MADHAVI RAMESH DUDANI Vs. RAMESH K DUDANI

JUDGEMENT

(1.) THIS Appeal by a wife seeks to challenge the common judgment and order dated 29th June 2004 passed by a Judge of the Family Court at Mumbai. The Appellant wife had filed Petition No.A-1822 of 1992 on 23rd November 1992 in the Family Court seeking judicial separation under section 10 of the Hindu Marriage Act, 1955 on the ground of cruelty and ill-treatment. The Respondent husband had filed Matrimonial Suit No.B-96 of 1992 on 23rd December 1992 seeking a declaration that the purported marriage between the Appellant and the Respondent performed on 19th January 1983 be declared null and void since the Appellant was not a Hindu prior to her marriage and that she had not been converted to Hinduism any time prior to the marriage. The learned Judge of the Family Court had accepted this submission of the Respondent that the Appellant had not been converted to Hinduism prior to the marriage and, therefore, the marriage between a Hindu and a non-Hindu could not be said to be a valid marriage under section 5 of the Hindu Marriage Act, 1955. The learned Judge, therefore, held that he had no jurisdiction to try and entertain the petition filed by the Appellant wife for judicial separation or the one filed by the Respondent husband seeking a declaration of nullity of the marriage, since neither of the petitions could be said to be maintainable under the provisions of the Hindu Marriage Act. He, therefore, dismissed both the petitions by the said order which is under challenge.

(2.) THE Respondent herein is an industrialist and a businessman of some standing. He is stated to be an engineer and used to run a company by name Technical Products Corporation which manufactured small engineering equipments such as screws, nuts and bolts. He had a factory in MIDC, Andheri, Mumbai. He had divorced his earlier wife one Sugandha Rani some time in December 1982. He had two children; one son and one daughter from his earlier marriage. The Appellant herein was working initially as a clerk and later on in an administrative position in Respondent’s company for about 5 years by the time of this divorce. She was a Catholic Christian by birth and her name was Magdhelene Pereira. Her father was a make-up artist in the film industry. The Appellant and the Respondent got married at the Markandeshwar Temple at Worli, Mumbai on 19th January 1983 according to Hindu Vedic Rites. The fact that such a marriage did take place and also that it was performed according to the Hindu Vedic Rites is not disputed by the Respondent husband. Thereafter, the parties on the same evening went to a church at Sakinaka, Mumbai, where they have undergone a church marriage.

(3.) THE above referred petition for judicial separation was filed on 23rd November 1992. Prayer (a) thereof sought judicial separation, prayer (b) continuation of the custody of the minor daughters with her and prayer (c) her stridhan articles. Prayer (f) sought a partition of the matrimonial home at Indu Park so as to enable her to stay in one part thereof. Prayer (d) was an interim prayer not to sell, alienate or encumber that house and prayer (e) sought an injunction that she should not be restrained from entering into the same. Prayer (g) sought a permanent maintenance of Rs.15,000.00 per month for herself and Rs.7,500.00 per month for the minor daughters. Interim maintenance was sought at Rs.10,000.00 to herself and Rs.5,000.00 per month for the minor daughters. The Appellant took out an interim application therein making two-fold prayers. The first part of prayer was concerning the matrimonial home. Prayers (a) and (b) were to restrain the Respondent from selling, alienating or encumbering or creating any third party rights in the above referred matrimonial home. The second part was regarding maintenance. Prayer (e) was to grant an amount of Rs.10,000.00 to herself and Rs.5,000.00 to each of the daughters during the pendency and disposal of the petition.