abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 38 OF 2004 Iqbal D. Mulla .. Appellant V/s Zaibunnisa Iqbal Mulla .. Respondent Mr.Ditendra Mishra for the appellant. Mr.P.R. Salvi for the respondent. CORAM : B.H. MARLAPALLE & D.G. KARNIK, JJ. DATE : 12TH FEBRUARY 2009 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: (Per B.H. Marlapalle, J.) 1. This appeal filed under section 19 of the Family Courts Act, 1984 arises from the judgment and order of permanent injunction passed by the Family Court on 26th September 2003 in Petition No.B-75 of 2000 filed by the present respondent and the said decree has not been stayed at any time by this Court. 2. The respondent is originally a Hindu and her - 2 - name was Shanta d/o Dattatraya Toraskar. She was married to Shri Pandurang Shivram Tambe and begot two sons from the said wedlock. Pandurang died in 1981 when the respondent was of the age of 38 years. The appellant was staying in the neighbourhood of the respondent and they fell in love with each other after the respondent lost her husband. It appears their love relationship which started in 1982 onwards ultimately culminated in a marriage on 19th March 1987, on the conversion of the respondent to Islam and she became Zaibunnisa. The couple lived together for about 9 years, but in the month of February 1996 the respondent came to know that the appellant had fallen for another woman by name Mumtaz @ Munni. She alleged that he was staying with Mumtaz in Flat No.Z-1-5, Flyover Co-operative Housing Society Ltd., Mulund Link Road, Goregaon (East) Mumbai-400 063. She further alleged that the appellant married Mumtaz @ Munni and the respondent was driven out of the house by the appellant. She was in possession of Room No.1/1, Namwar Singh Compound, S.V. Road, Opp. B.M.C., Jogeshwari (West) and also Gala No.1/6, M.P. Estate, Behind Agarwal Industrial Estate, Jogeshwari (West), Mumbai. As per her, these properties were taken over by the respondent from the money paid by her sometime in 1983 and she had given them on lease from 1984 onwards. Even after she was driven out by the appellant, she was collecting the - 3 - rent all alone and paying the taxes, electricity bill, etc. On or about 13th August 2000, the appellant brought 3/4 goondas and threatened her to vacate these premises. She filed N.C. complaint registered as N.C. No.3247 of 2000 on 13th August 2000 and finally approached the Family Court seeking permanent injunction against the appellant. 3. The appellant filed the written statement and opposed the petition filed by the wife. He however admitted the marriage with Mumtaz @ Munni and stated that he was not required to take consent for the second marriage as his religion permitted him to marry second time while the first marriage was subsisting. He stated that the respondent had left his house on her own and denied the allegations of ill-treatment or harassment. He also contended that she was free to come at any time and cohabit with him as his first wife. So far as the suit properties were concerned, he denied that the respondent had contributed any money for acquiring the same and he further stated that the suit properties were his ownership properties. 4. During the course of trial, the respondent brought on record all the documents, namely agreement of assignment, lease deed, tax receipts, electricity bills and rent receipts. She proved before the Family Court - 4 - that right from 1984 onwards, she had let out the suit properties and was collecting rent. She also proved that on 1st June 2000 and on 5th August 2000 she had signed leave and license agreement in respect of the suit premises. While the appellant was in the witness box, he stated that he will produced documents in support of his claim of ownership of the suit properties. The court had granted him sufficient time and he could not produce any document to show that he was the owner of the suit properties. On the contrary, the respondent proved her possession over the suit properties right from 1985. She also proved on the basis of the bank passbook photostat copies (S/B Account with State Bank of India, originally in the name of her first husband and herself and subsequently her husband’s name was deleted). We have perused the passbook copies and we are satisfied that between 8th May and 16th September 1983, she had withdrawn Rs.15,000/- and between 3rd and 25th January she had withdrawn Rs.8,000/- from the said account. The agreement of assignment of one of the suit premises, though standing in the name of the appellant, was signed on 4th June 1987. She also pointed out before the court that she had no other source of income except the lease rent amount that she was receiving in respect of the suit premises. The Family Court was satisfied that the present respondent was in possession of the suit - 5 - premises all along and, therefore, the respondent was successful in obtaining a decree of permanent injunction. 5. On hearing the learned counsel for the appellant as well as the respondent and on perusal of the record, we are satisfied that the reasoning set out by the Family Court in support of the impugned decree cannot be termed as erroneous or perverse and, therefore, challenge to the same by the appellant must fail. 6. Hence, the appeal is dismissed with costs. (D.G. KARNIK, J.) (B.H. MARLAPALLE, J.)