ARMAITY JIMMY SUKHIA Vs. VICTORIA ROBERT CRASTO

JUDGEMENT

(1.) THIS is a suit filed by Mrs. Jimmy Sukhia (Plaintiff) against the defendant who has been described as Miss Victoria Robert Crasto falsely claiming and styling herself as Mrs. Victoria Sukhia and/or Mrs.Victoria Jimmy Sukhia for an order of perpetual injunction restraining the defendant from proclaiming, giving out, declaring, representing or impersonating herself and from allowing herself to be declared or represented as the wife of Jimmy Dara Sukhia or as Mrs.Sukhia or Mrs. Victoria Sukhia. Interim injunction is also sought in the same terms. The Notice of Motion has been taken out wherein an injunction is sought restraining the defendant in the same terms as were sought in the prayer Clause (a) of the suit. An affidavit in support of the Notice of Motion has been filed. The averments made in the plaint have been reiterated. The defendant has filed an affidavit attaching therewith certain documents.

(2.) THE plaintiff states that she is a Parsi Zoroastrian and is residing in Pune. She was married to Jimmy Dara Sukhia of the same religion belonging to Pune on 7-2-65 in accordance with the rites and ceremonies of Parsi Zoroastrian religion and custom. There are two issues out of the said marriage between the plaintiff and Jimmy Dara Sukhia, hereinafter referred to as "Jimmy". Both the children are boys. First one named Darius Jimmy Sukhia was born on 2nd November, 1965. The second one named Cyrus Jimmy Sukhia was born on 7th February, 1975. The marriage of Darius took place on 27th Jan., 1991. The plaintiff and her husband are very well known in social circles in Pune and Bombay. The plaintiff comes from a very well known Parsi respectable family of Pune. She is a member of the National Council of Women at all India level, a member and trustee of Pune Women Council Charitable Organisation, past President and past Trustee of Innerwheel Club of Pune Central, a trustee of Jehangir Byramjee Jeejeebhoy Charities, Bombay and associated with J.J.Agiary, Pune and Kadmi Shehanshahi Agiary, Pune. She also claims to take keen interest in young persons education and has acted on several occasions as a Judge for elocution and other competitions held by various schools in Pune. The marriage between the plaintiff and Jimmy has not been annulled nor has any divorce taken place. Thus the marriage between the plaintiff and Jimmy is subsisting and he continues to be lawfully wedded husband of the plaintiff. The plaintiff and Jimmy last resided together at Pune. The plaintiff's husband owns a flat in Mumbai being Flat No. E-6, Dhaval Ganga Society, 1 Carter Road, Opp. Jogger's Park, Bandra, Bombay-400 050. She had the facility to stay in the said flat whenever she visited Bombay and her articles are still lying in the said flat. Her husband had to visit Bombay from time to time for business purposes. It appears he came into contact with the defendant. Defendant on several occasions visited the plaintiff's home in Pune ostensibly for the purposes of business and has even stayed overnight on some occasions in the matrimonial home of the plaintiff and Jimmy. Jimmy is a member of Lions Club of Mahim and on going through the Directory of Members for the year 1994-95 of Lions Club the plaintiff was shocked and surprised to read on page 21 the name of defendant as the Lion Lady against the name of Jimmy and the marriage anniversary date being 20th July, 1990. The said particulars are also repeated at page 74 of the said directory and in the directory for the year 1995-96. Although Jimmy is a resident of Pune in the directory his address is shown as Flat No.E-6, Dhaval Ganga Society, 1 Carter Road, Opp.Jogger's Park, Bandra, Bombay-400 050. On making further enquiries she has discovered that Jimmy had purported to go through some Muslim marriage ceremony with the defendant. In view of the fact that at the time of the purported marriage between Jimmy and defendant, he was lawfully married to the plaintiff. The purported marriage between Jimmy and defendant is void and illegal and has no legal existence. The marriage between plaintiff and Jimmy having been performed under the provisions of the Parsi Marriage and Divorce Act, hereinafter referred to as "the Act", can also be dissolved under the provisions of the said Act. The defendant is well aware of the subsistence of the marriage between Plaintiff and Jimmy. Inspite of the same the defendant is going around in public styling herself wrongfully and illegally, calling and proclaiming herself as Mrs.Victoria Sukhia and is impersonating and is representing herself to be the wife of Jimmy Dara Sukhia. Defendant has even got a ration card issued in which she describes herself as Mrs.Victoria Sukhia. The address given is that of Jimmy in Bombay. The defendant is going about in the company of Jimmy in Bombay and in the social circles of Jimmy and declaring herself as Mrs.Sukhia. She is signing the club bills under the membership of Jimmy as V.Sukhia. In view of the publicity, acquaintances and relations of the plaintiff and Jimmy have been making enquiries of the plaintiff about the same which has been putting the plaintiff to great embarrassment and mental anguish and pain. The plaintiff further goes on to state that defendant is carrying on and/or is connected with some business called "Dilinger Consultants" which is being carried on at Bombay. This concern has been advertising about the opportunities for education in Australia. The advertisements invite the candidates to contact Mrs.Victoria Sukhia at Phone No. 640 3362. These advertisements have appeared, inter alia, in Mid Day and Sunday Times. Because of the illicit relationship between Jimmy and the defendant, he has withdrawn from the society of the plaintiff. He has refused to continue to reside in the matrimonial home. This behaviour of Jimmy has also caused grave mental anguish, social and personal embarrassment to the plaintiff and has affected her social standing and reputation in social circles both at Pune and Bombay. The plaintiff further states that the defendant is responsible for the plaintiff being deprived of her husband's society and for violation of her rights to consortium with Jimmy. She has tried her level best to persuade Jimmy to mend his ways but without any success. It is stated that defendant is guilty and wrongfully depriving the plaintiff of her husband's society and companionship. The plaintiff has been deprived of the facilities to use and reside in her husband's flat in Bombay. She reiterates that the marriage between defendant and Jimmy is wholly illegal and void. Defendant has no right to impersonate and/or to represent herself as the wife of Jimmy. In view of the above the plaintiff is entitled to a perpectual injunction restraining the defendant and her servants and agents from in any manner giving herself out or proclaiming, representing or declaring or allowing herself to be represented or declared as the wife of Jimmy Dara Sukhia or as Mrs.Sukhia or stying or describing or representing herself to be Mrs.Victoria Sukhia. The plaintiff further states that the defendant is guilty of wrongful conduct by depriving the plaintiff of her husband's consortium or society and also lowering the plaintiff's reputation and social status and causing her great deal of social embarrassment and mental anguish. By reason of the wrongful conduct and action of the defendant, the plaintiff has suffered a grievous wrong and damages which she estimates at Rs.25 lakhs. A prayer for recovery of the said damages is also made.

(3.) COUNSEL for the plaintiff has submitted that the plaintiff and Jimmy were married according to Parsi law. There are two boys born out of the wedlock. The flat in Bandra belongs to the husband of the plaintiff and she is fully entitled as the legally wedded wife to make use of the said premises and when it was convenient to her. She used to reside in the said premises as and when she had visited Bombay. Proof of this fact is available in that her articles are still lying in the said premises at Bandra. Defendant is fully aware about the fact that the marriage between the plaintiff and Jimmy has not been annulled. In any event the said marriage could only be annulled under the Act. Section 4 of the Act provides that no Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved, and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865 , or under this Act, except after, a divorce, declaration or dissolution as aforesaid under either of the said Acts. Sub-section (2) of this Section provides that every marriage contracted contrary to the provisions of sub-section (1) shall be void. Therefore, in view of the provisions of Section 4, the purported marriage between defendant and Jimmy is void ab initio. Merely because a declaration is not sought will not clothe the purported marriage with the characteristics of a lawful marriage. Section 5 of the Act provides as under: