MANGALA DINKAR SHANKAR SHELLAR Vs. LAXMAN GANPAT JADHAV

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the Family Court, Bombay at Bandra in Petition No. A-1239 of 1996, on 26-2-2003 wherein the Family Court partly allowed the petition granting decree that the marriage solemnised between the parties on 4-3-1982 is declared void ab-initio under section 11 read with section 5 (i) of the Hindu marriage Act, 1955. By the said judgment, the prayer of the appellant-petitioner for her maintenance and the maintenance of her son Subodh is rejected. So also the prayer of the petitioner-appellant for granting permanent injunction restraining the respondent from visiting or staying in the premises being Room no. 205, Vishnu Building, N. M. Joshi Marg, Byculla, Mumbai is rejected.

(2.) When this matter appeared for admission the learned counsel for the respondent-husband raised a preliminary objection in respect of the maintainability of the appeal. The learned counsel for the respondent submitted that in Marriage Petition No. A-1239 of 1996 the appellant-petitioner has prayed for a decree of nullity of marriage solemnised between the petitioner-appellant and the respondent on 4-5-1982 and/or alternatively a decree of divorce, and accordingly prayers have been made in prayer clauses (a) and (b). The learned counsel further submitted that the prayer clauses (c) , (d) and (e) are in respect of the custody of minor son Subodh, interim and ad-interim reliefs, while the prayer clauses (f) , (g) , (i) and (j) are in respect of maintenance for herself and for subodh and interim relief to that effect. He submitted that since the appellant -original petitioner is a doctor and employed in the government service, her claim for maintenance has been rejected. So also he submitted that Subodh was born out of the wedlock on 23-8-1983 and therefore on the date of judgment it was noticed by the Family Court that he is major and, therefore, the decree for maintenance of the child has been rejected. Thus, in short he submitted that so far as the prayer clauses (c) to (1) are concerned, the trial Court has rightly found that the appellant-petitioner is not entitled for the said reliefs and rejected the petition. He submitted that out of the prayer clause Nos. (a) and (b) , namely, a decree for nullity and/or a decree for divorce, the decree for nullity of marriage has been granted under section 11 read with section 5 (i) of the Hindu Marriage Act and, therefore there is no cause for the appellant to prefer this appeal. The learned counsel submitted that the highest possible relief permissible under the law has been granted in favour of the appellant wife and, therefore, the appeal is not maintainable. The learned counsel, who appeared for the appellant has admitted that the appellant's son Subodh was major on the date of passing of the impugned decree and now he is 23 years old and he is a Computer Engineer in USA, and therefore the claim for maintenance of son is not claimed in this appeal. It is also admitted that the wife is employed in government service with the Poddar college of Ayurved and is a practising. doctor. She has admitted that she gets gross salary of Rs. 20,060/- and, therefore there is no claim for maintenance. Thus, from the submissions it is revealed that the appellant is not aggrieved by the order of rejection of maintenance to Subodh and to herself. Further, the learned counsel for the appellant submitted that the appellant is aggrieved because the decree under section 12 (l) (c) was not passed by the Family Court. The learned counsel for the appellant submitted that the marriage of the appellant with the respondent has taken place when the first wife of the respondent was alive and the said fact was not disclosed by the respondent fraudulently to the appellant, and thereby the appellant was entitled to get a decree under section 12 (l) (c) , namely the declaration that the marriage of the appellant with the respondent is voidable marriage, since it has been solemnised by fraud committed by the respondent. The learned counsel submitted that thus in addition to the decree passed under section 11 read with section 5 (i) of the Act, the appellant is entitled to get a decree under section 12 (l) (c) declaring the marriage voidable at her option and being annulled by a decree of nullity. Therefore, he submitted that the appeal is very much tenable and the preliminary objection raised by the learned counsel for the respondent be rejected.

(3.) Since it is a pure question of law, we intend to decide the preliminary objection in respect of the tenability of the appeal and we are accordingly deciding the preliminary point.