Beruflich Dokumente
Kultur Dokumente
fca105.14
.. Appellant/Applicant.
ig
h
Vs.
C
ou
rt
.. Respondent.
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y
WITH
FAMILY COURT APPEAL NO.128 OF 2008
AND
CIVIL APPLICATION NO.59 OF 2012
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.. Appellant/Applicant.
Vs.
.. Respondent.
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RESERVED ON :
PRONOUNCED ON :
C
ou
ig
h
1.
Court Appeals and the Civil Applications taken out therein taken out
therein. These appeals arise from the judgment and decree of the
Third Family Court at Bandra, Mumbai in Petition No.A-264 of 2002.
The Family Court granted a decree of divorce whereby the marriage
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y
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a sum of Rs.25,000/maintenance
towards
to their daughter.
FACTUAL OVERVIEW :-
2.
3
to reside with the Petitioner in Nigeria.
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Both the parties are from
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C
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not own or control the business and that he has only 30% stake in the
ig
h
3.
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fees
and
also
receiving
separately,
accommodation
It is an admitted
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C
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4.
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the Petitioner husband in January 2002 i.e. little over nine years
after marriage took place on 19th May, 1993.
the Petitioner is that after the marriage, the parties stayed together
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at Lagos, Nigeria.
April, 1994.
he was working for the gain. It is the Petitioner's case that soon after
birth of their daughter the Respondent's behavior changed. She
became arrogant, abusive, defiant and was beyond control of the
Respondent. It is alleged that the Petitioner would use foul language
and was abusive towards the Respondent and his family members.
The Respondent came back to India along with their daughter
Ayesha sometime in February 1994. In August 1997, on an occasion
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C
ou
ig
h
5.
her anger on the young child. In July 1998, the Respondent along
with their daughter went from Lagos to Singapore to meet her
Thereafter since the Petitioner was to be in London on
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parents.
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that the daughter was not granted a visa. The Petitioner then waited
return of the Respondent to Lagos since their daughter's school was
expected to reopen.
attention to this and it was obvious that she was acting against the
interest of the child. After the Petitioner firmly demanded they return
to Lagos, the Respondent's father spoke to the Petitioner's parents in
Mumbai and informed that the Respondent was not interested in
returning to Lagos and that she would prefer to be in Mumbai. The
Respondent's father suggested that her father would look after the
Respondent and the Petitioner should look after his daughter Ayesha.
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6.
C
ou
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The Petitioner had been informed of this fact and the Petitioner was
hopeful that she would come again to Lagos to look after the child,
however, she did not come.
ig
h
the daughter Ayesha since she was suffering from chicken pox and
the Petitioner was finding it difficult to manage alone especially due
to her tender age.
Respondent in the expectation that she would like to see her and go
back to Lagos, however, the Respondent did not go Lagos.
The
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Apparently, the
Petitioner's daughter would visit his parents and express her desire to
meet him. The Respondent then suggested that she was also ready to
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7.
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continued to fight with the Petitioner and was rude to his parents.
C
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The Petitioner states that he later returned to Lagos alone and the
The
ig
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Ayesha came to Lagos again in April, 2000 but she continued to fight
with the Petitioner, making allegations against him and his parents
and calling them uncultured.
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along with his daughter Ayesha in Mumbai and returned from Lagos
on 15th September, 2001, yet the Respondent did not cooperate and
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On
one occasion on 29th October, 2001, the Respondent fought with and
abused the Petitioner's mother and father and picked up an antique
crystal glass vase and flung it on the ground.
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which was resisted. The Respondent then called her parents who
beaten.
C
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Petitioner.
The Respondent not only beat the daughter but also hit
ig
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Petitioner that they do not want the daughter Ayesha and told him
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daughter was attending along with the Respondent, they came across
the Petitioner's sister, whose children were also attending the same
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unparliamentary
language.
was
8.
Respondent with an
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bad language.
father was
C
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Petitioner's mother (who was 69 years of age) into one bed room and
took forcible possession of another bedroom. Thereafter,
the
ig
h
This resulted in
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11 pm.
advocate put on record all that had transpired from 16th July 2002.
He also received a letter from Cuffe Parade police station asking him
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9.
Correspondence ensued
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The
C
ou
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police station
ig
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10.
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police which has caused stress to the Petitioner with the result it was
not possible for the Petitioner to continue with the marriage. The
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11.
11
International Pvt. Ltd. in Singapore.
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As a result of which, he was
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C
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from the locker which was in the joint name of the parties in Central
Bank of India.
promised to repay the money which she had taken away and
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12.
his sister Jyoti (who reportedly had been a friend of the Respondent)
The
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WRITTEN STATEMENT
13.
She
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the Petitioners' in Mumbai.
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It had been contended by the
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treatment
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The
Respondent alleges that after the birth of the child, the Petitioner
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incurred for the marriage, it was not possible for the Respondent's
father to accede to the demand of the Petitioner.
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14.
Petitioner and his mother made plans to throw the Respondent and
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the Petitioner and his parents claimed they have suffered heavily as a
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house for the Petitioner to live in and look after the Petitioner and his
parents in old age.
business, to the effect that had the Petitioner married some other
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girl,
ill treatment,
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Apparently,
in
matrimonial
home,
however,
her
mother-in-law
continued
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the attitude of the mother-in-law did not change and she continued to
disharmony.
15.
C
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abuse the Respondent and her parents blaming them for marital
daughter.
According to
the
ig
h
Respondent like on several earlier occasions the Petitioner and inlaws made the Respondent starve. She was neither allowed to cook
for the minor daughter nor order food from outside, as a result of
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According to the
Respondent she was not qualified, she has no house property and no
independent source of income.
maintain the Respondent,
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16.
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wealthy and has purchased two costly cars for his use when he came
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back to reside in Mumbai. She has no place for her to stay and she is
their mercy. Thus, the Respondent contends that the Petitioner and
his parents have been found at fault as the Respondent was thrown
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According
per annum.
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17.
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THE EVIDENCE
18.
Ms. Bina Sippy, the cousin sister of the Petitioner's mother has also
filed
affidavit in lieu
of examination in chief.
In his affidavit
of
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personally as well as his parents and sister all of which also amount
C
ou
ig
h
19.
fact that his sister also has been abused by the Respondent and all
the acts of cruelty has caused unbearable mental and physical stress
health
is
to the Petitioner affecting his health and his business. His parents
deteriorating
which
has
been
aggravated
by
the
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under section 498-A and 406 of the Indian Penal Code before the 47th
Magistrate Court admittedly after the police refused to register the
case against the Petitioner and his parents. The Petitioner and his
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expenses at School.
C
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20.
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Bicycles spare parts, bicycles tyres, toothpaste, wall clocks and other
consumer protects from India. The firm for which the Petitioner was
working was dissolved in 1993 and then he became Managing
about 1,40,000/-
21.
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In addition,
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the company provided car, residence and the driver. The Petitioner
pleaded ignorance of the details of the company and he did not
provide the copies of the balance sheet and profit and loss account.
He submitted that he has not asked for the same. He further deposed
that he has not filed Income Tax returns in India. He claimed that he
had not attended board meetings since 2002.
examination he states that although in 1999
In further cross
the company made
profit, it was wiped away due to loss in the year 1998 yet he was
unaware of the extent of loss incurred in the year 1998. Despite this
position he admitted that he along with other Directors were drawing
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salaries.
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C
ou
state the stock of goods held by the company in the year 1998. He
deposed that he does not have any other business and although he
has deposed in the affidavit
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Director of Anivin Nigeria Ltd., he did not have any other business.
22.
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his brother he rented a 3BHK premises but could not recall rent paid.
He admitted to have spent about US $25000 for its renovation. He
admitted to have made various renovation
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company and contended that the company had taken loan for the
expenses incurred.
He procured furniture
1993. He admitted that in the year 1993 he had two maids and one
cook in the house.
He
also admitted to having the services of the driver who was employed
by the company. He could not produce any document showing perks
received by him from 1993 till 1998.
23.
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Similarly,
C
ou
agreement.
by way of an oral
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of the furniture.
company.
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company.
working
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24.
The witness admitted that apart from his bare statement there was
no document whatsoever to show that the company spent amount
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concerned on the apartment etc. He claims that he had not asked for
the record of the company although he was Managing Director. He
admitted that he is not assessed to tax in India and he does not hold a
PAN.
25.
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and the amounts paid during 1993 to 1998 were first transferred
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Bank of Baroda
and UTI.
He reiterated
C
ou
Bank, Mumbai.
ig
h
26.
held jointly by the Respondent with him and he was not aware of the
operation of the locker. He was aware that the locker was containing
jewellery of the Petitioner and Respondent but he did not have list of
jewellery. The Petitioner had not operated the account for long time.
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The witness admitted that parents have purchased the flat in Sanjeev
Enclave and he had made certain payments towards maintenance of
the said flat.
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revealed that the flat was purchased in the joint names of his uncle
and himself.
been purchased by the Uncle and himself but stated that the flat was
aware of and he does not know the sale price of the flat. The witness
was unaware of the capital gain made on this transaction.
27.
Bank accounts and the Petitioner has attributed these to the business
transactions of the company, particulars of which according to him,
21
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C
ou
witness
substantial amount
having
admitted
to
have
withdrawn
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accounts.
He
in order to make
remittances.
deposit
Several
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Sr. Year
No.
1)
2)
1994
Date
Amount
8.6.1994
Rs.1,555,000.00
9.9.1994
Rs.1,017,172.00
3)
12/08/1994
Rs.15,50,000/-
4)
24.8.1994
Rs.174,334.00
5)
15.9.1994
Rs.149,172.79
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1995
Rs.1,550,000.00
April, 1995
Rs.8,76,990,
Rs.8,76,990
Rs.4,81,740/Rs.31,00,000/Rs.3,63,940/Rs.10,850/Rs.72,447/-,
Rs.15,50,000/-,
Rs.15,50,000/Rs.15,50,000/-.
RS.3,10,000/Rs.18276.36/Rs.1,07,570/-.
June
8)
ig
h
C
ou
7)
March 1995
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6)
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27.2.1997
1765835.50
1998
3.5.1998
3,56,000/-,
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1997
28.
Petitioner.
Rs.3,94,104.24
Rs.39,41,104.24,
Rs.39,41,104.24
Rs.4,41,750/Rs.4,65,000/-,
Rs.4,78,764/-,
Rs.4,78,764/-,
Rs.7,75,000/-,
Rs.7,75,000/-.
Bank
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29.
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He then
C
ou
rt
ig
h
had made false statement to the effect that he is has wound up his
business in September 2000.
vague. He is not aware from which bank the payments were made. He
did not own the company Anivin Enterprises in Nigeria. He was not
controlling the finances of the company. The witness did not provide
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executed
in lieu
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of the goods that were imported from India into Nigeria. Alluding to
the strong financial position of the Respondent wife, he contended
that the Respondent wife was a Director in Sanwa Finance Pvt. Ltd.
and Jayem Exports Pvt. Ltd. The Petitioner reiterated that several
companies
Exports
and Sons
and Trading Pvt. Ltd. were belonging to the Respondent's father and
the Respondent.
30.
The
evidence
then
deals
with
relationship
between
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himself, his mother, sister and brother and alludes to the fact that
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C
ou
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they left the brother's house has been denied. The Petitioner
volunteered to state that his brother also stays in Hong Kong. He
denied a suggestion that he moved to another place because of a
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not wish to keep the gifts and the Respondent's family refused to take
it back.
31.
was sent for her delivery by herself. On the contrary, he says that he
accompanied her to Mumbai. He has denied the allegations of having
taunted the Respondent and her mother. He denied suggestion that
he made taunting remarks and told the Respondent that he does not
wish to be father of the child on 9th April, 1994.
He denied
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suggestion that he did not return to hospital at the time of birth and
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that he fought with Respondent's parents and did not allow to meet
C
ou
were not allowed to touch the child during the naming ceremony. He
has admitted that in June 1994 they returned to Lagos and remained
there till July 1995 but denied that during that period there were no
problems
ig
h
He
Respondent to Lagos
attributed to him
instances of misbehavior
Various other
during visit
of the
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He
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about the Respondent and daughter not visiting London while he was
present there and wrongly blaming the Respondent for not having
obtained a visa.
32.
to collect his daughter Ayesha the Respondent was not staying with
his parents at matrimonial home. He denied a suggestion that the
Respondent had inquired of him as to when she should return to
matrimonial home. He denied a further suggestion that since he took
his daughter Ayesha to Lagos, the Respondent developed a mental
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had withdrawn the sum of USD 53,692.51 for the purpose of her
C
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that he had informed the Respondent that after she and their
daughter should accompany him to Lagos when he was leaving in
He denied suggestion that he has cheated the
ig
h
January 1999.
Lagos.
to
be caused to the Respondent and child and that the Respondent flew
The fact remains that the Respondent
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and the child went to Lagos in February 1999 and stayed with the
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33.
not informed the Respondent about his arrival when he came to take
However, the Respondent with her daughter joined the Petitioner but
she did not return jewellery and money.
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34.
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February 2000 was peaceful when they were away from the
C
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However, the
ig
h
Respondent.
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The
The allegations
that the Petitioner's mother had tortured the Respondent has been
denied. The suggestion that in April 2001 when the Respondent was
living in the matrimonial home, the Petitioners' parents abused,
harassed her and the Petitioner beat her up in the presence of the
child has been denied.
Further suggestion
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Respondent's parents.
35.
Further
cross
examination
of
C
ou
denied that the Petitioner's parents were throwing glass plates at the
the
Petitioner
which
ig
h
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prevented
the Respondent
and daughter from entering into flat on 5th June 2002 on the eve of
reopening of school on 6th June 2002.
informed the
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the
C
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36.
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transferred
from the
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h
have
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car had been parked in the building where his parents stayed. He
denied that he earns Rs.25 lakhs from business or that he has
suppressed his income.
started living with the Respondent but had not met for last 6 to 8
months.
He had
not written any letter to the child. He has not made any application
for seeking access to the child. He denied a suggestion that he and
his parents had thrown the Respondent and child out of the
30
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at the
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C
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In support
ig
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37.
October 2006.
getting married and went to parties and movies before the marriage.
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She has played part in fixing the marriage since she knew the
Respondent.
To
her
knowledge,
the
witness
states
that
the
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designing. She has further deposed that at the time of alliance with
the Petitioner, the Respondent and her parents were informed that
the Respondent would be permanently residing in Lagos and that the
and started
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witness would come home to play with Ayesha. She also used to visit
Ayesha and take Ayesha to school since they all were in same school.
children because she had sex twice whereas, the Petitioner and
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Respondent have one child since they had sex once. She further
when the Respondent entered the
her to stay with them since her parents were frightened about
38.
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her is as per instructions and that the Petitioner did not accompany
her to the Advocate's office to give her instructions. She admitted
that her husband was seven years younger than her and that she
She
friends
with
the
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Respondent's family although they belong to the same caste. She had
C
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referred the Respondent to her brother since she was unmarried girl
in the group. She then had role played in the marriage. She admits
that in September 2001, the Petitioner came to India
Respondent and the daughter
along-with the
differences between the Petitioner and the Respondent but had not
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39.
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Petitioner.
recollection
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She was not aware of the various financial transactions between her
husband
In an
interesting admission, she stated that the Petitioner may have made
false statement that he had made payment since she cannot recollect
or check each and every payment. She denied the suggestion that
Rs.65,000/- was paid to her by the Petitioner in March 2004. She
denied that such payments represented diversion of the Petitioner's
income. However, she admitted to have given temporary advances to
the Petitioner. She denied the suggestion that the Petitioner was
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routing any amounts through her and her husband in India. She
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admitted that she was assessed to income tax, however she did not
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40.
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be drawn.
evidence does not reveal anything which have a bearing on the issues
41.
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The
third
witness
who
deposed
in
support
of
the
om
in March 2007.
and continued to
live there. She has informed the Respondent and their parents before
the marriage that after the marriage the Petitioner and the
Respondent would live in Nigeria where her son, the Petitioner,
carried on business. She admitted to the fact that the Petitioner and
the Respondent occasionally visited in Mumbai and lived for few days
and thereafter the Respondent would go to her parents house at
34
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C
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Respondent visited India with daughter and lived with her till the
child was three months old. Thereafter the Respondent went back to
Nigeria.
She
deposed
that
after
delivery
of
the
child,
the
ig
h
her ailing husband and her parents. The Respondent was instigated
against them by the Respondent's family.
that she and her husband would be insulted and abused by the
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Petitioner did not have its own residence, the witness allowed the
couple to stay with her. During their stay, she deposed to the fact
that the Petitioner conveyed to her about the Respondent's behavior
badly with the Petitioner and due to this the child Ayesha was also
under tremendous pressure.
42.
35
Thereafter the Respondent's father
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informed the witness that the
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witness and stated that he would look after the Respondent and the
Respondent's father asked the witness to look after the child. She
produced the letters signed by her. The witness deposed to instances
for altercation between the Respondent and the Petitioner and the
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the Respondent
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of injuries
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43.
parents at NCPA
She has
further deposed to the fact that on 5th June, 2002 the Respondent
and her father forcibly entered the matrimonial house and her father
started abusing the witness.
Respondent and her father. The witness called her cousin Bina.
Thereafter, the Respondent's father was screaming and shouting and
he told that police will not come since she has made arrangements
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C
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when the police did not come the witness also called Cuffe Parade
police station. Once again on 6th June, 2002 the Respondent's father
came to the residence and abused the Petitioner's father. On 9th June,
2002 a police officer came to matrimonial home from the Cuffe
Parade police station at 5.00 pm informing them that a complaint had
ig
h
been lodged against the witness and her husband. They were called
to police station where they were made to sit late till 11 pm.
44.
the
Respondent left her residence i.e. matrimonial home carrying all her
informing her that she was not interested in living in
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belongings
that house.
same day to the Cuffe Parade police station recording the aforesaid
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fact. On 19th June, 2002 the Respondent and her father once again
tried to enter the flat but the witness and her son Vinod resisted
their entry. Thereafter on 20th June, 2002
filed a suit against the Respondent and her parents to prevent their
entry. She has further stated that since the police refused to register
the case under section 498A, the Respondent had filed a private
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45.
ig
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Various other suggestions were put to her as alluding to the fact that
she was engaged in money lending business all of which
irrelevant to the issues involved.
was
She has
stated that the Respondent has kept clothes and jewellery in one of
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the cupboard under lock and key and the key was in the Petitioner's
possession.
the Respondent because she had not provided any dowry. She has
om
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rt
498-A of IPC.
The third witness was Bina Sippy. Bina Sippy was cousin
C
ou
46.
Petitioner's
the
mother
to
effect
that
the
Respondent
and
On
ig
h
5th June. 2002 she received a phone call from the house of the
Petitioner's mother complaining that the Respondent's father has
forcibly entered the house and pushed her into one room. On hearing
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father informed the witness that even if she complained to the police
the witness would be arrested as he had made arrangements with the
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police. The witness deposed that the Petitioner's mother has called
to the police station on couple of other occasions.
stays and no part of the cross examination has any bearing on the
issues before the Family Court.
RESPONDENTS EVIDENCE
47.
witnesses, one was the Respondent herself and the second was the
39
Respondent's father
Murli Lekhraj.
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The Respondent has deposed
That
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exercised control
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the Petitioner's mother, the deponent states that huge amounts were
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incurred towards the costs of wedding and gifts were provided by the
Respondent's family to the Petitioner and his family members. The
mother of the Petitioner was still unhappy.
relationship between the Petitioner and his brother were cordial and
this was clear when she came to Lagos.
ba
y
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Petitioner's life style that he had two maid servants, a cook, three
cars and two sweepers. According to her, the Petitioner owns the
company Anivin Nigeria Ltd. To meet requirements of Nigerian
Government two locals Directors were kept on board for the sake of
formality and his income was about Rs.60 lakhs per annum.
48.
December 1993, she was staying with the Petitioner's mother at the
matrimonial home during which period the Petitioner's mother
quarreled with her, alluding to the fact that the Respondent's parents
40
have not provided gifts to her.
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C
ou
presented to him into the sea off Gateway of India. She has deposed
that Petitioner's mother abused the Respondent when she went to her
parents flat at Blue Haven, notwithstanding the fact that she was in
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h
matters and on one occasion dragged her from one room to another
in long passage by ignoring the fact that she was in seventh month of
pregnancy. According to her, the Petitioner regularly assaulted and
The Respondent then
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y
om
49.
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C
ou
day
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the Petitioner was not present at the time of delivery, he came next
hospital when she was taken to the matrimonial home, she was ill
treated. The taunts continued.
The
ig
h
50.
the Petitioner and his family. The Petitioner accidentally fell from the
staircase and fractured his leg. The Petitioner kept criticizing her
for this fall and returned to Lagos after some days.
She
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y
parents
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for about three weeks at the best of locations, the Petitioner had not
even once called up and spoken to their daughter Ayesha. She
deposed although he had paid for the tickets she had re-paid him.
51.
egocentric
According
person
to
the
Respondent,
the
Petitioner
is
an
1997, when the Respondent's parents visited Lagos and had been
invited to Petitioner's brothers' house for dinner along with the
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Respondent and daughter Ayesha.
fca105.14
Apparently, on their return, the
and
C
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removed all his clothes to the utter shock of the Respondent and her
parents. According to her, the Petitioner was habitually humiliating
her. The Petitioner even blamed her for the refusal by the U.K. High
ig
h
the U.K. She feels insecure and afraid of going back to Lagos as the
Petitioner may brutally beat her. She has developed fear complex
and she could not get proper rest and peace.
matrimonial home.
Petitioner's parents
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y
stay at Blue Haven, her father's place since the Petitioner's sister
had come and was residing in matrimonial home. According to the
Petitioner, she was shabbily treated. She had developed hypothyroid
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condition. She asked the Petitioner for some money for her medical
treatment.
monies
and
and
according to her the money belongs to her as she has received gifts
from time to time.
52.
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to Mumbai to stay with her. She deposed that later she had agreed to
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go back to Lagos with the daughter but on the appointed day when
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the Petitioner did not come to fetch them from the Respondent's
parents home, inquiries were made with the Airlines and she came to
know that the Petitioner has already flown back to Lagos. According
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h
marital relations. They went to holidays abroad and this joyful period
was very short since the Petitioner's mother influenced him to the
great extent. In September 2000, the Petitioner complained that the
spinal cord.
ba
y
om
was insisting that her father should transfer the Blue Haven flat to
the Respondent's name.
53.
manner till 2001 and daily life was torturous physical kicking and
punching had become common. The things came to a head on 2nd
November,
2001
when
Petitioner
started
quarreling
with
the
She therefore
informed her parents that all three persons were beating her. Her
44
fca105.14
parents then came to the matrimonial home. During the ensuing the
the
daughter
was
crying
uncontrollably
and
the
rt
altercation,
C
ou
Respondent left with her parents and the Petitioner refused to allow
The Petitioner lodged a complaint against the
54.
ig
h
Respondent.
child with the result Ayesha was developing bad habits by staying
55.
ba
y
om
cook her own food. The main door was locked from inside and the
keys were with mother-in-law. This was according to the Respondent
amounted to torture with implied knowledge of the Petitioner. She
made a written complaint with Cuffe Parade police station on 11th
June, 2002.
45
fca105.14
2002. She informed her father about the same. She went to her
C
ou
rt
father's house and stayed for few days, when she returned to
was compelled to file a criminal case under section 498-A against the
ig
h
56.
She has deposed that she has studied only upto 10th
standard and was not qualified to get any employment and, therefore,
she is entitled for Rs.70,000/- per month including school fees as the
Petitioner was earning Rs.5 lakhs per month and living luxurious life
The
ba
y
om
the Mumbai for herself and her daughter which the Petitioner should
provide. However, the Petitioner has not sought custody of the child.
He is not bothered to find out whereabouts and thus she states that
she has no interest in the marriage and the Petitioner has filed the
case on frivolous grounds.
57.
46
assets in her name.
fca105.14
rt
her name, bank accounts etc. She does not know whether the Income
C
ou
Tax returns have been filed and her father knows about her financial
transactions. She was confronted with the Income Tax returns filed
by her for the year 2004-05, 2003-04, 2001-02. However, she has
denied knowledge of the same.
of Saniva
ig
h
She also admitted that she has transferred USD 52,500/- from the
OCBC Bank account to father's account. The amount was transferred
belonged to her.
She
admitted
that
she
had
not
disputed
the
ba
y
58.
om
bank account at Central Bank of India but she was unaware of the
detail operation since according to her these were manage by her
father.
from
She was
Thereafter, he
47
fca105.14
C
ou
59.
rt
October to December 1998 the daughter alone was staying with the
Petitioner.
ig
h
According to her when she travelled, she was advised to take rest. In
Paragraph 45 of the cross examination she admitted that the letter
dated 25.9.1998 part of Exhibit-120
father's house.
ba
y
om
known by name of
60.
Christmas vacation for three weeks but she did not go to bring
Ayesha to spend holidays with her since the school was closed.
She
admitted that she did not approach any authority to get temporary
custody of the child during holidays.
these three weeks Ayesha lived with her grandparents and they took
care of her.
48
fca105.14
rt
Despite meeting the child at Christmas party, she did not make any
C
ou
efforts to get the daughter to stay with her for Christmas holidays.
According to her she did so because she wanted to reconcile. The
following specific question was put to witness:
ig
h
ba
y
from the
minor problem and no surgical procedures were required till the date
of the cross examination i.e. 15.10.2007.
om
she is still taking same tablets and she spends Rs.60/- per month on
the treatment of Thyroid.
treatment of Thyroid she received money from her father and she
did not money which was transferred from Petitioner's joint account
to Saniva International PTE Ltd.
from her father. She states that she does not understand finances or
the business and as she is not educated therefore does not
understand documents.
Petitioner and she does not personally know what are the finances of
49
fca105.14
the Petitioner nor she tried to find out about them. She admitted to
rt
have bank account and bank lockers in Singapore and in India. The
C
ou
61.
ig
h
She,
ailments.
Pvt. Ltd.
hospitalised
International
ba
y
is shown
om
62.
parents in Singapore
hands of his parents. Upon her being shown Form 32 issued under
Income Tax Act, 1956 she admitted the address is shown as a
50
fca105.14
Director of Jayem Exports Pvt. Ltd. and having her address Blue
rt
Haven CHS, Mumbai. According to her, her father uses her name for
C
ou
the financial transactions but the benefit of the same are received by
her father. That the father controls all companies. She has resigned
as Director from all companies. She has not manipulated
accounts after the matrimonial petition was filed.
the
She admitted to
correctness of income tax returns filed for the years 2001-02, 2003-
true.
ig
h
04 and she signed the said document. The contents thereof are also
She has not given any particulars of the interest of the
earnings. She also admitted that the Petitioner has given her money
personal expenses
in Lagos.
for
ba
y
Chicken pox. She answered that she was not allowed to go there as
om
Ritika Sawlani lived in the year 1999 at Lagos. She did not
make any efforts to contact her or to request her pick up her at the
63.
earlier in Lagos and furthermore she admitted that when she went to
Thailand on vacation with her parents had accompanied her from
Bombay. She did not recollect how many times she left the daughter
with the Petitioner
51
fca105.14
According to her
C
ou
rt
when they are not in India their houses at NCPA apartment and
marriage till 2001 she has never stayed at NCPA Apartments or Blue
Haven.
She denied
she
ig
h
she did not look after the daughter when she had chicken pox
admitted that when the petition was filed neither the Respondent nor
her parents have filed any complaint against the Petitioner or his
According to her she did not find it necessary to file a
parents.
complaint
ba
y
differences.
respective parents
In
om
She also was unaware that she had 600 redeemable shares of
Petitioner had filed complaint under section 498A of IPC. She has
denied the suggestion that there were no instances of beating by the
Petitioner.
64.
the first time in her affidavit of evidence denied that her daughter
was tortured.
52
fca105.14
rt
her written statement she has not mentioned that the Petitioner hit
C
ou
13.4.2002 and 19.6.2002 she has not stated that she was dragged
the version
from one room to another and kicked and slapped in the complaint
steps
to defreeze
ig
h
dated 13.4.2002 and 19.6.2002. The Respondent has not taken any
the bank accounts
referred in Exhibit-144.
Director
she has admitted to the fact that her sister Varsha Waswani was the
of Sanwa Finance Pvt. Ltd. as also Jayem Exports Pvt. Ltd.,
ba
y
Palmar Investment and Trading Co. Pvt. Ltd. and Lekhraj and Sons
(Exports) Pvt. Ltd. The Respondent was then shown balance sheet of
Palmar Investment and Trading Pvt. Ltd. dated 31.3.2009 and the
om
of
as per instructions
of the father.
received any benefit from the shares which are in her name.
According to the witness she was dummy Director
was used by her father.
name.
She was not aware that her tax returns mentions her name
53
fca105.14
rt
Magistrate Court against the Petitioner and his mother because they
C
ou
65.
included the dowry demands, assault, bad treatment and cruelty and
that she has not challenged the order of the Magistrate on dropping
ig
h
the charges against the Petitioner and his parents. She admitted that
the Petitioner's parents are, however, 70 years of age and that she
has made an application for issue of warrant of arrest against the
ba
y
om
it as severe back pain. The Respondent admitted that she had not
stated that the Petitioner was in a drunken condition on 2.11.2000
and that her mother received injuries and the plates were flung at
her. In paragraph 116, she has admitted that she was not happy to
come to India but she was not ready to go back to Lagos.
She also
stated that she cannot return the money in joint account that was
transferred to her account because the money was already spent.
54
belong to her
On a
rt
fca105.14
C
ou
specific question put to the witness, whether the allegations that the
Petitioner's mother's game plan was to sent her back with Ayesha
were true. She answered that she did not know about the game plan.
It will be necessary to reproduce the said question and answer :
ig
h
Q.
66.
ba
y
the Petitioner were sent after the Respondent had read them. She
admitted in paragraph 122 that she had not filed a petition for
restitution of conjugal rights after the Petitioner filed his petition for
om
The Petitioner
treatment allegedly meted out to her during the pregnancy and the
instances pertaining to her husband's fall and breaking his leg.
The
55
fca105.14
had gone to various places on holidays and she had good life style
She
rt
C
ou
also admitted that the Petitioner tried to provide for her whatever
was possible within his capacity. However, she denied that she has
while in Lagos.
stated that the Petitioner had asked her to bring things from her
67.
ig
h
father.
and this she came to know only after the marriage but has not
personally verified the truth of the said allegations except to state
matter and the couple was asked to leave the
ba
y
brother's house. She contended that she had arguments with the
Petitioner and brother against
alleged misappropriation
by the
om
Petitioner in the business and the Petitioner was jealous and suffered
from inferior complex. However, according to her, the dispute with
the brother had no connection
68.
The contents
56
fca105.14
rt
the same. He also deposed that prior to marriage, he had met the
C
ou
incident when after throwing away the gifts the Petitioner came to
the Respondent's house
(the
ig
h
69.
Respondent
ba
y
November 1997.
Apparently,
his brother Vinod came to calm him down and took him away to his
om
house. He took away fax machine, car keys and all of the
Respondent's monies living her penniless.
to the
57
fca105.14
and expressed
the
by the
rt
C
ou
that he was mad. He deposed that the Petitioner's father assured him
that he would have word with the Petitioner and would resolve all the
issues.
the same breath he states that it was well thought plan and to keep
ig
h
Various other
ba
y
om
and the
She was only a nominee Director and she was never majority share
holder and she had no authority. He has categorically stated that the
Respondent is neither a Director nor have been a shareholder of any
of the companies in Singapore.
70.
58
fca105.14
who was thrown out of home without offering a single rupee and that
rt
C
ou
He deposed that Public Provident Fund A/c. No.994 has been closed
operative.
ig
h
trust was set up in 1990. The trust was dormant and eventually non
The trust shares were duly transferred in 2001 and 2002
companies
ba
y
his behest since he also held account there for depositing cash gifts
from him to his daughter from time to time. However, the name of
the Petitioner was mentioned
since it was
since the
om
respect for the son in law and for tax planning authorities
him, the Respondent had withdrawn her own monies and it has
nothing to do with the Petitioner.
71.
59
to used accordingly.
fca105.14
rt
C
ou
claims that his daughter is indisputably dependent upon him for her
day to day livelihood since she has absolutely no money although it is
responsibility of the Petitioner to maintain her in law.
He produced
ig
h
mentally to drive her out of the matrimonial home because she does
72.
ba
y
om
Rs.6 lakhs
were redeemed.
according to him
Rs.1000
According to him,
of the company.
of
60
fca105.14
C
ou
rt
It is available
with the
say
that
Respondent
was
not
ig
h
Pvt.
shareholder.
ba
y
Not true
om
documents
because
the Respondent
has
Respondent
is not
73.
61
fca105.14
and the witness had no concern with the said company except that
He denied
the suggestion
he
rt
C
ou
to
He
ig
h
That there is
ba
y
of
which shows that Vinita Kripalani had given Loans and Advances to
Jayem Exports Pvt. Ltd.
om
held shares of
that
denied
the suggestion that he had falsely stated that Vanita Fashion was
dormant company. In further cross examination
Respondent is not concerned with Jayem Exports Pvt. Ltd. and that
his company belongs
74.
He refused to
62
fca105.14
pertaining to his
Exhibit 168
C
ou
companies.
his refusal
rt
He continued
Rs.6,50,88,008/-.
had only
as
10
equity shares of the company and therefore she does not become
owner of the company.
entries
ig
h
shown Exhibit 166 he stated that the shares mentioned therein were
He denied the
ba
y
om
accounts of the Respondent were held jointly with the Petitioner and
Respondent had no individual NRE or NRO account. The accounts
in
63
on 27.2.2002.
The Respondent
fca105.14
had received summons in the
C
ou
rt
individual return and not filed for Vanita Fashions. He admitted that
the Respondent
cross examination
received
During his
to Palmar
ig
h
ba
y
date. The documents were taken on record and marked as Exhibit175. Palmar Investment Trading Company Pvt. Ltd. owned two flats
in Mumbai The witness refused to answer a pertinent question. The
om
Q.
today ?
75.
Sanwa Finance
of this company.
He was unable to
to debt balance
in the proprietary
64
business of Vanita Fashions
rt
Respondent.
fca105.14
Respondent
examination
C
ou
as a Director.
According to
of
ig
h
Rs.1,000/-.
According to witness,
ba
y
om
76.
transferred
to Saniva
International Pvt. Ltd. was her own money and money was under his
control. On being asked how the account was managed, he does not
state how it was manage. According to him,
not concerned with the same.
amount was shown as loan to the company which was repaid by the
cheque. Later, he
65
fca105.14
Pvt. Ltd. he declined to produce and stated that he was not obliged
PTE Ltd. in
rt
C
ou
were held by
The shares
The
shares
in the company.
ig
h
Respondent and Vanita Trust had right to vote to the extent of their
He reiterated that the Respondent was a
He declined to
ba
y
om
He admitted that he
matrimonial home. Neither his wife nor he had filed any complaint or
any proceedings in any other Court from January 2001 till the M.J.
petition was filed. He was not aware whether the Petitioner wanted to
66
fca105.14
end the marriage since he had filed petition for the restitution of
where the
C
ou
admitted that
He
rt
without consent of
According to him,
the Petitioner's
to
ig
h
It is
misappropriation,
He was only
brother Vinod.
ba
y
om
67
fca105.14
rt
SUBMISSIONS OF COUNSEL
C
ou
77.
own and had substantial earnings. It is the case of the Petitioner that
once the matrimonial petition was filed and the Respondent became
she with malafide intention started diverting its
ig
h
held
ba
y
Pvt. Ltd.
and 14 other
om
companies. She held 198 equity shares in Lekhraj & Sons (Exports)
Pvt. Ltd. which held shares in four companies.
Vanita Apparels Pvt. Ltd. which in turn held shares in Lekhraj and
Sons Pvt. Ltd. and Palmar Investment and Trading Co. Pvt. Ltd.
yet another company M/s.Jayem Fashions Pvt. Ltd.
In
equity shares.
78.
68
fca105.14
C
ou
rt
ig
h
Jayem, Sanwa
Counsel for the Petitioner pointed out that the Respondent wife was
extremely wealthy and had deliberately, with intention to deceive the
79.
ba
y
om
deliberately tried to make out that she had no income of her own
and that she was entirely dependent upon her father for her
maintenance and affairs. It is seen that
out that she had held shares of Jayem Exports Pvt. Ltd. Vanita Trust
also held shares of Jayem Exports Pvt. Ltd. The transfer of shares
by the Respondent is also recorded in various documents referred to
69
fca105.14
rt
C
ou
80.
ig
h
Pvt. Ltd.
Director of Jayem Exports Pvt. Ltd. She also held shares in 14 group
In addition to this she is the share holder in Palmar
ba
y
companies.
one in NCPA
om
Vanita Trust is the trust set up for the benefit of the Respondent.
The trust held shares in Jayem Exports Pvt. Ltd., Lekhraj and Sons
Pvt. Ltd., Sanwa Capital Pvt. Ltd. and Vanita Apparels Pvt. Ltd.
second trust by name
Sanwa Trust
The
the
Respondent and the said trust held shares in Modfash Exports Pvt.
Ltd. and Sanwa Finance Pvt. Ltd. Mrs.Rao further submitted that the
Respondent was the Director in a company at Singapore as well and
70
has been receiving
fca105.14
without
C
ou
rt
her father brought out the fact that it was not serious ailment which
treatment.
ig
h
required costly
account.
that the said amount was shown as loan in the company's books of
As far as cross examination of the father in paragraph 60
ba
y
om
amount that was transferred to Sanwa Capital Pvt. Ltd. which was
under his control. He also admitted that the amount was shown by
the company as loan from the Respondent or as the Investment and
had
admitted that the amount of USD 53600 was shown as loan to the
company. He further admitted that the Respondent does not have to
pay any income tax in view of the loan.
that the Respondent's demand is crucial and it shows that the money
was not required by her daughter for medical treatment at all and
it was deliberately withdrawn and transferred to Sanwa Capital Pvt.
71
Ltd. showing it as loan.
fca105.14
rt
Respondent
C
ou
Court. Thus, it is evident that the amount was not withdrawn by the
for the sake of use of medical expenses but
she had
in paragraph 47
ig
h
81.
of the Respondent for the years 2001-02 shows that the Petitioner
was not ordinary resident in India and the address of permanently
She made reference to cross examination. She
ba
y
residing in India.
wherein she admitted that she is filing income tax returns since prior
om
transactions,
72
Respondent.
rt
examination Exhibit-116
C
ou
statement.
fca105.14
He deposed that
income tax returns filed by the Respondent for the assessment year
2000-01 corresponding to accounting
balance sheet.
the
he
ig
h
accounts jointly
with his
daughter which was closed in year 1994 and opened in ICICI bank.
These were subsequently
produced
on
ba
y
om
for the relevant period. There was no need to open such accounts
and close them only to open fresh account in different bank.
Mrs.Rao stressed upon the fact that the Respondent was regularly
in Singapore company.
at
82.
73
fca105.14
between Vanita
rt
C
ou
lakhs Further he claimed that although there were their debit and
credit entries the trust does not have bank account of its own. He
83.
Mrs. Rao
ig
h
received profits from Vanita Fashions and has also received salary as
the Director which is recorded in capital accounts particulars.
according to Mrs.Rao
ba
y
fact as of 31.3.1994
In
Mrs.Rao then drew our attention to the fact that the Respondent's
om
74
all hearsay.
fca105.14
in
rt
C
ou
Respondent has made certain allegations for the first time in her
answers to the questions put to her. In paragraph 33 of her cross
Further allegations
ig
h
in
between them there was no talk of divorce between her and the
84.
ba
y
Petitioner.
om
pointed out the fact that although the reason she provided for not
attending the Family Court on 19th November, 2005 was that she
was suffering from ill health, in fact she was attending some party
with her friends. To this effect Mrs.Rao relied upon
Exhibit-132 in
false statements
75
to January 2006
cross
to have
examination
in
paragraph
50.
Furthermore,
rt
attended parties
scrutiny
of
C
ou
19.11.2005
fca105.14
bed ridden
between 19.11.2005
ig
h
ba
y
om
there is no doubt that the Respondent had treated the Petitioner with
cruelty and she cited instances referred to us in the pleadings and
evidence.
85.
Mrs.Rao
extremely wealthy
further
that
the
Respondent
submitted
is
as well as
First of all in
76
fca105.14
on the ground
C
ou
do so
rt
Moreover,
her
Respondent and that the Petitioner should look after his daughter
she withdrew
jewellery
ig
h
Ayesha.
On
December
ba
y
despite having
The
om
This is evident
examination.
from paragraph
according to the
Respondent left
matrimonial home
the
that between
hearings even after having served with summons in the petition. She
failed to attend the Family Court in March 2002 instead filed a police
77
fca105.14
complaint on 13th April, 2002 alleging that the Petitioner and his
rt
C
ou
ig
h
86.
Mrs.Rao
ba
y
Supreme Court
Sharma
Sharma
Vs.
om
Ratan Lal
the children.
conditions.
child.
that the Supreme Court observed that if the Respondent wife had left
the matrimonial home on her own
78
fca105.14
rt
direct consequences if she did not leave the house she was not
C
ou
Jabilli AIR 2002 SC 576 it was held that cruelty cannot be judged by
ig
h
judgment that due regard must be to marriage and the Court should
consider whether life together
impossible, then and only then can the Court come to a finding that
on the part of the Respondent .
there is cruelty
All relevant
87.
ba
y
om
79
fca105.14
apart
and
all
other
C
ou
rt
relevant
facts
and
ig
h
Mrs.Rao
thereafter referred
88.
to a decision of the
ba
y
is
om
complaint came to be
The
to get the
89.
80
fca105.14
Family Court shows that the Respondent had received the summons
According to the Respondent, however, the
rt
C
ou
instance she sent a letter Exhibit 112 dated 7th May, 2002. In this
letter the Respondent referred to the fact that while the Petitioner
was at Lagos and the daughter and she werea at the NCPA flat. The
ig
h
tone of the letter reveal that it was intended to create evidence. The
emphasis was that the dispute between them had an impact on the
child. According to Mrs. Rao this letter was written after receipt of
summons
and
hence
deliberate
the
attempt
to
show
the
ba
y
to a SMS sent by the Respondent to the Petitioner. The said SMS shall
stated as follows:-
om
81
fca105.14
C
ou
rt
ig
h
ba
y
om
90.
82
fca105.14
disposed towards him. Mrs. Rao then, referred to a greeting card sent
rt
on Valentines day on 14th February, 2000. (We may also note here
C
ou
ig
h
Greeting card and sms were sent during a period between November
2001 and 5th June 2002 during which period she was admittedly
residing with her parents at the NCPA flat acquired by her parents
ba
y
months period she had sent the SMS and Greeting card merely to
create an impression that she was a loving wife and to prove the
Petitioner as the wrong doer. Interestingly, in her cross examination
om
91.
the
was
self
sufficient
wealthy
and
financially
83
independent.
fca105.14
rt
income what she does from the family businesses. The fact that she
C
ou
ig
h
ba
y
om
London since 2012. She has stated that she has instructions from her
client to submit to the order of this Court as far as sharing the cost of
92.
84
fca105.14
rt
C
ou
said Act subject to the discretion of the Court having due regard to
ig
h
ba
y
om
It is relevant
according to Mrs. Rao and not only that the wife has suppressed her
income and assets but has deliberately failed and neglected to
These particulars
85
fca105.14
rt
Shivkumar Singh (supra) there was no case made out for granting
C
ou
maintenance. Mrs. Rao submitted that applying the said test there is
no doubt that the Respondent has chosen to walk out of the
Petitioner's life and stay separately. The Petitioner has not asked her
to leave and, therefore, there is no justification in the Family Court
ig
h
income
and
having
interest
which
were
more
than
ba
y
om
93.
86
fca105.14
losses and the profits that would generate after 1998 were in fact
rt
eaten away by the losses of the previous years. Despite all of this
C
ou
that he spent more than 1,50,000/- on holidays for the family. The
the
money
received pursuant
to
the
dissolution
of
the
ig
h
transactions.
ba
y
om
87
fca105.14
rt
C
ou
attorney. The other amounts in the Bank of Baroda have also been
explained by the Petitioner including Bank of Baroda and UTI.
He
had explained most of the credit and debits which were called by the
counsel for the Respondent in particular.
Rs.6,32,093/-.
had clarified
Various
that the
other
car was
amounts
ig
h
the Petitioner
purchased for
amounting
to
1994 to
June
business
related
ba
y
om
94.
Mrs. Rao
reiterated that this court in the case of Sanjay Sudhakar Bhosale V/s.
Khristina w/o Sanjay Bhosale and held that where there is no proof of
cruelty being meted out to the wife, she was not entitled to
maintenance. In fact, in that case the wife
treatment at the hands of the husband and his relatives after six
months of marriage. There was no evidence of cruelty.
This Honble
Court has held that the wife was guilty of desertion without any
reason.
88
fca105.14
rt
C
ou
Smt. Rohtash Singh V/s. Ramendri (Smt.) 2002 (2) R.C.R. 286
wherein it is held by the Apex Court that a wife is guilty of desertion,
she was not entitled to any maintenance. Mrs. Rao also relies upon
ig
h
which case the Honble Supreme Court dealt with the case arising out
of a criminal complaint under section 125 of the Cr.P.C, and an
ba
y
om
reasons given for alleged ill treatment were non-existent and the wife
left the matrimonial home without any justifiable grounds.
In that
situation, the Supreme Court held that the Respondent was not
RESPONDENT'S SUBMISSIONS
89
rt
95.
fca105.14
C
ou
and other assets which were not disclosed (c) deposits in ICICI Bank
accounts and its entitlement to maintenance on account of desertion.
ig
h
Mr. Narula submitted that case of desertion had never been pleaded
by the Petitioner. According to Mr Narula it is undisputed that the
Petitioner and the Respondent stayed in Lagos upto year 2000 and
ba
y
om
1994 and she had now become a major. Mr. Narula submitted that in
between 1994-98 there were no major instances or the dispute arises.
The Petitioner abruptly seeking separation then confronted the
Respondent with a petition under section 13(1)(a).
According to Mr.
Narula the couple were happily married and the allegations of cruelty
being made are non issues. Such contention would not entitle the
Petitioner to divorce on the ground of cruelty. Thus, the family court
90
fca105.14
rt
C
ou
submits that the Respondent was treated badly by the Petitioner and
his family members and she was unable to bare the continuous
ig
h
with the Respondent and started taunting her parents had not given
sufficient wedding gifts to her and the Petitioner. According to the
ba
y
om
beating her during her stay during the months of February to April
1994. In this respect, reference is made to paragraph 7 and 8 of her
deposition. Mr.Narula then, pointed out that in paragraph 13 of the
assaulted on her face and back. The mother of the Petitioner would
instigate the Petitioner against the Respondent and her parents.
Making further reference to the ill treatment of the Respondent, Mr.
Narula referred to paragraph 17 of her affidavit in lieu of evidence
wherein she had deposed that she had developed a fear complex
91
fca105.14
feeling insecure and confined to her father that she was very much
rt
afraid to go back to Lagos. She has alleged that there was a game
C
ou
plan hatched by the Petitioner and his parents and that she would not
ig
h
there for her delivery. In this manner, she was led to believe so and
went at fathers place but without her daughter.
hypothyroid
stay at Iris.
She continued to
Petitioner would not pay any money for her medical treatment. She
ba
y
had to use her own monies for medical treatment and had to
withdraw $ 52500/- lying in the OCBC Bank Singapore. She further
deposed that she spent the monies that she withdrew on her medical
om
expenses and for her daughter Ayesha and the Petitioner as well. Mr.
Narula drew our attention to the fact that the Petitioner's took away
his daughter Ayesha to Lagos without informing the Respondent and
92
fca105.14
C
ou
96.
rt
in paragraph 19 of the
ig
h
that his daughter informed him that the Petitioner and his parents
were beating her. The Respondent's father rushed to the matrimonial
ba
y
home by around 10 p.m. and only to face a very messy situation. The
Petitioner was beating the Respondent in the presence of all.
He
om
him and the Petitioner's parents were hiding behind their bed room
door and were throwing glass plates at the Respondents; father. This
continued till midnight.
allow the Respondent to take her belongings from the cupboard nor
did he allowed the Respondent's father to take their daughter along
with with the Respondent.
He therefore
93
97.
fca105.14
rt
C
ou
she has no knowledge about the companies and all the accounts were
the ICICI bank account she had jointly with her father. She states that
ig
h
ba
y
om
father uses her name in his business and she was a nominee director
in Sanwa Finance Ltd. and Jayem Exports Pvt. Ltd.without drawing
any salary. She made reference to Exhibit 122 to say that her father
controlled
all
the
businesses.
According
to
Mr.Narula,
the
94
fca105.14
father. She claimed that she was a dummy director and she did not
C
ou
rt
know the purpose behind using her name in her father businesses.
that the Respondent does not have any separate income nor she has
ig
h
was not a director in any of the companies nor was she shareholder.
Mr. Narula, then, was at pains to support this contention and took us
the businesses.
ba
y
98.
submitted that the Respondent had held 610 preferential shares. His
preferential shares were redeemed on 19 th January, 2000. According
om
99.
95
fca105.14
and shares of Jayem Exports Pvt. Ltd. were sold on 30 th April, 2002.
rt
He submitted that she does not held any share in any company and
C
ou
she had gifted and sold to Varsha and some of the companies are
172 of paper book which is at page 751 which reveals that sum of
ig
h
100.
ba
y
Ltd., Mr. Narula submitted that the Respondent was having 650
preferential shares which were redeemed on 20 th November, 2001.
He referred to Exhibit 172 at page 751 to demonstrate that the sum
om
Mumbai at NCPA and Blue Heaven. Mr. Narula, then, referred to the
company Jayem Exports and stated that the Respondent held 750
shares in Jayem Exports which were sold in
two tranches on 27 th
December, 2001 and 29th March, 2001. He, then, made reference to
Exhibit 170 which showed that it received a consideration for 300
shares. [there is nothing to show that the amount deposited in the
ICICI bank account jointly held by Respondent and his father was
96
fca105.14
consideration for 300 shares. While on the subject, the said bank
2001.
on 28 th December,
C
ou
rt
statement at page 724 also shows that sum of Rs.1,80,000/- was paid
ig
h
101.
stated that the Respondent held 18 shares in financial year 200001and sold them to Varsha her sister.
ba
y
om
means. She was without any income of her own is required to bring
up her daughter Ayesha and she only has her father to support her.
He, therefore, submitted that the Respondent was entitled to
maintenance commensurate with the life style sh had come to expect
inasmuch as the Petitioner's lifestyle was luxurious. He had, at Lagos,
two cooks, three maid, two cars, had shopped for furniture in London,
huge amounts of money passed through his accounts. The holidays
97
fca105.14
rt
C
ou
enhanced maintenance
ig
h
Rs.1,50,000/- p.m. for herself and her daughter. She has been also
entitled to separate residence.
102.
ba
y
reported in 2002 (5) SCC 422 in which the Hon'ble Supreme Court
has held that under section 125 read with section 23 of the Hindu
Adoptions and Maintenance Act, 1956, a major daughter is entitled
The Supreme Court observed
om
that in that case it was manifest that the minor girl's right for
maintenance till attaining majority and till her marriage is recognised
103.
98
fca105.14
rt
fact that the Petitioner has stated that the marriage has broken down
C
ou
ig
h
the decision
ba
y
Supreme Court Cases, 326 and submitted that the Petitioner had
treated the Respondent with cruelty and in any event, the Petitioner
om
104.
reveals that the husband had significant financial ability and the wife
filed for enhancement of the maintenance. he issue in the said appeal
was that of enhancement of maintenance as it is in the present case.
The Court came to the conclusion that the Appellant had established
99
fca105.14
rt
C
ou
this Court had after considering the facts of the case, enhanced and
determined an increase from Rs.7,000/- per month to Rs.10,000/- per
ig
h
Mr.Narula submitted that the facts in the present case are similar.
The Petitioner has not disclosed his correct income and the
105.
ba
y
om
100
fca105.14
He further
C
ou
rt
wife can by her and the supporting evidence of her father Murli
that the sum of Rs.25,000/- granted by the trial Court will be wholly
ig
h
106.
ba
y
CONCLUSIONS
Having heard both the learned counsel for the parties and
om
Findings
101
fca105.14
C
ou
Cruelty?
rt
No
ig
h
ba
y
107.
the Petitioner.
om
102
fca105.14
treated with cruelty, she had failed to establish the same. The trial
rt
Court found that even the Respondent's father had not made any
that
the
Petitioner
had
his
case
that
the
ig
h
108.
C
ou
allegations against the Petitioner and his family till the matrimonial
ba
y
om
to the Petitioner.
request of the Petitioner and used non availability of a visa for the
daughter as an excuse.
103
The Petitioner has also deposed to the fact that his sister
Apart from
C
ou
rt
109.
fca105.14
the physical harm to his parents, he has deposed that false cases
were filed against his parents and him under section 498 of the IPC.
After registering the case against the Petitioner and his parents, the
parents of the Petitioners had to take anticipatory bail. All this has
ig
h
In August, 1997
ba
y
om
father of the Respondent's child. These are very serious and grave
allegations.
110.
seen from the fact that the Respondent has not cross-
104
cruelty.
fca105.14
rt
C
ou
was suffering from Chickenpox and considering the tender age of the
child such acts of insensitivity are cited as instance of cruelty.
111.
manner in which she dealt with the joint account in OCBC bank,
ig
h
contended that the money was her own, comprising of gifts received
by her. She then contended that the amount was withdrawn in order
ba
y
to fund her medical treatment. She has deposed that she was
suffering from Hypothyroid condition and that she required treatment
but the Petitioner had refused to give money for her medical
om
by her for medical treatment but she has transferred the money to
her father's company account. This was also brought out in the crossexamination of the father. In her cross-examination, she admitted that
money withdrawn from the joint account was not used but she
borrowed money from her father. She also deposed that Rs.60,000/had been paid for treatment of thyroid. She admitted that that she
was not hospitalised for the thyroid condition nor has she undergone
105
fca105.14
C
ou
rt
any surgery treatment. In this view of the matter, it is clear that she
112.
ig
h
ba
y
om
2nd November 2001 after the Petitioner started quarelling with her,
both the parents in law joined the Petitioner, in beating the
113.
106
fca105.14
there has been separation over a long period of time and given the
rt
fact situation, we are of the view that the trial Court had correctly
C
ou
come to a finding that the Respondent wife has treated the PetitionerOne of the leading case on the issue is
Court Cases 511. In this case, the Hon'ble Supreme Court held as
ig
h
follows:-
ba
y
om
while
taking
aforementioned
factors
in
consideration.
101. No uniform standard can ever be laid down for guidance,
yet we deem it appropriate to enumerate some instances of
107
fca105.14
rt
C
ou
(i)
make possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
(ii)
ig
h
ba
y
(iv)
(v)
om
(vi)
(vii)
Sustained
reprehensible
conduct,
studied
neglect,
108
(viii)
The
conduct
must
fca105.14
be
much
more
than
jealousy,
rt
(ix)
C
ou
ig
h
(xi)
ba
y
om
(xii)
(xiii)
109
fca105.14
rt
114.
C
ou
cruelty.
Attributing defamatory
ig
h
K.Srinivas
V/s.
following the judgment of Samar Ghosh has also taken the view that
defamatory statements by Respondent wife are bound to result in
humiliation of the husband and result in the husband and his family
ba
y
om
sleep with his father which angered him and caused humiliation to
the father and great anguish to him.
13. In Naveen Kohli the wife had filed several complaints and
cases against the husband. This Court viewed her conduct as a
conduct causing mental cruelty and observed that the finding of
the High Court that these proceedings could not be taken to be
110
fca105.14
C
ou
21.
rt
unsustainable.
Section
498-A
of
the
IPC
was
allowed
by
the
22.
ig
h
ba
y
to sleep with his father is bound to anger him. It is his case that
this humiliation of his parents caused great anguish to him. He
and his family were traumatized by the false and indecent
statement made in the complaint. His grievance appears to us
to be justified. This complaint is a part of the record. It is a part
om
111
fca105.14
rt
each other. Staying together under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty
C
ou
allegations
or
by
initiating
number
of
judicial
ig
h
ground for divorce under the Hindu Marriage Act, 1955. But,
where marriage is beyond repair on account of bitterness
created by the acts of the husband or the wife or of both, the
ba
y
om
115.
112
fca105.14
amounts to cruelty in the case of Mr. M V/s. Mrs. M 2014 (2) Mh.
This Court has
rt
C
ou
116.
divorce by consent.
ig
h
her appeal against the decree of divorce. Learned counsel for the
Respondent does not make out any case for a relief against the
decree of divorce. The main crux of the argument was on the issue of
117.
ba
y
by the Petitioner.
om
that a cruelty which brings us to that aspect of the matter and apart
from the fact that the Petitioner has made various allegations of
cruelties which were listed out above, in the written statement, we
find that the Respondent has also contended that she has been
treated with cruelty.
Although the
Petitioner has initially filed the petition for judicial separation. Apart
from formal denials and the contentions of the Petitioner, the
Respondent has admitted the factum of marriage, cohabitation on the
113
fca105.14
rt
C
ou
That whenever the Respondent came to India she would reside at the
said matrimonial home. She has contended that even as on date of
filing of written statement her clothes and jewellery were lying in the
matrimonial home.
ig
h
Respondent states that after the birth of their child Ayesha, the
attitude of the Petitioner towards her changed and the Petitioner was
like a puppet in the hands of his mother who is alleged to have been
She
ba
y
om
believed
to
have
caused
the
matrimonial
dispute.
The
114
parents for not providing a flat.
fca105.14
He threatened the Respondent to
drag
the
Respondent
out
of
matrimonial
home.
C
ou
physically
rt
in-laws in their old age. However, this marriage was not turning out
ig
h
reconcile and reunite with the Petitioner for the betterment of the
She contended that she had written a letter on
daughter Ayesha.
ba
y
reunite.
om
118.
23rd January, 2002 for judicial separation without any fault on the part
of the Respondent and it is the Petitioner's intention to desert the
Respondent. She admits that on 13th April, 2002 she had lodged a
detailed complaint against the Petitioner and her in-laws alleging
harassment and ill treatment made by the Petitioner and in-laws to
her.
contends that since the police has not taken cognizance of the
115
fca105.14
rt
C
ou
Magistrate, 8th Court at Mumbai, which issued process. She has also
sought an order from the Court directing them to provide suitable
accommodation
in
the
same
vicinity
of
South
Mumbai
and
Rs.25,000/- per month for daughter Ayesha. She has alleged that the
ig
h
About the
withdrawal of the monies from the joint bank account of OCBC Bank,
This,
however, is untrue as we will see when we have deal with this aspect
When juxtaposing the contentions in the
ba
y
written statement with those in the petition and upon analysing the
evidence led by the parties, it becomes extremely clear that both
om
thereafter dismissed.
116
fca105.14
rt
C
ou
that they have taken several holidays abroad and they travelled
regularly by business class. Several such instances have been cited
ig
h
These
ba
y
om
born on 13th April, 1994 that she became adamant and abusive and
defiant soon thereafter. As against this, the Respondent also claims
that after the birth of the child,the Petitioner became arrogant and
abusive towards her. The Respondent's evidence lacks credibility on
this aspect. There are very serious allegations of cruelty which have
been brought out by the Petitioner in his evidence. For instance, in
August 1997 when the Petitioner's sister Jyoti had given birth to her
child, the Respondent is alleged to have accused the Petitioner of
being the father of the said child. This evidence has not been
117
fca105.14
When the
C
ou
rt
Petitioner has through his advocate's letters put on record the various
Petitioner was called to attend the Cuffe Parade Police Station and
the Respondent and her parents abused the Petitioner at the police
station. The Respondent's mother is alleged to called the Petitioner
impotent and stated that he should be sheltered under the frill of his
ig
h
mother.
ba
y
119.
stated that she has witnessed the arguments between the Petitioner
and the Respondent which revolved only around money. The evidence
om
of the Petitioner's mother Mrs. Asha Kripalani also reveals that many
of the altercations between husband and wife revolved around money.
120.
118
fca105.14
rt
C
ou
ig
h
petitioner's sister and made offensive comments about her having two
In fact, the Respondent appears to have spared nobody in
childern.
ba
y
om
spouse.
considered the fact situation there is no doubt in our mind that the
Respondent wife inflicted mental cruelty on the Petitioner husband,
as a result of which
together.
prove that the Petitioner has treated her with cruelty. The evidence is
loaded against the Respondent. It is clear that the Petitioner cannot
ask to put up with the conduct of the Respondent and continue to live
with her. So, there is question of setting aside the decree of divorce.
119
fca105.14
rt
C
ou
beyond repair.
121.
ig
h
any longer.
cruelty.
ba
y
mention. The child Ayesha had developed chicken pox in and around
December 1998. The Petitioner informed the Respondent who was
then in India of this fact and expected that the Respondent would go
om
to Nigeria to look after the child but she failed to do so. Sometime
later the child was brought to India and after she recovered the
Petitioner had expected that the Respondent will accompany him and
The
120
challenge
to
the
decree
of
fca105.14
divorce
in
Family
Court
Appeal
rt
122.
C
ou
ig
h
123.
ba
y
from the conduct of parties that she had lived separately for long
period of time, we do not find any such case made out in the petition.
Although it would be open for Mrs. Rao to contend that the Petitioner
om
grounds. Although,
to
make
121
fca105.14
rt
C
ou
It may be noted that only after the amendment of the said Act
by the amending Act 68 of 1976, desertion, the High Court held
desertion must not only prove that the other spouse was living
ig
h
cause for the wife to stay away from the matrimonial home.
124.
ba
y
om
Suffice it to say that the Petitioner has not prove animus deserendi
nor has he alleged desertion or has the Respondent proved that the
Petitioner has conducted himself willfully in a manner which
furnishes reasonable cause for the wife to stay away from the
matrimonial home.
125.
122
on the question of maintenance.
fca105.14
We will deal with this aspect of
C
ou
rt
126.
The trial court also found that the Petitioner was very
rich, does not want to disclose his real income and was lying about
his real income. The Court found that although an attempt was to
show that the Respondent-wife is not wealthy and does not have any
ig
h
income and the trial court came to the conclusion that after the
marriage the Respondent had concealed her assets transferred her
share holding investments, etc. despite which she was entitled to
ba
y
127.
In
om
No.258/2008
for
filed
by
the
Respondent
enhancement
of
123
fca105.14
C
ou
rt
128.
ig
h
129.
ba
y
paid.
om
refusal of custody.
130.
124
fca105.14
first of the Petitioner wherein he stated that after separating from his
rt
C
ou
ig
h
had not attended the board meetings since 2002. He admitted that
although in year 1999, the company made profits, the same were
wiped away due to loss in the year 1998 but he was unaware of the
ba
y
om
131.
share upon leaving his brother's business time. He admitted that after
separation from his brother he rented a 3BHK apartment but he could
not recall the rent amount paid. He spent about US $25,000 for
renovation, purchasing furniture from London and having the same
transported. All these costs were borne by the company. In 1993, he
had two maids and one cook in the house. The salaries of these
persons were paid by the company. The driver was also employed by
the company, yet, he could not produce any document to show the
perks that he enjoyed from 1993-98.
125
fca105.14
He
lakhs
C
ou
rt
fees, tenancy agreement charges etc. The electricity bills were paid
by the company in those days of about Rs.10,000/- .
He was
not
assessed to tax in India and could not state the salaries of other
ig
h
transactions between his sister Jyoti Mahajan between June 1994 and
In the
Bank itself,
ba
y
1998.
om
fact that the amounts which have been passed through bank accounts
132.
learned advocate for the Petitioner has demonstrated and as has been
126
fca105.14
The
C
ou
rt
The
and
Trading Pvt. Ltd., Modfash Exports Pvt. Ltd., Jayem Exports Pvt. Ltd.,
ig
h
Lekhraj & Sons Exports Pvt. Ltd., Sanwa Capital Pvt. Ltd., Vanita
Apparels and Jayem Fashions Pvt. Ltd. The aforesaid companies have
cross holdings in other group companies.
ba
y
om
Vinita Kripalani has held shares many if not all the businesses as set
out in Exhibit 117 and 177.
133.
held shares in Jayem Exports Pvt. Ltd., Lekhraj & Sons Exports
127
fca105.14
Pvt.Ltd., Sanwa Capital Pvt. Ltd., Vanita Apparels Pvt. Ltd. and
rt
matrimonial
petition
and
being
summons
C
ou
upon
the
ig
h
134.
ba
y
(Far East) PTE Ltd. Singapore also the company was engaged in
manufacture of garments. The Respondent was a director in the said
two Singapore companies and a third company in which Sanwa
(Holdings) Pte. Ltd. Respondent was appointed as a director on 1 st
om
The Sanwa
128
fca105.14
rt
C
ou
ig
h
ba
y
The
om
these Appeals, we are not required to deal with into details of the
investments and wealth of the Respondent. No case for enhancement
of maintenance has been made out. During the course of submissions
we inquired to Mrs. Rao, the learned counsel for the Petitioner as to
whether the Petitioner was willing to contribute towards the cost of
education of their daughter Ayesha who is presently studying in
Berkeley College in the U.K. The Petitioner has fairly agreed to share
129
one half of the expenses.
fca105.14
C
ou
rt
The Respondent
expenditure
required to be incurred
daughter.
the
declines to
ig
h
on the education of
will be
135.
We are of
the light of the statement of the learned Counsel for the husband.
ba
y
om
130
fca105.14
loans from her father. She claimed that she does not understand
C
ou
rt
Petitioner and she does not personally know the financial position of
the Petitioner, nor has she tried to find out about them. We do not
ig
h
Both
ba
y
om
Petitioner.
i)
ii)
Civil
Application
No.258
of
2008
taken
out
by
the
iv)
131
fca105.14
No.128/2008,
i.e.
Appellant
in
Family
Anil
Kripalani
shall
Court
continue
Appeal
to
rt
The
pay
C
ou
v)
ig
h
time,
ba
y
vii)
om