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IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
Banu wife of Kutubuddin Sulemanji Vimanwala another.... Plaintiffs.
Versus
Kutubuddin Sulemanji Vimanwala.... Defendant.
Suit No. 3049 of 1986, decided on 5-10-1994.
Advocates appeared :
Ms. Snehal Paranjape with D.M. Tawawalla i/b Federal Rashmikant, for the plaintiffs.
Y.M. Muchala with S.H. Karim Mrs. Manjula Rao and Saifee Raj i/b Manjula Rao Co., for the defendant.
See Limitation Act, 1963, Article 113
Section 125.
See Maharashtra Womens (Protection of Rights on Divorce) Act, 1986, Section 3 (1).
DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939.
Section 2- Dissolution of marriage.
Wife can claim maintenances so long she faithful and obeying husbands reasonable orders.
Section 29(3)-Applicability of.
The Counsel for the defendant contended that this sub-section (8) of Section 29 applies only to those matrimonial disputes which are filed under Special Acts like, Hindu Marriage Act, Indian Divorce Act, Parsi Marriage Act In my view, on the bare reading of the above provision it is not possible to accept the argument urged on behalf of the defendant. The above provision shows that the Limitation Act does not apply to any matrimonial dispute under law for the time being in force and does not refer to only statute law or special enactment. On a bare reading of section it applies to all matrimonial suits for the time being in force either under special enactment or under any personal law.
Article 113-Civil Procedure Code, 1908. Order 7, Role 6. Court-Empowered to grant a time barred amendment though it be slow to do so.
The amendment has to be allowed if the amendment makes out a new approach and not a new cause of action or an altogether different view. In the present case, the suit is essentially for a declaration that the marriage is still subsisting and for a declaration that the talaq before a Kazi of Bombay is not valid. In the plaint also there is a .reference that the second divorce before the Amil of Indore but no specific relief was asked for by stating that necessary particulars are not available. Therefore, both the parties know that what is the main case between them nemely, whether the marriage is still subsisting or whether it has been dissolved according to law. Hence it, cannot be said that by virtue of amendment a new cause of action or new case is made out. Even otherwise that question cannot be raised at a later stage when the amendment has been granted and the order has been confirmed by the appellate Court.
The proposed amendment does not make out a new case does not change the nature or character of the suit.
Now the question as to what is the effect of the amendment. The normal rule is that amendment always relates back to the date of suit.
MAHARASHTRA WOMENS (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986
Section 3 (1)-Criminal Procedure Code, 1973, Section 125-Scope.
What Section 3 (1) (a) provides is only a reasonable maintenance to be paid to a divorced wife by a husband for the period of iddat.
It is true that it is complete Code so far as the matters provided in that Act are concerned, the payment of Mehar, payment of maintenance and other matters which are specifically mentioned in the Act. It can not certainly apply to any other matter which is not mentioned or referred to in the Act. The Legislature did not codify the entire law of divorce or the rights of woman on divorce under this Act. The scope of the Act is very limited.
MUSLIM LAW
Divorce-Wifes presence and consent for not necessary-Husband can give talaq unilaterally.
Muslim woman-Divorce of-Gift or Mehar to.
Held, obligatory but not voluntary.
Necessity of reconciliation of divorce-For validity of divorce mediation not a condition precedent.
Validity of divorce-Husband can divorce with or without cause.
Wife-Claim for arrears of maintenance by-It is payable under Shiite and shafil law.
Wife-Purity of-Not can be insisted upon where she living separately for long time.
Limitation Act, 1963, Article 113-Husband-Talaq by takes immediate effect-Though limitation against wife start from date of her knowledge.
R.G. VAIDYANATHA, J.:---This is a suit filed by the plaintiff for a declaration and for certain other reliefs. The defendant has contested the suit by filing Written Statement. Issues have been framed. The evidence was recorded on commission. The plaintiff examined herself and closed her case. The defendant has examined himself and one witness and closed his case. I have heard lengthy arguments addressed on behalf of the plaintiffs and defendant.
2. The plaintiffs case is as follows :
The 1st plaintiff is the wife of the defendant. The 2nd plaintiff is the son of the 1st plaintiff and the defendant. The parties belong to Dawoodi Bohara Sect of Muslim Shiya Community. The marriage between the 1st plaintiff and the defendant was performed on 19th January, 1980 at Godhra. The second plaintiff was born on 13th November, 1981. Though in the beginning the matrimonial relationship of the 1st plaintiff with the defendant was cordial, it is alleged that subsequently strained feeling started between the parties. It is alleged that on 6-11-1982 the defendant quarrelled with the plaintiff and assaulted her and drove her out of the house. Since then both the plaintiffs are residing with the parents the 1st plaintiff and away from the defendant. It is also stated that the defendant took another wife by name Rashida and this marriage was performed on or about 12th May, 1983.
There is also some allegation and also a prayer regarding the alleged divorce given by defendant before a Kazi at Bombay. It is not necessary to refer to those allegations since that relief no longer survives for consideration since the defendant has given another divorce subsequently and the defendant is not now pressing the earlier divorce before the Kazi.
The defendant has also filed Misc. Petition No. 377 of 1983 in this Court for custody of the second plaintiff, but that petition came to be dismissed by this Court as per the order dated 17-2-1994.
The 1st plaintiff called upon the defendant to pay maintenance by issuing their Lawyers notice. The defendant sent a reply stating that he has divorced the 1st plaintiff before Amil Saheb at Indore. No relief was asked regarding the second divorce in the beginning on the ground that no particulars were furnished by the defendant regarding this second divorce.
It is asserted that the 1st plaintiff continued to be the lawfully wedded wife of the defendant. By amending the plaint, now plaintiff states that the alleged second divorce pleaded by the defendant said to have been given before the Amil Sahib is null and void and contrary to the law applicable to Dawoodi Bohora Sect. Hence it is asserted that the marriage between the parties still subsists.
The defendant is bound to maintain the plaintiffs according to his status and financial position. The defendants monthly income is about Rs. 12,000/-. He is doing a business, being a partner in number of firms. The 1st plaintiff is entitled to a separate residence and separate maintenance at the hands of the defendant. It is stated that Rs. 5,000/- per month be paid for the maintenance of both the plaintiffs.
It is also alleged that when the 1st plaintiff was driven out of house, her immoveable properties including jewellery are lying with the defendant which he is bound to return to the 1st plaintiff. The list of articles are mentioned in Exh. E attached to the plaint, that the plaintiff No. 1 has no separate source of income and she is dependant on the charity of her brother.
The first plaintiff has also asked for relief by amending the plaint by pleading that if the Court comes to the conclusion that the second divorce is valid then the plaintiff is entitled to Muta. It means gift on divorce. Having regard to the status of the defendant, the plaintiff states that she is entitled to a sum of Rs. 10,00,000/- as Muta from the defendant. There is also another amendment to the plaint praying for past maintenance from 6-11-1982.
On these allegations plaintiffs have filed this suit pra
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