SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Article Pause Article
judgment-img

2012 Supreme(Bom) 1089

High Court of Judicature at Bombay
A.M. KHANWILKAR & A.R. JOSHI, JJ.
Bhavana N. Shah & Another
Versus
Nitin Chimanlal Shah
FAMILY COURT APPEAL NO.28 OF 2012 AND FAMILY COURT APPEAL NO.29 OF 2012 WITH CIVIL APPLICATION NO.41 OF 2012
Decided on : 21-06-2012

Advocates appeared:
For the Appellants:Ajit Karwande, Advocate.
For the Respondent:present in-person (Respondent-husband).

Headnote:HINDU ADOPTIONS & MAINTENANCE ACT, 1956 - Section 18(2)(q) - Claim of maintenance by Hindu wife. A Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance on account of any other cause justifying living separately.

       HINDU ADOPTIONS & MAINTENANCE ACT, 1956 - Section 18(2)(g) - Maintenance to wife. Where Family Court failed to analyze pleadings and evidence led by wife, bringing co-habitation to an end and living separately with her minor daughter, in proper perspective therefore matter remanded for fresh consideration.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-a) - Decree of divorce. Where allegations made by wife-appellant against her husband- respondent was mala fide, reckless and frivolous in her oral evidence before Family Court which caused mental cruelty to husband therefore decree of divorce under Section 13(1)(i-a) of Act justified and warrants no interference.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-a) - Grant of decree of divorce. Making of frivolous, reckless and unsubstantiated allegations by wife against husband causing mental cruelty to husband is a good ground to dissolve marriage and grant decree under Section 13(1)(i-a) of Act.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-b) - Decree of divorce. Where wife life matrimonial home with her minor daughter and residing at her parents house and also shown intention to bring cohabitation permanently to an end therefore grant of decree of divorce under Section 13(1)(i-b) by Family Court in favour of husband upheld.

       HINDU MARRIAGE ACT, 1955 - Section 13(1)(i-b) - Decree of divorce. Where wife left matrimonial home with her minor daughter and intended to bring co-habitation to an end therefore grant of decree under Section 13(1)(i-b) justified.

Judgment :-

Khanwilkar, J.

1. We propose to dispose of both these Appeals together by this common Judgment.

2. Appeal No.28/2012 is directed against the Judgment and Decree passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by Family Court No.VII, Mumbai, whereby, the Family Court allowed the Petition filed by the respondent-husband for dissolution of marriage and divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955.

3. The other Appeal being Appeal No.29/2012 is also filed by the wife along with daughter challenging the common Judgment dated 1st December, 2011 passed by the Family Court No.VII, Mumbai in Petition No.C-136/06 praying for maintenance and separate residential accommodation for herself and minor daughter Palak Nitin Shah under Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance Act, 1956.

4. The Family Court by the common Judgment has dismissed the petition filed by the wife and minor daughter for maintenance and residential accommodation but has allowed the Petition filed by the husband for dissolution of marriage and decree of divorce. We would first examine the challenge to the decree of divorce by the appellant wife.

5. The respondent husband in his Petition filed under Section 13(1) (ia) and (ib) of the Hindu Marriage Act has stated that the marriage between the parties took place on 5th February, 1990. They were blessed with one daughter named Palak. After few years, discord between the spouses took place as a result of very rude behaviour of the wife. The wife was uninterested in domestic work. She picked up quarrels on unessential matters and created unhealthy atmosphere in the house. The wife was in the habit of making false, frivolous and concocted allegations against the husband and his family members. She went to the extent of making false allegations against the husband having illicit relationship with his two real sisters. That on 1st June, 2005, the wife left her matrimonial home on her own and inspite of persuasion by the husband and his relatives, she refused to join the company of the husband. On the basis of these allegations, the husband prayed for dissolution of marriage between the parties solemnized on 5th February, 1990 at Mumbai and the decree of divorce.

6. The appellant wife filed written statement to oppose the said Petition. The parties adduced evidence in support of their respective claim. The Family Court adverting to the relevant evidence and placing emphasis on the admissions given by the appellant wife in her cross-examination, accepted the claim of the respondent husband. The Family Court in the common Judgment has highlighted the admissions of appellant in her cross-examination wherein she has admitted that she did not lodge any complaint before police against respondents or his family members. Further, she does not have any evidence to show that she was tortured mentally as well as physically. She admitted that she got her daughter admitted in Nazareth School without consent of her husband and she had never discussed with husband about the same. She has also admitted that the husband and his family members approached her and tried to convince her to come back to her matrimonial home on two occasions. She has admitted in the cross-examination that she saw the illicit relations between her husband and his real sisters. The Family Court has then considered the admission of appellant's witness PW 2 i.e. daughter Palak. It has then noted that besides the oral admissions of the appellant and her witness, even the documentary evidence goes against the appellant. It took into account the pleadings and oral evidence of the parties, more particularly, in respect of the allegation about the illicit relations of husband with his sisters. The appellant had made those allegations in her letters sent to the husband and reiterated the same in the pleading and also in the oral evidence and justified the same on the ground that that was



































Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
whatsapp-icon Back to top