RAMESHCHANDRA RAMPRATAPJI DAGA Vs. RAMESHWARI RAMESHCHANDRA DAGA

JUDGEMENT

(1.) THIS Appeal by the original respondent is directed against the judgment and decree dated 9.10.1995 passed in M.J. Petition No.A-756 of 1990 by the learned Judge of the Family Court at Mumbai. The learned Judge allowed the petition filed by the present respondent under section 10 of the Hindu Marriage Act for judicial separation and other reliefs. The learned Judge, however, dismissed the appellant's counter-claim for a declaration of nullity of marriage. Feeling aggrieved thereby the original respondent-husband has filed this appeal. The original petitioner-wife has also filed cross-objections. The relevant facts necessary for deciding this appeal and the cross-objections are, in brief, as under:

(2.) THE parties belong to Maheshwari community and both of them were married on 11.7.1981 at Mumbai as per the Hindu Vedic rites. At the time of marriage the respondent was a divorcee since she had previously married with one Shri Girdharilal Lakhotia in 1973 but there was subsequently divorce as per the registered divorce deed dated 15.5.1979. The appellant was a widower with three children; his first wife Usha having died sometime in 1979. The marriage between the parties was a settled marriage. After the marriage the respondent started residing with the appellant in their matrimonial home at Ratlam in Madhya Pradesh. The appellant is an Income Tax Practitioner. According to the respondent she gave a birth to a still born male child on 12.4.1982. Thereafter she again remained pregnant and delivered a female child on 14.7.1983. The baby was named as Pooja. The respondent alleged that since after her marriage with the appellant, the latter was treating her with cruelty and he was pressurizing her by making demand for money. She further alleged that the appellant used to abuse, insult and assault her. In this way the parties lived together for a period of 8 years but finally in 1989 the respondent was forced to leave her matrimonial house alongwith her daughter Pooja and since then she has been residing with her father at Vikhroli, Mumbai. The appellant did not make any provision for maintenance of the respondent and the minor daughter Pooja. He also retained with him the gold ornaments and silver articles which were given to the respondent at the time of her marriage. Finally the respondent filed the above-mentioned petition on 11.6.1990 praying for a decree of judicial separation on the ground of cruelty. In addition she prayed for an order of maintenance at the rate of Rs.3,000 p.m. for herself and her daughter Pooja. The respondent also made a prayer for return of her ornaments described in the List Exhibit A to the petition. Alternatively she claimed a sum of Rs.3,25,655 being the price of the ornaments and the articles in case the same were not restored to her.

(3.) IN support of her case, the respondent examined herself at Exhibit 60, her father Nandlal Rathi at Exhibit 126, neighbour by name Shrinivas Kalantri at Exhibit,155 and a close relative Ashok Mundada at Exhibit 185. The appellant on the other hand examined himself at Exhibit 157. Both parties led some documentary evidence also. The learned Judge upon consideration of the evidence on record came to the conclusion that the factum of marriage between the parties was proved and that Pooja was born out of the said wedlock. The learned Judge accepted the contention of the respondent about the ill-treatment at the hands of the appellant and held that on that ground she was entitled to a decree of judicial separation. The learned Judge negatived the contention of the appellant about the nullity of the marriage and declined to grant relief of declaration as prayed for by the appellant. He held that the earlier marriage between the respondent and her husband Girdharilal Lakhotia was dissolved by a decree of divorce. The learned Judge further held that the petitioner was entitled to get maintenance allowance at the rate of Rs.1000 p.m. for herself and Rs.2000 p.m. for the minor daughter Pooja from the date of the petition. He further directed the appellant to return to the respondent the articles mentioned in Exhibit A to the petition and in case of his failure to return the same. He directed the appellant to pay to the respondent a sum of Rs.3,25,655. The learned Judge also gave a direction to the appellant to give his No Objection for encashment of Fixed Deposit Receipt dated 13.4.1984. The learned Judge directed the appellant to pay the cost of Rs. 5,000 to the petitioner and created a charge upon the residential house of the appellant being security of the amount which were payable to the respondent under the decree.