Back
IN THE HIGH COURT OF BOMBAY
Madhavi Ramesh Dudani
VERSUS
Ramesh. K. Dudani
Decided no: NOVEMBER 27, 2005
Hindu Marriage Act, 1955 - Sections 2(1) and 5 - Hindu marriage - A Hindu male married to a Christian lady - Expiatory ceremony not necessary - A bona fide intention required to be converted into Hindu faith accompanied by consistent conduct thereafter - It is a marriage between two Hindus - Trial Court had jurisdiction. - Court cannot ignore that the priest would not have married a Christian lady to a Hindu person without performing the condition precedent. That apart, as held by the Apex Court, the expiatory or purification ceremony is as such not necessary. What is required is a bona fide intention to be converted into Hindu faith accompanied by consistent conduct thereafter. In the present case, both the things are clearly available. In the circumstances, Court have no hesitation in upturning the finding of the trial Court that this was not a marriage between two Hindus and that, therefore, it had no jurisdiction.
Hindu Marriage Act, 1955 - Sections 10 and 4 and Evidence Act, Section 114, Illustration (f) - Petition filed by wife for judicial separation - Petitioner wife was a Christian and respondent husband was a Hindu - The petitioner had been married by a Hindu Priest in temple as per Hindu rites knowing that she was a Christian - It cannot be said that necessary condition precedent of shudhikaran was not performed - Priest would not have married a Christian lady to a Hindu person without performing the condition precedent - Petitioner lived with respondent for more than 8 years in a Hindu family - She went all over India along with her husband and participated in pooja, havan and various religious ceremonies - Thus, she had been accepted in a Hindu family as a Hindu - Plea that because she had not converted to Hinduism and marriage was not between two Hindus, the Family Court has no jurisdiction to entertain wife’s petition is untenable - Petition by husband for declaration of nullity of marriage is liable to be dismissed. - AIR 1971 SC 2352, Rel. : 1988 Mh LJ (SC) 335 : AIR 1988 SC 644 Cri. App. No. 399 of 2005 dated 10.3.2005, Dist.
Hindu Marriage Act, 1955 - Sections 10 and 13 - Decree of divorce - Grant of - Cruelty and ill-treatment - Appellant/Ex-wife of wealthy industrialist - Have to be provided appropriate residence - Expectation of appellant - She should be provided with at least one bed room hall, kitchen apartment - Legitimate - As two major daughters also staying with her. - Considering however the fact that the relations between the parties are strained and the respondent had alleged an act of housebreaking and arson by burning some of the papers, it will not be desirable that the parties or their relatives continue to live under the same roof. However, the Appellant will have to be provided with appropriate residence befitting her status as the ex-wife of a wealthy industrialist. That cannot be wished away. That was also clear to the Respondent when he agreed in 1991 and signed the MOU to provide an apartment. In view, the expectation of the Appellant that she should be provided with at least one bedroom hall kitchen apartment is legitimate, particularly when the two major daughters are also staying with her.
Hindu Marriage Act, 1955 - Sections 10 and 13(1)(ia) - Petition by wife for judicial separation - Both parties had treated each other wife such a conduct that it would be considered by the other as acts of cruelty - The marriage between parties was irretrievably broken down - Therefore, though prayer was for judicial separation, decree for divorce on the ground of cruelty granted.
Hindu Marriage Act, 1955 - Section 25 - Divorce petition - Claim by wife for an appropriate house and also for maintenance - Petition wife lived with respondent-husband for over 8 years and lived with him as a wife of a wealthy industrialist - The fact that respondent-husband contributed to the purchase of a small flat by her mother cannot be used to deny her claim for house - Appellant will have to be provided with appropriate residence befitting her status as the ex-wife of a wealthy industrialist - It will be legitimate for her to expect that she be provided with flat - It would be just and appropriate that amount of Rs. 10,00,000/is provided for each of daughters as maintenance.
Hindu Marriage Act, 1955 - Section 25 - Permanent alimony - Grant of - Decree of divorce - Cruelty - Court empowered that such payment may be secured by a charge on immovable property of respondent - Phrase "other circumstances of case" used in Section 25 of Act quite elastic - While passing an order under Section 25 of Act, necessary provision can be appropriately made. - Considering the fact that the Appellant has been looking after these two daughters and she will be continuing to look after them hereafter until they get married. In view, that is a "circumstance" which has got to be considered when one decides the permanent alimony to be paid to the Appellant wife. Section 25 of the Hindu Marriage Act provides that a Court exercising jurisdiction under the Act at the time of passing of the decree may direct the Respondent to pay the Applicant for her maintenance and support such gross sum or such monthly or periodical sum, having regard to the Respondent’s own income and other property if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just. The Court is empowered that such payment may be secured by a charge on the immovable property of the Respondent. In the circumstances of the case, we have to note that the Appellant is looking after the two daughters. They have completed their education. They have become graduates in engineering and management respectively. They intend to further prosecute their studies and then get married. They do not have any income of their own. The Appellant is undoubtedly spending for their education and will spend on their marriage. It will not be proper to drive the daughters to file an application under the Hindu Adoptions and Maintenance Act, 1956. In view, the phrase "other circumstances of the case" appearing in Section 25 of the Hindu Marriage Act is quite elastic and while passing an order under that section, the necessary provision can be appropriately made if t he circumstances so justify.
Hindu Marriage Act, 1955 - Sections 25 and 26 - Petition by wife for custody of her daughters - Both daughters had become major and they were living with her - They had indicated that they intend to continue with her - She had brought them up after she started living separately from respondent-husband - The daughters had been meeting respondent from time to time and had attended to him when he was not well - Court therefore allowed this to continue.
H. L. GOKHALE, J.
( 1 ) THIS Appeal by a wife seeks to challenge the common judgment and order dated 29th June 2004 passed by a Judge of the Family Court at mumbai. The Appellant wife had filed Petition No. A-1822 of 1992 on 23rd November 1992 in the Family Court seeking judicial separation under section 10 of the Hindu marriage Act, 1955 on the ground of cruelty and ill-treatment. The Respondent husband had filed Matrimonial Suit No. B-96 of 1992 on 23rd December 1992 seeking a declaration that the purported marriage between the Appellant and the Respondent performed on 19th January 1983 be declared null and void since the Appellant was not a Hindu prior to her marriage and that she had not been converted to Hinduism any time prior to the marriage. The learned judge of the Family Court had accepted this submission of the Respondent that the Appellant had not been converted to Hinduism prior to the marriage and, therefore, the marriage between a Hindu and a non Hindu could not be said to be a valid marriage under section 5 of the Hindu Marriage act, 1955. The learned Judge, therefore, held that he had no jurisdiction to try and entertain the petition filed by the Appellant wife for judicial separation or the one filed by the Respondent husband seeking a declaration of nullity of the marriage, since neither of the petitions could be said to be maintainable under the provisions of the hindu Marriage Act. He, therefore, dismissed both the petitions by the said order which is under challenge.
( 2 ) THE Respondent herein is an industrialist and a businessman of some standing. He is stated to be an engineer and used to run a company by name Technical Products Corporation which manufactured small engineering equipments such as screws, nuts and bolts. He had a factory in MIDC, andheri, Mumbai. He had divorced his earlier wife one Sugandha Rani some time in december 1982. He had two children; one son and one daughter from his earlier marriage. The Appellant herein was working initially as a clerk and later on in an administrative position in Respondents company for about 5 years by the time of this divorce. She was a Catholic Christian by birth and her name was magdhelene Pereira. Her father was a make-up artist in the film industry. The appellant and the Respondent got married at the Markandeshwar Temple at Worli, mumbai on 19th January, 1983 according to Hindu Vedic Rites. The fact that such a marriage did take place and also that it was performed according to the Hindu Vedic rites is not disputed by the Respondent husband. Thereafter, the parties on the same evening went to a church at Sakinaka, mumbai, where they have undergone a church marriage.
( 3 ) TWO daughters were born from this marriage; the elder one by name Ritu born on 10th December 1983 and the younger one by name Richa born on 3rd August 1986. The parties have lived together at the bungalow of the Respondent at Indu park Co-operative Housing Society at Four bungalows area in Andheri (West ). It appears that over the years differences developed between them and the Appellant wife has been staying away since about 7th march 1991.
( 4 ) THE above referred petition for judicial separation was filed on 23rd November 1992. Prayer (a) thereof sought judicial separation, prayer (b) continuation of the custody of the minor daughters with her and prayer (c) her stridhan articles. Prayer (f) sought a partition of the matrimonial home at Indu Park so as to enable her to stay in one part thereof. Prayer (d) was an interim prayer not to sell, alienate or encumber that house and prayer (e) sought an injunction that she should not be restrained from entering into the same. Prayer (g) sought a permanent maintenance of Rs. 15,000/- per month for herself and rs. 7,500/- per month for the minor daughters. Interim maintenance was sought at rs. 10,000/- to herself and Rs. 5,000/- per month for the minor daughters. The Appellant took out an interim application therein making two-fold
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
