SUNIL LAKHOTAI Vs. PRATIMA LAKHOTAI

JUDGEMENT

(1.) This appeal arises out of the matrimonial proceedings which resulted into a decree of divorce and for maintenance.

(2.) The respondent herein instituted proceedings for dissolving the marriage between herself and the appellant herein. The respondent had filed a petition under section 13(l)(ia) and 13(l)(v) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act"). Initially, the said petition was decided exparte in favour of the present respondent and a decree of dissolution of marriage was passed by the learned Judge of the Family Court. The appellant herein subsequently challenged the said order by filing an appeal before this Court and a Division Bench of this Court vide its common order dated 29th November, 2007 passed in Family Court Appeal Nos. 26 of 2006 and 67 of 2007 set aside the judgment and decree and remanded the matter to the Family Court with liberty to the present appellant to defend the case by submitting his evidence. After remand, the learned Judge of the Family Court vide her order dated 7th August, 2008, allowed the petition and the marriage solemnized between the appellant and respondent was dissolved by decree of divorce. The Family Court allowed the custody of minor son Devang with the respondent. The appellant was directed to pay a sum of Rs. 20,000/- per month to the respondent towards permanent alimony for herself and Rs. 15,000/- per month to the minor son Devang till he attains the majority from the date of the order. The appellant was also restrained from selling or alienating or disposing off the matrimonial house as mentioned in amended paragraph 22 of the petition till residential accommodation is made available to the respondent. The appellant was also directed to return the stridhan to the respondent within 15 days from the date of the order. It was further directed that the appellant shall provide a well furnished three bed room residential apartment to the respondent somewhere between Andheri and Malad and till such apartment was made available, the appellant was directed to pay Rs, 10,000/- per month to the respondent towards rent. The aforesaid judgment and decree of the learned trial Judge is impugned in the instant appeal at the instance of the appellant-husband, who was respondent in the petition.

(3.) So far as the factual aspect of the matter is concerned, the marriage between the appellant and the respondent took place on 23rd January, 1988, as per the Hindu Vedic Rites at Mumbai. Out of the said wedlock, two issues were born viz. Dhruv and Devang. Both the children are staying with the respondent-wife. It is the case of the respondent in her petition that theirs was a love marriage. It is the case of the respondent that she belongs to an educated and respected Marwari family and that after the marriage, it was noticed by her that the appellant had a phobia for sex and that he had a mental block for sex. In view of the same, they consulted a well-known Sexologist Dr. Prakash Kothari, who opined that the appellant was physically fit but had a mental blockage due to some past incidents. It is the case of the respondent in her petition that instead of developing intimacy with her, the appellant did not co-operate and the marriage was consumed with great difficulty. Some averments have been made in the petition in connection with certain allegations made by the in-laws against the respondent. It is averred in the petition that she was not allowed to mingle with outsiders nor was allowed to speak to her parents. In her petition it is also alleged that in December, 1988 when the family had gone to Lonavala for few days, her sister-in-law's husband Mr. Kailash Mantry tried to act in an indecent manner. It is her say that the appellant at that time was totally drunk and did not react to the situation and did not uphold her dignity which caused her mental pains. It is also her allegation that she was not allowed to have proper rest during her pregnancy. It is also stated in the petition that the appellant's brother Mr. Rakesh Lakhotia tried to make indecent advances towards her at the time when the appellant was away. When she informed him about the said incident, she was told that he was helpless and could not do anything in the said matter. It is also her allegation that the appellant even though had several businesses could not get success in any manner and he incurred huge losses in his business and thereafter he has never tried to do any constructive work. In the petition, there is also an averment to the effect that when the appellant was dealing in garment business, he was required to commute frequently during that period. It is her case that she was accused of being characterless by her in-laws. It is also her case that she was compelled to confess that she had extra marital affairs and her father-in-law pressurised her to make such confession. It is also her case that she developed gynaecological problems during her second pregnancy. It is also alleged by her that she came to know about the adulterous behaviour of the appellant and his extra marital affairs and because of the same, sometime in 1996-1997, the appellant's health started deteriorating and he became very weak. Several medical investigations were carried out for the appellant as well as for the respondent. The report of respondent was found to be normal. The report of the appellant showed that he was suffering from HIV- I and II positive, which finally leads to AIDS. According to her, her in-laws blamed her for this state of affairs. It is her further case that in 1998, her father-in-law purchased a separate flat on the first floor in the same building and the appellant and the respondent were forced to live separately in the said flat. It is also her case that on 25th April, 2000 she had to lodge a N.C. Complaint bearing No. 2006 of 2000 with the Dindoshi Police Station, Malad. It is also the case of the respondent that at the requests of the appellant and in view of the promise given by the appellant not to harass her that she returned back to the matrimonial home on 15th May, 2000. After about two weeks, the appellant made a demand to restore sexual relationship and in view ofsuch unusual demand, as he was suffering from HIV, a quarrel took place between them on 14th July, 2000, and subsequently the respondent was forced to leave the matrimonial home. It is her case that she was not allowed to take her jewellery with her. It is the say of the respondent in her petition that the said incident caused a lot of mental pains and agony to her and in view of the appellant's abnormal sexual demands, the respondent's physical and mental health was affected. On the aforesaid grounds, the petition was filed by the respondent for annulment of marriage. In her petition, she has also prayed for separate residence and maintenance for herself and for her children.