: 1 : FCA-38-06-Judgment.doc USJ 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 : 2 : FCA-38-06-Judgment.doc 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 : 3 : FCA-38-06-Judgment.doc 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. : 4 : FCA-38-06-Judgment.doc 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 : 5 : FCA-38-06-Judgment.doc 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 : 6 : FCA-38-06-Judgment.doc 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 : 7 : FCA-38-06-Judgment.doc 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 : 8 : FCA-38-06-Judgment.doc 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 : 9 : FCA-38-06-Judgment.doc 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 : 10 : FCA-38-06-Judgment.doc 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 : 11 : FCA-38-06-Judgment.doc 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 : 12 : FCA-38-06-Judgment.doc 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 ? : 13 : FCA-38-06-Judgment.doc 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 : 14 : FCA-38-06-Judgment.doc 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 9th 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