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1 fca105.14
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FAMILY COURT APPEAL NO.105 OF 2008
WITH
CIVIL APPLICATION NO.258 OF 2008
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Vanita Anil Kripalani
Indian Inhabitant aged 35 years,
residing at 1st Floor,
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NCPA Building, Nariman Point
Mumbai 400 021 .. Appellant/Applicant.
Vs.
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Anil Parsram Kripalani
Indian Inhabitant, aged 40 years,
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residing at 7th Floor,
Iris Apartment, Cuffe Parade,
Mumbai 400 015 .. Respondent.
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WITH
FAMILY COURT APPEAL NO.128 OF 2008
AND
CIVIL APPLICATION NO.59 OF 2012
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Vs.
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CORAM : A.S. OKA & A.K. MENON, JJ.
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RESERVED ON : 27TH FEBRUARY, 2015
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ORAL JUDGMENT (PER A.K. MENON, J.)
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1. By this common judgment we dispose of both the Family
Court Appeals and the Civil Applications taken out therein taken out
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therein. These appeals arise from the judgment and decree of the
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Third Family Court at Bandra, Mumbai in Petition No.A-264 of 2002.
the decree of divorce and the Petitioner husband was directed to pay
FACTUAL OVERVIEW :-
to reside with the Petitioner in Nigeria. Both the parties are from
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times a resident of Lagos, Nigeria. There he initially worked for gain.
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Thereafter, set up his own business with local support. According to
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not own or control the business and that he has only 30% stake in the
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According to the Respondent, the Petitioner had a lavish life style and
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is extremely wealthy and therefore, the Family Court ought to have
revealed that the Respondent has substantial finances of her own and
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The Petitioner also accused the Respondent of having withdrawn a
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sum of USD 53,692.51 from a joint account in OCBC Bank, Singapore
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International (PTE) Ltd. Singapore. It is in this background that the
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PLEADINGS AND CONTENTIONS:
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4. The Family Court Petition No.A-264 of 2002 was filed by
the Petitioner – husband in January 2002 i.e. little over nine years
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after marriage took place on 19th May, 1993. The pleaded case of
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the Petitioner is that after the marriage, the parties stayed together
April, 1994. It is the case of the Petitioner that the marriage was
he was working for the gain. It is the Petitioner's case that soon after
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and was abusive towards the Respondent and his family members.
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This is cited as an example of the Respondent's cruel behavior. The
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Respondent's parents are said to have regretted and apologised on
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Petition are inter alia and can be quickly summarised as follows :
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5. The Petitioner has alleged that the Respondent has
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thrown things at the Respondent, destroyed glass articles and vented
her anger on the young child. In July 1998, the Respondent along
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with their daughter went from Lagos to Singapore to meet her
that the daughter was not granted a visa. The Petitioner then waited
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attention to this and it was obvious that she was acting against the
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interest of the child. After the Petitioner firmly demanded they return
Respondent's father suggested that her father would look after the
Respondent and the Petitioner should look after his daughter Ayesha.
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6. The daughter Ayesha contracted chicken pox at Nigeria.
The Petitioner had been informed of this fact and the Petitioner was
hopeful that she would come again to Lagos to look after the child,
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however, she did not come. The Respondent then came to India with
the daughter Ayesha since she was suffering from chicken pox and
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the Petitioner was finding it difficult to manage alone especially due
Respondent in the expectation that she would like to see her and go
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back to Lagos, however, the Respondent did not go Lagos. The
did not allow the child to accompany him to Lagos and threatened the
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Petitioner that her father would have beaten him up, if he tried to
Petitioner's daughter would visit his parents and express her desire to
meet him. The Respondent then suggested that she was also ready to
withdrawn from the OCBC Bank and then joined the Petitioner in
Lagos only to return in the first week of February, 1999. Though she
stayed with the Petitioner, she did not repay the money.
continued to fight with the Petitioner and was rude to his parents.
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The Petitioner states that he later returned to Lagos alone and the
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Respondent and his daughter Ayesha stayed in Mumbai with his
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Petitioner states that the Respondent along with their daughter
Ayesha came to Lagos again in April, 2000 but she continued to fight
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with the Petitioner, making allegations against him and his parents
the 2nd week of June, 2000. The Petitioner decided to settle down
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along with his daughter Ayesha in Mumbai and returned from Lagos
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on 15th September, 2001, yet the Respondent did not cooperate and
one occasion on 29th October, 2001, the Respondent fought with and
crystal glass vase and flung it on the ground. The parents of the
which was resisted. The Respondent then called her parents who
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immediately came. The Respondent falsely complained that she was
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beaten. The Respondent abused the mother and father of the
Petitioner. The Respondent not only beat the daughter but also hit
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the Petitioner has been pleaded. The Respondent also manhandled
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disturbance amounting to humiliation. The Respondent told the
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Petitioner that they do not want the daughter Ayesha and told him
not spared from the abusive conduct. When at a school function the
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daughter was attending along with the Respondent, they came across
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the Petitioner's sister, whose children were also attending the same
family, she had no morals or ethics. Unfortunately, the fact that her
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Respondent and father of the Respondent to come when Petitioner's
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father was present but the Respondent refused and pushed the
Petitioner's mother (who was 69 years of age) into one bed room and
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Respondent lodged a complaint at Cuffe Parade police station
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harassing the Respondent and demanding dowry. This resulted in
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Petitioner's parents being taken to the police station on or about 16th
advocate put on record all that had transpired from 16th July 2002.
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He also received a letter from Cuffe Parade police station asking him
It seems that at the police station the Respondent and her parents
were also present and they abused the Petitioner. It is alleged that
impotent and should be sheltered under “the frill of his mother”. The
to a decree of divorce.
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which were not in the interest of happy matrimonial life. The
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Respondent/her family never denied any of these contentions. In the
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10. On several occasions the Petitioner was called to the
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police station and was humiliated. The aged mother of the
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Petitioner was forced to sit at police station and was being
police which has caused stress to the Petitioner with the result it was
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not possible for the Petitioner to continue with the marriage. The
affected the Petitioner's mind and health and has caused great
in the bank in Singapore which was held in joint names. This amount
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Bank, Singapore. The Respondent reportedly took away all jewellery
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from the locker which was in the joint name of the parties in Central
promised to repay the money which she had taken away and
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expressed here willingness to join him at Lagos.
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12. The Petitioner's family members including his brother and
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his sister Jyoti (who reportedly had been a friend of the Respondent)
WRITTEN STATEMENT
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Ayesha and the fact that the Respondent was required to live in
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the Petitioner towards her had changed. This contention of the
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Respondent is similar to that of the Petitioner. She contends that the
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poisoned the Petitioner against the Respondent resulting in ill
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treatment are made against the Petitioner's mother as well. The
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Respondent alleges that after the birth of the child, the Petitioner
incurred for the marriage, it was not possible for the Respondent's
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Petitioner and his mother made plans to throw the Respondent and
the Petitioner and his parents claimed they have suffered heavily as a
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result of marriage between the Petitioner and Respondent alluding to
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expectations that their daughter-in-law will provide dowry and a
house for the Petitioner to live in and look after the Petitioner and his
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business, to the effect that had the Petitioner married some other
girl, then the girl's parents would have helped the Petitioner
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establish business in India. The Respondent alleges that on a number
of
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occasions the Petitioner's mother asked her to leave the
lodged the complaint with the Cuffe Parade police station. Despite
apparently, found out that the Petitioner and the Respondent were
the attitude of the mother-in-law did not change and she continued to
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abuse the Respondent and her parents blaming them for marital
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disharmony.
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keeping in mind the interest of her daughter. According to the
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laws made the Respondent starve. She was neither allowed to cook
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for the minor daughter nor order food from outside, as a result of
under section 498-A of the Indian Penal Code against the Petitioner
Respondent she was not qualified, she has no house property and no
daughter Ayesha.
wealthy and has purchased two costly cars for his use when he came
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back to reside in Mumbai. She has no place for her to stay and she is
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prevented from entering the matrimonial home by virtue of suit filed
in the City Civil Court and at present she stays with her parents at
their mercy. Thus, the Respondent contends that the Petitioner and
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his parents have been found at fault as the Respondent was thrown
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Respondent. She opposed the grant of decree of divorce. According
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to the Respondent, the Petitioner is earning more than Rs.2 crores
per annum.
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17. The written statement then contains general para-wise
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denials of the contents of the petition. She admits that she along
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THE EVIDENCE
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Ms. Bina Sippy, the cousin sister of the Petitioner's mother has also
personally as well as his parents and sister all of which also amount
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to cruelty towards the Petitioner entitling him to divorce under the
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provisions of Section 13(1)(a) of the Hindu Marriage Act. The
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19. In addition, to this the Petitioner has also deposed to the
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fact that his sister also has been abused by the Respondent and all
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the acts of cruelty has caused unbearable mental and physical stress
to the Petitioner affecting his health and his business. His parents
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health is deteriorating which has been aggravated by the
cruelty. He has also deposed to the fact that false cases were filed
under section 498-A and 406 of the Indian Penal Code before the 47th
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case against the Petitioner and his parents. The Petitioner and his
result of the complaint being filed. All of this clearly establishes the
result of such cruel behavior the Petitioner's mother had to file a suit
expenses at School.
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20. The Petitioner was cross examined between 12th April,
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2006 and 26th March, 2007. The Petitioner has admitted that he
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company Anivin Nigeria Ltd. The company was Importing Indian
Bicycles spare parts, bicycles tyres, toothpaste, wall clocks and other
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consumer protects from India. The firm for which the Petitioner was
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working was dissolved in 1993 and then he became Managing
the company provided car, residence and the driver. The Petitioner
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provide the copies of the balance sheet and profit and loss account.
He submitted that he has not asked for the same. He further deposed
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that he has not filed Income Tax returns in India. He claimed that he
profit, it was wiped away due to loss in the year 1998 yet he was
unaware of the extent of loss incurred in the year 1998. Despite this
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state the stock of goods held by the company in the year 1998. He
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deposed that he does not have any other business and although he
has deposed in the affidavit in the suit filed in Bombay City Civil
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for sometime being the Manager and share holder and the Managing
Director of Anivin Nigeria Ltd., he did not have any other business.
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22.
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He admitted to having received US $ 1,00,000/-as his
his brother he rented a 3BHK premises but could not recall rent paid.
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company and contended that the company had taken loan for the
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1993. He admitted that in the year 1993 he had two maids and one
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cook in the house. Their salary was paid for by the company. He
also admitted to having the services of the driver who was employed
23. It is admitted that the company had given three cars to the
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agreement. Similarly, by virtue of an oral agreement with the
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company he is stated to have travelled to England for purchasing
of the furniture. All the receipts were made in the name of the
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company. The company spent about 50 lakhs which included
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charges. Electricity bills of Rs.10,000/- were also paid by the
company.
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24. In addition apart from him, there were other persons
The witness admitted that apart from his bare statement there was
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concerned on the apartment etc. He claims that he had not asked for
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admitted that he is not assessed to tax in India and he does not hold a
PAN.
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and the amounts paid during 1993 to 1998 were first transferred
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Bank, Mumbai. The witness has admitted to having accounts with
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Bank of Baroda and UTI. He reiterated that the funds in the
the Respondent.
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26. Apropos the bank locker, he deposed that the locker was
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held jointly by the Respondent with him and he was not aware of the
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operation of the locker. He was aware that the locker was containing
jewellery of the Petitioner and Respondent but he did not have list of
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jewellery. The Petitioner had not operated the account for long time.
The witness admitted that parents have purchased the flat in Sanjeev
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the said flat. He was unaware of its location as such and later
revealed that the flat was purchased in the joint names of his uncle
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been purchased by the Uncle and himself but stated that the flat was
aware of and he does not know the sale price of the flat. The witness
27. There were a large amounts that had been deposited in his
Bank accounts and the Petitioner has attributed these to the business
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various investments including from UTI. However, he has stated that
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these amounts did not belong to him. He has made several
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accounts. The witness having admitted to have withdrawn
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claims to have encashed the fixed deposit in order to make
remittances.
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He has also made remittances to his sister Jyoti
The evidence recorded on various dates from 14 th July, 2006, all deal
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2) 9.9.1994 Rs.1,017,172.00
3) 12/08/1994 Rs.15,50,000/-
4) 24.8.1994 Rs.174,334.00
5) 15.9.1994 Rs.149,172.79
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Rs.8,76,990
Rs.4,81,740/-
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Rs.31,00,000/-
Rs.3,63,940/-
Rs.10,850/-
Rs.72,447/-,
Rs.15,50,000/-,
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Rs.15,50,000/-
Rs.15,50,000/-.
RS.3,10,000/-
Rs.18276.36/-
Rs.1,07,570/-.
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8) June Rs.3,94,104.24
ig Rs.39,41,104.24,
Rs.39,41,104.24
Rs.4,41,750/-
Rs.4,65,000/-,
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Rs.4,78,764/-,
Rs.4,78,764/-,
Rs.7,75,000/-,
Rs.7,75,000/-.
1997 27.2.1997 1765835.50
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company as his company being the Managing Director. He then
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deposed that he did not resign as the Managing Director and
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he received salary and emoluments from the company and that he
had made false statement to the effect that he is has wound up his
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business in September 2000. His responses are intriguing and
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vague. He is not aware from which bank the payments were made. He
did not own the company Anivin Enterprises in Nigeria. He was not
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controlling the finances of the company. The witness did not provide
of the goods that were imported from India into Nigeria. Alluding to
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that the Respondent wife was a Director in Sanwa Finance Pvt. Ltd.
and Jayem Exports Pvt. Ltd. The Petitioner reiterated that several
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Exports Pvt. Ltd., Vanita Apparels Pvt. Ltd. and Palmar Investment
and Trading Pvt. Ltd. were belonging to the Respondent's father and
the Respondent.
himself, his mother, sister and brother and alludes to the fact that
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admitted that after the marriage they proceeded for honeymoon to
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the Unites States for two weeks and on their return to Mumbai, they
Lagos. The suggestion to the effect that while at Lagos there were
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disputes between the Petitioner and his brother as a result of which
they left the brother's house has been denied. The Petitioner
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volunteered to state that his brother also stays in Hong Kong. He
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denied a suggestion that he moved to another place because of a
1993. The witness admitted that he received gifts at the time of the
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not wish to keep the gifts and the Respondent's family refused to take
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was sent for her delivery by herself. On the contrary, he says that he
he made taunting remarks and told the Respondent that he does not
suggestion that he did not return to hospital at the time of birth and
that he fought with Respondent's parents and did not allow to meet
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the new born. He denied a suggestion that the Respondent's parents
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were not allowed to touch the child during the naming ceremony. He
has admitted that in June 1994 they returned to Lagos and remained
there till July 1995 but denied that during that period there were no
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problems between him and the Respondent or that the relations
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denied a suggestion that his mother blamed the Respondent's parents
with him for the sake of marriage and child has been denied. He
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about the Respondent and daughter not visiting London while he was
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present there and wrongly blaming the Respondent for not having
obtained a visa.
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to collect his daughter Ayesha the Respondent was not staying with
had withdrawn the sum of USD 53,692.51 for the purpose of her
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medical treatment. He denied the suggestion that he has not asked
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for medical bills from the Respondent. He further deposed that he
that he had informed the Respondent that after she and their
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daughter should accompany him to Lagos when he was leaving in
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Respondent. He admitted that the meeting had been held between
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the Respondent's parents for return of the Respondent and child to
Lagos. He denied that he had given assurance that any harm would
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be caused to the Respondent and child and that the Respondent flew
and the child went to Lagos in February 1999 and stayed with the
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not informed the Respondent about his arrival when he came to take
the child to Lagos. He admitted that he has not paid any medical
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along the money and his jewellery which she had taken away.
However, the Respondent with her daughter joined the Petitioner but
February 2000 was peaceful when they were away from the
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Petitioner's parents. It is further denied that the Petitioner did not
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demand return of money. The witness has denied a suggestion that
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Respondent's father telephonically invited. He admitted that the
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and that the Petitioner came together when they were in London. He
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denied a suggestion that when the Respondent and daughter
denied that the Petitioner was willing to send the daughter and
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gifts on their return for the Petitioner and his mother. The
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that the Petitioner's mother had tortured the Respondent has been
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denied. The suggestion that in April 2001 when the Respondent was
harassed her and the Petitioner beat her up in the presence of the
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denied that the Petitioner's parents were throwing glass plates at the
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Respondent's parents.
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continued on 22.11.2006 reveals that friction between the parties
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daughter had picked up bad habits during her stay with grandparents
removal of telephone from the room asking the Respondent and child
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to arrange for food and the Petitioner threw away food prepared by
the Respondent and daughter. The Petitioner has denied that the
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and daughter from entering into flat on 5th June 2002 on the eve of
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36. In the cross examination on 1st December, 2006 the
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Petitioner produced several bank statements which he was called
bank account with Oman Bank and Bank of Baroda as well as Public
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Provident Fund certain amount have been transferred from the
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Rs.3,50,000/- was put in fixed deposit. Several such entries have
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been deposed to some of which are already discussed elsewhere in
injunction in a suit in the City Civil Court, he did not stay with his
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parents but stayed with his cousin at Sangam Bhavan, although his
car had been parked in the building where his parents stayed. He
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visited and telephoned the daughter but had not seen after she
started living with the Respondent but had not met for last 6 to 8
months. He has not made efforts to inquire about the child. He had
not written any letter to the child. He has not made any application
his parents had thrown the Respondent and child out of the
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matrimonial home or at Lagos. He has denied that his parents and he
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treated the Respondent with physical and mental cruelty and that he
has filed this petition falsely. The cross examination was closed on
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37. In support of the Petitioner's case, his elder sister Jyoti
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Mahajan residing in the same vicinity as that of the matrimonial
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home has also deposed by filing an affidavit in lieu of evidence in
She has played part in fixing the marriage since she knew the
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designing. She has further deposed that at the time of alliance with
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the Petitioner, the Respondent and her parents were informed that
since the Respondent and her parents agreed to this, the marriage
was finalised. She has also deposed that she became aware of
disputes always revolved around money. She has deposed that the
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witness would come home to play with Ayesha. She also used to visit
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Ayesha and take Ayesha to school since they all were in same school.
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children because she had sex twice whereas, the Petitioner and
Respondent have one child since they had sex once. She further
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deposed that on 4.6.2002 when the Respondent entered the
matrimonial home
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forcibly, her mother called her up and requested
her to stay with them since her parents were frightened about
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behavior of the Respondent and her parents.
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38. In the cross examination, she stated that she had gone to
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her is as per instructions and that the Petitioner did not accompany
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that her husband was seven years younger than her and that she
travelled to Lagos with her husband to stay with the Petitioner. She
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of Anivin Nigeria Ltd. to inspect their goods in India and she did
The witness further deposed that she was friends with the
common friend. They had been out to movies and parties but not to
Respondent's family although they belong to the same caste. She had
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referred the Respondent to her brother since she was unmarried girl
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in the group. She then had role played in the marriage. She admits
Respondent and the daughter and she had heard that there were
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differences between the Petitioner and the Respondent but had not
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were only about money matters. She admitted to payments made by
She was not aware of the various financial transactions between her
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husband and Anivin Nigeria Ltd. She denied that the monies
interesting admission, she stated that the Petitioner may have made
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false statement that he had made payment since she cannot recollect
or check each and every payment. She denied the suggestion that
the Petitioner. She denied the suggestion that the Petitioner was
routing any amounts through her and her husband in India. She
admitted that she was assessed to income tax, however she did not
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disclose the income tax returns.
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40. In view of this the learned Judge of the Family Court has
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the Advocate for the Respondent, necessary adverse inference may
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financial transactions between the Petitioner and the Respondent
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continued on 22nd March, 2007 and 26th March, 2007. However, the
evidence does not reveal anything which have a bearing on the issues
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before the Family Court.
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in March 2007. In her evidence she deposed that she is owner of 26,
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where she lived with her husband. She confirmed that the
live there. She has informed the Respondent and their parents before
the marriage that after the marriage the Petitioner and the
carried on business. She admitted to the fact that the Petitioner and
the Respondent occasionally visited in Mumbai and lived for few days
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Respondent visited India with daughter and lived with her till the
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child was three months old. Thereafter the Respondent went back to
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family members. The Respondent became vicious and hostile towards
her ailing husband and her parents. The Respondent was instigated
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against them by the Respondent's family. She deposed to the fact
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that she and her husband would be insulted and abused by the
that the Petitioner and the Respondent tried to save the marriage in
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2000 when she came down to Mumbai to stay and since the
Petitioner did not have its own residence, the witness allowed the
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couple to stay with her. During their stay, she deposed to the fact
badly with the Petitioner and due to this the child Ayesha was also
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Copies of a letter was handed over by the Respondent's father to the
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witness and stated that he would look after the Respondent and the
Respondent's father asked the witness to look after the child. She
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for altercation between the Respondent and the Petitioner and the
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themselves. She deposed as to how she was assaulted by the father
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of the Respondent in their home, she was pushed by the Respondent's
further deposed to the fact that on 5th June, 2002 the Respondent
and her father forcibly entered the matrimonial house and her father
Respondent and her father. The witness called her cousin Bina.
he told that police will not come since she has made arrangements
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when the police did not come the witness also called Cuffe Parade
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police station. Once again on 6th June, 2002 the Respondent's father
came to the residence and abused the Petitioner's father. On 9th June,
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Parade police station at 5.00 pm informing them that a complaint had
been lodged against the witness and her husband. They were called
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to police station where they were made to sit late till 11 pm.
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44. According to the witness on 14th June, 2002 the
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Respondent left her residence i.e. matrimonial home carrying all her
that house. The witness states that she addressed a letter on the
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same day to the Cuffe Parade police station recording the aforesaid
fact. On 19th June, 2002 the Respondent and her father once again
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tried to enter the flat but the witness and her son Vinod resisted
their entry. Thereafter on 20th June, 2002 the police officer asked
the complaint under section 498A of the IPC had been registered.
The Petitioner at that time was in Lagos and the witness had to
apply for anticipatory bail. She has further deposed that she had
filed a suit against the Respondent and her parents to prevent their
entry. She has further stated that since the police refused to register
the case under section 498A, the Respondent had filed a private
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45. The witness has been extensively cross examined between
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20th March 2007 and 11th May, 2007. She deposed that the flat
own name. She has denied suggestion that it was she who
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approached the Respondent with a proposal for matrimonial home.
Various other suggestions were put to her as alluding to the fact that
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she was engaged in money lending business all of which was
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irrelevant to the issues involved. She has denied the suggestion that
she had asked to arrange wedding at Taj Mahal hotel. She has
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stated that the Respondent has kept clothes and jewellery in one of
the cupboard under lock and key and the key was in the Petitioner's
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the Respondent because she had not provided any dowry. She has
and his brother. She has denied that in her evidence she sought to
It is further material to note that the witness does not state that the
Ayesha. She has denied having committed any offence under section
498-A of IPC.
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46. The third witness was Bina Sippy. Bina Sippy was cousin
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of Mrs. Asha Kripalani, the Petitioner's mother. She has deposed
that in November 2001, she got a call from her cousin Asha -
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Respondent's father had manhandled the Petitioner's mother. On
5th June. 2002 she received a phone call from the house of the
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Petitioner's mother complaining that the Respondent's father has
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forcibly entered the house and pushed her into one room. On hearing
father informed the witness that even if she complained to the police
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police. The witness deposed that the Petitioner's mother has called
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stays and no part of the cross examination has any bearing on the
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RESPONDENT’S EVIDENCE
witnesses, one was the Respondent herself and the second was the
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exercised control over the Respondent right from inception. That
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while choosing the wedding invitation card, the Petitioner's mother
insisted on using a card which was to her liking failing which she
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the Petitioner's mother, the deponent states that huge amounts were
incurred towards the costs of wedding and gifts were provided by the
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Respondent's family to the Petitioner and his family members. The
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mother of the Petitioner was still unhappy. She deposed that the
relationship between the Petitioner and his brother were cordial and
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this was clear when she came to Lagos. The Petitioner was asked to
and furnished flat with at a cost of Rs.50 lakhs with costly furniture
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and gadgets and even cutlery from London. She has deposed to the
Petitioner's life style that he had two maid servants, a cook, three
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cars and two sweepers. According to her, the Petitioner owns the
Government two locals Directors were kept on board for the sake of
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formality and his income was about Rs.60 lakhs per annum.
December 1993, she was staying with the Petitioner's mother at the
quarreled with her, alluding to the fact that the Respondent's parents
have not provided gifts to her. The situation was aggravated to such
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presented to him into the sea off Gateway of India. She has deposed
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that Petitioner's mother abused the Respondent when she went to her
parents flat at Blue Haven, notwithstanding the fact that she was in
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by the Petitioner who was joined by his mother. Both of them had no
regard for tender state of health during pregnancy. After the return
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of the Petitioner to Lagos he picked up quarrel for insignificant
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matters and on one occasion dragged her from one room to another
in long passage by ignoring the fact that she was in seventh month of
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pregnancy. According to her, the Petitioner regularly assaulted and
abused her and asked her to abort the child. The Respondent then
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came back to India in month of February 1994 and stayed with the
ba
insulted and humiliated for the reason that demands made by the
had taken toll on her health. She deposed that the Petitioner used
she was suffering in health which could have effected the child. She
labour 12 days ahead of the schedule date and after four days of
the Petitioner was not present at the time of delivery, he came next
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day and picked up quarrel with her parents and preventing them
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from holding the baby. She deposed that even after return from
hospital when she was taken to the matrimonial home, she was ill
C
50. The Respondent has further deposed to the instances
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when she visited Singapore, on the invitation of her parents, a party
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was arranged by the Respondent's father on the occasion of visit of
the Petitioner and his family. The Petitioner accidentally fell from the
H
staircase and fractured his leg. The Petitioner kept criticizing her
parents for this fall and returned to Lagos after some days. She
y
for about three weeks at the best of locations, the Petitioner had not
om
deposed although he had paid for the tickets she had re-paid him.
B
egocentric person and could not tolerate her father, due to this
1997, when the Respondent's parents visited Lagos and had been
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He was completely drunk. He continued his misbehavior and
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removed all his clothes to the utter shock of the Respondent and her
her. The Petitioner even blamed her for the refusal by the U.K. High
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Commission in Singapore to issue visa to her and the daughter to visit
the U.K. She feels insecure and afraid of going back to Lagos as the
h
Petitioner may brutally beat her. She has developed fear complex
ig
and she could not get proper rest and peace. According to her the
stay at Blue Haven, her father's place since the Petitioner's sister
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condition. She asked the Petitioner for some money for her medical
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monies and hence she withdrew money from OCBC bank and
according to her the money belongs to her as she has received gifts
B
did not call the Respondent to Lagos, but he agreed to bring daughter
to Mumbai to stay with her. She deposed that later she had agreed to
go back to Lagos with the daughter but on the appointed day when
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the Petitioner did not come to fetch them from the Respondent's
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parents home, inquiries were made with the Airlines and she came to
know that the Petitioner has already flown back to Lagos. According
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Petitioner was not in the company of his mother, they had good
marital relations. They went to holidays abroad and this joyful period
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was very short since the Petitioner's mother influenced him to the
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great extent. In September 2000, the Petitioner complained that the
Petitioner refused to speak them although they had come all the way
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was insisting that her father should transfer the Blue Haven flat to
om
manner till 2001 and daily life was torturous “physical kicking and
informed her parents that all three persons were beating her. Her
parents then came to the matrimonial home. During the ensuing the
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Respondent left with her parents and the Petitioner refused to allow
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the daughter with her. The Petitioner lodged a complaint against the
her parents. According to her all her clothes, jewellery were lying in
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the cupboard in the matrimonial home.
h
54. Sometime later, the Petitioner had left for Lagos leaving
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their daughter in the custody of his mother without consulting the
when they returned and stayed in matrimonial home along with her
the bedroom. Her stay was like house arrest. The telephone in her
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room was removed. She was not given food. She was required to
cook her own food. The main door was locked “from inside” and the
June, 2002. According to her, she stayed in the flat till 14th June,
2002. She informed her father about the same. She went to her
father's house and stayed for few days, when she returned to
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matrimonial home her mother-in-law refused entry. Once again, she
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went to the police station. Since the police did not take action, she
was compelled to file a criminal case under section 498-A against the
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mentally for their illegal demands.
h
56. She has deposed that she has studied only upto 10th
ig
standard and was not qualified to get any employment and, therefore,
she is entitled for Rs.70,000/- per month including school fees as the
H
Petitioner was earning Rs.5 lakhs per month and living luxurious life
the Mumbai for herself and her daughter which the Petitioner should
provide. However, the Petitioner has not sought custody of the child.
B
He is not bothered to find out whereabouts and thus she states that
she has no interest in the marriage and the Petitioner has filed the
assets in her name. She was unable to state the assets standing in
her name, bank accounts etc. She does not know whether the Income
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Tax returns have been filed and her father knows about her financial
ou
transactions. She was confronted with the Income Tax returns filed
by her for the year 2004-05, 2003-04, 2001-02. However, she has
C
International Ltd. was shown to her. She admitted the document.
She also admitted that she has transferred USD 52,500/- from the
h
OCBC Bank account to father's account. The amount was transferred
belonged to her.
H
58. She admitted that she had not disputed the
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bank account at Central Bank of India but she was unaware of the
om
whenever she visits India. Thus, she admits that her parents have
telephone till July 2002. She admitted that her Thyroid problem
rt
ou
59. In February 1999, she went to Lagos. Before this from
October to December 1998 the daughter alone was staying with the
C
that she travelled to Bangkok from 4.12.1998 to 10.12.1998.
According to her when she travelled, she was advised to take rest. In
h
Paragraph 45 of the cross examination she admitted that the letter
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dated 25.9.1998 part of Exhibit-120 colly. was sent by her from her
father's house. She did not recall whether she was the Director of
H
Jayem Bombay. She denied the suggestion that when she left on
60. She admitted that in the year 2001 daughter Ayesha had
B
Christmas vacation for three weeks but she did not go to bring
Ayesha to spend holidays with her since the school was closed. She
admitted that she did not approach any authority to get temporary
these three weeks Ayesha lived with her grandparents and they took
care of her. She was residing at Nariman Point and Ayesha was
Despite meeting the child at Christmas party, she did not make any
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efforts to get the daughter to stay with her for Christmas holidays.
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According to her she did so because she wanted to reconcile. The
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“Q. You did not feel it necessary to bring the daughter
when you knew that the Petitioner is in Lagos and the
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daughter is living alone with the grandparents ?”
ig
To which she replied that her daughter was scared of her
school and took her to stay with her. She admitted that she had
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minor problem and no surgical procedures were required till the date
ba
she is still taking same tablets and she spends Rs.60/- per month on
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the treatment of Thyroid. She admitted that from October 1998, for
treatment of Thyroid she received money from her father and she
did not money which was transferred from Petitioner's joint account
B
from her father. She states that she does not understand finances or
Petitioner and she does not personally know what are the finances of
the Petitioner nor she tried to find out about them. She admitted to
have bank account and bank lockers in Singapore and in India. The
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locker in Singapore was in the joint names of the Petitioner and
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herself.
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making entity and several amounts were shown as remuneration paid
h
however, denied that she was receiving Director's fee in Singapore
NRE status are concerned, she stated that her father would deal with
the same. According to her, her father had used her name for the
every year. She deposed that the Petitioner was a puppet in the
hands of his parents. Upon her being shown Form 32 issued under
Director of Jayem Exports Pvt. Ltd. and having her address Blue
Haven CHS, Mumbai. According to her, her father uses her name for
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the financial transactions but the benefit of the same are received by
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her father. That the father controls all companies. She has resigned
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correctness of income tax returns filed for the years 2001-02, 2003-
04 and she signed the said document. The contents thereof are also
h
true. She has not given any particulars of the interest of the
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earnings. She also admitted that the Petitioner has given her money
visited her daughter when she was in Lagos and suffering from
ba
Chicken pox. She answered that she was not allowed to go there as
she needed a transport from the airport. She admitted that her
om
cousin Ritika Sawlani lived in the year 1999 at Lagos. She did not
make any efforts to contact her or to request her pick up her at the
63. She admitted that she knew address where she resided
earlier in Lagos and furthermore she admitted that when she went to
Bombay. She did not recollect how many times she left the daughter
with the Petitioner and his parents and visited her parents till
when they are not in India their houses at NCPA apartment and
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Blue Haven are unoccupied. According to her since the date of
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marriage till 2001 she has never stayed at NCPA Apartments or Blue
Haven. She denied the suggestion that she did not fulfill her
C
she did not look after the daughter when she had chicken pox and
h
admitted that when the petition was filed neither the Respondent nor
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her parents have filed any complaint against the Petitioner or his
Rs.10/- each in Sanwa Finance Pvt. Ltd. She deposed that she was
Trust. She also was unaware that she had 600 redeemable shares of
Petitioner had filed complaint under section 498A of IPC. She has
B
Petitioner.
64. Furthermore, she denied the suggestion that she has for
the first time in her affidavit of evidence denied that her daughter
was tortured. She has denied the suggestion that she made these
her written statement she has not mentioned that the Petitioner hit
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her while in pregnant condition. Furthermore, in complaint dated
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13.4.2002 and 19.6.2002 she has not stated that she was dragged
She has not mentioned the version that the Petitioner dragged
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from one room to another and kicked and slapped in the complaint
dated 13.4.2002 and 19.6.2002. The Respondent has not taken any
h
steps to defreeze the bank accounts referred in Exhibit-144.
she has admitted to the fact that her sister Varsha Waswani was the
H
Director of Sanwa Finance Pvt. Ltd. as also Jayem Exports Pvt. Ltd.,
Palmar Investment and Trading Co. Pvt. Ltd. and Lekhraj and Sons
y
(Exports) Pvt. Ltd. The Respondent was then shown balance sheet of
ba
Palmar Investment and Trading Pvt. Ltd. dated 31.3.2009 and the
to her the shares of these companies were not transferred in the her
have taken place as per instructions of the father. She has not
received any benefit from the shares which are in her name.
According to the witness she was dummy Director and her name
was used by her father. She does not know reason in using her
name. She was not aware that her tax returns mentions her name
as share holder or the Director. She has denied the suggestion that
Magistrate Court against the Petitioner and his mother because they
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had chosen to the Court for relief.
ou
65. She admitted the allegations made in the complaint
included the dowry demands, assault, bad treatment and cruelty and
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that she has not challenged the order of the Magistrate on dropping
the charges against the Petitioner and his parents. She admitted that
h
the Petitioner's parents are, however, 70 years of age and that she
ig
has made an application for issue of warrant of arrest against the
over three years. She denied suggestion that she did not filed the
y
it as severe back pain. The Respondent admitted that she had not
B
and that her mother received injuries and the plates were flung at
her. In paragraph 116, she has admitted that she was not happy to
come to India but she was not ready to go back to Lagos. She also
stated that she cannot return the money in joint account that was
According to her, the money belong to her and she did not have
rt
specific question put to the witness, whether the allegations that the
ou
Petitioner's mother's game plan was to sent her back with Ayesha
were true. She answered that she did not know about the game plan.
C
Q. The allegation against the Petitioner's mother that
h
her game plan was to sent me back with Aayesha is
false ? ig
A. I do not know about the above mentioned statement.
H
66. According to her all the letters sent by her advocate to
the Petitioner were sent after the Respondent had read them. She
y
admitted in paragraph 122 that she had not filed a petition for
ba
restitution of conjugal rights after the Petitioner filed his petition for
treatment allegedly meted out to her during the pregnancy and the
instances pertaining to her husband's fall and breaking his leg. The
mentioned. She denied the suggestion that she tried to improve her
had gone to various places on holidays and she had good life style
with the Petitioner. She has no grievance regarding the same. She
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also admitted that the Petitioner tried to provide for her whatever
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was possible within his capacity. However, she denied that she has
lifestyle while in Lagos. She further denied that she had falsely
C
stated that the Petitioner had asked her to bring things from her
father.
h
67.
ig
According to her, the Petitioner had cheated his brother
and this she came to know only after the marriage but has not
H
personally verified the truth of the said allegations except to state
that it was money matter and the couple was asked to leave the
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brother's house. She contended that she had arguments with the
ba
Petitioner in the business and the Petitioner was jealous and suffered
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the same. He also deposed that prior to marriage, he had met the
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Petitioner at the New Oberoi hotel and the Petitioner promised that
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he would take good care of the Respondent. He then deposed the
incident when after throwing away the gifts the Petitioner came to
the Respondent's house and abused him and his wife in filthy
C
manner despite the fact that the daughter of the witness (the
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69.
ig
The Respondent's father referred the incident to the
his brother Vinod came to calm him down and took him away to his
house. He took away fax machine, car keys and all of the
om
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Petitioner. The Petitioner's father apparently referring to son stated
ou
that he was mad. He deposed that the Petitioner's father assured him
that he would have word with the Petitioner and would resolve all the
C
the same breath he states that it was well thought plan and to keep
his daughter away from matrimonial home and suggested that his
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daughter should stay at Blue Haven with Ayesha. Various other
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aspects which have been deposed by the Respondent, has been
any shares her name or under the name of her trust and that she is
companies have issued any dividend on the equity shares and the
Respondent has not been receiving any income from the shares.
She was only a nominee Director and she was never majority share
B
holder and she had no authority. He has categorically stated that the
who was thrown out of home without offering a single rupee and that
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He deposed that Public Provident Fund A/c. No.994 has been closed
ou
and the account in Indian Overseas Bank bearing No.91543 and
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it is not relevant to consider this aspect. He deposed that Vanita
trust was set up in 1990. The trust was dormant and eventually non
h
operative. The trust shares were duly transferred in 2001 and 2002
his behest since he also held account there for depositing cash gifts
y
from him to his daughter from time to time. However, the name of
ba
respect for the son in law and for tax planning authorities since the
om
her name would have attracted 22% tax at that time. According to
him, the Respondent had withdrawn her own monies and it has
B
the witness the Petitioner had illegally blocked her accounts in the
said bank and those were required to be unblocked so that some can
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the Respondent which he claim to have been gifted to the Respondent
ou
in cash and which the Respondent had given to the Petitioner. He
claims that his daughter is indisputably dependent upon him for her
C
responsibility of the Petitioner to maintain her in law. He produced
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October 2007. According to him, the petition is false and the
ig
Petitioner and his family has tortured his daughter physically and
mentally to drive her out of the matrimonial home because she does
H
not bring dowry.
y
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“I do not want to produce B/s of Sanwa Finance Pvt.
Ltd. For the financial year 31.3.2007. I say that
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Respondent is not the shareholder and therefore the
document is not relevant. It is available with the
R.O.C. I do not have documents of Sanwa Finance
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Pvt. Ltd. available on the internet. I do not want to
produce any documents in respect of Sanwa Finance
Pvt. Ltd. I say that Respondent was not
h
shareholder.”
ig
In relation to balance sheet of Sanwa Finance Pvt. Ltd.
and the witness had no concern with the said company except that
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handles all the transactions of the Respondent. However, he did not
ou
dispute that the Respondent's version in her cross examination to
the effect that her father handled all the financial transactions. He
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under heading Loans and Advances discloses that the Respondent
h
continued in till the year ending 31st March 2000. That there is
ig
reduction in amount of Loans and Advances since the Respondent's
which shows that Vinita Kripalani had given Loans and Advances to
ba
the suggestion that he had falsely stated that Vanita Fashion was
B
Respondent is not concerned with Jayem Exports Pvt. Ltd. and that
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companies. He admitted that in column 3 of the balance sheet
ou
Exhibit 168 i.e. amount of loans and advances were shown as
equity shares of the company and therefore she does not become
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owner of the company. He admitted that the loans and advances as
h
entries of account adjustments. According to the witness on being
ig
shown Exhibit 166 he stated that the shares mentioned therein were
that whole group which also includes Jayem Exports was reorganised.
ba
He denied that the shares in Vanita Trust were transferred with aim
accounts of the Respondent were held jointly with the Petitioner and
which he did on the next occasion. The income tax returns of the
rt
2001-02 bears name of the Respondent and therefore it was an
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individual return and not filed for Vanita Fashions. He admitted that
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received the Registrar of the company pertaining to Palmar
h
and Trading Co. Pvt. Ltd. He admitted that Samba Trading and
ig
Investment Company was later converted to Sanwa Finance and the
175. Palmar Investment Trading Company Pvt. Ltd. owned two flats
ba
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Rs.22,39,652/-. The witness admitted that at the relevant time the
ou
Respondent has received salary as a Director. During the cross
C
him the Respondent has received the money of redemption of
h
which are not shown. The investment in shares were redeemable
ig
shares of Sanwa Finance and Palmar Trading Investment, since both
but has repaid loans from the said amount. However, at the same
y
time the Respondent has made Loans and Advances to the Jayem
ba
International Pvt. Ltd. was her own money and money was under his
B
control. On being asked how the account was managed, he does not
not concerned with the same. The witness later stated that the
amount was shown as loan to the company which was repaid by the
Pvt. Ltd. he declined to produce and stated that he was not obliged
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which amount of USD 52,000 was reflected. He disagreed that the
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amount was siphoned by the Respondent. The witness admitted that
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were held by Vanita Trust prior to filing of the petition. The
Respondent and Vanita Trust had right to vote to the extent of their
h
shares in the company. He reiterated that the Respondent was a
ig
minority shareholder. He denied the suggestion that he manipulated
when finding the alliance with the Petitioner. He did not gave the
matrimonial home. Neither his wife nor he had filed any complaint or
any proceedings in any other Court from January 2001 till the M.J.
petition was filed. He was not aware whether the Petitioner wanted to
end the marriage since he had filed petition for the restitution of
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admitted that he has not made any offer at Lagos where the
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Petitioner was living. He denied the suggestion that the Respondent
C
reconcile. He admitted that his statement about the Petitioner
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also admitted that he was not personally aware whether the
ig
Petitioner has misappropriated partnership funds in business with his
denied the suggestion that he had interfered with married life of the
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did stay with the witness and on second visit he stayed at hotel and
that the Respondent had visited Singapore alone while the child was
SUBMISSIONS OF COUNSEL
rt
77. Mrs.Rao, learned counsel appearing for the Petitioner
ou
invited our attention to various documents on record to show that
own and had substantial earnings. It is the case of the Petitioner that
C
once the matrimonial petition was filed and the Respondent became
aware of the same she with malafide intention started diverting its
h
share holding in various companies to other persons. According to
ig
Mrs.Rao upto March 2001 she held 600 preference shares in Sanwa
companies. She held 198 equity shares in Lekhraj & Sons (Exports)
om
Pvt. Ltd. which held shares in four companies. She held 18 equity
Vanita Apparels Pvt. Ltd. which in turn held shares in Lekhraj and
B
Sons Pvt. Ltd. and Palmar Investment and Trading Co. Pvt. Ltd. In
yet another company M/s.Jayem Fashions Pvt. Ltd. she held 100
equity shares.
78. Mrs. Rao submitted that the petition was served on the
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penniless and dependent upon the Petitioner. As far as Vanita Trust
ou
is concerned, upto March 2002 the trust held 750 equity shares in
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equity shares in four group companies, namely, Jayem, Sanwa
Capitals Pvt. Ltd., Vanita Apparels and Palmar. The trust held 18
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shares in Vanita Apparels which in turn held equity shares in Lekhraj
ig
Sons and Palmar Investment and Trading Pvt. Ltd. In this manner
Counsel for the Petitioner pointed out that the Respondent wife was
H
extremely wealthy and had deliberately, with intention to deceive the
deliberately tried to make out that she had no income of her own
om
and that she was entirely dependent upon her father for her
sister Varsha Waswani the shares held by her in Sanwa Finance Pvt.
Ltd., Balmoral Fashions Pvt. Ltd., Vanita Apparels Pvt. Ltd. and
Lekhraj and Sons Exports Pvt. Ltd. From Exhibit-160 it was pointed
out that she had held shares of Jayem Exports Pvt. Ltd. Vanita Trust
also held shares of Jayem Exports Pvt. Ltd. The transfer of shares
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Director in Saniva International PTE Pvt. Ltd. a company registered
ou
in Singapore wherein she is appointed as a Director on 1.8.1998 and
C
including her sister.
h
80. That on the aspect of Respondent's income Mrs.Rao
ig
reiterated that the Respondent was the Director of Sanwa Finance
Pvt. Ltd. She held shares in various companies. She was also the
H
Director of Jayem Exports Pvt. Ltd. She also held shares in 14 group
Vanita Trust is the trust set up for the benefit of the Respondent.
B
The trust held shares in Jayem Exports Pvt. Ltd., Lekhraj and Sons
Pvt. Ltd., Sanwa Capital Pvt. Ltd. and Vanita Apparels Pvt. Ltd. The
Respondent and the said trust held shares in Modfash Exports Pvt.
Ltd. and Sanwa Finance Pvt. Ltd. Mrs.Rao further submitted that the
rt
withdrawn by the Respondent from the joint account without
ou
knowledge of the Petitioner. According to the Respondent she
C
her father brought out the fact that it was not serious ailment which
h
cross examination that she withdrew the money and remitted it to a
ig
company Sanwa Capital Pvt. Ltd. The Respondent's father admitted
that the said amount was shown as loan in the company's books of
H
account. As far as cross examination of the father in paragraph 60
him, it was her own money. However, he admitted that the said
amount that was transferred to Sanwa Capital Pvt. Ltd. which was
om
under his control. He also admitted that the amount was shown by
admitted that the amount of USD 53600 was shown as loan to the
pay any income tax in view of the loan. He opposed the admission
that the Respondent's demand is crucial and it shows that the money
was not required by her daughter for medical treatment at all and
rt
Court. Thus, it is evident that the amount was not withdrawn by the
ou
Respondent for the sake of use of medical expenses but she had
C
has come in the Respondent's cross examination in paragraph 47
h
81.
ig
Mrs.Rao also submitted that from the Income tax returns
of the Respondent for the years 2001-02 shows that the Petitioner
H
was not ordinary resident in India and the address of permanently
wherein she admitted that she is filing income tax returns since prior
The income tax records shows the address is of the father's business
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Respondent. According to him Vanita Trust has not filed any tax
ou
returns since it has no corpus or bank accounts. He deposed that
income tax returns filed by the Respondent for the assessment year
C
relating to personal return were filed. However, he did not produce
h
balance sheet. In paragraph 30 of the cross examination he
ig
admitted that he held NRE and NRO accounts jointly with his
daughter which was closed in year 1994 and opened in ICICI bank.
H
These were subsequently produced in the cross examination on
held NRE and NRO bank accounts jointly with her father and that
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were opened for the business purpose and there was no transactions
for the relevant period. There was no need to open such accounts
om
Mrs.Rao stressed upon the fact that the Respondent was regularly
of Singapore.
rt
Trust and the Respondent to return loan to Vanita Kripalani of Rs.3
ou
lakhs Further he claimed that although there were their debit and
credit entries the trust does not have bank account of its own. He
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Rs.10,93,814/- which has been credited to Vanita Kripalani.
h
83. Mrs. Rao also relied upon the fact that the witness
received profits from Vanita Fashions and has also received salary as
H
the Director which is recorded in capital accounts particulars. In
Mrs.Rao then drew our attention to the fact that the Respondent's
rt
his personal knowledge. Mrs.Rao highlighted the fact that the
ou
Respondent has made certain allegations for the first time in her
C
Petitioner. Further allegations by the sister of the Respondent in
h
Respondent with divorce was contradicted by the Respondent in
ig
paragraph 46 of her cross examination when she admitted that she
Petitioner.
y
ba
pointed out the fact that although the reason she provided for not
attending the Family Court on 19th November, 2005 was that she
was suffering from ill health, in fact she was attending some party
rt
cross examination in paragraph 50. Furthermore, scrutiny of
ou
Respondent's passport reveals that she passed through immigration
entries in the passport but denied that she made false statement
C
that she was bed ridden between 19.11.2005 and January 2006.
h
had good relationship with the Petitioner. She made reference to
ig
the paragraph 24 of the written statement and paragraph 20 of the
there is no doubt that the Respondent had treated the Petitioner with
om
evidence.
B
derived from her father. She was not in need of maintenance and
rt
do so on the ground that the daughter has been refused a visa.
ou
Therefore in September 1998 the Respondent came to Mumbai from
C
Respondent and that the Petitioner should look after his daughter
h
she withdrew monies from OCBC bank Singapore and took away
jewellery
ig
from the locker at Central Bank of India, Mumbai. On
and restore the marriage. She also failed to attend the Family Court
hearings even after having served with summons in the petition. She
failed to attend the Family Court in March 2002 instead filed a police
complaint on 13th April, 2002 alleging that the Petitioner and his
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name of Petitioner's parents. She has admitted in the cross
ou
examination in paragraph 116 and 121 that she has no intention to
C
further submitted that the Respondent has filed Petition bearing
h
and residential accommodation. However, the same was withdrawn
ig
after the Family Court dissolved the marriage.
H
86. Mrs.Rao referred to the judgment of the Hon'ble
and left matrimonial home on her own. Hence, she is not entitled for
that the Supreme Court observed that if the Respondent wife had left
the matrimonial home on her own and he was not compelled by the
direct consequences if she did not leave the house she was not
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entitled for maintenance. In the case of G.V.N. Kameswara Vs. G.
ou
Jabilli AIR 2002 SC 576 it was held that cruelty cannot be judged by
C
Furthermore, the Court observed in paragraph 12 in the said
judgment that due regard must be to marriage and the Court should
h
consider whether life together with the Respondent had become
ig
impossible, then and only then can the Court come to a finding that
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society they move in, the possibility or otherwise of the
parties ever living together in case they are already
ou
living apart and all other relevant facts and
circumstances which it is neither possible nor desirable
to set out exhaustively. What is cruelty in one case may
C
not amount to cruelty in another case. It is a matter to
be determined in each case having regard to the facts
and circumstances of that case. If it is a case of
h
accusations and allegations, regard must be had to the
context in which they were made."
ig
88. Mrs.Rao thereafter referred to a decision of the
H
Supreme Court in the case of K. Sriniwas Vs. K. Sunita wherein the
89. Mrs. Rao further submitted that the filing of the criminal
that the complaint was filed after the summons of the Petition in the
Family Court was served. He pointed out that the Roznama of the
Family Court shows that the Respondent had received the summons
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summons were received on 18th March, 2000. However, after receipt
ou
of the summons, the Respondent had adopted a different strategy for
instance she sent a letter Exhibit 112 dated 7th May, 2002. In this
letter the Respondent referred to the fact that while the Petitioner
C
was at Lagos and the daughter and she werea at the NCPA flat. The
tone of the letter reveal that it was intended to create evidence. The
h
emphasis was that the dispute between them had an impact on the
ig
child. According to Mrs. Rao this letter was written after receipt of
to a SMS sent by the Respondent to the Petitioner. The said SMS shall
y
stated as follows:-
ba
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your wife vinita have a nice day. I
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thank u 4 being a nice papa. 20/02/02 10:48 Vinita
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21/02/02 23:29 Vinita
h
bet us I luv u very much
90. She sent a series of short text messages from her mobile
According to Mrs. Rao the fact that the Respondent was going out of
card to the Petitioner. She demonstrated her feelings for him. This
disposed towards him. Mrs. Rao then, referred to a greeting card sent
on Valentines day on 14th February, 2000. (We may also note here
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that on page 147 part of Exhibit-126 collectively there is also a
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Valentine's day card sent by the Respondent to the Petitioner on 14 th
February, 2000) which was prior to this summons being served but
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making reference to these, Mrs. Rao submitted that it is clear that
Greeting card and sms were sent during a period between November
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2001 and 5th June 2002 during which period she was admittedly
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residing with her parents at the NCPA flat acquired by her parents
months period she had sent the SMS and Greeting card merely to
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create an impression that she was a loving wife and to prove the
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November 2001 till March 2002 and, therefore, she was meeting her
income what she does from the family businesses. The fact that she
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was a Director and shareholder in various companies as stated above,
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which companies have substantially stakes in each other. Mrs. Rao
further submitted that the claim for maintenance ought not to have
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According to her, no case whatsoever was made out by the
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Family Court. She submitted that the Petitioner had paid all amounts
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and maintenance as per the order of the Family Court and regularly.
London since 2012. She has stated that she has instructions from her
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client to submit to the order of this Court as far as sharing the cost of
this case, the Division Bench held that, “the husband must maintain
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said Act subject to the discretion of the Court having due regard to
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the consideration as set out in sub-section(2) or sub-section (3) of
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obediently to his authority and to remain under his roof and
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not been completely ruled out and it is permissible for a Hindu wife to
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stay separate and claim maintenance from her husband. Section 18(3)
these are not relevant to our facts. Mrs. Rao relied upon the
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according to Mrs. Rao and not only that the wife has suppressed her
Shivkumar Singh (supra) there was no case made out for granting
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maintenance. Mrs. Rao submitted that applying the said test there is
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no doubt that the Respondent has chosen to walk out of the
Petitioner's life and stay separately. The Petitioner has not asked her
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awarding maintenance. Equally, there is no case whatsoever for
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demonstrate that she was completely dependent on her father and,
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therefore, it required to be paid maintenance by the Petitioner. The
facts and in the light of her obvious lack of concern for the marital
relationship and family life and the complaint filed under section 498
losses and the profits that would generate after 1998 were in fact
eaten away by the losses of the previous years. Despite all of this
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comfortable life to the Respondent and the daughter he has denied
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that he spent more than 1,50,000/- on holidays for the family. The
US $ 53692.51 was from his savings during the period 1982-89 and
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also the money received pursuant to the dissolution of the
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around US $ 50,000/- was transferred from Oman Bank in Mumbai to
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American Express Bank and thereafter to the O.C.B.C. Bank. She also
Bank and, therefore, he had used his Nostro account with Chemical
ba
Bank in New York and funds were transferred to Oman Bank and
to the flat in Sanjeev Enclave. In fact, these were borrowed funds and
that these had no bearing to the issue at hand since the flat had
already been disposed of in June 1998. Later on Mrs. Rao pointed out
from UTI bonds and the amount of Rs.10,75,000/- received from the
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attorney. The other amounts in the Bank of Baroda have also been
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explained by the Petitioner including Bank of Baroda and UTI. He
had explained most of the credit and debits which were called by the
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the Petitioner had clarified that the car was purchased for
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Rs.7,49,69,003.35 which had passed through the Oman Bank Account
Nigeria Ltd.
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income was not as high as was sought to be made out. Mrs. Rao
reiterated that this court in the case of Sanjay Sudhakar Bhosale V/s.
Khristina w/o Sanjay Bhosale and held that where there is no proof of
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cruelty being meted out to the wife, she was not entitled to
treatment at the hands of the husband and his relatives after six
Court has held that the wife was guilty of desertion without any
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Smt. Rohtash Singh V/s. Ramendri (Smt.) 2002 (2) R.C.R. 286
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wherein it is held by the Apex Court that a wife is guilty of desertion,
she was not entitled to any maintenance. Mrs. Rao also relies upon
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Sunita wherein the Court held that if a false criminal complaint is
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constitute matrimonial cruelty, would entitle the other spouse to
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claim a divorce. In Deb Narayan Halder V/s. Smt. Anushree Halder in
which case the Hon’ble Supreme Court dealt with the case arising out
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of a criminal complaint under section 125 of the Cr.P.C, and an
were not supported by the evidence, it was found in the case that the
reasons given for alleged ill treatment were non-existent and the wife
om
situation, the Supreme Court held that the Respondent was not
submitted that the Appeal is liable to be allowed to the extent that the
cruelty.
RESPONDENT'S SUBMISSIONS
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the Respondent-wife submitted that five issues have been raised on
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behalf of the Petitioner-husband, namely, (a) shares holding by the
and other assets which were not disclosed (c) deposits in ICICI Bank
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accounts and its entitlement to maintenance on account of desertion.
Mr. Narula submitted that case of desertion had never been pleaded
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by the Petitioner. According to Mr Narula it is undisputed that the
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Petitioner and the Respondent stayed in Lagos upto year 2000 and
asked as to the source of income. Mr. Narula submitted that after the
1994 and she had now become a major. Mr. Narula submitted that in
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Narula the couple were happily married and the allegations of cruelty
being made are non issues. Such contention would not entitle the
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Respondents by making that allegations against the Respondent. He
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submits that the Respondent was treated badly by the Petitioner and
his family members and she was unable to bare the continuous
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took up quarrels with the Respondent frequently and in this respect
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Respondent page 291 of the paper book of evidence wherein the
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Respondent has stated that the Petitioner's mother took up quarrels
with the Respondent and started taunting her parents had not given
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sufficient wedding gifts to her and the Petitioner. According to the
language and also insulted and ridiculed her although she was six
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beating her during her stay during the months of February to April
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assaulted on her face and back. The mother of the Petitioner would
wherein she had deposed that she had developed a fear complex
feeling insecure and confined to her father that she was very much
afraid to go back to Lagos. She has alleged that there was a game
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plan hatched by the Petitioner and his parents and that she would not
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stay at the matrimonial home. On one occasion the Petitioner's
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is also staying at their flat in Iris Mumbai and that she had come
there for her delivery. In this manner, she was led to believe so and
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went at fathers place but without her daughter. She continued to
stay at Iris.
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She also alleged that she developed a serious
had to use her own monies for medical treatment and had to
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deposed that she spent the monies that she withdrew on her medical
expenses and for her daughter Ayesha and the Petitioner as well. Mr.
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Narula drew our attention to the fact that the Petitioner's took away
by her in-laws and the Petitioner. According to her she was unable to
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ou
96. Mr. Narula further submitted in paragraph 19 of the
stated that the Respondent was being beaten by the Appellant and his
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parents. As a result of which he, father of the Respondent was forced
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that on 2nd November, 2001 the Respondent's father received a call
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from his daughter the Respondent around 9.45 p.m. He has deposed
that his daughter informed him that the Petitioner and his parents
H
were beating her. The Respondent's father rushed to the matrimonial
home by around 10 p.m. and only to face a very messy situation. The
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him and the Petitioner's parents were hiding behind their bed room
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door and were throwing glass plates at the Respondents; father. This
continued till midnight. During this period the Petitioner did not
allow the Respondent to take her belongings from the cupboard nor
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with with the Respondent. Mr. Narula submitted that there was
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companies referred to were belonging to the Respondent's father and
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she has no knowledge about the companies and all the accounts were
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the ICICI bank account she had jointly with her father. She states that
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to paragraph 40 of the evidence page 325 of the paper book of
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evidence that the Respondent has transferred US $ 52,500/- to her
father uses her name in his business and she was a nominee director
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any salary. She made reference to Exhibit 122 to say that her father
submitted that the witness had deposed in cross examination that she
had not transferred the shares in the name of the daughter because
her shares do not belong to Respondent's father. She states that all
father. She claimed that she was a dummy director and she did not
know the purpose behind using her name in her father businesses.
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Mr. Narula, then, made reference to the evidence of Mr. Murli
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Lekhraj paragraph 24 page 443 of paper book, wherein he has stated
that the Respondent does not have any separate income nor she has
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by the Auditor's Report and as an admitted position the Respondent
was not a director in any of the companies nor was she shareholder.
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Mr. Narula, then, was at pains to support this contention and took us
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through the evidence highlighting material facts pertaining to each of
the businesses.
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98. With reference to Sanwa Finance Company Ltd. he
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submitted that the Respondent had held 610 preferential shares. His
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166 and submitted that on perusal of the statement showed that the
99. On the other hand, Exhibit 166 shows that the shares of
Fashions Pvt. Ltd., Vanita Apparels Pvt. Ltd., Lekhraj & Sons
(Exports) Pvt.Ltd., Jayem Fashions Ltd. all were sold on 9th April, 2001
and shares of Jayem Exports Pvt. Ltd. were sold on 30 th April, 2002.
He submitted that she does not held any share in any company and
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she had gifted and sold to Varsha and some of the companies are
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under liquidation. According to Mr. Narula, the Respondent received
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172 of paper book which is at page 751 which reveals that sum of
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there is nothing to suggest that the aforesaid amount of Rs.6,00,000/-
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was received as a result of redemption of shares.)
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100. With reference to Palmar Investment & Trading Co. Pvt.
Ltd., Mr. Narula submitted that the Respondent was having 650
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Co.Pvt. Ltd. is the company which owns the two residential flats in
Mumbai at NCPA and Blue Heaven. Mr. Narula, then, referred to the
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company Jayem Exports and stated that the Respondent held 750
December, 2001 and 29th March, 2001. He, then, made reference to
ICICI bank account jointly held by Respondent and his father was
consideration for 300 shares. While on the subject, the said bank
statement at page 724 also shows that sum of Rs.1,80,000/- was paid
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to Palmar Investment & Trading Co. Pvt. Ltd. on 28 th December,
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2001. This entry has not been explained by the Respondent.
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101. Mr. Narula, then, made reference to Sanwa Finance and
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stated that the Respondent held 18 shares in financial year 2000-
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01and sold them to Varsha her sister. Similarly, shares of the
means. She was without any income of her own is required to bring
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up her daughter Ayesha and she only has her father to support her.
two cooks, three maid, two cars, had shopped for furniture in London,
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submitted that she was entitled to enhancement in the amount of
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maintenance awarded by the Family Court. He submitted that the
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enhanced maintenance According to him, she requires at least
Rs.1,50,000/- p.m. for herself and her daughter. She has been also
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entitled to separate residence.
ig
102. Mr. Narula relied upon the decision of the Hon'ble
H
Supreme Court in the case of Jagdish Jugtawat V/s. Mannu Lata
reported in 2002 (5) SCC 422 in which the Hon'ble Supreme Court
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has held that under section 125 read with section 23 of the Hindu
ba
that in that case it was manifest that the minor girl's right for
fact that the Petitioner has stated that the marriage has broken down
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irretrievably, although it is not a ground for divorce under the Hindu
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Marriage Act, 1955. The said provision had found recognition in the
had observed that the parties were facing genuine problems and the
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dissolution of marriage was in the interest of the society and
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amendment to facilitate dissolution on the ground of irretrievable
break down.
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Mr.Narula submitted that in the instant case, the
Supreme Court Cases, 326 and submitted that the Petitioner had
ba
treated the Respondent with cruelty and in any event, the Petitioner
reveals that the husband had significant financial ability and the wife
The Court came to the conclusion that the Appellant had established
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this Court had after considering the facts of the case, enhanced and
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determined an increase from Rs.7,000/- per month to Rs.10,000/- per
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amount of Rs.25,000/- per month from the date of that order.
Mr.Narula submitted that the facts in the present case are similar.
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The Petitioner has not disclosed his correct income and the
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Respondent was entitled to enhancement of the maintenance.
H
105. Mr. Narula, then, referred to the decision of the Hon'ble
matter of Parveen Mehta V/s. Indrajeet Mehta which held that mental
bold on the ground that the witnesses are related to the spouse. He,
wife can by her and the supporting evidence of her father Murli
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Lekhraj are of immense relevance and is reliable. He further
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submitted that while granting maintenance due regard has to be
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that the sum of Rs.25,000/- granted by the trial Court will be wholly
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has been used to living along with the Petitioner. He referred to the
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evidence lead in this behalf and submitted that there is a strong case
106. Having heard both the learned counsel for the parties and
are of the view that the impugned orders do not call for any
the Family Court Appeal No.128/2008 has been filed by the Petitioner
Issues Findings
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Cruelty? Yes
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2. Is he entitled for a decree of divorce of
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the child Ayesha? No
h
for maintenance for herself? If yes,
At what rate?
ig Yes, as per final order
the Petitioner. It was held that the Respondent had treated the
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Court also and also held in favour of the Respondent wife to the
been treated with cruelty, the trial court recorded that although the
treated with cruelty, she had failed to establish the same. The trial
Court found that even the Respondent's father had not made any
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allegations against the Petitioner and his family till the matrimonial
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petition was filed by the Petitioner. On the contrary, the Court
concluded that the Petitioner had proved his case that the
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108. On the aspect of divorce, we have perused the pleadings
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in Family Court Petition No.264/2002. The Petitioner's allegations of
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cruelty have been summarized by us in paragraph 4 of this judgment.
present the police station when the Petitioner was summoned abused
request of the Petitioner and used non availability of a visa for the
daughter as an excuse.
109. The Petitioner has also deposed to the fact that his sister
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was also abused by the Respondent without provocation. Apart from
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the physical harm to his parents, he has deposed that false cases
were filed against his parents and him under section 498 of the IPC.
After registering the case against the Petitioner and his parents, the
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parents of the Petitioners had to take anticipatory bail. All this has
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Petitioner's mother had to file a suit against the Petitioner and
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Respondent restraining them from entering the Petitioner's mother's
father of the Respondent's child. These are very serious and grave
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allegations.
110. On the other hand, the Respondent has not been able to
B
is also established that the allegations made without any basis which
can be seen from the fact that the Respondent has not cross-
has not been able to make any dent to his evidence on the aspect of
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was suffering from Chickenpox and considering the tender age of the
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child such acts of insensitivity are cited as instance of cruelty.
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manner in which she dealt with the joint account in OCBC bank,
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consent of the Petitioner, she contended that the amounts withdrawn
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was her money. She was ably assisted by her father who also
contended that the money was her own, comprising of gifts received
H
by her. She then contended that the amount was withdrawn in order
to fund her medical treatment. She has deposed that she was
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but the Petitioner had refused to give money for her medical
to her was her own. However, in the evidence of the Respondent and
her father, it has come to light that the money was never really used
by her for medical treatment but she has transferred the money to
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her father's company account. This was also brought out in the cross-
money withdrawn from the joint account was not used but she
borrowed money from her father. She also deposed that Rs.60,000/-
had been paid for treatment of thyroid. She admitted that that she
was not hospitalised for the thyroid condition nor has she undergone
any surgery treatment. In this view of the matter, it is clear that she
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112. It is also the Respondent's own case that the matrimonial
treated her with cruelty and physically abused her and has constantly
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humiliated her despite her being in pregnant state. The Respondent
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Petitioner's mother also deposed that the Petitioner was very harsh
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with her, insulting her, scolding her as a result of which her suffered
feared and was afraid of going back to the Petitioner and she has
ba
developed a fear complex. The Respondent has deposed that till 2001,
2nd November 2001 after the Petitioner started quarelling with her,
om
113. Mental cruelty has not been defined in the Act. Although
there has been separation over a long period of time and given the
fact situation, we are of the view that the trial Court had correctly
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come to a finding that the Respondent wife has treated the Petitioner-
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husband with mental cruelty. One of the leading case on the issue is
Court Cases 511. In this case, the Hon'ble Supreme Court held as
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follows:-
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“99. Human mind is extremely complex and human behaviour
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is equally complicated. Similarly human ingenuity has no
bound, therefore, to assimilate the entire human behaviour in
one definition is almost impossible. What is cruelty in one case
H
may not amount to cruelty in other case. The concept of cruelty
differs from person to person depending upon his upbringing,
level of sensitivity, educational, family and cultural background,
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succeeding paragraphs are only illustrative and not exhaustive:
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parties, acute mental pain, agony and suffering as would not
make possible for the parties to live with each other could come
within the broad parameters of mental cruelty.
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(ii) On comprehensive appraisal of the entire matrimonial life
of the parties, it becomes abundantly clear that situation is
such that the wrong party cannot reasonably be asked to put up
h
with such conduct and continue to live with other party.
(iii)
ig
Mere coldness or lack of affection cannot amount to
cruelty, frequent rudeness of language, petulance of manner,
H
indifference and neglect may reach such a degree and it makes
the married life for the other spouse absolutely intolerable.
the spouse.
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dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.
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(ix) Mere trivial irritations, quarrels, normal wear and tear of
the marriage life which happens in day-to-day life would not be
adequate for grant of divorce on the ground of mental cruelty.
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(x) The married life should be reviewed as a whole and a few
isolated instances over a period of year will not amount to
cruelty. The conduct must be persistent for a fairly lengthy
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period, where the relationship has deteriorated to an extent
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that because of the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to live with the other
party any longer, may amount to mental cruelty.
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(xi) If a husband submits himself for an operation of
sterilisation without medical reasons and without the consent
or knowledge of his wife and similarly, if the wife undergoes
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cruelty.”
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114. The Respondent also filed a case under section 498A of
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statements alluding to immoral nature of the Petitioner clearly
indicates that the Respondent has treated the Petitioner with cruelty.
h
D.A.Deepa reported in AIR 2013 Supreme Court 2176, while
ig
following the judgment of Samar Ghosh has also taken the view that
H
defamatory statements by Respondent wife are bound to result in
humiliation of the husband and result in the husband and his family
sleep with his father which angered him and caused humiliation to
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the father and great anguish to him. The Hon'ble Supreme Court
“ 13. In Naveen Kohli the wife had filed several complaints and
cases against the husband. This Court viewed her conduct as a
conduct causing mental cruelty and observed that the finding of
the High Court that these proceedings could not be taken to be
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21. On 29/6/2010 Criminal Appeal No. 186/2010 filed by the
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Appellant- husband challenging his conviction for the offence
under Section 498-A of the IPC was allowed by the
Metropolitan Sessions Judge and he was acquitted. The
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Respondent-wife has filed criminal appeal in the High Court
challenging the said acquittal which is pending.
h
22. We need to now see the effect of the above events. In our
opinion, the first instance of mental cruelty is seen in the
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scurrilous, vulgar and defamatory statement made by the
Respondent-wife in her complaint dated 4/10/1999 addressed to
H
the Superintendent of Police, Women Protection Cell. The
statement that the mother of the Appellant-husband asked her
to sleep with his father is bound to anger him. It is his case that
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24. In our opinion, the High Court wrongly held that because
the Appellant-husband and the Respondent-wife did not stay
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condition for mental cruelty. Spouse can cause mental cruelty
by his or her conduct even while he or she is not staying under
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the same roof. In a given case, while staying away, a spouse can
cause mental cruelty to the other spouse by sending vulgar and
defamatory letters or notices or filing complaints containing
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indecent allegations or by initiating number of judicial
proceedings making the other spouse’s life miserable. This is
what has happened in this case.
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26. We are also satisfied that this marriage has irretrievably
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broken down. Irretrievable breakdown of marriage is not a
ground for divorce under the Hindu Marriage Act, 1955. But,
H
where marriage is beyond repair on account of bitterness
created by the acts of the husband or the wife or of both, the
courts have always taken irretrievable breakdown of marriage
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Srinivas Rao (supra) applied to the present case as well with equal
amounts to cruelty in the case of Mr. M V/s. Mrs. M 2014 (2) Mh.
L.J. 825 to which one of us (A.S.Oka, J.) was a party. This Court has
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held that the Respondent wife had no substantiated her allegations of
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cruelty in the criminal case.
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divorce by consent. The Respondent wife has not seriously urged
her appeal against the decree of divorce. Learned counsel for the
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Respondent does not make out any case for a relief against the
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decree of divorce. The main crux of the argument was on the issue of
by the Petitioner.
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ba
that a cruelty which brings us to that aspect of the matter and apart
om
from the fact that the Petitioner has made various allegations of
find that the Respondent has also contended that she has been
B
Petitioner has initially filed the petition for judicial separation. Apart
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at Mumbai was the Petitioner's home at Iris, Cuffe Parade, Mumbai.
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That whenever the Respondent came to India she would reside at the
filing of written statement her clothes and jewellery were lying in the
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matrimonial home. In paragraph 15 of the written statement, the
Respondent states that after the birth of their child Ayesha, the
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attitude of the Petitioner towards her changed and the Petitioner was
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like a puppet in the hands of his mother who is alleged to have been
stay there separately especially after the birth of the child. The
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the Petitioner and her in-laws often stated that the Petitioner had
married the Respondent in the hope that her parents would assist the
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physically “drag the Respondent out of matrimonial home”.
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Apparently these were the instances witnessed by the Petitioner's
expected that she would bring handsome money and look after the
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in-laws in their old age. However, this marriage was not turning out
h
this, she contends that she had expressed her immense desire to
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reconcile and reunite with the Petitioner for the betterment of the
23rd January, 2002 for judicial separation without any fault on the part
B
Respondent. She admits that on 13th April, 2002 she had lodged a
contends that since the police has not taken cognizance of the
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Magistrate, 8th Court at Mumbai, which issued process. She has also
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sought an order from the Court directing them to provide suitable
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Rs.25,000/- per month for daughter Ayesha. She has alleged that the
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and denied all the contentions in the Writ Petition. About the
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withdrawal of the monies from the joint bank account of OCBC Bank,
written statement with those in the petition and upon analysing the
ba
note that she admits that the complaint under section 498A was filed
only because the police failed to take any action. This complaint was
to believe that the Petitioner and his parents were harassing the
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luxury in Lagos, Nigeria. It is, this luxurious lifestyle that is being
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cited in the pleadings and in the evidence, in support of the
that they have taken several holidays abroad and they travelled
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regularly by business class. Several such instances have been cited
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luxury and, therefore, liable to pay maintenance to the Respondent
the other hand, the conduct of the Respondent and the parents on
ba
who has contended that the Respondent changed after the child was
born on 13th April, 1994 that she became adamant and abusive and
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that after the birth of the child,the Petitioner became arrogant and
B
this aspect. There are very serious allegations of cruelty which have
August 1997 when the Petitioner's sister Jyoti had given birth to her
being the father of the said child. This evidence has not been
Petitioner has through his advocate's letters put on record the various
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instances of the Respondent's behaviour including one. When the
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Petitioner was called to attend the Cuffe Parade Police Station and
the Respondent and her parents abused the Petitioner at the police
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impotent and stated that he should be sheltered under the frill of his
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attributed to the Petitioner, his statement that the Respondent's
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father was the father of her child. This has been brought on record in
stated that she has witnessed the arguments between the Petitioner
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and the Respondent which revolved only around money. The evidence
of the Petitioner's mother Mrs. Asha Kripalani also reveals that many
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when the Petitioner was in Lagos. She has accused the mother-in-law
giving them food and without permitting them to either bring food
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father of the Respondent's daughter Ayesha. This was an extremely
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disparaging allegation to make notwithstanding that the Respondent
may have been under some pressure. She has accused the Petitioner
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unsubstantiated. Furthermore, when the child Ayesha was still in
Lagos, after suffering from chicken pox, the Respondent did not
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make any efforts to go over to Lagos. She even abused the
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petitioner's sister and made offensive comments about her having two
spouse. Applying the aforesaid tests to the present case and having
om
considered the fact situation there is no doubt in our mind that the
prove that the Petitioner has treated her with cruelty. The evidence is
ask to put up with the conduct of the Respondent and continue to live
with her. So, there is question of setting aside the decree of divorce.
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arrogant behaviour is unjustifiable. Married life as a whole was
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ruined and as seen from the evidence and it justifies the conclusion
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Petitioner cannot reasonably be expected to live with the Respondent
any longer.
h
121.
ig
Thus, it is clear that frivolous allegations have been made
mention. The child Ayesha had developed chicken pox in and around
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then in India of this fact and expected that the Respondent would go
to Nigeria to look after the child but she failed to do so. Sometime
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later the child was brought to India and after she recovered the
Petitioner had expected that the Respondent will accompany him and
view, the various aspects of cruelty are deposed by the Petitioner and
rt
no.2, we have already observed that the decree of divorce was
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justified and hence calls for no interference.
122. In our view the test for mental cruelty caused by the
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Respondent to the Petitioner stands satisfied and accordingly, we find
h
123.
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We will now deal with the contentions made by Mr.Rao on
from the conduct of parties that she had lived separately for long
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period of time, we do not find any such case made out in the petition.
ba
Although it would be open for Mrs. Rao to contend that the Petitioner
party alleging desertion must not only prove that the other spouse
was living separately but must also prove that there was animus
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“It may be noted that only after the amendment of the said Act
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by the amending Act 68 of 1976, desertion, the High Court held
that in order to prove a case of desertion, the party alleging
desertion must not only prove that the other spouse was living
separately but must also prove that there is animus deserendi
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on the part of the wife and the husband must prove that he has
not conducted himself in a way which furnishes reasonable
cause for the wife to stay away from the matrimonial home. ”
h
124.
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In the present case, we find that no such animus
Suffice it to say that the Petitioner has not prove animus deserendi
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nor has he alleged desertion or has the Respondent proved that the
furnishes reasonable cause for the wife to stay away from the
matrimonial home.
rt
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126. The trial court also found that the Petitioner was very
rich, does not want to disclose his real income and was lying about
his real income. The Court found that although an attempt was to
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show that the Respondent-wife is not wealthy and does not have any
income and the trial court came to the conclusion that after the
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marriage the Respondent had concealed her assets transferred her
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share holding investments, etc. despite which she was entitled to
the daughter from the date of the order i.e. 21st April, 2008. In
out the Civil Application for the same. The Civil Application
the minor daughter. Besides the Civil Application has since been
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128. While disposing of the application for education expenses,
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came to be expedited. By further order dated 10 th December, 2012
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Rs.50,000/- p.m. Payable to Respondent-wife and their daughter in
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the registry of this Court and the Respondent-wife was allowed to
paid.
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refusal of custody. Thus, the only surviving issues are the subject
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Respondent well provided for. This can be seen from the evidence
first of the Petitioner wherein he stated that after separating from his
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Ltd. He was Managing Director of Anivin Nigeria Ltd. and claimed
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that he held 30% of shares in the company and earned salary of
the driver. He has suppressed the balance sheet and profit and loss
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account of the company. In cross examination, he claimed that he
had not attended the board meetings since 2002. He admitted that
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although in year 1999, the company made profits, the same were
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wiped away due to loss in the year 1998 but he was unaware of the
share upon leaving his brother's business time. He admitted that after
not recall the rent amount paid. He spent about US $25,000 for
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had two maids and one cook in the house. The salaries of these
persons were paid by the company. The driver was also employed by
the company, yet, he could not produce any document to show the
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with the company. He admitted that company spent about Rs.50
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lakhs which includes furniture, fixture, rent of apartment, agent's
fees, tenancy agreement charges etc. The electricity bills were paid
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assessed to tax in India and could not state the salaries of other
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accounts with Oman International Bank, Bank of Baroda, UTI Bank,
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OCBC Bank Singapore, Chemical Bank, New York, large amounts of
fact that the amounts which have been passed through bank accounts
willing to identify his personal funds. The fact that the Petitioner is a
132. Coming to the financial position of the wife, Mrs. Rao, the
learned advocate for the Petitioner has demonstrated and as has been
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out of Singapore, engaged in business there and in India. The
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Petitioner has provided a chart indicating various companies owned,
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Trading Pvt. Ltd., Modfash Exports Pvt. Ltd., Jayem Exports Pvt. Ltd.,
Lekhraj & Sons Exports Pvt. Ltd., Sanwa Capital Pvt. Ltd., Vanita
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Apparels and Jayem Fashions Pvt. Ltd. The aforesaid companies have
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cross holdings in other group companies. For instance, Sanwa
Exports Pvt. Ltd. holds shares in 14 companies, Lekhraj & Sons holds
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also owns two valuable apartments one in Mumbai and one in the
Vinita Kripalani has held shares many if not all the businesses as set
held shares in Jayem Exports Pvt. Ltd., Lekhraj & Sons Exports
Pvt.Ltd., Sanwa Capital Pvt. Ltd., Vanita Apparels Pvt. Ltd. and
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companies as listed in Exhibit 117. We have no doubt that upon the
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matrimonial petition and being summons served upon the
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the Respondent as well as the cross-examination of the Respondent's
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Respondent was admittedly a director of a entity incorporated in
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Singapore where the Respondent's father carries on business.
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134. In the case of Saniva International (PTE)Ltd. and Orfadi
(Far East) PTE Ltd. Singapore also the company was engaged in
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petition was served upon her. The annual reports of the various
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Sanwa Capitals Pvt. Ltd. as of 9th May, 2002 reveals that it held 39900
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investments amounting to Rs.13,91,29,374/- as on 31st March, 2006.
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Palmar Investment and Trading Pvt. Ltd. held fixed assets in terms of
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more valuable today after the passage of 15 years from the date of
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Rs.44,52,574/- Jayem Exports held aggregate value of investments of
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Rs.7,24,29,588/- as of 31st March, 2000. No doubt apart from these
deliberately stated that she has no income of her own and she is
these Appeals, we are not required to deal with into details of the
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Berkeley College in the U.K. The Petitioner has fairly agreed to share
one half of the expenses. We are, therefore, of the view that the
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being paid by the Petitioner. We also do not intend to disturb the
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order of the Family Court granting maintenance. The Respondent
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daughter. In the event, the Petitioner husband declines to
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entitled to apply to the Family Court for appropriate directions in
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the light of the statement of the learned Counsel for the husband.
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135. We are of the view that the Respondent is entitled to
major change after she has stopped cohabitation with the Petitioner.
She has continued to holiday abroad. She has also made several
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treatment. In cross examination she has admitted that she was not
hospitalized for her medical condition but she is taking some tablets
on which she has to spent Rs.60/- p.m. She admitted that the sum of
was so transferred at the instance of her father and she has taken
loans from her father. She claimed that she does not understand
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not understand documents. She does not handle the finances of the
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Petitioner and she does not personally know the financial position of
the Petitioner, nor has she tried to find out about them. We do not
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proceeded to educate her daughter in England without seeking the
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the costs of education abroad. She is no doubt a person of means
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whether or not her businesses are controlled by her father. Both
Petitioner. At the same time, we do not find there is any case for
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Respondent and the facade that she has no income of her own. In
iv) Civil Application No.59 of 2012 does not survive and the
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No.128/2008, Anil Kripalani shall continue to pay
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maintenance to the Respondent Vanita Anil Kripalani in a
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vi) The Respondent wife will be entitled to inform the Petitioner
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the education of the daughter. In the event, the Petitioner
husband
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declines to contribute within a reasonable time,