ZENOBIA GHADIALLY Vs. MEHROUZ GHADIALLY

JUDGEMENT

(1.) This Parsi Matrimonial Suit is filed by the wife seeking divorce on the ground of cruelty under Section 32(dd) of the Parsi Marriage & Divorce Act, 1936 ("PMDA").

(2.) I have been aided by the delegates named above at the trial and the hearing of this suit. Their decision on facts is unanimous. Under Sections 19 and 46 the PMDA, the delegates are the sole judges of facts. Given their unanimous decision, it would not have been ordinarily necessary to set out the facts at any great length. I have done so for three reasons. The first is because there are very many issues framed, some of which lie within the remit of the delegates and others not, especially the question of alimony and residence; yet all are inter-dependent. The second is that although the delegates' view is final and not appealable, there appears to be to this a narrow exception, i.e., one where an appeal is on the basis that the delegates 'misconducted' themselves on questions of fact.(Dina Dinshaw Merchant v Dinshaw Ardeshir Merchant, 1970 72 BLR 41) For myself, I have no hesitation in concluding that they did not, and that their decision is not only correct, but the only possible one on facts. But in at least one reported decision, it was argued that whether the facts proved amount to a matrimonial wrong or not is a question of law and, therefore, a wrong finding on that question can be interfered with in appeal (Kaikhushroo Tantra v Meherbai Tantra, 1945 47 BLR 819). In fairness to the delegates, I believe it is necessary to deal with the facts that were before them. The final reason is that it is only in this judgment that I can set out my summing up to the delegates on the law applicable to the facts at hand.

(3.) The Plaintiff-wife and the Defendant-husband were married on 1st May 1990 in Mumbai in accordance with Zoroastrian rites and customs. Both were divorcees. Both had children from their previous marriages. They have no children from the present marriage. This is not in dispute. Indeed, it seems that this is one of only two matters undisputed, the other being that the Plaintiff previously filed Parsi Suit No.30 of 2004 ("the 2004 Suit") but which she later withdrew.