Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Bom) 1099

High Court of Judicature at Bombay
A.M. KHANWILKAR & R.Y. GANOO
Shehnaz Arvind Mudbhatkal Adult & Another
Versus
Arvind Ramkrishna Mudbhatkal Adult & Another
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 ALONG WITH CIVIL APPLICATION NO. 281 OF 2007 WITH CONTEMPT PETITION NO. 424 OF 2007 WITH CIVIL APPLICATION NO.55 OF 2006 WITH CIVIL APPLICATION NO.138 OF 2007 IN CIVIL APPLICATION NO. 66 OF 2006 IN FAMILY COURT APPEAL NO.38 OF 2006
Decided on : 16-09-2011

Advocates appeared:
For the Appellant: Shehnaz Sani, Parties Person.
For the Respondents:Ms. Neeta Karnik, Advocate.

The court held that the wife's allegations of cruelty and desertion were not proven, and that she was not entitled to maintenance, custody, injunction, or other relief. The court also held that the husband's appeal against the wife's maintenance order was dismissed, and that the wife's various applications were dismissed.

Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 13(1)(IA), 13(1)(IB) - DIVORCE - CRUELTY - DESERTION - MAINTENANCE - CUSTODY - INJUNCTION - JURISDICTION - FAMILY COURT - APPEAL - HIGH COURT - INTERPRETATION OF STATUTES - PRECEDENTS - JUDICIAL DISCRETION - EVIDENCE - WITNESSES - EXAMINATION - CROSS-EXAMINATION - CORROBORATION - RELIABILITY - EVALUATION OF EVIDENCE - FINDINGS OF FACT - APPELLATE REVIEW - SUBSTANTIAL QUESTIONS OF LAW - ISSUES OF FACT - MIXED QUESTIONS OF LAW AND FACT - STANDARD OF PROOF - BURDEN OF PROOF - SHIFTING OF BURDEN OF PROOF - PRESUMPTIONS - INFERENCES - LEGAL PRINCIPLES - APPLICATION OF LAW TO FACTS - JUDICIAL REASONING - JUDICIAL PRECEDENTS - RELEVANCE - SIMILAR FACTS AND CIRCUMSTANCES - DISTINGUISHING FEATURES - RATIO DECIDENDI - OBITER DICTUM - BINDING PRECEDENTS - PERSUASIVE PRECEDENTS - COURT ANALYSIS AND CONCLUSION - REJECTION OF WIFE'S APPEAL - CONFIRMATION OF DIVORCE DECREE - DISMISSAL OF WIFE'S CLAIMS FOR MAINTENANCE, CUSTODY, INJUNCTION, AND OTHER RELIEF - NO INTERFERENCE WITH FAMILY COURT'S FINDINGS AND ORDERS - WIFE'S ALLEGATIONS OF CRUELTY AND DESERTION NOT PROVEN - WIFE'S CLAIM FOR MAINTENANCE REJECTED DUE TO SUFFICIENT EARNINGS - CUSTODY OF DAUGHTERS NOT GRANTED AS THEY HAD ATTAINED MAJORITY - INJUNCTION AGAINST HUSBAND'S ENTRY INTO MATRIMONIAL HOME NOT GRANTED DUE TO PENDING SUIT FOR OWNERSHIP OF THE FLAT - WIFE'S CLAIM FOR RELIEF RELATED TO NRI BONDS NOT CONSIDERED DUE TO ABSENCE OF RELEVANT PLEADINGS AND EVIDENCE - HUSBAND'S APPEAL AGAINST WIFE'S MAINTENANCE ORDER DISMISSED - WIFE'S APPLICATION FOR DOCUMENTS AND STAY OF FAMILY COURT ORDER DISMISSED - WIFE'S APPLICATION FOR CONTEMPT OF COURT PROCEEDINGS AGAINST HUSBAND DISMISSED - WIFE'S APPLICATION FOR POLICE PROTECTION DISMISSED - HUSBAND'S APPLICATION FOR MAINTENANCE FROM WIFE DISMISSED - HUSBAND'S APPLICATION FOR INJUNCTION AGAINST WIFE'S ENTRY INTO MATRIMONIAL HOME DISMISSED - WIFE'S APPLICATION FOR MAINTENANCE PENDENTE LITE AND OTHER RELIEF DISMISSED - WIFE'S APPLICATION FOR INCREASE IN MAINTENANCE PENDENTE LITE DISMISSED - WIFE'S APPLICATION FOR EDUCATIONAL AND MEDICAL EXPENSES FOR YOUNGER DAUGHTER DISMISSED - WIFE'S APPLICATION FOR PROVISIONS FOR DAUGHTERS' MARRIAGE EXPENSES DISMISSED - WIFE'S APPLICATION FOR RELIEF SOUGHT IN DIVORCE PETITION DISMISSED - WIFE'S APPLICATION FOR URGENT AD-INTERIM AND INTERIM RELIEF DISMISSED - WIFE'S APPLICATION FOR COSTS DISMISSED - WIFE'S APPLICATION FOR OTHER RELIEF DISMISSED - HUSBAND'S APPLICATION FOR DOCUMENTS AND STAY OF FAMILY COURT ORDER DISMISSED - HUSBAND'S APPLICATION FOR CONTEMPT OF COURT PROCEEDINGS AGAINST WIFE DISMISSED - HUSBAND'S APPLICATION FOR POLICE PROTECTION DISMISSED - HUSBAND'S APPLICATION FOR MAINTENANCE FROM WIFE DISMISSED - HUSBAND'S APPLICATION FOR INJUNCTION AGAINST WIFE'S ENTRY INTO MATRIMONIAL HOME DISMISSED - HUSBAND'S APPLICATION FOR EDUCATIONAL AND MEDICAL EXPENSES FOR YOUNGER DAUGHTER DISMISSED - HUSBAND'S APPLICATION FOR PROVISIONS FOR DAUGHTERS' MARRIAGE EXPENSES DISMISSED - HUSBAND'S APPLICATION FOR RELIEF SOUGHT IN DIVORCE PETITION DISMISSED - HUSBAND'S APPLICATION FOR URGENT AD-INTERIM AND INTERIM RELIEF DISMISSED - HUSBAND'S APPLICATION FOR COSTS DISMISSED - HUSBAND'S APPLICATION FOR OTHER RELIEF DISMISSED - MAIN LEGAL POINT - THE COURT HELD THAT THE WIFE'S ALLEGATIONS OF CRUELTY AND DESERTION WERE NOT PROVEN, AND THAT SHE WAS NOT ENTITLED TO MAINTENANCE, CUSTODY, INJUNCTION, OR OTHER RELIEF. THE COURT ALSO HELD THAT THE HUSBAND'S APPEAL AGAINST THE WIFE'S MAINTENANCE ORDER WAS DISMISSED, AND THAT THE WIFE'S VARIOUS APPLICATIONS WERE DISMISSED.
Fact of the Case:

The wife filed a petition in the Family Court seeking divorce, maintenance, custody of the daughters, injunction restraining the husband from entering the matrimonial home, and other reliefs. The husband contested the petition and filed a written statement. The Family Court framed issues and recorded evidence. The Family Court held that the husband had subjected the wife to cruelty and desertion, and granted a decree of divorce. The Family Court also held that the wife was not entitled to maintenance, custody of the daughters, or an injunction. The wife appealed the Family Court's decision to the High Court.
Finding of the Court:

The High Court held that the Family Court's findings of fact were supported by the evidence on record, and that the Family Court had not erred in its application of the law. The High Court dismissed the wife's appeal and confirmed the Family Court's decree of divorce and other orders.
Issues: 1. Whether the wife's allegations of cruelty and desertion were proven. 2. Whether the wife was entitled to maintenance. 3. Whether the wife was entitled to custody of the daughters. 4. Whether the wife was entitled to an injunction restraining the husband from entering the matrimonial home. 5. Whether the husband's appeal against the wife's maintenance order should be dismissed. 6. Whether the wife's various applications should be dismissed.
Ratio Decidendi: The High Court held that the Family Court's findings of fact were supported by the evidence on record, and that the Family Court had not erred in its application of the law. The High Court dismissed the wife's appeal and confirmed the Family Court's decree of divorce and other orders.
Final Decision: The High Court dismissed the wife's appeal and confirmed the Family Court's decree of divorce and other orders.

Judgment :

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 No.A1945 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. A1945 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.

(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.

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 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 divorceare 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 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 as

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