rival contentions of both the parties. It is no doubt true that powers under Section 482 Cr.P.C. are to be exercised sparingly and only in exceptional cases and not as an appellate/revisional court. But, at the same time, it can be exercised to prevent the abuse of process of court. In case it emerges from the record that the prosecution has been launched in order to harass the accused by the complainant or to wreak personal vendetta, then High Court will be well justified in quashing the complaint in exercise of inherent powers under Section 482 Cr.P.C. If the court comes to the conclusion that proceedings initiated by way of criminal complaint were uncalled for and unjustified, then High Court is entitled to quash the proceedings. In State of A.P. vs. Gourishetty Mahesh and Ors., (2010) 11 SCC 226, Supreme Court has held that though High Court may exercise its power relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material is there to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.

7. In the facts of this case, the present complaint, pursuant whereof FIR in question has been registered, appears to be a counterblast to the complaint of the petitioner No. 1 before the CAW Cell. Present complaint appears to have been filed by respondent no.2 in order to exert pressure on petitioner No. 1 to come to terms with him. This fact is evident from the allegations made in the FIR. Though respondent No. 2 claims that his marriage with petitioner No. 1 was solemnized by petitioner Nos. 2 to 5 under threat on 8 th December, 2009, however, no such complaint was filed immediately after the marriage. Respondent No. 2 claims that petitioner No. 1 had removed the jewelry and `50,000/- in cash on 13th April, 2010 from the Almirah. Immediately after the incident no prompt action was taken to lodge the complaint. No such plea was even taken before the CAW Cell though he had participated in the proceedings as many as on five occasions. He has filed this complaint only after the complaint was filed by the petitioner no. 1 in the CAW Cell. That apart, he has virtually roped in entire family of his wife. This itself shows that the present complaint has been filed maliciously in order to exert pressure on the wife to come to terms with him.

8. If the matter is examined from another angle then also ingredients of offence of theft are not disclosed. For constituting the offence of theft, essential ingredient is removal of a movable article from somebody’s possession and that removal must be in pursuance of dishonest intention. At the time of alleged incident of theft, husband and wife were living together. All the articles, including jewelry, were lying in the Almirah which was in their joint possession. Thus, it was for their common use and enjoyment. It is not the case that wife had taken any jewelry after breaking open the Almirah. Thus, even if jewelry and cash had been taken by the wife, same being in joint possession of the spouses, the offence of theft is not made out.

9. For the foregoing reasons, complaint case No. 113/2001 titled as “Dhirendra Singh Chhaunkar vs. Neeru Sharma and Ors.” is quashed.

10. Petition is disposed of in the above terms.

A.K. PATHAK, J.

MAY 03, 2011/rb

source

indiankanoon.org

 

Wife can keep claiming maintenance EVEN if you have obtained divorce because of HER cruelty or HER desertion as long as she has NOT re married or lived in Adultery

Bottom-line : if your are once married, wife can keep claiming maintenance EVEN if you have obtained divorce because of HER cruelty or HER desertion as long as she has NOT re married or lived in Adultery

She can also keep claiming rivision or increase in maintenance over the years as long as you are employed and she has NO means !!

This is a Story of how a *lawyer* husband gets screwed for maintenance though he claims to have a decree of divorce proving wife’s creulty (wife’s false allegations of husband’s impotency  in public etc )

==========================

Bombay High Court

Smt. Gita W/O Chandrashekhar … vs Sushree Geeta D/O Ramnath

Sharma on 20 January, 2009

Bench: R. C. Chavan

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

Criminal Application No.663 of 2008

And

Criminal Writ Petition No.58 of 2008

Criminal Application No.663 of 2008

Smt. Gita w/o Chandrashekhar Pandit,
Aged about 47 years,
Occ.: Nil,
R/o Gorelal Chowk,
Tah. & District Gondia. … Applicant

Versus

Shri Chaqndrashekhar s/o Rameshwar
Pandit,
Aged about 49 years,
Occ.: Legal Practitioner,
R/o Nandurbar,
Tah. & District Nandurbar. … Non-Applicant

Shri S.V. Sirpurkar, Advocate for Applicant. Shri S.P. Bhandarkar, Advocate for Non-Applicant.

Criminal Writ Petition No.58 of 2008

Chandrashekhar s/o Rameshawar Pandit,
Aged 49 years,
Occ.: Advocate,
R/o Nandurbar,
Tahsil Nandurbar,
District Nandurbar. … Petitioner

Versus

Sushree Geeta d/o Ramnath Sharma,
(earlier Smt. Geeta w/o Chandrashekhar Pandit), Aged Major,
Occ.: Landlady,
R/o Bazar Chowk,
Gondia. … Respondent

Shri S.P. Bhandarkar, Advocate for Petitioner. Shri S.V. Sirpurkar, Advocate for Respondent.

CORAM : R.C. Chavan, J.

Date of Reserving the Judgment : 13-1-2009.

Date of Pronouncing the judgment : 20-1-2009

Judgment :

1. These proceedings by wife and husband respectively against each other raise a short legal point.

2. It is not in dispute that Gita was married to Chandrashekhar, an Advocate on 8-12-1985. Marital discord led Gita to seek maintenance under Section 125 of the Code of Criminal Procedure by an application made in the year 1987. By an order dated 19-11-1992, Gita was granted maintenance at the rate of Rs.500/- per month. In 1990, Chandrashekhar filed a 3 petition for decree of divorce from Gita on the ground of cruelty.

Decree of divorce was granted finality by judgment dated 1-3-2001 in Second Appeal No.129 of 1999 decided by Aurangabad Bench of this Court.

3. It may be useful to recount how this litigation proceeded. Petition for divorce by husband on the ground of cruelty was contested by wife, who also filed a counter-claim for restitution of conjugal rights. The Trial Court as well as the First Appellate Court rejected husband’s claim for divorce and decreed wife’s claim for restitution of conjugal rights, as may be seen from copy of decree in Hindu Marriage Petition No.76 of 1987 of Court of Civil Judge, Senior Division, Dhule, re-numbered as Hindu Marriage Petition No.2 of 1990 in the Court of Civil Judge, Senior Division, Nandurbar, which was included in the compilation filed by husband. In spite of the fact that the decree specifically recounts that wife had made a counter-claim for restitution of conjugal rights and had paid court fee of Rs.37.50 (37.50 ?) on the said counter-claim, which is also duly included in the bill of 4 costs, a substantial question of law seems to have been raised in the following words as can be seen from para 6 of the judgment in Second Appeal :-

“(ii) Whether in the absence of any prayer for restitution of conjugal rights, it was open for the courts below to pass a decree for restitution of conjugal rights against the appellant ?”

4. The learned counsel for husband, arguing the Second Appeal, reiterated this, as may be seen from para 13 of the judgment. Up to para 31, the judgment recounts arguments advanced. In paras 32 to 35, there is discussion about disobedience to decree for restitution of conjugal rights operating as a bar for husband’s getting decree of divorce. In para 36, the judgment considers ground of cruelty on account of false complaints. The Court observed that in Second Appeal, the Court would not re-appreciate evidence. The Court then proceeded to hold that both the Courts below had perversely held that cruelty was not proved, in the following words in para 37 :

“37. Another aspect of “mental cruelty” is with regard to the false allegation regarding impotency of appellant husband and making this allegation in public is also a serious act of “cruelty”. Therefore, I am of the clear view that both the lower appellate Courts have acted perversely in arriving at a finding that husband had failed to establish “cruelty” entitling him to a decree of dissolution of marriage, especially when the same is coupled with the factor of irretrievable breakdown of marriage over a long period.”

5. In para 39, about absence of prayer for restitution of conjugal rights, the Court observes as under :

“39. In this context, it will also be noted that both the Courts below had admittedly granted a decree for restitution of conjugal rights, without there being any prayer made in that behalf by respondent-wife, which substantial question of law also, I answer in favour of the Appellant.”

Ultimately, the Court granted decree of divorce on the ground of cruelty “coupled with the factor of irretrievable breakdown of marriage”.

6. This account of the litigation speaks volumes about the manner in which matters are conducted in this Court. Either there was really no counter-claim for restitution of conjugal rights by the wife, and in that case, the learned counsel for husband, who has placed copy of decree of Civil Court for my perusal, would have to ask himself if a wrong copy was placed before this Court and why. If the copy is indeed the correct copy, it would be a sad comment on the assistance of officers of the Court to Judges. In that case, the husband’s counsel would not only have raised a false ground in the Second Appeal that there was no claim for restitution of conjugal rights, but would have falsely reiterated the same, leading the Court to accept it – a case of suppresio veri as well as suggestio falsi. If there was claim for restitution of conjugal rights by the wife, and decree for the same was reversed in Second Appeal erroneously holding that there was no such claim, the plight of wife could well be imagined.

7. Reverting to the facts which led the parties to this Court in the present proceeding, Gita filed an application bearing No.113 of 2000 for enhancement of maintenance from Rs.500/- to Rs.1,500/- per month before the learned Judicial Magistrate First Class, Gondia. Chandrashekhar too filed Application No.82 of 2001 for cancellation of order of maintenance in view of the fact that decree of divorce was passed on his petition. By common judgment dated 19-7-2007, the learned Judicial Magistrate First Class rejected husband’s application and allowed wife’s application partly, increasing maintenance allowance to Rs.1,250/- per month by common judgment dated 19-7-2007. Revision applications by both the parties were dismissed by common judgment dated 20-11-2007 by the learned Additional Sessions Judge, Gondia.

8. Aggrieved thereby, the husband has filed Criminal Writ Petition No.58 of 2008 seeking quashing of order directing him to pay maintenance, and the wife has filed Criminal Application 8 No.663 of 2008 for enhancement of maintenance allowance to Rs.5,000/- per month.

9. I have heard the learned counsel for both the husband and wife.

10. The learned counsel for husband relied on a judgment of Division Bench of this Court in Bhagwan Raoji Dale v. Sushma alias Nanda Bhagwan Dale and another, reported at 1998(2) Mh.L.J. 819, upon a reference by a learned Single Judge where the Bench held that when the husband had obtained a decree for restitution of conjugal rights, which the wife failed to comply leading to a decree of divorce, such wife would not be entitled to maintenance as she would not fall under any of the two categories in Explanation (b) to Section 125(1) of the Code of Criminal Procedure.

Explanation (b) to Section 125(1) of the Code of Criminal Procedure reads as under :-

“(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.”

In Sharadchandra Satbhai v. Indubai Satbhai, reported at 1978 Mh.L.J. 123 (with which the learned Single Judge disagreed), the Court held that even a divorced wife was entitled to maintenance, but this right was subject to sub-section (4) of Section 125, which inter alia disentitles a wife, who, without sufficient reason, refused to live with her husband. In that case, wife was held to have deserted her husband without reasonable cause and his petition for judicial separation on this ground had been decreed.

The learned Single Judge felt that this was in conflict with pronouncement of the Supreme Court in Bai Tahira v. Ali Hussain Fissalli Chothia, reported at 1979 Mh.L.J. 95. Bai Tahira had been divorced by her husband in July 1962. The Apex Court held that she was entitled to maintenance.

11. The Division Bench in Bhagwan Raoji considered both these judgments, as also the significance of the expression in Explanation (b) to Section 125(1) of the Code of Criminal 10 Procedure, viz. “who has been divorced by” or “has obtained divorce from”, which has been again used in clauses (c) and (d) of Section 127(3) of the Code of Criminal Procedure. The Division Bench then considered whether the respondent before them could claim benefit of extended definition of ‘wife’ in Explanation (b) to Section 125(1), since she had suffered an ex parte decree of restitution of conjugal rights on 31-7-1979, followed by ex parte decree of divorce on 3-12-1980 for failure to comply with decree for restitution of conjugal rights in spite of husband’s filing an execution proceeding.

| The Division Bench then held as under in paras 16
| and 17 of the judgment :
|
| “16. A close scrutiny of the phraseology used in
| clause (b) of the Explanation to section 125(1)
| shows that it is in two parts. The first part
| deals with a wife who has been divorced by her
| husband which, in our view would, normally, apply
| to parties professing the Muslim religion or
| whereunder a customary law applicable to some
| Hindus, the husband is entitled to unilaterally
| divorce the wife. This is because the words used
| are that the “woman 11 has been divorced by the
| husband”. The second part deals with the case
| whether the wife has obtained a divorce from her
| husband. This contemplates the wife moving the
| court for a decree for divorce and the wife
| obtaining a decree for divorce from her husband.
| Undoubtedly, in either of the two situations
| falling is clause (b), the wife has not
| remarried. If this is the true interpretation of
| clause (b) of the Explanation, then in our view,
| the respondents’s case cannot fall under the said
| clause (b). On the date when the Magistrate
| passed the order in the application under section
| 125 viz. on 3rd May, 1993, the respondent was a
| divorcee. But she was not falling in any of the
| two categories contemplated by Explanation (b) of
| section 125(1). In our view, therefore, the
| respondent cannot draw any support from the ratio
| of the decision of the Apex Court in Bai Tahira’s
| case.”
|
| “17. In the light of what we have stated above,
| we do not think that the view taken by the
| Division Bench of this Court in Sharadchandra
| Satbhai’s case requires reconsideration. As
| stated earlier, in Sharadchandra Satbhai’s case
| also, as in the present case, the wife left the
| matrimonial home. The husband filed a suit for
| judicial separation and obtained a decree on the
| ground that the wife had deserted. Relying upon
| this fact, the learned Magistrate had dismissed
| the application under section 125 for
| maintenance. The Revisional Court had allowed the
| wife’s application against which the husband had
| approached this court. This court allowed the
| husband’s application and, in the result,
| dismissed the wife’s application for maintenance.
|
| While arriving at its conclusion, the Division
| Bench in Sharadchandra Satbhai’s case considered
| the effect Explanation (b) to section 125(1) as
| also sub-section (4) of section 125. Para 8 of
| the judgment at page 126 may usefully be
| reproduced :
|
| | “8. It is, however, open to a wife who is unable
| | to maintain herself and her husband has
| | sufficient means to maintain her but nevertheless
| | neglects or refuses to do so, to make an
| | application under section 125, Criminal Procedure
| | Code, 1973, and seek an order for maintenance,
| | subject to the conditions and limitations of that
| | section. Explanation (b) of section 125(1)
| | clarifies that even if she is a divorcee, she can
| | claim maintenance provided she is not remarried.
| | Sub-section (4) disentitles a wife to receive
| | allowance in certain cases, one of them being
| | “if, without any sufficient reason, she refused
| | to live with her husband”. This sub-section
| | governs the whole of section 125. Now, in a case
| | like the present one, when the Civil Court has
| | determined the issue of desertion and held that
| | the wife has left her husband without reasonable
| | cause and against his wish and without his
| | consent can it be said that she is still entitled
| | to maintenance under section 125 and not hit by
| | sub-section (4)? It is plain and simple that she
| | has refused to live with her husband without any
| | sufficient reason and, therefore, disentitled
| | herself to receive maintenance under section 125.
| | The effect of the decree for judicial separation
| | on this particular ground of desertion cannot be
| | overlooked by the Magistrate dealing with an
| | application under section 125 because he has to
| | bear in mind the disability created by sub-
| | section (4) of that section. The fact that a
| | decree for judicial separation has been passed in
| | favour of the husband on the ground of desertion
| | means that the wife is guilty of refusing to live
| | with her husband. In our judgment, Indubai is not
| | entitled to maintenance under section 125,
| | Criminal Procedure Code, 1973, as she had no
| | reasonable ground not to live with her husband.
| | The approach of the learned Additional Sessions
| | Judge overlooks the object and purpose of sub-
| | section (1) of section 125. It is true that a
| | divorcee is entitled to approach the Magistrate
| | under section 125 for speedy remedy. So could a
| | wife against whom a decree for judicial
| | separation is passed, but a wife who has deserted
| | her husband within the meaning of the Explanation
| | to section 10(1) of the Hindu Marriage Act, 1955,
| | as discussed above, is not entitled to apply
| | under section 125 of Criminal Procedure Code,
| | 1973″.
|
| We are in respectful agreement with the view
| expressed by the Division Bench in Sharadchandra
| Satbhai’s case.”

12. The Division Bench then took a review of several
judgments on the subject. In paras 27, 31 and 32, the Court then
concluded as under :

| “27. It appears to us further that if the wife is
| at fault and if the husband succeeds in obtaining
| a decree for 15 restitution of conjugal rights,
| as long as the marriage subsists, the wife would
| not be entitled to claim maintenance in view of
| sub-section (4) of section 125. Would it, then be
| permissible to saddle the husband with
| maintenance if such a wife has been divorced
| pursuant to a decree passed by a competent court
| as a result of the failure on the part of the
| wife to obey the decree for restitution of
| conjugal rights. In our view the answer must be
| in the negative. Granting maintenance to such a
| wife would be tantamount to permiitting a person
| to take advantages of one’s own wrong. Finding of
| the Civil Courts in the two matrimonial
| petitions, one for restitution of conjugal rights
| and other for divorce is that the wife was in the
| wrong. That finding has not been challenged in a
| superior court. The two decrees are final. We
| must, therefore, proceed on the footing that the
| wife was in the wrong. In our view, therefore,
| she is not entitled to maintain an application by
| taking advantages of the extended meaning in
| Explanation (b) to section 125(1) of the Code.”
|
| xxxxxxx
|
| “31. In the light of the above discussion, we
| may sum up our conclusion as under. It is not
| every divorced wife 16 who can claim maintenance
| under section 125(1) of the Code. A woman who has
| been divorced by her husband is included in the
| first part of Explanation (b) to section 125(1).
| She can claim maintenance under section 125(1).
| In this category would normally, fall the case of
| a Muslim woman who has been unilaterally divorced
| by her husband in accordance with Muslim Personal
| law. This category may also include a woman who,
| under the customary law applicable to some
| Hindus, has been unilaterally divorced by her
| husband. The second category falling under
| Explanation (b) to section 125(1), who can claim
| maintenance under the said section, consists of a
| woman who has obtained divorce from her husband,
| meaning thereby that the wife has initiated
| proceedings for obtaining divorce from the
| husband, as indicated in para 24 above. In this
| view of the matter, we are of the opinion that
| the Division Bench decision of this court in
| Sharadchandra Satbhai vs. Indubai Satbhai, 1978
| Mh.L.J. 123, does not require reconsideration and
| we are in agreement with the ratio of the said
| decision. We also approve of the decision
| rendered by three learned Single Judges of this
| Court in the three cases discussed above (i)
| Baburao Kalaskar’s case, decided by Puranik, J.
| (para 18 above), (ii) Smt. Shantabai Saitwal’s
| case, decided by Mehta, J. (para 19 above) and
| (iii) Kalidas Shinde’s case, decided by
| Deshpande, J. (para 20 above). We are unable to
| persuade ourselves to agree with the view
| expressed by Vaidya, J. in Smt. Sugandhabai vs.
| Vasant Deobhat, 1992 Cri.L.J. 1838. For the
| reason discussed above, we are not in agreement
| with the view expressed by Vaidya, J. in the said
| case.”
|
| “32. In the view that we have taken, the
| question referred for our decision must be
| answered against the respondent-wife. In our
| view, in the facts and circumstances of the case,
| where the husband had obtained a decree for
| restitution of conjugal rights and the wife had
| failed to comply with the said decree resulting
| in the husband obtaining a decree for divorce,
| the respondent-wife does not fall in any of the
| two categories contemplated by Explanation (b) to
| section 125(1) of the Code. In the circumstances,
| the application for maintenance made by the wife
| was liable to be rejected as not maintainable.
| Since we have come to the conclusion that the
| application of the respondent-wife was not
| maintainable in law, it is not necessary for us
| to refer 18 the case back to a learned Single
| Judge since nothing remains to be decided on
| merits of the matter.”

In separate but concurring judgment in para 38, an Hon’ble Judge,
who was a member of the Bench, observed as under :-

| “38. The next thing which we have to consider is
| whether the case of such a wife or woman can fall
| in the first limb of explanation (b). Here also
| the answer should be in the negative for the
| simple reason that the wording used by the
| legislature is not a woman against whom a decree
| of divorce was obtained by her husband but the
| woman who has been divorced by her husband. If
| the legislature had wanted to include a woman
| against whom a decree of divorce is obtained by
| her husband, the legislature would have used the
| appropriate phraseology to cover such woman as
| done in the second limb of the explanation to
| cover the case of a woman who herself obtains
| divorce from her husband. The fact that different
| phraseology has been used for the first limb of
| explanation (b) would mean that the legislature
| never intended to include woman against whom
| decree of divorce was obtained by her husband
| from a Court of law by proving some fault on the
| part of the wife. The words used by the
| legislature in the said explanation would not
| justify different interpretation. On the
| contrary, the words are very clear which do not
| include a woman whose marriage has been dissolved
| by decree of divorce at the instance of her
| husband. If the interpretation which was placed
| by some of the Courts is accepted so as to
| include woman against whom divorce was obtained
| by her husband from a Court of law, it would
| certainly lead to a very anomalous situation. If
| such a woman against whom decree of divorce was
| obtained by the husband is included in the
| extended definition of wife under section 125(1)
| of the Code of Criminal Procedure it would mean
| that the woman who was wrong doer or was guilty
| of desertion or cruelty against her husband would
| be entitled to claim maintenance after a decree
| of divorce is passed against her, though
| undisputedly, she would not be entitled for
| maintenance before such divorce was granted by
| virtue of sub-section (4) of section 125 of the
| Code of Criminal Procedure. To hold that a woman
| against whom a decree of divorce was obtained by
| the husband is entitled for maintenance, would go
| not only 20 against the express words of
| explanation (b) to section 125(1) of the Code of
| Criminal Procedure but also would create an
| anomalous situation as pointed out above. Happily
| the legislature itself has taken care to see that
| such incongruous position does not arise by using
| appropriate phraseology.”

13.. The learned counsel for husband also relied on a judgment of the same Hon’ble Single Judge in Satyawan Laxman Jagtap v. Vimal Satyawan Jagtap and others, reported at 2000(1) Mh.L.J. 419, where similar view was taken.

14. The learned counsel for wife submitted that this view may no longer be regarded as good law in view of categorical pronouncement of the Apex Court in Rohtash Singh v. Ramendri (Smt) and others, reported at (2000) 3 SCC 180. Parties were married on 10-5-1980. In 1991, wife left husband’s house and refused to return. Husband filed a petition for dissolution of marriage on the ground of desertion. On 15-7-1995, the Family Court granted a decree of divorce on the ground of desertion. 21 Wife had claimed maintenance under Section 125 of the Code of Criminal Procedure. Family Court granted maintenance in spite of decree of divorce on the ground of desertion. High Court dismissed husband’s revision leading to his filing Special Leave Petition before the Hon’ble Supreme Court. It was specifically argued that in the face of decree of divorce on the ground of desertion, in view of provisions of Section 125(4) of the Code of Criminal Procedure, maintenance could not be granted. It may be useful to quote the observations of the Apex Court in paras 6 to 12 of the judgment which squarely deal with the questions raised in the present case :-

| “6. Under this provision, a wife is not entitled
| to any maintenance allowance from her husband if
| she is living in adultery or if she has refused
| to live with her husband without any sufficient
| reason or if they are living separately by mutual
| consent. Thus, all the circumstances contemplated
| by sub-section (4) of Section 125 Cr.P.C.
| presuppose the existence of matrimonial
| relations. The provision would be applicable
| where the marriage between the parties subsists
| and not where it has come to 22 an end. Taking
| the three circumstances individually, it will be
| noticed that the first circumstance on account of
| which a wife is not entitled to claim maintenance
| allowance from her husband is that she is living
| in adultery. Now, adultery is the sexual
| intercourse of two persons, either of whom is
| married to a third person. This clearly supposes
| the subsistence of marriage between the husband
| and wife and if during the subsistence of
| marriage, the wife lives in adultery, she cannot
| claim maintenance allowance under Section 125 of
| the Code of Criminal Procedure.”
|
| “7. The second ground on which she would not be
| entitled to maintenance allowance is the ground
| of her refusal to live with her husband without
| any sufficient reason. This also presupposes the
| subsistence of marital relations between the
| parties. If the marriage subsists, the wife is
| under a legal and moral obligation to live with
| her husband and to fulfil the marital
| obligations. She cannot, without any sufficient
| reason, refuse to live with her husband.
| “Sufficient reasons” have been interpreted
| differently by the High Courts having regard to
| the facts of individual cases. We are not
| required to go into that 23 question in the
| present case as admittedly the marriage between
| the parties came to an end on account of a decree
| for divorce having been passed by the Family
| Court. Existence of sufficient cause on the basis
| of which the respondent could legitimately refuse
| to live with the petitioner is not relevant for
| the present case. In this situation, the only
| question which survives for consideration is
| whether a wife against whom a decree for divorce
| has been passed on account of her deserting the
| husband can claim maintenance alloowance under
| Section 125 CrPC and how far can the plea of
| desertion be treated to be an effective plea in
| support of the husband’s refusal to pay her the
| maintenance allowance.”
|
| “8. Admittedly, in the instant case, the
| respondent is a divorced wife. The marriage ties
| between the parties do not subsist. The decree
| for divorce was passed on 15-7- 1995 and since
| then, she is under no obligation to live with the
| petitioner. But though the marital relations came
| to an end by the divorce granted by the Family
| Court under Section 13 of the Hindu Marriage Act,
| the respondent continues to be a “wife” within
| the meaning of Section 125 CrPC on accodunt of
| Explanation (b) to sub- 24 section (1) which
| provides as under : “Explanation.–For the
| purposes of this chapter– (a) * * * (b) ‘wife’
| includes a woman who has been divorced by, or has
| obtained a divorce from, her husband and has not
| remarried.”
|
| “9. On account of the explanation quoted above,
| a woman who has been divorced by her husband on
| account of a decree passed by the Family Court
| under the Hindu Marriage Act, continues to enjoy
| the status of a wife for the limited purpose of
| claiming maintenance allowance from her ex-
| husband. This Court in Capt. Ramesh Chander
| Kaushal v. Veena Kaushal observed as under : (SCC
| p. 74, para 9) “9. This provision is a measure of
| social justice and specially enacted to protect
| women and children and falls within the
| constitutional sweep of Article 15(3) reinforced
| by Article 39. We have no doubt that sections of
| statutes calling for construction by courts are
| not petrified print but vibrant words with social
| functions to fulfil. The brooding presence of the
| constitutional empathy for the weaker sections
| like 25 women and children must inform
| interpretation if it has to have social
| relevance. So viewed, it is possible to be
| selective in picking out that interpretation out
| of two alternatives which advance the cause – the
| cause of the derelicts.”
|
| “10 Claim for maintenance under the first part
| of Section 125 CrPC is based on the subsistence
| of marriage while claim for maintenance of a
| divorced wife is based on the foundation provided
| by Explanation (b) to sub- section (1) of Section
| 125 CrPC. If the divorced wife is unable to
| maintain herself and if she has not remarried,
| she will be entitled to maintenance allowance.
| The Calcutta High Court had an occasion to
| consider an identical situation where the husband
| had obtained divorce on the ground of desertion
| by the wife but she was held entitled to
| maintenance allowance as a divorced wife under
| Section 125 CrPC and the fact that she had
| deserted her husband and on that basis a decree
| for divorce was passed against her was not
| treated as a bar to her claim for maintenance as
| a divorced wife. (See: Sukumar Dhibar v. Anjali
| Dasi). The Allahabad High Court also, in the
| instant case, has taken a similar view. 26 We
| approve these decisions as they represent the
| correct legal position.”
|
| “11. Learned counsel for the petitioner then
| submitted that once a decree for divorce was
| passed against the respondent and marital
| relations between the petitioner and the
| respondent came to an end, the mutual rights,
| duties and obligations should also come to an
| end. He pleaded that in this situation, the
| obligation of the petitioner to maintain a woman
| with whom all relations came to an end should
| also be treated to have come to an end. This
| plea, as we have already indicated above, cannot
| be accepted as a woman has two distinct rights
| for maintenance. As a wife, she is entitled to
| maintenance unless she suffers from any of the
| disabilities indicated in Section 125(4). In
| another capacity, namely, as a divorced woman,
| she is again entitled to claim maintenance from
| the person of whom she was once the wife. A woman
| after divorce becomes a destitute. If she cannot
| maintain herself or remains unmarried, the man
| who was once her husband continues to be under a
| statutory duty and obligation to provide
| maintenance to her.”
|
| “12. Learned counsel for the petitioner then
| contended that the maintenance has been allowed
| to the respondent from the date of the
| application. The application under Section 125
| CrPC was filed by the respondent during the
| pendency of the civil suit for divorce under
| Section 13 of the Hindu Marriage Act. It is
| contended that since the decree of divorce was
| passed on the ground of desertion by the
| respondent, she would not be entitled to
| maintenance for any period prior to the passing
| of the decree under Section 13 of the Hindu
| Marriage Act. To that extent, the learned counsel
| appears to be correct. But for that short period,
| we would not be inclined to interfere.”

In view of this pronouncement of the Supreme Court, it is not necessary to refer to the judgments of Kerala, Himachal Pradesh, Delhi and Orissa High Courts, which were cited by the learned counsel for the wife.

15. It may be seen that the Apex Court has held that even a wife, who is divorced on the ground of desertion, is entitled to maintenance and she does not get disentitled under sub-section 28 (4) of Section 125 of the Code of Criminal Procedure Code. Thus the very basis of the judgment of the Division Bench in Sharadchandra Satbhai v. Indubai Satbhai, reported at 1978 Mh.L.J. 123, which was approved by the Division in Bhagwan Raoji Dale v. Sushma alias Nanda Bhagwan Dale and another, reported in 1998(2) Mh.L.J. 819, goes away. In Sharadchandra, the wife was held disentitled to maintenance specifically on account of the provisions of Section 125(4) of the Code. In fact Sharadchandra is not an authority for the interpretation sought to be put on expression used in Explanation (b) to Section 125(1) of the Code. There is absolutely no warrant for concluding that a woman “who has been divorced” refers to only women who have been divorced under the Mulsim Law or customary law, or that woman “who has obtained a divorce from her husband” refers to only those wives who have obtained a decree of divorce. since the Explanation (b) was intended to include divorced wives and since apart from judicial proceedings, divorce is also possible according to personal or customary law applicable to parties. A woman 29 “who has been divorced” would include any woman who has been divorced not only according to personal or customary law, but one who has been divorced on a decree in proceeding initiated by her husband. And, the expression “a woman who has obtained divorce” would not be restricted to only those wives who apply for a decree of divorce (as has been observed in para 16 of the judgment in Bhagwan Raoji – 1998(2) Mh.L.J. 819) but may also include those who can and do obtain divorce under customary or personal law. It may be recalled that even under Mohamadan Law, “Khula” is a form of divorce granted at the instance of a Mulsim wife. The distinction sought to be made in paras 16 and 38 of the judgment in Bhagwan Raoji can no longer be held as good law since it cannot stand with the conclusion drawn by the Supreme Court in Rohtash Singh v. Ramendri (Smt) and others, reported at (2000) 3 SCC 180.

16. The learned counsel for husband submitted even if a wife, who is divorced on the ground of desertion, is held entitled to maintenance, the same may not hold good in respect of a wife divorced on the ground of her cruelty (Cruelty in the present case is her allegation that husband is impotent). First, the phraseology used in Explanation (b) to Section 125(1) of the Code would not admit of creating classes of divorced wives. A divorced wife is a divorced wife, whatever may be the reasons for divorce and whatever may be the procedure adopted or forum chosen. If wife divorced on the ground of desertion, who has a better reason to be disentitled, because a husband cannot be said to have refused or neglected to maintain her, is held entitled to maintenance as divorced wife, since she herself deprived husband of the chance to maintain her, wives divorced for other reasons would certainly be entitled to be maintained, since as held by the Supreme Court in Rohtash Singh, (i) such woman, being a divorced wife in terms of Explanation (b) to Section 125(1) of the Code would be deemed to be ‘wife’; (ii) such a woman would be under no obligation to reside with the husband, having been divorced; and (iii) would therefore be entitled to separate maintenance. In view of this, husband’s petition challenging grant of maintenance to his wife on 31 the ground that having been divorced on account of cruelty, she is not entitled to maintenance, would have to be dismissed. It may be useful to recall that in the Second Appeal, this Court had found it necessary to take the support of irretrievable breakdown of marriage also to prop up the case of cruelty for granting divorce.

17. As for wife’s application for enhancing maintenance allowance to Rs.5,000/- per month, both the Courts below, upon consideration of evidence tendered, have held her entitled to Rs.1,250/- per month. The findings are in tune with the facts proved and do not call for any interference in exercise of inherent powers under Section 482 of the Code. She could always apply for increase of maintenance allowance by making out a case for such increase in the Trial Court. Hence, even this application has to be rejected.

18. Both Criminal Application No.663 of 2008 and Criminal Writ Petition No.58 of 2008 are dismissed.

JUDGE

Lanjewar

source

indiankanoon.org

woman kills husband and also files 498a against father in law !! District collector has referred case to CB-CID!!

“……Earlier, the then Collector Sagayam, in a letter to the Home Secretary on April 30, 2012, asked him to hand over the case to the CB-CID…..”

We can only hope the CB-CID have started their investigation in right earnest ….

=============================================

Tamil Nadu | Posted on Aug 24, 2012 at 08:19am IST

Daughter raises queries on Sagayams report

newindianexpressExpress News ServiceThe daughter of a woman who was released under Section 100 of the IPC hours after she murdered her husband in an alleged act of self-defence in February this year, has questioned the report sent by the then District Collector recommending a CB-CID probe into the incident.

Talking to reporters here on Thursday, V Rajapriya, daughter of Usha Rani, who was accused in the murder of her husband and released by then Madurai Superintendent of Police Asra Garg under section 100 of IPC, said that the then Collector U Sagayam should have inquired with them before recommending a CB-CID probe.

Rajapriya also said that a case filed by her paternal grandfather Samayamuthu against her mother was pending in the High Court. She also alleged that there were several cases against her father Veeranan alias Jothibasu, which were not mentioned in Sagayam’s report.

Recalling how her father tortured her mother, Rajapriya said that Veeranan used to beat Usha Rani in an inebriated condition and added that they were ready to face the case in court.

Usha Rani, who was present at the press meet said that a case of dowry harassment was pending against her father-in-law Samayamuthu, in the Judicial Magistrate court in Madurai.

Earlier, the then Collector Sagayam, in a letter to the Home Secretary on April 30, 2012, asked him to hand over the case to the CB-CID.

Sagayam sent the report based on a complaint lodged with him by S Samayamuthu, the father of the deceased Veeranan alias Jothibasu, and inquiries made by him.

The then SP Asra Garg released Usha Rani under Section 100 of the IPC after it was reported that she killed her husband when he assaulted her and attempted to outrage the modesty of her daughter.

source

http://ibnlive.in.com/news/daughter-raises-queries-on-sagayams-report/285013-60-118.html

Hindu Husband; Converts to Islam; When serious marital discord crop up , pronounces Talaq; wifes HMA application defeated !! Wife’s appeal looses steam as she earns a lot and time passes on and children become majors

Husband is a Hindu By birth; He converts to Islam and marries a Indian Muslim air hostess with the Saudi Arabian Airlines; they are blessed wit two daughters ;… then ….. then…. they start fighting ; When serious marital discord crop up , pronounces Talaq; wifes HMA application defeated !! court battles continue and wife takes over the family flat !!! The battles drag on till the children at almost 30 years old !!!!

What a pathetic Mess !!!

In retrospect it would have been much better had such people never got married

But when you are young and a Dozen infactuations cloud your eyes and thinking no one thinks of escaping marriage !!!

 

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Bombay High Court

Smt. Shehnaz Arvind Mudbhatkal vs Dr. Arvind Ramkrishna Mudbhatkal on 16 September, 2011

Bench: A.M. Khanwilkar, R.Y. Ganoo

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 38 OF 2006

IN

M.J. PETITION NO. A/1945 OF 1992

WITH

CIVIL APPLICATION NO.141 OF 2008

WITH

CIVIL APPLICATION NO.31 OF 2006

WITH

CIVIL APPLICATION NO.28 OF 2006

Smt. Shehnaz Arvind Mudbhatkal
Adult, Indian Inhabitant
Aged around 52 years,
Occupation : Temporary Service,
R/at A-702, Milton Apartments,
Juhu Koliwada,
Santa Cruz (W), .. Appellant Mumbai – 400 049. (Original Petitioner)

v/s.

Dr. Arvind Ramkrishna Mudbhatkal
Adult, Indian Inhabitant
Aged around 67 years,
Occupation : Professional,
R/at C/o. Mr. Ajit Balse
Vijaynagari, Ghorbandar Road, .. Respondent Thane (Original Respondent)

ALONG WITH CIVIL APPLICATION NO. 281 OF 2007

WITH CONTEMPT PETITION NO. 424 OF 2007

WITH CIVIL APPLICATION NO.55 OF 2006

WITH CIVIL APPLICATION NO.138 OF 2007

IN

CIVIL APPLICATION NO. 66 OF 2006

IN

FAMILY COURT APPEAL NO.38 OF 2006

A. R. Mudbhatkal,
C/o. V. Mahesh, 404, Marina Apartments,
Next to SPRA Departmental Stores,
Juhu Tara Road, Juhu, Mumbai-400 049. .. Applicant Mumbai – 400 049. (Original Respondent)

v/s.

M/s. Shehnazsani (Mudbhatkal),
A 702, Milton Apartments,
Juhu Koliwada, Santacruz (W),
Mumbai – 400 049. .. Respondent-Appellant (Original Petitioner)

………

Smt. Shehnaz Sani, Appellant in person
Ms. Neeta Karnik, Advocate for the respondent

……..

CORAM : A.M. KHANWILKAR &

R.Y.GANOO, JJ.

JUDGMENT RESERVED ON : 21ST JUNE, 2011

JUDGMENT PRONOUNCED ON : 16TH SEPTEMBER, 2011 ORAL JUDGMENT : (Per R.Y. Ganoo, J)

1. Being aggrieved by judgment and decree dated 30th September, 2005 passed by the learned Judge, Family Court, Mumbai, in M.J.Petition No.A-1945 of 1992 the appellant Smt. Shehnaz A. Mudbhatkal original Petitioner (hereinafter referred to as said wife) has filed this appeal against Respondent Dr. Arvind Mudbhatkal original Respondent (hereinafter referred to as said husband).

2. The wife filed the aforesaid petition No. A-1945 of 1992 in the Family Court at Bandra, Mumbai on or about 5th December, 1992 to seek following reliefs.

(a) That the marriage between the wife and the husband be dissolved by decree of divorce under Section 13(i) (ia) and (ib) of the Hindu Marriage Act,1955 (For short HMA).

(b) The husband be directed to pay to wife a sum of Rs.10,000/- per month by way of permanent alimony and further Rs.5,000/- for one daughter Shahzia and Rs.5,000/- for another daughter by name Sonia by way of permanent maintenance.

(c) Custody of the daughters Shahzia and Sonia be given to the wife (d) for an order of injunction restraining the respondent husband from entering into the matrimonial home, altogether or coming in near by area, i.e. Flat No.A/702, Milton Apartment, Juhu Koliwada, Santacruz (W) Bombay – 400 049.

3. Facts necessary to decide this appeal are as under : The wife got married with the respondent on 9th November, 1975 in accordance with Hindu Vedic rites. It is admitted by the wife that prior to her marriage with the husband, she was propagating Muslim religion and that little prior to the marriage, she underwent conversion and adopted Hindu religion. The petition mentions various events, which took place between the wife and the husband and two daughters since 1975 till about 1992. All of them are not relevant for the purposes of deciding the present appeal. Suffice it to say that in the beginning, the wife was working as an Air hostess with Air India. Thereafter, she worked in the Hotel ‘Centaur’ and thereafter, she joined Saudi Arabian Airlines. In June, 1985, the wife lost her job and was required to institute proceedings in the Labour Court being Reference IDA No.439 of 1986. She was ordered to be reinstated by award dated 16th April, 1996. She was reinstated on 2nd March, 1999. Presently wife is working in Saudi Arabian Airlines.

4. From 1963, the husband was working with Central Railways as a Medical Officer. In the year 1983, husband was appointed as a Medical Officer with Ministry of Health, Saudi Arabia and was accordingly posted to work at Gizan. The husband continued to work in Saudi Arabia till 1992 and in 1992, the husband came down to India and thereafter, he neither worked with any organisation nor practiced as Medical Practitioner.

5. The text of the petition indicates that in the year 1985, a Flat bearing Flat No. A/702, Milton Apartment, Juhu Koliwada, Santacruz (W) Bombay – 400 0049 (hereinafter referred to as “said flat”) was acquired by the husband. The husband filed a suit on the original side of this court being Suit No.2056 of 1995. In the said suit, he had sought a declaration that wife has no right in respect of the said flat. The husband had sought some other reliefs in the said suit. This dispute relating to the flat is presently pending before this Court in terms of Family Court Appeal No. 148 of 2009 along with Family Court Appeal No. 131 of 2009. These two Family Court Appeals are being separately decided.

6. The various counts, on which the wife has filed petition against the husband for divorce are as follows:-

The husband did not behave properly with the wife and had not taken her proper care. The wife had disturbed sexual life on account of the peculiar behavior of the husband. It may not be necessary to quote the words used by the wife to describe the way, in which her sexual life was disturbed. Suffice it to say that the said allegations are found in later part of paragraph 11 of the aforesaid petition. It is alleged by the wife that the husband assaulted the wife on 10th May, 1992 with a chair. It is also the case of the wife that on 10th May, 1992, the husband had brought a gunda by name Ajit Balase in order to cause harm to her. According to the wife the husband used to assault the wife and threaten her with eviction from the said flat. It is also the case of the wife that the husband has been bringing antisocial elements at the said flat so as to interfere with the peace and privacy of the wife and two daughters.

7. According to the wife, the husband returned to India in February, 1992 and he went on accusing wife for loosing her job and he turned violent. According to the wife, after the husband returned to India, he was not contributing towards the day to day household and personal expenses of the wife. According to wife, when she had requested for a divorce, the husband had lodged false and malicious campaign with various authorities so as to harm reputation of wife. According to her, the husband had written letters to the Society between April, 1992 to July, 1992 alleging that the wife had acquired the flat by dubious means and thereby caused damage to wife’s reputation. It is alleged by the wife that the husband is dipsomaniac and used to return home late in fully drunken state. According to the wife, the husband used to drink frequently and used to take some drugs for intoxication. It is alleged by the wife that he was squandering the monies earned by him in Saudi Arabia on women and his alcoholic friends. It is also alleged by the wife that the husband had brain washed their two daughters that if their mother divorces and remarries, how would they show their faces to their colleagues and college friends. On all these grounds, the wife sought divorce alleging that the husband had practiced cruelty on her. In paragraph 25 of the petition, the wife has submitted that she was treated with extreme physical and mental cruelty and that for several years she has been deserted by the husband and as such she is entitled to decree of divorce under Section 13(1)(ia) and Section 13(1)(ib) of the HMA.

8. It has been the stand of the wife that as she was unemployed and has no source of income to maintain herself and two minor daughters namely Shahzia and Sonia, she is entitled to permanent alimony @ Rs. 10,000/- per month and permanent maintenance of Rs.5,000/- for each daughter. She has accordingly prayed for these reliefs in terms of prayer clause (b) of the petition.

9. The wife has sought custody of the two minor daughters, who at the relevant time, were aged about 16 and 12 years. On account of physical violence upon the wife as also on account of behavior of the husband as stated in the petition, the wife has sought an order of injunction restraining the husband from entering the matrimonial home i.e. the said flat.

10. Upon service of the petition, the husband has filed written statement and has prayed for dismissal of the petition. It was contended by the husband that the Family Court had no jurisdiction to try and entertain the petition under the HMA. In support of this contention, the husband has taken a stand that on 11th November, 1975, the husband as well as wife converted into Islam and the Nikah ceremony was performed. According to him, this marriage on 11th November, 1975 would govern the relationship between the husband and wife and as such the petition filed for divorce under HMA is not maintainable. In the aforesaid petition for divorce, judgment was delivered by the Family Court on 5th August, 1999 so as to dismiss the petition filed by the wife on the ground that the marriage between the husband and wife under the HMA was void. The learned Judge of the Family Court on account of this observation, came to the conclusion that the other issues do not survive and recorded a finding accordingly. The wife filed Family Court Appeal No.3 of 2000 against the said judgment dated 5th August, 1999. By judgment dated 23rd December, 2004 this Court set aside the order dated 5th August, 1999 passed in Petition No. A-1945 of 1992. This Court also observed that the petition was maintainable under the HMA. The petition was restored to the file of the Family Court, Bandra, Mumbai. It was held that petition filed by wife was maintainable under the HMA. The Family Court was directed to record the findings on rest of the issues, after appreciating the evidence on record. As per the aforesaid order, the Petition No. A-1945 of 1992 was restored to the file.

11. In view of aforesaid development, the stand of the husband that the Family Court had no jurisdiction to try and entertain the petition under HMA does not survive.

12. In the petition for divorce various allegations are levelled against the husband in regard to personal life between wife and the husband prior to the marriage. The husband has denied those allegations. In our view, the contents of the said petition as regards the said allegations are not relevant for the purposes of deciding this Family Court Appeal No.38 of 2006 as events alleged to have taken place prior to 9th November, 1975 would not be relevant for the purpose of deciding the allegations about cruelty and desertion, on the basis of which the present petition is filed. The allegation of the wife that the said flat was jointly purchased by the husband and wife is specifically denied and it has been the stand of the husband that the said flat was purchased from and out of the funds of the husband and the wife has no share in the said flat. The husband has alleged that the wife was acquainted with one Mr. Boby Shah and with the help of Mr. Boby Shah, the wife had invested substantial monies in the cable TV business by name M/s. Link Vision and she earns a sum of Rs.15,000/- to 20,000/- per month.

13. It is also the stand of the husband that the wife has invested certain amounts in the motel business at United States of America and has been earning a sum of Rs.15,000/- to 20,000/- per month. It has been the stand of the husband that the husband has been spending for the household expenses, electricity bills, school fees and such other expenses, which are required to be incurred for the purposes of running the house. The allegation levelled by the wife that the respondent has US dollar 1 lakh in the fixed deposits, are denied. According to him, after he went to Saudi Arabia, two NRI accounts were opened viz. one with Syndicate Bank and other with Union Bank of India and that he had sent the monies earned by him to these accounts and the wife has withdrawn the monies from the said account on one pretext or the other.

14. It is contended by the husband that the wife’s monthly income would be in the vicinity of Rs.30,000/- to 40,000/- and that despite the fact that the husband is unemployed, he has been spending towards household expenses and looking after his daughters’ education and maintenance. According to the husband, the wife and daughters are not entitled for maintenance. The husband has contested the claim of wife as regards custody of both the daughters. The husband has denied all allegations levelled against him as regards the said flat.

15. With the aforesaid contentions, the husband has contended that the wife is not entitled to reliefs asked for. It is also the stand of the husband that the husband has given Talak to the wife on or about 11th May, 1992 and hence the marriage between the wife and husband is dissolved and the wife has no right to stay in the said flat.

16. On the basis of the aforesaid pleadings, the learned Judge of the Family Court framed following issues.

1. Whether the petition as framed is competent / tenable under the provisions of Hindu Marriage Act, 1955 ?

2. Does the petitioner prove that the respondent has treated her with cruelty ?

3. Does the petitioner prove that the respondent has deserted her for a continuous period of two years immediately preceding the presentation of the petition without any reasonable cause ?

4. Is the petitioner entitled to injunction against the respondent in terms of clause (d) of the prayer clause in petition ?

5. Is the petitioner entitled to a decree of divorce ?

6. What order regarding permanent maintenance of the petitioner and two daughters ?

7. What order regarding the permanent custody of the two daughters ?

8. What order regarding the permanent custody of the two daughters ?

9. What order and decree ?

17. At the stage of recording of evidence, the wife examined herself as PW-1. In addition to this, the wife examined following witnesses; (i) Abdul Satar Ali Hasan, PW-2 (ii) Mrs. Alka Jaikar, PW-3 (iii) Dr. Nagpal PW-4. The husband examined himself as DW-1. He also examined Mr. Hansal D’Souza, office bearer of the Milton Apartment Society as DW-2. Mr. Gajendra J. Arora, resident of the said Society as DW-3. Mr. Pandurang Chavan, District Marriage Officer as DW-4 and Mr. Sudhakar M. Mohite, an Officer from the office of Deputy Registrar, Co-operative Society as DW-5.

18. So far as issue no.1 is concerned, the learned Judge of the Family Court has observed that on account of judgment dated 23rd December, 2004 delivered by this Court in FCA No.30 of 2000, issue no.1 does not survive. So far as issue nos. 2, 3 and 5 are concerned, the learned Judge has held that the cruelty was practiced upon the wife and that is how he has passed a decree for divorce, as per the operative part of the judgment. A sum of Rs.10,000/- was ordered by way of costs to be paid by the husband to the wife. As regards issue nos. 6 and 7, the learned Judge of the Family Court came to the conclusion that as the two daughters had attained the age of majority in 1994 and 1998 respectively, the issue regarding the custody was not required to be decided and has therefore, observed that the issue regarding the custody of the two daughters does not survive. So far as the question of maintenance of the two daughters, the learned Judge of the Family Court relied upon the submissions advanced by the wife in terms of notes of arguments, wherein it was stated that the issue as regards the maintenance, does not survive, as both of them have attained adulthood respectively being 27 and 24 years. Accordingly, the learned Judge of the Family Court came to the conclusion that the issue as regards the maintenance did not survive. In so far as issue of permanent maintenance, the learned Judge of the Family Court has for reasons mentioned in the judgment and order observed that the wife is sufficiently earning and as such she is not entitled to any maintenance.

19. So far as issue no.4 by which an injunction was sought against the husband in terms of prayer clause (d) as mentioned aforesaid, the learned Judge of the Family Court has observed that since the Suit No.2065 of : 15 : FCA-38-06-Judgment.doc 1995 filed by the husband in the High Court is pending and on account of civil litigations as regards said flat wife is not entitled to injunction restraining the husband from entering and enjoying joint possession of said flat. He has further observed that subject to decision in the said suit or interim orders therein, the parties may enjoy the possession in the same way and manner as they have been enjoying so far. The learned Judge of the Family Court has passed the operative order in the aforesaid petition as follows :

“The petition is partly allowed.

It is hereby declared that the marriage between the petitioner and the respondent stands dissolved by a decree of divorce with effect from today itself.

The respondent do pay Rs.10,000/- by way of costs of litigation to the petitioner.

The petition and all interim applications which were pending for hearing stand accordingly disposed of.

Decree be drawn up accordingly”.

20. Being aggrieved by the aforesaid judgment and decree dated 30th September, 2005, the wife has filed this appeal. We have perused the grounds of appeal, written submissions as well as we have heard the oral submissions of the wife in person and learned advocate Ms. Karnik : 16 : FCA-38-06-Judgment.doc

appearing on behalf of husband. Reading of the grounds of appeal clearly indicate that the wife has not challenged the decree of divorce passed by the learned Judge. In our view, upon reading of the appeal memo along with the order passed by the learned Judge of the Family Court on 30th September, 2005, it is clear that the wife has accepted the decree passed by the learned Judge of the Family Court thereby dissolving her marriage. In fact, it is to be noted that by the aforesaid Petition No. A-1945 of 1992, the wife had prayed for decree of divorce of marriage solemnized on 9 th November, 1975. As the said relief has been granted, there is no cause for the wife to be aggrieved about the said order.

21. The wife has submitted that the learned Judge of the Family Court had erred in not granting permanent maintenance to her. According to her, the husband had substantial income from his fixed deposits and other assets and that is how the husband was getting about Rs.1,50,000/- per month and that learned Judge of the Family Court should have considered this income of the husband as a basis for awarding the maintenance. According to her, the findings arrived by him that the total savings of the husband are in the vicinity of Rs.9,74,248/- and as such his income at the time of filing of the written statement was Rs.11,000/- and the same is : 17 : FCA-38-06-Judgment.doc

now brought down to Rs.9,000/- is erroneous and is required to be reconsidered for the purposes of deciding the quantum of maintenance to be awarded to the wife. The wife had submitted that learned Judge of the Family Court has not considered the evidence on record in the proper perspective and the income of the husband was comparatively higher than the income of the wife and that the learned Judge of the Family Court should have arrived at a proper amount of maintenance to see that the wife would be able to maintain herself in the proper manner.

22. It was brought to the notice of the Court that the husband possesses necessary qualification to practice as a Medical Practitioner and in the normal course, there is no occasion for a doctor to retire and, therefore, the stand of the husband that he is not earning any amount by way of practice, should not be accepted.

23. She had submitted that the learned Judge of the Family Court has not considered the fact that the younger daughter is still dependent upon her. She had further submitted that both the daughters are unmarried and no provision is made in the order for the marriage expenses of the daughters. It was also submitted by her that the learned Judge has erred in : 18 : FCA-38-06-Judgment.doc arriving at the conclusion as regards the reliefs sought in regard to the said flat. According to her, the learned Judge of the Family Court ought to have noted about the safety and the security of the wife and the two daughters. According to her, possession of the said flat by wife was a relevant factor and that he should have recorded a finding in favour of the wife.

24. The appellant wife is aggrieved on the question of quantum of the costs ordered to be paid by the husband to the wife. According to her, the quantum of costs should have been on higher side as the wife had to struggle a lot for the purpose of seeking appropriate reliefs in the Court. The wife has challenged the finding recording by the learned Judge of the Family Court as regards the NRI bonds. She submitted that the learned Judge of the Family Court declined to record any finding as regards her entitlement in respect of the NRI bonds. According to her, learned Judge of the Family Court should have appreciated that her contribution in the NRI bonds was more than Rs.3,84,000/- and that the learned Judge of the Family Court should have granted appropriate reliefs to her.

25. The wife had taken us through the contents of the petition and has submitted that she had prayed that the husband should be restrained from : 19 : FCA-38-06-Judgment.doc

entering the matrimonial home i.e. said flat all together or coming anywhere nearby said flat. According to her, the learned Judge of the Family Court has erred in coming to the conclusion that parties may enjoy the possession in the same way and in the manner as they have been enjoying at the time of delivering the judgment. According to her, it was necessary for the learned Judge to consider the entire record and issue an order of injunction to protect the interest of wife.

26. The appellant has contended that the respondent had abused the Court’s machinery for about 15 years and that the appellant had always opposed the divorce by mutual consent. Though the appellant has contended as above, there is no specific challenge to the decree of divorce passed by the learned Judge of the Family Court by Judgment and Order dated 30th September, 2005. The appellant on the basis of the aforesaid submissions, submitted that the appeal filed by her may be allowed and appropriate orders in the interest of justice be passed.

27. Learned advocate Ms. Karnik appearing on behalf of the respondent opposed the submissions made by the appellant in person. It was argued by learned Advocate Ms. Karnik that so far as the maintenance of the two : 20 : FCA-38-06-Judgment.doc

daughters is concerned, the appellant in the notes of arguments at Exh. 468 submitted that issue no.6 as regards maintenance of the two daughters does not survive since both of them have attained adulthood respectively being 27 and 24 years. She submitted that the learned Judge of the Family Court has referred to this submission in paragraph 17 of the impugned judgment and, has observed that issue No.6 does not fall for consideration. According to the learned Advocate for the husband, in view of the aforesaid development, the order passed by the learned Judge of the Family Court requires no interference. She had taken us through the relevant dates and had submitted that daughter Sonia attained the age of majority on 9th December, 1994 and daughter Shahzia attained the majority on 15th October, 1998. She pointed out that at the time of the delivery of the judgment in the year 2005, the daughters were aged 29 years and 25 years respectively. According to her, now the daughters would be aged about 34 years and 29 years. She, therefore, submitted that there is no question of now granting any maintenance to the daughters.

28. Insofar as the question of custody of both the daughters, Ms. Karnik submitted that the learned Judge of the Family Court has in paragraph 16 : 21 : FCA-38-06-Judgment.doc observed that both the daughters have attained the majority in 1995 and 1998 and as such there is no question of passing orders as regards the custody and that the daughters are free to reside as per their choice. Learned Advocate appearing on behalf of husband, therefore, submitted that there is no need to pass an order regarding the custody of the daughters.

29. So far as the question of maintenance is concerned, it was brought to the notice of the Court that the services of the wife were terminated in July, 1985 and that she was reinstated on 1st March, 1999. It is pointed out that the wife has received back wages to the tune of Rs. 11 lakhs for the period 24th July, 1985 to 1st March, 1999 and she has been taken in service. Our attention was drawn to paragraph 33 of the impugned judgment as regards this factual aspect. She further pointed out that after the reinstatement of the wife on 1st March, 1999, she is on the monthly pay roll of the Saudi Arabia Airlines and that her income in the year 2005 was Rs.45,000/- per month. Our attention was drawn to these facts, which are appearing in paragraph 38 of the impugned judgment. Learned advocate for the husband submitted that wife is earning sufficient amount to maintain herself and, therefore, there is no need to grant maintenance : 22 : FCA-38-06-Judgment.doc to the wife. It was also pointed out to the Court that at the time of filing of the petition, the wife had agreed for monthly maintenance of Rs. 10,000/- for self. She pointed out that the petition was filed in the year 1992. It was also pointed out that on 21st December, 1998, the wife applied for lumpsum permanent alimony under Section 25 of the HMA. The said application is at Exh.430. It was submitted on behalf of the husband that at the time of passing of the impugned judgment, the learned Judge of the Family Court has considered the relevant figures and has arrived at the conclusion that no maintenance is required to be granted.

30. Learned advocate for the husband had also submitted that the wife has been earning a sum of Rs.15,000/- per month from the cable business and earning Rs.20,000/- per month from the monies invested in Motel business in United States of America. According to her, the wife is earning sufficient amount and as such, there is no question of wife getting any maintenance. She submitted that the learned Judge has decided the matter in the proper perspective. It was submitted by the learned advocate for the husband that the wife used to carry Saudi Riyals, US$ and gold out of the husband’s money from Saudi Arabia, which she used to convert in Indian rupees in two trips from Saudi Arablia per year and she : 23 : FCA-38-06-Judgment.doc used to carry 2000 to 3000 US$ per trip. She submitted that wife used to borrow money from husband’s friends, which husband used to pay in Saudi Arabia. Learned advocate for the husband submitted that letter at Exh.159 sent by the husband to the wife, letters written by the wife to the husband dated 1st December, 1985 (Exh.209), 1st April,l 1986 (Exh.251), 1st December, 1997 (Exh.255), 12th November, 1987 (Exh.161), 23rd March, 1988 (Exh.89), 20th November, 1985 (Exh.74) and undated letter (Exh.78) do support the stand of the husband that the wife had the benefit of monies, which the husband earned in Saudi Arabia.

31. Learned advocate appearing for the husband has submitted that the savings of the husband were to the tune of Rs.9,74,248/- and that the husband was receiving a sum of Rs.11,000/- at the time of filing his written statement. According to the husband, the said capital has come down and, therefore, the income of the husband was @ Rs.9,000/- per month. Learned Advocate Ms. Karnik submitted that the wife is earning amount which is sufficient to maintain herself and that there is no need to pass an order directing the husband to pay her maintenance. Learned advocate for the husband, submitted that at the stage of recording of evidence, it was the stand of the wife that the husband is getting Rs. : 24 : FCA-38-06-Judgment.doc

1,50,000/- per month. She submitted that the wife has placed reliance on Exh.102, 103 and 104 to support this stand. According to learned advocate for the husband, these documents by themselves do not prove that the husband is earning a sum of Rs.1,50,000/- per month. It was sought to be submitted that it was necessary for the learned Judge of the Family Court to consider financial status of the husband at or about time when the decree was to be passed. She further submitted that the learned Judge of the Family Court has considered the earning capacity of wife as well as husband and has rightly rejected the prayer of wife for maintenance.

32. So far as the grievance made by the wife in the appeal memo as regards the maturity proceeds of NRI bonds, the learned advocate for the husband pointed out that the question as regards the NRI bonds was not referred to in the petition and the petition is silent about the necessary averments as regards the said NRI bonds. Learned advocate for the husband submitted that the learned Judge of the Family Court, therefore, had not framed issue as regards the NRI bonds. However, the learned Judge discussed about the said NRI bonds in paragraphs 19 to 27. She drew our attention to the said paragraphs and submitted that if the : 25 : FCA-38-06-Judgment.doc

learned Judge had not framed the issue as regards the said NRI bonds, it was not open for the learned Judge to consider and discuss the claim of the wife so far as the said NRI bonds. She pointed out that the learned Judge has not passed any order in so far as the said NRI bonds or the maturity proceeds. According to her, it is not open for the wife to raise the ground in the appeal memo so far as the NRI bonds are concerned and that this Court should reject the submission of wife on the question of NRI Bonds.

33. Learned advocate for the husband submitted that the learned Judge of the Family Court was wrong in imposing costs upon the husband and to that extent, the impugned order is required to be set aside.

34. Learned advocate Ms. Karnik appearing on behalf of the husband submitted that the learned Judge of the Family Court was right in deciding issue no.4 concerning said flat. She submitted that when the learned Judge delivered the impugned judgment dated 30th September, 2005, the suit filed by the husband in High Court being Suit No.2065 of 1995 was pending in the High Court. She pointed out that on the basis of order dated 16th July, 2008 passed in this Family Court Appeal No.38 of 2006 : 26 : FCA-38-06-Judgment.doc

the said Suit was ordered to be transferred to Family Court, Bandra, Mumbai and that it was numbered as B-153 of 2008. She submitted that in the said petition, the husband had claimed declaration that wife has no right in the said flat. She also pointed out that the husband had sought mandatory orders against the wife so as to restrain her from residing / using the said flat. She submitted that since the said suit was pending on the day when the impugned judgment dated 30th September, 2005 came to be delivered, the learned Judge of the Family Court could not pass any order in terms of prayer clause (d) of petition and that is how the view taken by the learned Judge of the Family Court in paragraph no.14 of the impugned judgment is correct and no interference is required. She further submitted that the question as to who is the owner of the said flat and what are the rights of the respective parties is to be decided by this Court in Family Court Appeal No.131 of 2009 and Family Court Appeal No.148 of 2009. She, therefore, submitted that no orders be passed in this appeal concerning the said flat.

35. Learned Advocate Ms. Karnik appearing for husband had therefore submitted that wife’s appeal be dismissed with costs. : 27 : FCA-38-06-Judgment.doc

36. On the basis of the aforesaid submissions, following points do arise for our determination :-

1) Whether the wife is entitled to the custody of the two daughters ? 2) Whether the two daughters are entitled to monthly maintenance ? 3) Whether the husband should be asked to make adequate provisions for the daughters for their marriage expenses ?

4) Whether the wife is entitled to maintenance as prayed for ? 5) Whether the wife is entitled to receive monies concerning NRI Bonds?

6) Whether the decree of divorce passed pursuant to impugned judgment requires interference ?

7) Whether the wife is entitled to reliefs in terms of prayer clause (d) of the petition concerning Flat No.A-702, Milton Apartments, Juhu Koliwada, Santacruz (West), Mumbai – 400 049 ?

Our answers to the aforesaid points are as under :

1) Does not survive.

2) Does not survive.

3) As per clarification made in paragraph 42.

: 28 : FCA-38-06-Judgment.doc 4) In the negative.

5) Claim of wife concerning NRI bonds cannot be considered in this appeal.

6) In the negative.

7) In the negative.

37. So far as the custody of the two daughters are concerned, it is to be noted that daughter Sonia was born on 9th December, 1976 and she attained the age of majority on 9th December, 1994. It is noticed that daughter Shahzia was born on 5th October, 1980 and she attained the age of majority on 5th October, 1998. The learned Judge of the Family Court has in paragraph 16 observed as follows:-

“Undisputedly the elder daughter Sonia was born on 9th December, 1976 while the younger Shahzia on 5th October, 1980. Both of them have accordingly attained majority respectively in 1994 and 1998. They do not remain minor any longer. They themselves can choose with whom they should reside and therefore the question regarding the finding as to their custody does not survive”.

38. Looking to the relevant dates and aforesaid observation made at paragraph 16, we are inclined to observe that this Court now need not : 29 : FCA-38-06-Judgment.doc accept the stand of the wife that she is entitled to the custody as the daughters as they have attained the age of majority. Surely, the daughters would be free to take their own decision as to where and with whom they want to stay and, therefore, we are inclined to accept the finding of the learned Judge as regards the custody of the two daughters. Accordingly, point no.1 does not survive.

39. So far as the question of monthly maintenance of the daughters is concerned, the learned Judge of the Family Court has in paragraph 17 relied upon the written notes of argument at Exh.468 dated 2nd September, 2005 submitted by the wife. The contents of the said paragraph is as follow.

“The petitioner herself in her written notes of arguments at Exh. 468 contended that Issue No.5 with respect to the maintenance of two daughters does not survive since both of them have attained adulthood respectively being 27 and 24 years old. In view of this fact, issue of maintenance of the daughters does not survive for consideration”.

40. A reading of the aforesaid observation, it is clear that the wife gave up her claim for maintenance for two daughters. The learned Judge of the Family Court accepted the said submission and did not grant maintenance : 30 : FCA-38-06-Judgment.doc

to the two daughters. It is to be noted that the petition was filed in 1992. At that time both the daughters were minor. The wife on 21st December, 1998 at Exhibit 430 filed an application for lumpsum maintenance under Section 25 of the HMA thereby giving up her prayer for monthly maintenance. After having considered the relevant factual developments and stand of the wife few days prior to delivery of impugned judgment the learned Judge rightly held in paragraph 17 of the impugned judgment that issue of maintenance to the daughters does not survive for consideration.

41. It is pertinent to note that the impugned judgment came to be delivered in September, 2005. After this judgment, the daughters have not claimed any maintenance from their father. All this will clearly go to show that the two daughters are not interested in seeking any maintenance from the father. Consequently, the finding recorded by the learned Judge of the Family Court about maintenance for daughters need not be disturbed. We accordingly hold that point No.2 does not survive for determination.

42. So far as the question of marriage expenses of the two daughters, on the basis of developments, which have taken place uptill now, we do not : 31 : FCA-38-06-Judgment.doc

wish to express any view. In the present case, the oral evidence came to be recorded in the year 1996. Even though the wife had given up the claim for maintenance including marriage expenses for daughters during the trial, if that relief were to be pursued by the daughters, the same can be considered on its own merits as and when occasion arises. Be that as it may in the appeal memo, as filed in the year 2006, except making grievance that the learned Judge has not provided for marriage expenses of the two daughters, there is no material placed before the Court to arrive at some inference as to how much amount of money would be required for the marriage expenses. As aforesaid, we leave said question open. Hence, point No.3 is answered subject to above clarification.

43. We have considered the question as regards grant of permanent maintenance to the wife. At the time of filing of the petition, the wife had prayed for permanent maintenance @ Rs.10,000/- per month. It is pertinent to note that parties went for trial and recording of the evidence of the wife commenced in April, 1996. The wife examined herself as also examined 3 witnesses namely (i) Abdul Satar Ali Hasan, PW-2 (ii) Mrs. Alka Jain, PW-3 (iii) Dr. Nagpal PW-4. We have gone through the evidence of the aforesaid three witnesses. These witnesses have not given : 32 : FCA-38-06-Judgment.doc

evidence on the point of financial status of the wife or the husband. The evidence of wife PW-1 throws light on her financial position. The husband had examined himself as DW-1. He has also examined (i) Mr. Hansal D’Souza, office bearer of the Society Milton Apartment, DW-2. (ii) Mr. Gajendra J. Arora, resident of the said Society as DW-3. (iii) Mr. Pandurang Chavan, District Marriage Officer as DW-4 and (iv) Mr. Sudhakar M. Mohite, an Officer from the office of Deputy Registrar, Co-operative Society as DW-5. These witnesses do not speak of anything concerning the financial status of the either of the parties. Hence, evidence of wife and husband is required to be considered. The wife has in paragraph no.29 of her examination-in-chief stated that in the year 1983-87, she was earning a salary of Rs.5,000/-. She has further stated that she was getting a sum of Rs. 3,000/- per month by selling the imported items. In the course of cross-examination, she has stated that she was maintaining herself and her younger daughter Shahzia with Rs.3,500/-, which were paid by the husband. She states that upto January, 1996, her other daughter Sonia was maintained by the husband and thereafter he stopped maintaining her and she started looking after the said daughter. The wife has stated in her evidence in the cross-examination that the husband was getting a sum of Rs.1,50,000/- from his capital investment and has placed reliance on : 33 : FCA-38-06-Judgment.doc documents at Exh.102, 103 and 104. This would mean that in the year 1996 or thereabout when the matter was before the Court at the stage of recording of evidence, the wife was receiving a sum of Rs.3,500/- for her maintenance as per orders of Court. It is to be noted that on 21st December, 1998, the wife had filed an application at Exh.430 for lumpsum maintenance under Section 25 of HMA. On account of this, the learned Judge was required to decide the quantum of permanent maintenance on lumpsum basis to be paid by the husband to the wife. It is true that in the impugned judgment at para 29, the learned Judge of the Family Court has discussed the question of issue of interim maintenance. However, it is required to be mentioned that in the absence of specific issue framed in that behalf, the said discussion will have no bearing while we are on the question as to what would be the quantum of permanent maintenance on lumpsum basis.

44. The learned Judge of the Family Court has observed in paragraph 33 that the wife was reinstated in service w.e.f. 1st March, 1999 and she was paid back wages for the period from 24th July, 1985 to 1st March, 1999 and that she received an amount of Rs.11 lakhs as back wages and her monthly salary was started. The learned Judge of the Family Court in paragraph : 34 : FCA-38-06-Judgment.doc 38 has observed that the respondent i.e. husband has produced on record, salary slips of the petitioner and the letters received from Saudi Arabian Airlines. He has further observed that this documentary evidence shows that the wife in 2005 was getting a salary from Rs.45,000/- per month. It is to be noted that in the Civil Application No.28 of 2007 filed in this appeal, the husband has produced a letter dated 9th September, 2005 issued by Saudi Arabian Airlines addressed to the husband. This letter is written by Saudi Arabian Airlines in response to husband’s letter dated 6th September, 2005. In the said letter, it is stated that Ms. Mudbhatkal is continuing to be our employee and her gross salary is INR 45,799/-. The learned Judge of the Family Court has referred to above documents while arriving at the observation regarding wife’s monthly salary as stated above. It is required to be mentioned that the wife has not disputed the finding of the learned Judge of the Family Court set out in paragraph 33 as regards the reinstatement of the wife from 1st March, 1999 and she received a sum of Rs.11 lakhs as back wages. Similarly, the wife has not disputed the finding recorded by the learned Judge in paragraph 38 that the wife is earning a sum of Rs. 45,000/- per month in the year 2005. In the face of the aforesaid findings, we are inclined to observe that in the year 2005, when the learned Judge was required to decide the quantum of permanent : 35 : FCA-38-06-Judgment.doc

maintenance, the wife was earning a sum of Rs.45,000/- per month and she had received a sum of Rs.11 lakhs as and by way of back wages.

45. The learned Judge of the Family Court has referred to the submissions made by the advocate for the husband that the monthly income of the husband in the year 2005 was in the vicinity of Rs.9,000/- per month. The wife has also not disputed this observation. The wife has failed to prove that the husband is earning a sum of Rs.1,50,000/- per month. The contention of the wife that documents at Exh.102, 103, 104 do show that the husband was earning Rs.1,50,000/- per month as returns on investment cannot be accepted. Said documents pertain to the period prior to the filing of the petition by wife. Since the wife had in December, 1998 prayed for permanent lumpsum maintenance, the learned Judge was required to decide the financial position of the husband at or about the time when he was considering the claim. It is pertinent to note that the evidence on record is upto the year 1996. Thereafter, no additional evidence has been placed before the Court and the aforesaid figures quoted from both the sides came to be considered by the learned Judge of the Family Court and an order rejecting the prayer for maintenance was passed. Since, the wife has not disputed the two facts (i) about receipt of : 36 : FCA-38-06-Judgment.doc

arrears to the tune of Rs. 11 lakhs and (ii) her monthly income in the year 2005 was Rs.45,000/-, we are inclined to observe that at or about time when the learned Judge was required to decide the quantum of maintenance, the wife had sufficient income to maintain herself. In addition to her income from salary at Rs.45,000/- per month the returns on Rs.11,00,000/- can be used by her to maintain herself. The wife is now not required to maintain the two daughters.

46. It is to be noted that when the impugned judgment was delivered the two daughters were not dependent upon wife. Hence, the monthly salary of Rs.45,000/- earned by wife would be sufficient to maintain herself.

47. It was argued on behalf of the husband that the wife is earning Rs. 1,5,000/- to Rs.20,000/- from the cable Network business. Similarly, it was argued on behalf of the husband that the wife is earning Rs.20,000/- from motel business in United States of America. After having gone through the evidence on the aforesaid two points, we hold that the husband has failed to furnish evidence in support of the aforesaid heads of income. Hence, the said contentions are accordingly rejected.

: 37 : FCA-38-06-Judgment.doc

48. It has been the contention of the husband that the income at or about the time when the judgment was to be delivered was in the vicinity of Rs.9,000/- per month. The wife has not been able to place before the Court any material to show that at the relevant time his monthly income was more than Rs.9,000/-.

49. It was sought to be argued on behalf of the wife that as the husband was qualified medical practitioner, Court should treat that he is earning by practising as medical practitioner. Insofar as this aspect is concerned, the wife has not been able to place before the Court any material to show that after the husband returned to India in 1992, he has been earning any amount by practising as medical practitioner. The Court cannot presume that the husband is earning as medical practitioner.

50. We are inclined to accept the stand of the husband that his monthly income is about Rs.9000/- per month and that he is not earning any amount by practising as medical practitioner. On a comparative study of income of wife as well as husband, we are of the view that the wife’s earning per month at Rs.45,000/- would be sufficient to maintain herself. : 38 : FCA-38-06-Judgment.doc

In view of the aforesaid discussion, we do not wish to interfere in the findings given by the learned Judge on the question of maintenance claimed by the wife. Accordingly, point No.4 is answered in the negative.

51. In the appeal memo, the wife has made a grievance about the order passed by the learned Judge on the question of payments received by the husband from NRI bonds. Since the petition was silent on the question of NRI bonds there was no question of the husband giving his reply concerning said NRI bonds in the written statement. On the basis of the pleadings before the Court, the learned Judge rightly did not frame an issue as regards the NRI bonds. Despite that the parties lead evidence and that the learned Judge has discussed the said evidence and made observations in the paragraphs 20 to 28 and rejected the stand of the wife as regards the NRI bonds. We have gone through the paragraph nos. 20 to 28 of the impugned judgment. It is noticed that the State Bank of India made payment to the husband on the maturity of the said bonds. If at all, the wife had any grievance about the said payment, it was necessary for her to institute appropriate proceedings against the State Bank of India as a maturity claim was accepted by the State Bank of India in favour of the husband and had made payment to the husband. In our view, it is not : 39 : FCA-38-06-Judgment.doc necessary for us to go into the points raised by wife concerning NRI Bonds as the question was not agitated in the divorce petition. At this juncture, we do not wish to express our view on the stand taken by the wife as regards the NRI bonds, as it was not a fact in issue before the learned Judge of the Family Court. Accordingly, point No.5 is answered to hold that claim of wife concerning NRI Bonds cannot be considered in this appeal.

52. On the question of grant of divorce, the learned Judge of the Family Court had framed issue no.2 as regards the allegations of cruelty meted out by the husband to the wife. Issue no.3 was framed as regards the allegations of desertion by the husband qua the wife. It is noticed that on 3rd September, 2005, the husband filed a purshis at Exh.469. The text of which is as follows :-

“The respondent has already pronounced Talakh. The respondent also wants divorce. In view of this, both parties, as a matter of fact, want divorce.

The respondent is not accepting or admitting any allegations of the petitioner and hereby gives his consent for divorce. This Hon’ble Court may pass decree of divorce by : 40 : FCA-38-06-Judgment.doc

consent without considering the allegations made by the parties against the other”.

53. The wife has not challenged the decree for divorce. She has however suggested that she had not consented for seeking divorce by mutual consent. On perusal of the impugned judgment, it is noticed that the learned Judge was satisfied that the husband had subjected the wife to cruelty and that is how the learned Judge was convinced that the marriage between the wife and the husband should be dissolved by a decree of divorce. The learned Judge has has therefore passed a decree of divorce. In our view, even though the impugned Judgment is not happily worded, there is no need for us to interfere in the said finding and the decree of divorce passed by the learned Judge in terms of the impugned Judgment under Section 13(ia) and (ib) of the Hindu Marriage Act is required to be confirmed. Accordingly, point No.6 is answered in the negative.

54. The wife had sought injunction in terms of prayer clause (d) of the petition qua the said flat. It is required to be mentioned that at or about the time when the learned Judge of the Family Court was deciding the petition filed by the wife for divorce including the prayer for injunction in : 41 : FCA-38-06-Judgment.doc terms of prayer clause (d) Suit No.2065 of 1995 filed by husband was pending in this Court. In the said suit, the question of ownership of the said flat was involved. Similarly, in the said Suit, other diverse prayers made by the husband were required to be considered by this Court. As a result of the pendency of the Suit No.2065 of 1995 the learned Judge of the Family Court could not have passed order in terms of prayer clause (d). The learned Judge of the Family Court while deciding the matrimonial petition, where prayer clause (d) was made came to the conclusion that both the parties were occupying the said flat and that they should continue to do so. In our view, the learned Judge of the Family Court took a correct view of the matter and rightly did not pass an order in terms of prayer clause (d). In view of the aforesaid observations, point No.7 is answered in the negative.

55. As regards question of costs, we are inclined to observe that the learned Judge of the Family Court has rightly ordered the husband to pay to wife costs of Rs.10,000/-. In our view, the learned Judge has given proper reasons in paragraph 13 of the impugned judgment to grant the costs of Rs.10,000/- to the wife. We do not wish to interfere in the said order.

: 42 : FCA-38-06-Judgment.doc

56. For the reasons mentioned aforesaid, we are inclined to dismiss the appeal by passing following order.

ORDER

(i) The appeal is dismissed.

(ii) Order dated 30th September, 2005 passed by the learned Judge of the Family Court in Petition No. A-1945 of 1992 as regards costs is confirmed.

CIVIL APPLICATION NO. 281 OF 2007

IN

FAMIL COURT APPEAL NO. 38 OF 2006

By the aforesaid Civil Application, the Respondent husband has sought following reliefs.

“(a) Pass an order that the respondent may pay Rs.10,000/- per month to the applicant before 10th of every month from the day the order is passed or from 30th September, 2005 when the Family Court granted Divorce to the respondent in Petition No.A-1945 of 1992.

(b) Pay electricity bill excess of Rs.1,000/- till she occupies the Flat No.A-702, Milton Apartment, Juhu Koliwada, Santacruz (W), Mumbai 400 049.

(c) Cost of this application of Rs.5,000/-

: 43 : FCA-38-06-Judgment.doc

(d) Any other reliefs this Hon’ble Court deems fit under the circumstances described hereinabove”.

Now that the Family Court Appeal No.38 of 2006 has been decided, there is no need to go into the points raised by the Respondent husband in this civil application. Accordingly, civil application stands disposed of with liberty to the Respondent husband to pursue his remedy by way of appropriate proceedings. All questions in that behalf are left open. CIVIL APPLICATION NO. 141 OF 2008

IN

FAMILY COURT APPEAL NO. 38 OF 2006

By this Civil Application, the Appellant wife has prayed for following reliefs:

“(i) Provisions envasaged as above pertaining to prosecution for offence against public Justice and those relating to documents given in evidence, be proceeded against the respondent.

(ii) Strike off the pleadings and defense of the defendants / original plaintiff in this Hon’ble Court.

(iii) Take suo moto action against the Respondent as deemed fit by this Hon’ble Court.

: 44 : FCA-38-06-Judgment.doc (iv) For any other punitive action in the facts and circumstances of the case deemed fit by this Hon’ble Court”. In so far as this application is concerned, both the sides did not advance any submissions. As regards reliefs in terms of prayer clause (i), (iii) and (iv), we do not we wish to express any opinion thereon with liberty to the Applicant wife to pursue the said reliefs by way of appropriate proceedings if so advised. All questions in that behalf are left open. So far as relief in terms of prayer clause (ii), we hold that as the First Appeals are decided, this prayer does not survive for consideration. CONTEMPT PETITION NO. 424 OF 2007

IN

FAMILY COURT APPEAL NO.38 OF 2006

By this petition, the Respondent husband has sought reliefs against the wife alleging therein that the wife has committed contempt of order dated 11th December, 2006 passed by this Court in Family Court Appeal No.38 of 2006.

We deem it appropriate to delink this petition from Family Court Appeals to be proceeded before the appropriate bench as per its turn. : 45 : FCA-38-06-Judgment.doc CIVIL APPLICATION NO. 31 OF 2006

IN

FAMILY COURT APPEAL NO. 38 OF 2006

This civil application is filed by the Appellant wife praying that Family Court Appeal No.38 of 2006 be heard along with Appeal No.3 of 2000. Appeal No.3 of 2000 has been disposed of by this Court by order dated 23rd December, 2009. As such, this civil application does not survive and disposed of accordingly.

CIVIL APPLICATION NO. 55 OF 2006

IN

FAMILY COURT APPEAL NO. 38 OF 2006

This civil application is filed by the Respodent husband so as to seek maintenance from the wife w.e.f. February, 2000 when the Family Court Appeal No.3 of 2000 was admitted. He has also prayed for litigation expenses. He has also prayed for an order against the wife asking her to take financial responsibility of daughter Shahzia.

This civil application is disposed of as the main appeal is already disposed of with liberty to the husband to pursue his remedy of maintenance by way of appropriate proceedings. All questions in that behalf are left open.

: 46 : FCA-38-06-Judgment.doc

CIVIL APPLICATION NO. 138 OF 2007

IN

CIVIL APPLICATION NO. 66 OF 2006

IN

FAMILY COURT APPEAL NO. 38 OF 2006

This civil application is filed by the Respondent husband seeking orders to seek police protection and other reliefs. As the main appeal is disposed of the civil application does not survive and is disposed of accordingly. It is, however, made clear that we are not expressing any final opinion on the merits of the relief claimed in this application. If and when occasion arises, it will be open to the husband to pursue this relief by way of appropriate proceedings.

CIVIL APPLICATION NO. 28 OF 2006

IN

FAMILY COURT APPEAL NO. 38 OF 2006

By this civil application, the Appellant wife has sought reliefs against the husband as follows :

“(a) Pending the hearing and final disposal of this Application and Appeal, Records and Proceedings of Petition No.A-1945 of 1992 in the Family Court No.2, Mumbai, be called for; (b) Pending the hearing and final disposal of this Application : 47 : FCA-38-06-Judgment.doc

and Appeal, the impugned order and Judgment dated September, 30, 2005 passed by Ld. Judge, Family Court at Bandra, Mumbai Mr. A.S. Shivankar, be stayed.

(c) Pending the hearing and final disposal of this Application and Appeal, direct the Respondent to deposit a sum of Rs. 13,23,820/- (Rupees Thirteen Lakhs Twenty-Three Thousand Eight Hundred and Twenty only) with the Registrar, Bombay High Court, being 50% of the SBI Bonds (Principle plus interest) which he had withdrawn through deception on or around March, 15, 1996.

(d) Pending the hearing and final disposal of this Application and Appeal, injunct the Respondent from enteringinto the flat No.A-702 Milton Apartments, Juhu Koliwada, Santacruz (W), Bombay 400 049 and harassing / disturbing the Applicant and her young daughter who are in sole possession and occupation thereof and residing there.

(e) Pending the hearing and final disposal of this Application and Appeal, the Respondent may be directed to continue to pay Rs.2,000/- p.m. being maintenance pendente lite granted to the Applicant by the Trial Court, as also set out in the Hon’ble High Court’s order dated 15.09.1998 and the accrued amount of Rs. 1,56,000/- (from 01.8.1999 to 31.1.2006) be also remitted forthwith to her.

(f) Pending the hearing and final disposal of this Application and Appeal, the said amount of maintenance pendente lite to the Applicant be increased to Rs.5,000/- per month or Rs.10,000/- : 48 : FCA-38-06-Judgment.doc

per month, as the case may be, and paid to her on or before the 7th day of each month by depositing it in the Trial Court. (g) the Respondent / father be directed to provide for all the educational, medical etc. expenses of his younger daughter. (h) the Respondent-father be directed to make sufficient provisions of at least Rs.20 lakhs each for the two daughters, Sonia and Shahzia, for their marriage expenses and the same be deposited with the Registrar of this Hon’ble Court.

(i) the relief sought in her Petition No.A-1945 of 1992, be granted.

(j) urgent ad-interim and interim reliefs sought in terms of prayer (b), (c), (d), (e) and (f) as above.

(k) for costs of this application.

(l) for any other and further reliefs as this Hon’ble Court may deem fit, judicious, equitable and just”.

Since, the Family Court Appeal No.38 of 2006 is disposed of, this application does not survive and is disposed of accordingly. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)

with so many woman cheating men daily, this is bound to be old news ! ; A 26-year-old BE woman graduate cheated around 15 graduates by promising them well-paid jobs in a software company

Tamil Nadu | Updated Aug 15, 2012 at 11:54am IST

Woman dupes graduates

A 26-year-old BE woman graduate who cheated around 15 graduates by promising them well-paid jobs in a software company in Chennai has been arrested here on Saturday.

The accused, M Hemlatha, posing herself as an HR consultant collected Rs 1.35 lakh from the aspirants and even signed agreements to gain their trust. She was arrested,  based on a complaint from  D Francis, one of the victims of Rathinapuri who booked a job for Rs 1.85 lakh and had been waiting  for the past one year.

According to the police, Hemlatha who had been running the office at Sundarapuram for the last one year was not able to secure a single person during this period.

“She published advertisements on  internet offering  well-paid jobs in a popular IT company in Chennai. She even forged documents on the letterheads of the companies to make it look authentic,” said Inspector S Mariamuthu.

Hemalatha closed down the office and became elusive after the complainants,  when she was being questioned.  “She operated the consultancy along with her college senior who stays in  Arakkonam.” added Inspector S Mariamuthu.

source

http://ibnlive.in.com/news/woman-dupes-graduates/281867-60-118.html