BANU Vs. KUTUBUDDIN SULEMANJI VIMANWALA

JUDGEMENT

(1.) THIS is a suit filed by the plaintiff for a declaration and for certain other reliefs. The defendant has contested the suit by filing written statement. Issues have been framed. The evidence was recorded on Commission. The plaintiff examined, herself and closed her case. The defendant has examined himself and one witness and closed his case. I have heard lengthy arguments addressed on behalf of the plaintiffs and defendant.

(2.) THE plaintiffs case are as follows : The 1st plaintiff is the wife of the defendant. The 2nd plaintiff is the son of the 1st plain tiff and the defendant. The parties belong to Dawoodi Bohara Sect of Muslim Shiya Community. The marriage between the 1st plaintiff and the defendant was performed on 19th January, 1980 at Godhra. The second plaintiff was born on 13th November,1981. Though in the beginning the matrimonial relationship of the 1st plaintiff with the defendant was cordial, it is alleged that subsequently strained feeling started between the parties. It is alleged that on 6.11.1982 the defendant quarrelled with the plaintiff and assaulted her and drove her out of the house. Since then both the plaintiffs are residing with the parents the 1st plaintiff and away from the defendant. It is also stated that the defendant took another wife by name Rashida and this marriage was performed on or about 12th May, 1983. There is also some allegations and also a prayer regarding the alleged divorce given by defendant before a Kazi at Bombay. It is not necessary to refer to those allegations since that relief no longer survives for consideration since the defendant has given another divorce subsequently and the defendant is not now pressing the earlier divorce before the Kazi. The defendant has also filed Misc. Petition No. 377 of 1983 in this Court for custody of the second plaintiff, but that petition came to be dismissed by this Court as per the order dated 17.2.1994. The 1st plaintiff called upon the defendant to pay maintenance by issuing their Lawyer's notice. The defendant sent a reply stating that he has divorced the 1st plaintiff before Amil Saheb at Indore. No relief was asked regarding the second divorce in the beginning on the ground that no particulars were furnished by the defendant regarding this second divorce. It is asserted that the 1st plaintiff continued to be the lawfully wedded wife of the defendant. By amending the plaint, now plaintiff states that the alleged second divorce pleaded by the defendant said to have been given before the Amil Sahib is null and void and contrary to the law applicable to Dawoodi Bohara Sect. Hence it is asserted that the marriage between the parties still subsists. The defendant is bound to maintain the plaintiffs according to his status and financial position. The defendant's monthly income is about Rs. 12,000/ -. He is doing a business, being a partner in number of firms. The 1st plaintiff is entitled to a separate residence and separate maintenance at the hands of the defendant. It is stated that Rs. 5,000/ - per month be paid for the maintenance of both the plaintiffs. It is also alleged that when the 1st plaintiff was driven out of house, her immovable properties including jewellery are lying with the defendant which he is bound to return to the 1st plaintiff. The list of articles are mentioned in Exhibit attached to the plaint, that the plaintiff No. 1 has no separate source of income and she is dependent on the charity of her brother. The first plaintiff has also asked for relief by amending the plaint by pleading that if the Court comes to the conclusion that the second divorce is valid then the plaintiff is entitled to 'Muta'. It means gift on divorce. Having regard to the status of the defendant, the plaintiff states that she is entitled to a sum of Rs. 10,00,000/ - as 'Muta' from the defendant. There is also another amendment to the plaint praying for past maintenance from 6.11.1982. On these allegations plaintiffs have filed this suit praying for a declaration that the two divorces said to have been given by the defendant before the Kazi at Bombay and before the Amil Sahib at Indore are void and have no legal effect and for a declaration that the marriage between the parties is still subsisting, that the defendant be directed to pay maintenance at the rate of Rs. 5,000/ - per month from 6.11.1982, that the defendant be directed to return all the immovables Including jewellery. The defendant be directed to provide separate maintenance and separate residence to the plaintiffs. It is also alleged that the defendant had a Savings Bank Account bearing No. 6544 in the Union Bank of India having a credit balance of Rs. 14,200/ -. The defendant has withdrawn the entire amount except leaving a balance of Rs. 102.24p. There is also an alternative prayer that in case the Court comes to the conclusion that the divorce between the parties is valid then the defendant may be directed to pay a sum of Rs. 10,00,000/ - to the 1st plaintiff by way of gift on divorce. There is another prayer that the defendant be ordered to pay a sum of Rs. 12,197.76 p. with interest.

(3.) THE following issues have been settled in this suit : Issues