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M. S. KARNIK
Arshad Khalifa Alias Arshad Hussain, S/o. Shri Mohammed Hasham – Appellant
Versus
Gulzar Khalifa, D/o. Shri Arshad Khalifa Alias Arshad Hussain – Respondent
JUDGMENT :
M.S. Karnik, J.
1. Heard Mr Shivan Desai for the appellant and Ms Prachi Sawant for the respondent.
2. The appeal is taken up for hearing with the consent of both the parties. The parties rely upon the paper book of pleadings and notes of evidence. This appeal is admitted on the following substantial question of law :
3. There appears to be a typographical mistake in the original cause title which records the name of the party respondent-wife as ‘D/o’ instead of ‘wife of’. This is obviously a typographical mistake.
4. The challenge in this appeal is to the Judgment and Decree dated 27.09.2022 of the Ad-hoc District Judge (FTC-II) at Margao, Goa partly allowing the appeal. The appellant is the husband and the respondent is the wife. The husband filed a Matrimonial Petition before the Senior Division, ‘A’ Court at Vasco-da-Gama, under Article 4(4), (5) and (8) of the Law of Divorce (Divorce Act of 1910, Decree of 3rd November 1910), in force in the territories of Goa, Daman and Diu w.e.
De facto separation for divorce under Article 4(8) must be freely consented by both parties, not merely established by duration.
Point of law: Requirement under Section 13B(2) of Hindu Marriage Act is the “motion of both parties”.
The main legal point established in the judgment is that mutual consent for divorce must continue until the decree is passed, and the court must be satisfied about the existence of mutual consent bet....
The court established the irreparable breakdown of the marriage, the grounds for divorce under Section 13(1)(ia) of the Hindu Marriage Act, and the differences between divorce and judicial separation....
The court emphasized that the period of separation had left the relationship beyond repair, and the respondent's refusal to cohabitate over the last 12 years showed that there was nothing remaining i....
The court emphasized the necessity of mutual consent and the consideration of subsequent developments in divorce proceedings under the Hindu Marriage Act.
Long separation and absence of cohabitation can constitute cruelty under Section 13(1)(ia) of the Hindu Marriage Act, warranting a decree of divorce.
The right to seek divorce under Section 13-B of the Hindu Marriage Act is personal and does not survive after the death of a party.
The court's decision to grant judicial separation was based on vague and general allegations of cruelty, which were not substantiated. The court erred in granting judicial separation without proper e....
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