LAWS(BOM)-1981-6-5

SUKHDA SAYED Vs. MASOOD SAYED

Decided On June 26, 1981
SUKHDA SAYED Appellant
V/S
MASOOD SAYED Respondents

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the order allowing the appeal on technical grounds suo motu raised by the learred single Judge. The appeal was of the husband-Masood Sayed against order passel by the Bombay City Civil Court on 14th July, 1980 directing the husband to pay to his wife Sukhda Sayed a sum of Rs. 750 per month for her maintenance with effect from 1st June, 1979.

(2.) The relevant facts are that the wife is a Hindu and the husband is a divorcee Muslim. Their marriage was solemnized on 17th June, 1978 under the Special Marriage Act, 1954. It appears that for about 18 months prior to their marriage, the parties had developed friendship and lived under the same roof. During that period, the husband had met with a serious motor car accident and he was nursed and looked after by his would be wife. The married life did not last long and within five months the wife filed a Matrimonial Petition No. 853 of 1978 in the Bombay City Civil Court for restitution of conjugal rights and for alimony and/or maintenance at the rate of Rs. 2,500 per month. She alleged that the husband was a man of considerable means having a fabrication factory in Bombay, immoveable properties at his native place in Madhya Pradesh, an Impala car besides a Jeep and estimated his income at Rs. 10,000 per month. These allegations were also made in the correspondence prior to the filing of'the petition and the husband had contended that he had no means whatsoever and that he was not in a position to meet the wife's demand. In the written statement, the husband denied the said allegations as to his property and income. His case was that he was earning about Rs. 500.to Rs 600 from a petty contract work of fabrication and that he struggles for life in a Zopadapatti area of Janki Kutir, Juhu, which is a rented hut for Rs.10 per month. According to him, he had purchased the said motor car with his savings from his employment with Tata Oil Mills Ltd. and had su ferred a loss of Rs. 40,000 on the said motor car and presently it was worth Rs. 2,000. The husband contended that the wife bad been lured ar d she carried a wrong impression about his earning capacity of Rs. 10,000 and that she had married him with the mala fide intention of living a luxurious life at the cost of the husband without reciprocating her duty as a narried woman. The husband admitted that prior to their marriage she took care of him when he had met with motor car accident. He alleged that he had suffered a loss and debt of Rs. 90,000 on account of the wife not providing him food at home and causing him mental tension and domestic worries.

(3.) The wife's petition for restitution of conjugal rights was allowed. As the husband did not take back the wife in the matrimonial home and did not take care to maintain her, the wife took out a Notice of Motion dated 12th March, 1979 (bearing No. 1117 of 1979) in the said Matrimonial Petition No. 853 of 1978. The learned Judge of the City Civil Court who heard the said Notice of Motion, after examining the affidavits of the parties Was of the view that they had not set out the particulars of income at all. The parties were represented by Advocates and were present at the hearing. The speaking order dated 29-1-1980 shows that the learned Judge took into consideration the procedural aspect of recording the evidence, but in ordsr to djjspose of the application expeditiously, he directed the parties to disclose particulars of income. Further, as the application was pending since 12th March, 1979, the learned Judge directed the husband to pay Rs. 3,750 on or before 19-2-1980 without prejudice to the rights of the parties. He further directed the husband to file his affidavit of income supported by documentary evidence. We have gone through the said order and it seems to us that the parties did not object to the application being disposed of on affidavits. The parties also did not express desire to examine themselves or any witness on their behalf. The parties submitted to the said order dated 29-1-1980 and filed their affidavits as directed. The learned Judge, on consideration of the material as disclosed on affidavits and after hearing the Advocates for the parties, assessed the income of the husband between Rs. 1,500 and Rs. 2,000 per month and in that view of the matter, he |xed Rs. 750 per month tor the maintenance of the wife.