1 WP.9910/2010 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 9910 OF 2010 Krishan Thanwardas Moorjani ...Petitioner Vs. Shelly Krishan Moorjani ...Respondent Mr. Vaibhav G. Bagade a/w. Mr. Vaibhav Karnik Advocates for the Petitioner Mr. V.M. Bhardwaj i/b. Mr. Harish M. Advani with Advani, Sachvani & Heena Advocates for Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 5TH JANUARY, 2011 P.C. : 1. The Petitioner husband has challenged the order of the III Family Court, Bandra, Mumbai dated 1 st October 2010 passed on his application for rejection of the petition of the Respondent wife filed in the Family Court on the ground of there being no cause of action disclosed in the Petition. 2. The Petition has been filed by the wife under Section 18 of the Hindu Adoption and Maintenance Act. The wife claims that she was constrained to leave her matrimonial home due to certain acts of mental cruelty. She, therefore, claims to be deserted by the husband. She claims that her husband failed and neglected to maintain her. She, therefore, went to her 2 WP.9910/2010 father’s house and claimed maintenance. 3. The parties were married on 18 th May 2008. The wife left the matrimonial home on 30 th July 2008. The Petition shows that their’s was an arranged marriage. The parties co-habited; the parties lived along with the father, mother and brother of the husband. The mother-in-law started harassing and torturing her and the husband told her to obey her commands. The wife has also given certain illustrations of the torture. She has stated that she was made to get up at 6 a.m have bath in cold water, prepare tea, breakfast, food and do other household work as a servant. Her mother-in-law stated that she was nothing better than a maid servant. She criticised her asked for dowry, told her not to talk with neighbours, relatives and even her parents. She was held prisoner in her matrimonial home. The couple was not allowed any privacy; even the bedroom door was directed to be kept open. When she complained to the husband he told that there was nothing wrong in what his mother did. Similar response was of his father and brother. They taunted her and told her that if she desired to “live like that”, her father should buy her a separate flat. They indirectly demanded gifts in cash and kind from the Petitioner’s father. After she disclosed that she was pregnant the husband pretended to solve the problem. He had the meeting in privacy with her. In such privacy he threatened her and pushed her. The push caused an impact on her belly 3 WP.9910/2010 portion. Due to the husband’s unwillingness to clarify how he intended to meet the needs and the welfare of the child she was caused to abort the pregnancy. Her husband recorded private telephonic discussion on certain CDs. She claims that the CDs remained distorted versions. Her husband demanded separate residence from the Petitioner’s parents. After narrating these facts of alleged mental cruelty and the reason for her leaving the matrimonial home the Petitioner averred that it was not possible for her to live with her husband and in-laws and there was danger to her life. She also lodged FIR under Section 498A which she narrated in the Petition. 4. Thereafter she averred about the income of the husband and his employment in M/s. Datamatics Technologies Ltd. She averred that he had no dependents; his father was retired Government servant drawing a pension having interest and other income. 5. Thereafter she narrated her own financial position. She claimed that she was a housewife. She was not employed for gain. Her only income was in the form of interest and dividend of approximately Rs.4000/- per month. She is dependent upon her father and brother. She showed her monthly expenses. She claimed maintenance of Rs.50,000/- p.m. 6. Thereafter she narrated the position in her paternal home. 4 WP.9910/2010 Aside from her parents she has an unmarried brother. She claimed that her living in that house would adversely effect his marriage prospects. 7. Thereafter she again averred about the complaint under Section 498A filed by her. 8. The cause of action in this Petition is the cause of mental cruelty resulting in desertion. The averments in the Petition show how she was neglected to be maintained by her husband. The averments also show her need, claim and entitlement to the amount of maintenance claimed by her. 9. The husband replied to this Petition. The husband filed an application for rejection of the Petition on the ground that it does not disclose a cause of action. The application is completely misconceived. A reading of the Petition shows the cause of action as aforesaid. The learned Judge has considered this aspect fully. 10.In his application for rejection of the Petition the husband set out various averments in the Petition and showed how particulars were not mentioned. He oft repeated that the “date, time and venue” of each of these allegations made in the Petition have not been mentioned. The learned Judge has correctly observed that the Petition being a pleading is a 5 WP.9910/2010 concise statement being statement of facts. It need not show the evidence. All the particulars desired by the husband would be in the realm of cross examination. No such particulars need be given in the Petition and prior to trial. 11.The Counsel of the husband claims that he detailed the difference in the wife’s FIR lodged by her, the criminal prosecution launched by her and the Petition filed by her. He also took me through several of those “differences”. Deciphering a cause of action does not require analysis of differences in two applications made by a party. That entire exercise is completely misconceived. It does not fall within the perview of Order VII Rule 11 of CPC at all. It falls within the perview of appreciation of evidence and cannot be looked into at the stage at which the application of the husband has been considered in the impugned order. 12.The husband relied upon various judgments. The learned Judge has considered how only after the husband showed that the Petition prima facie is false and vaxatious and does not disclose the cause of action that those judgments could be applied. The learned Judge is absolutely correct. A compilation of the judgments shown to this Court also make it absolutely clear that they are entirely misapplied and not applicable to the case. 6 WP.9910/2010 13.Though Counsel on behalf of the husband has argued essentially only upon the rejection of the plaint/petition under Order VII Rule 11 of the C.P.C, the application before the Family Court has been filed under other Sections also. The order was sought under Section 151, Order VI Rule 16 (a),(b) & (c) and Section 35A of the C.P.C. It would not be in the interest of justice to dismiss the Petition of the nature described above under Section 151. The pleadings also cannot be struck off because no averment in the Petition is shown to be unnecessary, scandalous, frivolous, vexatious prejudicial or such as to delay the trial of the suit or an abuse of the process of the Court. Similarly no compensatory costs can be granted because the application itself is frivolous and vexatious. The application is also made under Section 10 of the Family Court’s Act, which is misconceived. 14.The Counsel on behalf of the husband strangely drew my attention to paragraph 17 of the Family Court Act which requires specified details in a judgment of the Court to criticise the impugned order. Even that provision does not apply in this case. The learned Judge has not passed a judgment. The learned Judge has passed the impugned order. No structural requirements are statutorily set out for passing of any order by the Family Court in an application taken out pending the Petition and before a judgment can be delivered. 7 WP.9910/2010 15.The application of the husband is completely malafide and vexatious. Even that has been correctly appreciated by the learned Judge upon the case of the wife in reply to the application. It is indeed filed with the oblique motive of binding time to pay the interim maintenance for which an application has already been taken out by the wife. 16.The Writ Petition is completely misconceived and hence dismissed. (SMT. ROSHAN DALVI, J.)