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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

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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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Anil Parsram Kripalani

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Indian Inhabitant, aged 40 years,

residing at 7th Floor,
Iris Apartment, Cuffe Parade,
Mumbai 400 015 .. Appellant/Applicant.
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Vs.

Vanita Anil Kripalani

Indian Inhabitant aged 35 years,
residing at 1st Floor,
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NCPA Building, Nariman Point

Mumbai 400 021 .. Respondent.

Mr.Rajiv Narula a/w Mr.Anup Dasgupta i/b M/s.Jhangiani Narula and

Associates for the Appellant in FCA No.105/2008 and for the
Applicant in CA No.258/2008 and CA No.114/2010 and for the
Respondent in FCA No.128/2008 and CA No.59/2012.

Mrs.Manjula Rao a/w Ms.Rupali V. Naik for the Respondent FCA

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No.105/2008, CA Nos.258/2008 and 114/2010 and for the Appellant

in FCA No.128/2008 and for Applicant in CA No.59/2012.

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CORAM : A.S. OKA & A.K. MENON, JJ.

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RESERVED ON : 27TH FEBRUARY, 2015

PRONOUNCED ON : 8TH MAY, 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 Family Court granted a decree of divorce whereby the marriage

solemnised between the wife (referred to as “Respondent”) and the

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husband (referred to as “Petitioner”) on 19.5.1993 was dissolved by

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the decree of divorce and the Petitioner husband was directed to pay

a sum of Rs.25,000/- each to the Respondent wife towards

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maintenance and further a sum of Rs.25,000/- to their daughter.

The Respondent has filed the present appeal seeking enhancement of

the amount of maintenance.

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FACTUAL OVERVIEW :-

2. The marriage between the Petitioner and Respondent was

an arranged marriage. After the marriage the Respondent proceeded

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to reside with the Petitioner in Nigeria. Both the parties are from

business families. The Petitioner husband was at all the material

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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

the Respondent, the Petitioner owns and controls the business in

Nigeria. The Petitioner, on the contrary has contended that he does

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not own or control the business and that he has only 30% stake in the

business and remaining 70% being controlled by Nigerian partners.

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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

granted maintenance namely in the sum of Rs.70,000/- per month

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each to the Respondent and their daughter Ayesha.
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3. In Family Court Appeal No.128 of 2008, the Petitioner –

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husband has challenged the order of maintenance on the ground that

the Respondent–wife is wealthy. She was Director in three companies

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in Singapore and drawing a sum of Rs.1 lac per month by way of

Director's fees and also receiving separately, accommodation

compensation. The Respondent wife was engaged in the family

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business of her father which is evident from the records produced.

According to the Petitioner, the documentary evidence produced

revealed that the Respondent has substantial finances of her own and

has suppressed her banks accounts and income. It is an admitted

position that there is a trust known as “Vanita Trust” and the

Respondent was the beneficiary of the said trust. According to the

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Petitioner, the Respondent has deliberately suppressed her income

and her financial status, therefore, is not entitled to maintenance.

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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

in the year 1998, by prematurely closing a fixed deposit held in their

joint names and transferring the fund to a company M/s.Saniva

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International (PTE) Ltd. Singapore. It is in this background that the

present litigation has been contested.

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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

at Lagos, Nigeria. The daughter named Ayesha was born on 13th

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April, 1994. It is the case of the Petitioner that the marriage was

solemnised only after the Respondent agreed to settle in Lagos where

he was working for the gain. It is the Petitioner's case that soon after
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birth of their daughter the Respondent's behavior changed. She

became arrogant, abusive, defiant and was beyond control of the

Respondent. It is alleged that the Petitioner would use foul language

and was abusive towards the Respondent and his family members.

The Respondent came back to India along with their daughter

Ayesha sometime in February 1994. In August 1997, on an occasion

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of birth of child, a son to his only sister Jyoti, the Respondent

allegedly accused the Petitioner of being father of the said child.

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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

her behalf. The other instances of alleged cruelty were introduced by

the Petitioner by way of amendment. The instances of cruelty in the

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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

parents. Thereafter since the Petitioner was to be in London on

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business trip, he requested the Respondent to join him in London

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along with their daughter but the Respondent declined contending

that the daughter was not granted a visa. The Petitioner then waited
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return of the Respondent to Lagos since their daughter's school was

expected to reopen. However, the Respondent did not paid any

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

to Lagos, the Respondent's father spoke to the Petitioner's parents in

Mumbai and informed that the Respondent was not interested in

returning to Lagos and that she would prefer to be in Mumbai. The

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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As a result, the Petitioner came to Mumbai and took Ayesha away to

Lagos. The Respondent continued to stay with her father.

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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

to her tender age.

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The Petitioner sent the daughter to meet the

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

Petitioner left alone on 14th January, 1999 to Lagos. The Respondent

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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

forcibly take the daughter Ayesha to Lagos. Apparently, the

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Petitioner's daughter would visit his parents and express her desire to

meet him. The Respondent then suggested that she was also ready to

come back to Lagos along with Ayesha. The Petitioner agreed,

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provided she agreed to repay the money clandestinely withdrawn.

The Respondent promised to repay the sum of USD 53,692.51

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.

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7. In February, 2000 on a visit to Mumbai, the Respondent

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

parents. The Respondent got their daughter admitted in the

Cathedral and John Connon School at Mumbai in March, 2000. The

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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

and calling them uncultured.

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The Respondent further accused the

Petitioner of leaving her in India and enjoying his freedom in Lagos.

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The Respondent returned to India along with Ayesha some where in

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

the fights continued. The Petitioner further contends that the

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Respondent was not interested in associating himself with the

Respondent's family business and he refused to the accede to the

pressure from the Respondent to invest her monies in her father's

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business leading to further rude behaviour by the Respondent. On

one occasion on 29th October, 2001, the Respondent fought with and

abused the Petitioner's mother and father and picked up an antique

crystal glass vase and flung it on the ground. The parents of the

Respondent continued to support the Respondent and the Petitioner's

parents suffered constant threats of criminal prosecution. On 2 nd

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November, 2001 the Petitioner attempted to assault the Respondent

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

the Petitioner in presence of her parents. Thus, physical assault by

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the Petitioner has been pleaded. The Respondent also manhandled

the Petitioners' parents which caused great mental agony and

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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

that she was his responsibility. They proceeded to threaten the

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Petitioner with criminal prosecution. Even the Petitioner's sister was

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

school. The Respondent apparently spoke to her in a cheap manner

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and in unparliamentary language. The Petitioner alleged that

although the Respondent pretended that she comes from a cultured

family, she had no morals or ethics. Unfortunately, the fact that her
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parents were supporting the behaviour of the Respondent was

causing great harm to their daughter Ayesha.

8. On or about 5th June, 2002 the Respondent with an

intention to pressurizing and harassing the Petitioner and his aged

parents forcibly entered the residence of his parents, abused and

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manhandled Petitioner's mother by pushing her and abusing her in

bad language. Apparently, the Petitioner's mother requested the

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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

took forcible possession of another bedroom. Thereafter, the

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Respondent lodged a complaint at Cuffe Parade police station

alleging that the Petitioner's parents especially his mother was

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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

July, 2002 reportedly at the behest of the Respondent. The police

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made the aged parents of the Petitioner to sit at the police station till

11 pm. The Petitioner then rushed to Mumbai and through his

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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

to remain present, whereupon he did attend and gave his statement.

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It seems that at the police station the Respondent and her parents

were also present and they abused the Petitioner. It is alleged that

Respondent's mother in presence of all stated that the Petitioner was

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impotent and should be sheltered under “the frill of his mother”. The

Petitioner contends that on this ground alone the Petitioner is entitled

to a decree of divorce.

9. The Petitioner alleges that the Respondent was in habit of

making false and frivolous allegations. Correspondence ensued

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between the parties and the Petitioner in various letter addressed to

the Respondent put on record the false accusations made by her

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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

meanwhile it is alleged that Cuffe Parade police were pressurizing

the Petitioner and his parents to “settle” with the Respondent.

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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

pressurised in order to agree to unreasonable demands that were

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being made by the Respondent. The acts of cruelty included constant

threats by the Respondent to have the Petitioner arrested by the

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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

Petitioner therefore contends that false accusations had adversely

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affected the Petitioner's mind and health and has caused great

embarrassment to him and his parents and lowered their image

amongst relatives and business associates leading them to be looked

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down by their neighbours and business associates.

11. In the meantime the Petitioner learnt that Respondent had

clandestinely withdrawn a sum of USD 53692.51 from a fixed deposit

in the bank in Singapore which was held in joint names. This amount

was clandestinely transferred by her in name of M/s. Saniva

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International Pvt. Ltd. in Singapore. As a result of which, he was

then forced to stop further transactions in the account in OCBC

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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

Bank of India. According to the Petitioner, the Respondent later

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)

tried to advise her to improve her behavior but to no avail. The

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constant irrational and unpredictable behaviour and foul language

used by the Respondent had caused great humiliation in front of

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outsiders and it had become impossible to live with the Respondent.

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He contends that he is entitled to a decree of judicial separation and

has subsequently amended the petition and seeks a decree under

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section 13(1)(a) of the Hindu Marriage Act.

WRITTEN STATEMENT
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13. In the written statement, the Respondent has admitted the

marriage, the consummation of marriage and birth of their daughter

Ayesha and the fact that the Respondent was required to live in

Lagos since the business of the Petitioner was at Lagos. She

contends that her permanent address was however shown as that of

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the Petitioners' in Mumbai. It had been contended by the

Respondent that after the birth of daughter Ayesha the attitude of

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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

Petitioner became puppet in the hands of his mother. The Petitioner's

attitude towards the Respondent changed and the Petitioner's mother

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poisoned the Petitioner against the Respondent resulting in ill

treatment and physical assault by the Petitioner. The allegations of 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

started demanding that the Respondent's father should help secure

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another home for them in South Mumbai. That after expenses

incurred for the marriage, it was not possible for the Respondent's
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father to accede to the demand of the Petitioner. She contends that

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despite all the ill treatment, she continued to maintain family

relations. She decided to enroll the child in a school in Mumbai as

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against going back to Lagos. The Respondent admits that the

Petitioner wound up his business and came to India with intention of

permanently residing in India and he resided with his parents.

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14. The Respondent states that after the Petitioner returned to

India, he started drinking more (presumably alcohol) and thereafter

the Petitioner started assaulting and abusing the Respondent's

parents for not providing a separate flat. It is alleged that the

Petitioner and his mother made plans to throw the Respondent and

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daughter out of the matrimonial home. The Respondent alleges that

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

parents in old age. Similar allegations are made in relation to

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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

matrimonial home and go to her parents' home. On account of such

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ill treatment, the Respondent alleges that she had to leave

matrimonial home at midnight on 2nd November, 2001. The

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Respondent alleges that the Petitioner and his family members

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continued to use abusive language and the Respondent was “thrown

out” of the matrimonial home without taking her Stridhan and

jewellery as a result of which on 3 rd November, 2001 the Respondent

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lodged the complaint with the Cuffe Parade police station. Despite

this, the Respondent tried to save the marriage. Apparently, in

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January 2002, the Petitioner requested the Respondent to come back

to matrimonial home, however, her mother-in-law continued

poisoning the mind of the Petitioner. The Petitioner's mother

apparently, found out that the Petitioner and the Respondent were

contemplating living separately and hence the Petitioner was

emotionally blackmailed by his mother to prevent the Petitioner from

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moving out of the matrimonial home. The Respondent alleges that

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.

15. The Respondent once again went to the matrimonial home

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keeping in mind the interest of her daughter. According to the

Respondent like on several earlier occasions the Petitioner and in-

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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

which. according to the Respondent, she was forced out of the

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matrimonial home on 14th June, 2002. According to the Respondent,

the Petitioner and his mother filed a collusive suit wherein an

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injunction was sought to restrain the Respondent from entering the

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matrimonial house. According to the Respondent the police did not

take cognizance of her complaint, as a result she filed the complaints

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under section 498-A of the Indian Penal Code against the Petitioner

and his parents in the Metropolitan Magistrate Court at Mumbai.

Process came to be issued in the said matter. According to the

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Respondent she was not qualified, she has no house property and no

independent source of income. Hence, the Petitioner is bound to

maintain the Respondent, provide accommodation in the Mumbai

and pay maintenance of Rs.50,000/- for herself and Rs.25,000/- for

daughter Ayesha.

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16. According to the Respondent, the Petitioner is extremely

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

out of matrimonial home and the Petitioner has deserted the

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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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with the daughter came to India as set out in paragraph 8 of the

petition. All other allegations have been denied.

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THE EVIDENCE
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18. The Petitioner led evidence by filing his affidavit in lieu of

examination in chief dated 20th August, 2005. The Petitioner's mother

Mrs. Asha Kripalani has also filed affidavit in lieu of examination in

chief in support of the Petitioner's case. The third witness, namely,

Ms. Bina Sippy, the cousin sister of the Petitioner's mother has also

filed affidavit in lieu of examination in chief. In his affidavit of

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evidence, the Petitioner has listed instances of cruelty towards him

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

instances of cruelty narrated in the petition have all been deposed to

and same need not be repeated here.

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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

Respondent's behavior. The Petitioner has deposed that tremendous

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harm has been caused to reputation of the family amounting to

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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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Magistrate Court admittedly after the police refused to register the

case against the Petitioner and his parents. The Petitioner and his

parents were forced to seek anticipatory bail fearing arrest, as a

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result of the complaint being filed. All of this clearly establishes the

cruelty meted out to the Petitioner. He has also deposed that as a

result of such cruel behavior the Petitioner's mother had to file a suit

restraining the Petitioner and the Respondent from entering into

matrimonial home at the material time. The Petitioner has also

acknowledged the fact that he has been paying for daughter's

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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

joined his brother's business as a Manager when he was in Nigeria

and thereafter he along-with a Nigerian Partner started another

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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

Director of Anivin Nigeria Ltd. At the material time he was earning

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about 1,40,000/- Naira (2.75 Naira = 1 Rupee] per month as the

Managing Director and he was holding 30% shares in the company.

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21. In Indian rupees, his salary was Rs.30,000/- In addition,

the company provided car, residence and the driver. The Petitioner
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pleaded ignorance of the details of the company and he did not

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

had not attended board meetings since 2002. In further cross

examination he states that although in 1999 the company made

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

position he admitted that he along with other Directors were drawing

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salaries. He deposed that there was no resolution passed during

1998 to 2005 in respect of wiping out of the losses. He was unable to

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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

Court that he is resident of Lagos and having own business, except

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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

share upon leaving his brother's business in 1993 equivalent to Rs.18

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lakhs at the relevant time. He admitted that after separation from

his brother he rented a 3BHK premises but could not recall rent paid.
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He admitted to have spent about US $25000 for its renovation. He

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admitted to have made various renovation at the costs of the

company and contended that the company had taken loan for the
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expenses incurred. He procured furniture at the costs of the

company although he had sufficient funds of his own in the year

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

by the company. He could not produce any document showing perks

received by him from 1993 till 1998.

23. It is admitted that the company had given three cars to the

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Petitioner. According to him, there was no agreement in writing to

provide cars but the cars were provided by way of an oral

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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

furniture. No fixed amount is allotted by the company for purchase

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

furniture, fixture rent of apartment, agent's fees, tenancy agreement

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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

working in the company but he was unable to state their salaries.

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The witness admitted that apart from his bare statement there was
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no document whatsoever to show that the company spent amount

concerned on the apartment etc. He claims that he had not asked for
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the record of the company although he was Managing Director. He

admitted that he is not assessed to tax in India and he does not hold a

PAN.
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25. In further cross examination, the witness contended that

an amount of Rs. 25 lakhs belonging to him was withdrawn by the

Respondent from OCBC Bank prematurely and without his consent.

He admitted that sum of USD 2,44,834 was deposited by him in his

account. According to him these were funds required for business

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and the amounts paid during 1993 to 1998 were first transferred

onward to the Chemical Bank, New York to be transferred to Oman

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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

account at OCBC Bank, Singapore were not the funds belonging to

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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Enclave and he had made certain payments towards maintenance of

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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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and himself. He had no documentary evidence of the flat having

been purchased by the Uncle and himself but stated that the flat was

disposed of in June 1998 to a person whose identity he was not

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aware of and he does not know the sale price of the flat. The witness

was unaware of the capital gain made on this transaction.

27. There were a large amounts that had been deposited in his

Bank accounts and the Petitioner has attributed these to the business

transactions of the company, particulars of which according to him,

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could not be disclosed due to confidentiality attached to the business

transactions. In several instances he has received proceeds of

rt
various investments including from UTI. However, he has stated that

ou
these amounts did not belong to him. He has made several

remittances to his mother including a sum of 11,50,000/- on 4.7.2003.

There is extensive cross examination on the funds passing through his

C
accounts. The witness having admitted to have withdrawn

substantial amount in cash and having remitted 4,70,042/-. He

h
claims to have encashed the fixed deposit in order to make

remittances.
ig
He has also made remittances to his sister Jyoti

Mahajan. He admitted that he has not disclosed the amount in fixed

H
deposit in his affidavits. Several fixed deposits have been

admittedly closed and funds flowing therefrom have been invested.

y

The evidence recorded on various dates from 14 th July, 2006, all deal
ba

with financial transactions passing through the said account. He has

received diverse sums of money detailed below:-

om

Amounts received by Appellant in his Bank Account

Sr. Year Date Amount

No.
1) 1994 8.6.1994 Rs.1,555,000.00
B

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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 22 fca105.14

6) 1995 March 1995 Rs.1,550,000.00

7) April, 1995 Rs.8,76,990,

rt
Rs.8,76,990
Rs.4,81,740/-

ou
Rs.31,00,000/-
Rs.3,63,940/-
Rs.10,850/-
Rs.72,447/-,
Rs.15,50,000/-,

C
Rs.15,50,000/-
Rs.15,50,000/-.
RS.3,10,000/-
Rs.18276.36/-
Rs.1,07,570/-.

h
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/-,
H
Rs.4,78,764/-,
Rs.4,78,764/-,
Rs.7,75,000/-,
Rs.7,75,000/-.
1997 27.2.1997 1765835.50
y
ba

1998 3.5.1998 3,56,000/-,

om

28. Thus, large amounts seems to have been received by the

Petitioner. In continuing the cross examination, the witness was

B

confronted with further evidence in the form of bank statements of

Oman International Bank Rs.7,49,69,003.35 was credited to his

bank account out of which a sum of Rs.6,63,55,965.41 was

withdrawn. According to him funds connected with certain business

transactions have intermingled with personal funds.

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29. The witness stated that he returned to India on or about

15.9.2001 after winding up his work in Lagos since he considered the

rt
company as his company being the Managing Director. He then

ou
deposed that he did not resign as the Managing Director and

company continued to do business and he continued to hold his

shares in the company. He was confronted with the suggestion that

C
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

h
business in September 2000. His responses are intriguing and
ig
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
H
controlling the finances of the company. The witness did not provide

information of the emoluments received by the company by way of

y

Director's fees. However, he has received emoluments from the

ba

company. In the large number of bill of exchange executed in lieu

of the goods that were imported from India into Nigeria. Alluding to
om

the strong financial position of the Respondent wife, he contended

that the Respondent wife was a Director in Sanwa Finance Pvt. Ltd.

and Jayem Exports Pvt. Ltd. The Petitioner reiterated that several
B

companies such as Modfash Exports Pvt. Ltd., Lekhraj and Sons

Exports Pvt. Ltd., Vanita Apparels Pvt. Ltd. and Palmar Investment

and Trading Pvt. Ltd. were belonging to the Respondent's father and

the Respondent.

30. The evidence then deals with relationship between

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himself, his mother, sister and brother and alludes to the fact that

there were differences of opinion amongst them. The Petitioner has

rt
admitted that after the marriage they proceeded for honeymoon to

ou
the Unites States for two weeks and on their return to Mumbai, they

stayed with the Petitioner's parents. Thereafter, they proceeded to

Lagos. The suggestion to the effect that while at Lagos there were

C
disputes between the Petitioner and his brother as a result of which

they left the brother's house has been denied. The Petitioner

h
volunteered to state that his brother also stays in Hong Kong. He
ig
denied a suggestion that he moved to another place because of a

dispute with his brother. He admitted that the Respondent and he

H
visited London to buy furniture for their house at Lagos. He denied

suggestion that he demanded dowry upon his return to Mumbai in

y

1993. The witness admitted that he received gifts at the time of the
ba

marriage from the Respondent's side which he discarded since he did

not wish to keep the gifts and the Respondent's family refused to take
om

it back. He denied allegations that the Respondent's mother has to

be hospitalised because of humiliation by him.

B

31. He further denied that in February 1994, the Respondent

was sent for her delivery by herself. On the contrary, he says that he

accompanied her to Mumbai. He has denied the allegations of having

taunted the Respondent and her mother. He denied suggestion that

he made taunting remarks and told the Respondent that he does not

wish to be father of the child on 9th April, 1994. He denied

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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

ou
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

C
problems between him and the Respondent or that the relations

between him and the Respondent's parents were also cordial. He

h
denied a suggestion that his mother blamed the Respondent's parents

for the fall he suffered

ig
in the Respondent's house. Various other

instances of misbehavior attributed to him during visit of the

H
Respondent to Lagos have been denied. The suggestion that he has

been torturing the Respondent despite which she continued to stay

y

with him for the sake of marriage and child has been denied. He
ba

has denied suggestion that he has unnecessarily created controversy

about the Respondent and daughter not visiting London while he was
om

present there and wrongly blaming the Respondent for not having

obtained a visa.
B

32. The Petitioner further deposed that when he came to India

to collect his daughter Ayesha the Respondent was not staying with

his parents at matrimonial home. He denied a suggestion that the

Respondent had inquired of him as to when she should return to

matrimonial home. He denied a further suggestion that since he took

his daughter Ayesha to Lagos, the Respondent developed a mental

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disorder and a hypo-thyroid condition. He denied that the Respondent

had withdrawn the sum of USD 53,692.51 for the purpose of her

rt
medical treatment. He denied the suggestion that he has not asked

ou
for medical bills from the Respondent. He further deposed that he

has asked the Respondent to come to Lagos. He denied suggestion

that he had informed the Respondent that after she and their

C
daughter should accompany him to Lagos when he was leaving in

January 1999. He denied suggestion that he has cheated the

h
Respondent. He admitted that the meeting had been held between
ig
the Respondent's parents for return of the Respondent and child to

Lagos. He denied that he had given assurance that any harm would
H
be caused to the Respondent and child and that the Respondent flew

to Lagos in February 1999. The fact remains that the Respondent

y

and the child went to Lagos in February 1999 and stayed with the
ba

Petitioner till February 2000.

om

33. Apropos his arrival in Mumbai in September 1999 he had

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
B

treatment for the Respondent. He admits that although he asked the

Respondent to return to Lagos he insisted that she should bring

along the money and his jewellery which she had taken away.

However, the Respondent with her daughter joined the Petitioner but

she did not return jewellery and money.

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34. He denied a suggestion that life during February 1999 and

February 2000 was peaceful when they were away from the

rt
Petitioner's parents. It is further denied that the Petitioner did not

ou
demand return of money. The witness has denied a suggestion that

when the Respondent's parents were visiting Holland and London

the Petitioner had agreed to join the Respondent. However, the

C
Respondent's father telephonically invited. He admitted that the

Respondent and their daughter joined her parents on the holiday

h
and that the Petitioner came together when they were in London. He
ig
denied a suggestion that when the Respondent and daughter

returned to Lagos he quarreled with them and assaulted the

H
Respondent. He denied that he refused to talk to the Respondent's

father when he telephoned him to discuss the alleged incident. He

y

denied that the Petitioner was willing to send the daughter and
ba

Respondent to Singapore since they would bring cash, jewellery and

gifts on their return for the Petitioner and his mother. The
om

Petitioner's evidence also reveals that he invited the Respondent's

parents to Lagos during their visit in June 2000. The allegations

that the Petitioner's mother had tortured the Respondent has been
B

denied. The suggestion that in April 2001 when the Respondent was

living in the matrimonial home, the Petitioners' parents abused,

harassed her and the Petitioner beat her up in the presence of the

child has been denied. Further suggestion that on 2.11.2001 the

Petitioner was beating the Respondent is denied. It is denied that the

Respondent's father stopped him from beating and when the

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Respondent's father tried to stop him from beating, the Petitioner

pushed him away and continued to beat the Respondent. It is also

rt
denied that the Petitioner's parents were throwing glass plates at the

ou
Respondent's parents.

35. Further cross examination of the Petitioner which

C
continued on 22.11.2006 reveals that friction between the parties

continued from time to time intermittently. The suggestion that the

h
daughter had picked up bad habits during her stay with grandparents

has been denied.

ig
Various other suggestions alluding to improper

attitude developed by child have been denied. It is denied that while

H
the Respondent and the daughter were staying in the matrimonial,

the Petitioner's parents subjected to severe restrictions such as

y

removal of telephone from the room asking the Respondent and child
ba

to arrange for food and the Petitioner threw away food prepared by

the Respondent and daughter. The Petitioner has denied that the
om

Respondent's jewellery and belongings were lying at matrimonial

home and that the Petitioner's mother prevented the Respondent

and daughter from entering into flat on 5th June 2002 on the eve of
B

reopening of school on 6th June 2002. He denied that his parents

were harassing the Respondent and that he had informed the

Respondent not to shift from the matrimonial home. The Petitioner

has denied that he made various derogatory statements about the

Respondent and her parents. He has also denied a suggestion that

he has made false statements in the affidavit of evidence and in

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particular the statements in paragraphs 6 to 14.

rt
36. In the cross examination on 1st December, 2006 the

ou
Petitioner produced several bank statements which he was called

upon to produce. He has deposed to various amounts disclosed in

bank account with Oman Bank and Bank of Baroda as well as Public

C
Provident Fund certain amount have been transferred from the

brother's account in London to Petitioner's account. The amount of

h
Rs.3,50,000/- was put in fixed deposit. Several such entries have
ig
been deposed to some of which are already discussed elsewhere in

the evidence. During the conclusion of cross examination, the witness

H
has denied the suggestion that the suit in City Civil Court was filed in

collusion with the parents. He deposed that after suffering an

y

injunction in a suit in the City Civil Court, he did not stay with his
ba

parents but stayed with his cousin at Sangam Bhavan, although his

car had been parked in the building where his parents stayed. He
om

denied that he earns Rs.25 lakhs from business or that he has

suppressed his income. He has denied the suggestion that he has

other bank account in India and Lagos. He admitted that he has

B

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

for seeking access to the child. He denied a suggestion that he and

his parents had thrown the Respondent and child out of the

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matrimonial home. He has denied that personal belongings i.e.

jewellery articles of the Respondent are lying with him at the

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matrimonial home or at Lagos. He has denied that his parents and he

ou
treated the Respondent with physical and mental cruelty and that he

has filed this petition falsely. The cross examination was closed on

5th December, 2006. There was no re-examination.

C
37. In support of the Petitioner's case, his elder sister Jyoti

h
Mahajan residing in the same vicinity as that of the matrimonial
ig
home has also deposed by filing an affidavit in lieu of evidence in

October 2006. She knew the Respondent prior to the Petitioner

H
getting married and went to parties and movies before the marriage.

She has played part in fixing the marriage since she knew the
y

Respondent. To her knowledge, the witness states that the

ba

Respondent was carrying on business and was engaged in fashion

designing. She has further deposed that at the time of alliance with
om

the Petitioner, the Respondent and her parents were informed that

the Respondent would be permanently residing in Lagos and that the

marriage should be fixed only if she was willing to shift to Lagos,

B

since the Respondent and her parents agreed to this, the marriage

was finalised. She has also deposed that she became aware of

differences the Petitioner and Respondent after a couple of years. The

disputes always revolved around money. She has deposed that the

Respondent left matrimonial home on 2.11.2001 and started

residing at Blue Haven since her parents were then residing at

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Singapore. She further deposed that when the Petitioner and

daughter Ayesha were staying at her mother's house, the children of

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witness would come home to play with Ayesha. She also used to visit

ou
Ayesha and take Ayesha to school since they all were in same school.

She deposed that the Petitioner at a school function the Respondent

made certain obscene remarks in relation to the witness having two

C
children because she had sex twice whereas, the Petitioner and

Respondent have one child since they had sex once. She further

h
deposed that on 4.6.2002 when the Respondent entered the

matrimonial home
ig
forcibly, her mother called her up and requested

her to stay with them since her parents were frightened about
H
behavior of the Respondent and her parents.
y

38. In the cross examination, she stated that she had gone to
ba

Lagos on the advise of the Petitioner's advocate and affidavit filed by

her is as per instructions and that the Petitioner did not accompany
om

her to the Advocate's office to give her instructions. She admitted

that her husband was seven years younger than her and that she

travelled to Lagos with her husband to stay with the Petitioner. She
B

admitted that in 1991-92 her husband was engaged by the Chairman

of Anivin Nigeria Ltd. to inspect their goods in India and she did

not know whether her husband was receiving salary or commission.

The witness further deposed that she was friends with the

Respondent from 1991 to 1993 after being introduced through a

common friend. They had been out to movies and parties but not to

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each others houses. She was unaware of background of the

Respondent's family although they belong to the same caste. She had

rt
referred the Respondent to her brother since she was unmarried girl

ou
in the group. She then had role played in the marriage. She admits

that in September 2001, the Petitioner came to India along-with the

Respondent and the daughter and she had heard that there were

C
differences between the Petitioner and the Respondent but had not

tried to help solve the differences. To her knowledge, the differences

h
were only about money matters. She admitted to payments made by

the Petitioner to her

ig
and repayments by her. She did not have

recollection of other transactions between her husband and the

H
Petitioner.
y

39. Rest of the cross examination deals with suggestion put to

ba

the witness resulting to the business relation between two brothers.

She was not aware of the various financial transactions between her
om

husband and Anivin Nigeria Ltd. She denied that the monies

received by the Petitioner were diverted through her. In an

interesting admission, she stated that the Petitioner may have made
B

false statement that he had made payment since she cannot recollect

or check each and every payment. She denied the suggestion that

Rs.65,000/- was paid to her by the Petitioner in March 2004. She

denied that such payments represented diversion of the Petitioner's

income. However, she admitted to have given temporary advances to

the Petitioner. She denied the suggestion that the Petitioner was

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 33 fca105.14

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.

ou
40. In view of this the learned Judge of the Family Court has

noted that since the witness declined to reveal information sought by

C
the Advocate for the Respondent, necessary adverse inference may

be drawn. The cross examination on this and other aspects of the

h
financial transactions between the Petitioner and the Respondent
ig
continued on 22nd March, 2007 and 26th March, 2007. However, the

evidence does not reveal anything which have a bearing on the issues
H
before the Family Court.
y

41. The third witness who deposed in support of the

ba

Petitioner's case was Asha Kripalani who filed an affidavit of evidence

in March 2007. In her evidence she deposed that she is owner of 26,
om

Iris, Cuffe Parade, Mumbai which served as the matrimonial home

where she lived with her husband. She confirmed that the

Petitioner had lived in Nigeria prior to marriage and continued to

B

live there. She has informed the Respondent and their parents before

the marriage that after the marriage the Petitioner and the

Respondent would live in Nigeria where her son, the Petitioner,

carried on business. She admitted to the fact that the Petitioner and

the Respondent occasionally visited in Mumbai and lived for few days

and thereafter the Respondent would go to her parents house at

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Singapore or at Blue Haven Apartment in Mumbai which belong to

the Respondent's parents. She deposed that in February 1999 the

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Respondent visited India with daughter and lived with her till the

ou
child was three months old. Thereafter the Respondent went back to

Nigeria. She deposed that after delivery of the child, the

Respondent's behavior drastically changed towards the Petitioner's

C
family members. The Respondent became vicious and hostile towards

her ailing husband and her parents. The Respondent was instigated

h
against them by the Respondent's family. She deposed to the fact
ig
that she and her husband would be insulted and abused by the

Respondent often. She further deposed to the fact that the

H
relationship between the Petitioner and the Respondent deteriorated

because of the Respondent's quarrelsome and nature. She admitted

y

that the Petitioner and the Respondent tried to save the marriage in
ba

2000 when she came down to Mumbai to stay and since the

Petitioner did not have its own residence, the witness allowed the
om

couple to stay with her. During their stay, she deposed to the fact

that the Petitioner conveyed to her about the Respondent's behavior

at Nigeria was unpardonable and she would constantly quarrel with

B

him over money. The Respondent would be abusive and behaved

badly with the Petitioner and due to this the child Ayesha was also

under tremendous pressure.

42. In 1998, when the Petitioner and the Respondent were

having problems in Lagos, the Respondent went to Singapore.

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Thereafter the Respondent's father informed the witness that the

Respondent does not wish to continue to stay with the Petitioner.

rt
Copies of a letter was handed over by the Respondent's father to the

ou
witness and stated that he would look after the Respondent and the

Respondent's father asked the witness to look after the child. She

produced the letters signed by her. The witness deposed to instances

C
for altercation between the Respondent and the Petitioner and the

instances involving the Respondent's parents, the Petitioner and

h
themselves. She deposed as to how she was assaulted by the father
ig
of the Respondent in their home, she was pushed by the Respondent's

mother which resulted in injury to her head. The Petitioner received

H
injury on the face and eye. After the said quarrel the Respondent

left the residence by packing all her belongings including jewellery

y

and watch of the Petitioner in a suitcase leaving behind daughter

ba

Ayesha. The witness has produced the photographs of injuries

suffered by the Petitioner.

om

43. Thereafter the Respondent continued to live with her

parents at NCPA Apartments, Nariman Point, Mumbai. She has

B

further deposed to the fact that on 5th June, 2002 the Respondent

and her father forcibly entered the matrimonial house and her father

started abusing the witness. The witness was manhandled by the

Respondent and her father. The witness called her cousin Bina.

Thereafter, the Respondent's father was screaming and shouting and

he told that police will not come since she has made arrangements

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 36 fca105.14

with them. It appears that neighbour of the witness Mr.Kothawala on

hearing commotion called the Cuffe Parade police station. However,

rt
when the police did not come the witness also called Cuffe Parade

ou
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,

2002 a police officer came to matrimonial home from the Cuffe

C
Parade police station at 5.00 pm informing them that a complaint had

been lodged against the witness and her husband. They were called

h
to police station where they were made to sit late till 11 pm.
ig
44. According to the witness on 14th June, 2002 the
H
Respondent left her residence i.e. matrimonial home carrying all her

belongings informing her that she was not interested in living in

y

that house. The witness states that she addressed a letter on the
ba

same day to the Cuffe Parade police station recording the aforesaid

fact. On 19th June, 2002 the Respondent and her father once again
om

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 witness and husband to accompany them to police station since

B

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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 37 fca105.14

complaint in the Magistrate Court.

rt
45. The witness has been extensively cross examined between

ou
20th March 2007 and 11th May, 2007. She deposed that the flat

which constituted the matrimonial home was purchased by her in her

own name. She has denied suggestion that it was she who

C
approached the Respondent with a proposal for matrimonial home.

Various other suggestions were put to her as alluding to the fact that

h
she was engaged in money lending business all of which was
ig
irrelevant to the issues involved. She has denied the suggestion that

she had asked to arrange wedding at Taj Mahal hotel. She has
H
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
y

possession. She denied the suggestion that she harassed or tortured

ba

the Respondent because she had not provided any dowry. She has

denied suggestion that these were disputes between the Petitioner

om

and his brother. She has denied that in her evidence she sought to

cover up allegations allegedly made by the Petitioner. She has

admitted to the meeting between the Respondent's parents, herself

B

in order to attempt to resolve the issues faced by the parties. She

denied having given any assurance of any kind to the Respondent's

parents. Nothing material has been elicited in the cross examination.

It is further material to note that the witness does not state that the

Respondent has picked up jewellery while leaving the daughter

Ayesha. She has denied having committed any offence under section

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 38 fca105.14

498-A of IPC.

rt
46. The third witness was Bina Sippy. Bina Sippy was cousin

ou
of Mrs. Asha Kripalani, the Petitioner's mother. She has deposed

that in November 2001, she got a call from her cousin Asha -

Petitioner's mother to the effect that the Respondent and

C
Respondent's father had manhandled the Petitioner's mother. On

5th June. 2002 she received a phone call from the house of the

h
Petitioner's mother complaining that the Respondent's father has
ig
forcibly entered the house and pushed her into one room. On hearing

this, the witness proceeded to house of the Petitioner's mother and

H
when she arrived their she found that the Respondent's father was

shouting and abusing the Petitioner's mother. The Respondent's

y

father informed the witness that even if she complained to the police
ba

the witness would be arrested as he had made arrangements with the

police. The witness deposed that the Petitioner's mother has called
om

to the police station on couple of other occasions. The witness has

deposed about ownership of the flat in which the Petitioner's mother

stays and no part of the cross examination has any bearing on the
B

issues before the Family Court.

RESPONDENT’S EVIDENCE

47. On behalf of the Respondent, the evidence was led by two

witnesses, one was the Respondent herself and the second was the

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 39 fca105.14

Respondent's father Murli Lekhraj. The Respondent has deposed

that the Petitioner's mother was extremely dominant and she

rt
exercised control over the Respondent right from inception. That

ou
while choosing the wedding invitation card, the Petitioner's mother

insisted on using a card which was to her liking failing which she

threatened to call off the engagement. In other instances involving

C
the Petitioner's mother, the deponent states that huge amounts were

incurred towards the costs of wedding and gifts were provided by the

h
Respondent's family to the Petitioner and his family members. The
ig
mother of the Petitioner was still unhappy. She deposed that the

relationship between the Petitioner and his brother were cordial and
H
this was clear when she came to Lagos. The Petitioner was asked to

leave his brother's house. The Petitioner rented another apartment

y

and furnished flat with at a cost of Rs.50 lakhs with costly furniture
ba

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
om

cars and two sweepers. According to her, the Petitioner owns the

company Anivin Nigeria Ltd. To meet requirements of Nigerian

Government two locals Directors were kept on board for the sake of
B

formality and his income was about Rs.60 lakhs per annum.

48. She has further deposed that on her arrival in Mumbai in

December 1993, she was staying with the Petitioner's mother at the

matrimonial home during which period the Petitioner's mother

quarreled with her, alluding to the fact that the Respondent's parents

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have not provided gifts to her. The situation was aggravated to such

an extent that the Petitioner in a fit of anger threw away gifts

rt
presented to him into the sea off Gateway of India. She has deposed

ou
that Petitioner's mother abused the Respondent when she went to her

parents flat at Blue Haven, notwithstanding the fact that she was in

her sixth month of pregnancy. She complained of constant humiliation

C
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

h
of the Petitioner to Lagos he picked up quarrel for insignificant
ig
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
H
pregnancy. According to her, the Petitioner regularly assaulted and

abused her and asked her to abort the child. The Respondent then
y

came back to India in month of February 1994 and stayed with the
ba

Petitioner's mother at matrimonial home although she was inclined

to do so she was subjected to severe insults. She was continuously

om

insulted and humiliated for the reason that demands made by the

Petitioner's mother at the time of marriage had not been met.

B

49. It is further stated in the evidence that daily harassment

had taken toll on her health. She deposed that the Petitioner used

to be very harsh, insulting, nagged and quarreled as a result of which

she was suffering in health which could have effected the child. She

stated that on account of such insensitive treatment, she was in

labour 12 days ahead of the schedule date and after four days of

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continuous labour she delivered a baby girl on 13.4.1994. Although

the Petitioner was not present at the time of delivery, he came next

rt
day and picked up quarrel with her parents and preventing them

ou
from holding the baby. She deposed that even after return from

hospital when she was taken to the matrimonial home, she was ill

treated. The taunts continued.

C
50. The Respondent has further deposed to the instances

h
when she visited Singapore, on the invitation of her parents, a party
ig
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

deposed to the fact that although the Petitioner permitted the

ba

Respondent and daughter to join her parents on holiday in London

for about three weeks at the best of locations, the Petitioner had not
om

even once called up and spoken to their daughter Ayesha. She

deposed although he had paid for the tickets she had re-paid him.
B

51. According to the Respondent, the Petitioner is an

egocentric person and could not tolerate her father, due to this

reason, he vented his anger on the Respondent ably instigated by the

Petitioner's mother. She has deposed to an instance in November

1997, when the Respondent's parents visited Lagos and had been

invited to Petitioner's brothers' house for dinner along with the

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Respondent and daughter Ayesha. Apparently, on their return, the

Petitioner picked up a quarrel with the Respondent and her parents.

rt
He was completely drunk. He continued his misbehavior and

ou
removed all his clothes to the utter shock of the Respondent and her

parents. According to her, the Petitioner was habitually humiliating

her. The Petitioner even blamed her for the refusal by the U.K. High

C
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

Petitioner's parents also did not want her to reside at the

H
matrimonial home. She further deposed that she was requested to

stay at Blue Haven, her father's place since the Petitioner's sister
y

had come and was residing in matrimonial home. According to the

ba

Petitioner, she was shabbily treated. She had developed hypothyroid

condition. She asked the Petitioner for some money for her medical
om

treatment. However he refused and instead asked her to use own

monies and hence she withdrew money from OCBC bank and

according to her the money belongs to her as she has received gifts
B

from time to time.

52. The witness goes on to depose to various instances of

physical and mental torture by the Petitioner. In December 1998, the

child Ayesha developed Chicken pox. According to her, the Petitioner

did not call the Respondent to Lagos, but he agreed to bring daughter

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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

rt
the Petitioner did not come to fetch them from the Respondent's

ou
parents home, inquiries were made with the Airlines and she came to

know that the Petitioner has already flown back to Lagos. According

to the Respondent from February 1999 to February 2000 when the

C
Petitioner was not in the company of his mother, they had good

marital relations. They went to holidays abroad and this joyful period

h
was very short since the Petitioner's mother influenced him to the
ig
great extent. In September 2000, the Petitioner complained that the

Petitioner assaulted the Respondent resulting in some damage to the

H
spinal cord. None of them looked after the Petitioner. When the

Petitioner was in Mumbai she requested her parents to come. The

y

Petitioner refused to speak them although they had come all the way
ba

from Singapore. According to the Respondent her mother-in-law

was insisting that her father should transfer the Blue Haven flat to
om

the Respondent's name.

53. According to the Respondent, life continued in the same

B

manner till 2001 and daily life was torturous “physical kicking and

punching” had become common. The things came to a head on 2nd

November, 2001 when Petitioner started quarreling with the

Respondent on some insignificant issue. Both the parents in law

joined the Petitioner in beating the Respondent. She therefore

informed her parents that all three persons were beating her. Her

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parents then came to the matrimonial home. During the ensuing the

altercation, the daughter was crying uncontrollably and the

rt
Respondent left with her parents and the Petitioner refused to allow

ou
the daughter with her. The Petitioner lodged a complaint against the

Respondent and a cross complaint was filed by the Respondent and

her parents. According to her all her clothes, jewellery were lying in

C
the cupboard in the matrimonial home.

h
54. Sometime later, the Petitioner had left for Lagos leaving
ig
their daughter in the custody of his mother without consulting the

Respondent. She was deprived of an opportunity of looking after the

H
child with the result Ayesha was developing bad habits by staying

with her grandmother.

y
ba

55. Further deposition refers to the visit of the Respondent

and daughter to Singapore with permission of the Petitioner and

om

when they returned and stayed in matrimonial home along with her

daughter, her movements were restricted and was asked to stay in

the bedroom. Her stay was like house arrest. The telephone in her
B

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

keys were with mother-in-law. This was according to the Respondent

amounted to torture with implied knowledge of the Petitioner. She

made a written complaint with Cuffe Parade police station on 11th

June, 2002. According to her, she stayed in the flat till 14th June,

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2002. She informed her father about the same. She went to her

father's house and stayed for few days, when she returned to

rt
matrimonial home her mother-in-law refused entry. Once again, she

ou
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

Petitioner and in-laws for treating her inhumanly physically and

C
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

and liable to maintain the Respondent and daughter. The

y

Respondent had deposed that she is entitled to stay in the

ba

matrimonial home which is shown as address along with relevant

record. She cannot be deprived of her right to stay in the matrimonial

om

home. Alternatively, she is entitled to suitable accommodation in

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

case on frivolous grounds.

57. The Respondent has been extensively cross examined.

According to the Respondent, she has no business income or any

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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

rt
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

denied knowledge of the same. The annual returns of Saniva

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

in Saniva International PTE Ltd.

ig According to her the money

belonged to her.
H
58. She admitted that she had not disputed the
y

correspondence sent to advocate of the Petitioner since they were

ba

as per instructions. She admitted to holding Provident Fund account,

bank account at Central Bank of India but she was unaware of the
om

detail operation since according to her these were manage by her

father. She admits that she resides in NCPA Apartment from

November 2001 to May 2002 which is her parent's residence

B

whenever she visits India. Thus, she admits that her parents have

residence at Blue Haven and also NCPA Apartments. She was

unaware that the daughter was in touch with the Petitioner on

telephone till July 2002. She admitted that her Thyroid problem

had first surfaced in 1998 while she was at Mumbai. Thereafter, he

visited her parents at Singapore. She admitted that she was

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hospitalised only for a day for a check up and her treatment

continued till January 1999.

rt
ou
59. In February 1999, she went to Lagos. Before this from

October to December 1998 the daughter alone was staying with the

Petitioner. Upon being confronted with her passport she admitted

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
ig
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

25.5.1998 she had no knowledge that she was suffering from

y

Thyroid problem. She further deposed that although there were

ba

frequent quarrels between the Petitioner and herself there was no

reason divorce between them and she is still known by name of

om

Vinita Anil Kripalani.

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

custody of the child during holidays. She admitted that during

these three weeks Ayesha lived with her grandparents and they took

care of her. She was residing at Nariman Point and Ayesha was

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residing about ten minutes away from the house of grandparents.

Despite meeting the child at Christmas party, she did not make any

rt
efforts to get the daughter to stay with her for Christmas holidays.

ou
According to her she did so because she wanted to reconcile. The

following specific question was put to witness:

C
“Q. You did not feel it necessary to bring the daughter
when you knew that the Petitioner is in Lagos and the

h
daughter is living alone with the grandparents ?”

ig
To which she replied that her daughter was scared of her

grandparents, therefore, she was scared of meeting her. She further

H
admitted that later in October 2000 she fetched Ayesha from the

school and took her to stay with her. She admitted that she had
y

minor problem and no surgical procedures were required till the date
ba

of the cross examination i.e. 15.10.2007. However, she deposed that

she is still taking same tablets and she spends Rs.60/- per month on
om

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

to Saniva International PTE Ltd. She has apparently taken a loan

from her father. She states that she does not understand finances or

the business and as she is not educated therefore does not

understand documents. She does not handle the finances of the

Petitioner and she does not personally know what are the finances of

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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

rt
locker in Singapore was in the joint names of the Petitioner and

ou
herself.

61. She admitted that the company in Singapore is a profit

C
making entity and several amounts were shown as remuneration paid

to the Directors as also accommodation paid for the Directors. She,

h
however, denied that she was receiving Director's fee in Singapore

Dollars from Saniva

ig
International Pvt. Ltd. She has not been

hospitalised or undergone any surgical treatment for any other

H
ailments. She claimed that during 19.12.2005 to January 2006 she

was bedridden. However, her passport showed that she had

y

immigration stamp on 16.12.2005 and once again an immigration

ba

entry at Bangkok is shown on 20.12.2005. When confronted she

admitted these entries, she admitted to having travelled.

om

62. Furthermore, she admitted that the residential address is

shown as that of Singapore in Exhibit-119. As far as the NRO and

B

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

business. She admitted to have visited her parents in Singapore

every year. She deposed that the Petitioner was a puppet in the

hands of his parents. Upon her being shown Form 32 issued under

Income Tax Act, 1956 she admitted the address is shown as a

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Director of Jayem Exports Pvt. Ltd. and having her address Blue

Haven CHS, Mumbai. According to her, her father uses her name for

rt
the financial transactions but the benefit of the same are received by

ou
her father. That the father controls all companies. She has resigned

as Director from all companies. She has not manipulated the

accounts after the matrimonial petition was filed. She admitted to

C
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
ig
earnings. She also admitted that the Petitioner has given her money

for personal expenses in Lagos. These amounts were used for

H
household expenses. On 25th October, 2007 during the cross

examination a specific question was put to her whether she had

y

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

airport and to visit her daughter.

B

63. She admitted that she knew address where she resided

earlier in Lagos and furthermore she admitted that when she went to

Thailand on vacation with her parents had accompanied her from

Bombay. She did not recollect how many times she left the daughter

with the Petitioner and his parents and visited her parents till

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November 2001. Her parents visited India once in a year. However,

when they are not in India their houses at NCPA apartment and

rt
Blue Haven are unoccupied. According to her since the date of

ou
marriage till 2001 she has never stayed at NCPA Apartments or Blue

Haven. She denied the suggestion that she did not fulfill her

responsibility towards her daughter. She denied suggestion that

C
she did not look after the daughter when she had chicken pox and

went for holidays. In Paragraph 64 of the cross examination, she

h
admitted that when the petition was filed neither the Respondent nor
ig
her parents have filed any complaint against the Petitioner or his

parents. According to her she did not find it necessary to file a

H
complaint since both the parents were trying to patch up the

differences. However, respective parents did not succeed. In

y

paragraph 65, she denied knowledge of her having 50 shares of

ba

Rs.10/- each in Sanwa Finance Pvt. Ltd. She deposed that she was

unaware that she was Director of Sanwa Finance Ltd. or Saniva

om

Trust. She also was unaware that she had 600 redeemable shares of

Rs.1000/- each in Sanwa Finance Pvt. Ltd. It is true that the

Petitioner had filed complaint under section 498A of IPC. She has
B

denied the suggestion that there were no instances of beating by the

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

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allegations only after the matrimonial petition was filed. However, in

her written statement she has not mentioned that the Petitioner hit

rt
her while in pregnant condition. Furthermore, in complaint dated

ou
13.4.2002 and 19.6.2002 she has not stated that she was dragged

and slapped as contended in paragraph 24 of her written statement.

She has not mentioned the version that the Petitioner dragged

C
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.

Furthermore, in paragraph 103

ig of the notes of cross examination

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

balance sheet of Jayem Exports Pvt. Ltd. dated 31.3.2005. According

om

to her the shares of these companies were not transferred in the her

name and it belong to her father and she had no knowledge of

transactions of business. However, she said that the share transfer

B

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

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she filed false complaint under section 498-A in the Metropolitan

Magistrate Court against the Petitioner and his mother because they

rt
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

C
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

Petitioner's parents on 6.2.2006. She admitted that she was irregular

H
in attending the Family Court and has not filed written statement for

over three years. She denied suggestion that she did not filed the
y

written statement deliberately since she wanted to proceed with the

ba

criminal matters. She further deposed that the criminal matter is

prior in time of filing the written statement. She admitted that in

om

written statement she has not mentioned regarding the allegations

of damage to spinal cord or criminal complaint wherein she described

it as severe back pain. The Respondent admitted that she had not
B

stated that the Petitioner was in a drunken condition on 2.11.2000

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

transferred to her account because the money was already spent.

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According to her, the money belong to her and she did not have

documents to substantiate her claim to the said company. On a

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.

It will be necessary to reproduce the said question and answer :

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

Judicial Separation on 23.1.2002 and till she filed complaint under

om

section 498-A of the IPC. The Petitioner admitted that several

statement contained in the affidavit of evidence has not been stated

in her written statement. Those are particularly pertaining to the

B

treatment allegedly meted out to her during the pregnancy and the

instances pertaining to her husband's fall and breaking his leg. The

Respondent also admitted that in her written statement several other

statements contained in the affidavit of evidence has not been

mentioned. She denied the suggestion that she tried to improve her

case in the affidavit of evidence. She, however, admitted that she

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had gone to various places on holidays and she had good life style

with the Petitioner. She has no grievance regarding the same. She

rt
also admitted that the Petitioner tried to provide for her whatever

ou
was possible within his capacity. However, she denied that she has

incorrectly stated that the Petitioner and herself laid luxurious

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
y

brother's house. She contended that she had arguments with the
ba

Petitioner and brother against alleged misappropriation by the

Petitioner in the business and the Petitioner was jealous and suffered
om

from inferior complex. However, according to her, the dispute with

the brother had no connection with her or marriage to the

Petitioner. She has denied forcible entry to the matrimonial home

B

with the help of father and police.

68. The next witness examined on behalf of the Respondent

was Murli Lekhraj. The contents of the affidavit generally repeat

various instances deposed to by the Respondent, many of these

instances are not to personal knowledge of the said witness thus

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constituting hearsay Therefore, we do not think necessary to refer

the same. He also deposed that prior to marriage, he had met the

rt
Petitioner at the New Oberoi hotel and the Petitioner promised that

ou
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

Respondent) was in an advanced stage of pregnancy.

h
69.
ig
The Respondent's father referred the incident to the

Petitioner reportedly in drunken condition and upset with the

H
Respondent and her parents visiting his brother in Lagos in

November 1997. The Petitioner apparently undressed fully in

y

presence of Respondent's parents in a drunken state. Apparently,

ba

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

Respondent's monies living her penniless. Apparently, this is cited

by the witness as evidence of hatred that the Petitioner harboured

against the Respondent's father. He deposed to the incident when

B

the UK consulate in Singapore declined to issue visa to the

Respondent's daughter since the application would required to be

referred to high commission at Lagos and since the Respondent and

their daughter were residents of Nigeria. The Petitioner refused to

accept this and instead blamed the Respondent's father of instigating

the Respondent against going to London. He has deposed to the

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fact that he spoke to the Petitioner's father and expressed the

concern that his daughter being assaulted and beaten by the

rt
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

issues. He admits that he trusted the Petitioner's father, however, in

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

h
daughter should stay at Blue Haven with Ayesha. Various other
ig
aspects which have been deposed by the Respondent, has been

deposed to by the witness. In material terms as far as aspects of

H
Respondent's worth are concerned, it is material to refer to those

aspects which have bearing on the aspect of maintenance. In this

y

respect, it is stated by the witness that the Respondent is not holding

ba

any shares her name or under the name of her trust and that she is

not a Director of any of the companies. He stated that none of the

om

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

Respondent is neither a Director nor have been a shareholder of any

of the companies in Singapore.

70. According to him ICICI bank A/c. No.000401131576 was

opened as joint account with him for convenience of the Respondent,

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who was thrown out of home without offering a single rupee and that

the burden and responsibility of bringing up their daughter Ayesha.

rt
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

91548 have been closed. M/s.Vanita Fashions have closed operations

in 1991-92 much before the marriage of his daughter and therefore

C
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

when the group companies

ig
went into reorgainsation by virtue of

some of the companies went into liquidation. According to him the

H
account in OCBC bank is opened by the Petitioner and Respondent at

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

the Petitioner was mentioned first in the account since it was

respect for the son in law and for tax planning authorities since the
om

Respondent is holding permanent resident permit and all income in

her name would have attracted 22% tax at that time. According to

him, the Respondent had withdrawn her own monies and it has
B

nothing to do with the Petitioner.

71. Furthermore, he stated that the Respondent and the

daughter went to Africa and Europe in the year 1999. According to

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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to used accordingly. Furthermore, he states that the Petitioner is

holding illegal fixed deposits amounting to USD 32,500 belonging to

rt
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

day to day livelihood since she has absolutely no money although it is

C
responsibility of the Petitioner to maintain her in law. He produced

details of capital account and personal balance sheet from 1994 to

h
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

72. In cross examination on 10.12.2007 he admitted that on

ba

5.9.2001 600 preferential shares of Sanwa Finance Pvt. Ltd. worth

Rs.6 lakhs were redeemed. He further admitted, however, this

om

according to him companies 2400 shares at face value Rs.1000

aggregating to Rs.24 lakhs were redeemed for creating Capital

Redemption Reserved. According to him, the Respondent was not

B

equity share holder of the company. He admitted that Sanwa

Garments was a subsidiary company in relation to Sanwa Finance

Pvt. Ltd. According to him, the Respondent is not concerned with

the said companies. The witness was then shown documents of

Sanwa Finance Ltd. and particularly scheduled forming part of the

balance sheet as on 31.3.2000 but he refused to answer any question

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relating to the document on the pretext that it is irrelevant.

rt
“I do not want to produce B/s of Sanwa Finance Pvt.
Ltd. For the financial year 31.3.2007. I say that

ou
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

C
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.

as at 31.3.2007, his answer reads thus :

H
“I do not want to answer any question in respect
of above mentioned document. I say that the
y

Respondent was not the shareholder and therefore, it

is irrelevant. It is taken on record and marked as
ba

(Exh.165). Not true to say that I am refusing to

answer any of the question in respect of any of the
om

above documents because the Respondent has

interest in the company and a substantial income to
maintain herself. Not true to say that I do not want
to produce the documents in order to suppress the
B

same and mislead the Court. Respondent is not

obliged to produce documents in respect of Jayem
Exports and Sanwa Finance I say that she is not a
share holder.”

73. In further cross examination he has stated that Vanita

Fashions was a proprietary concern of the Respondent and his wife

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 61 fca105.14

and the witness had no concern with the said company except that

they had helped the Respondent. He denied the suggestion he

rt
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

admitted that balance sheet of Vanita Fashions shown to him of 1994

C
under heading Loans and Advances discloses that the Respondent

had given a loan in to Vanita Trust of Rs.3,05,000/- and this loans

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

father paid certain amounts to the Respondent for purchase of the

H
shares in Vanita trust. He further admitted that the balance sheet as

of 31st March, 2002 shows Loans and Advances as Rs.1,35,000/-

y

which shows that Vinita Kripalani had given Loans and Advances to
ba

Jayem Exports Pvt. Ltd. The balance sheet as of 31.3.2000 showed

in the investment column that the Respondent held shares of

om

12,75,770/- and the balance sheet of 31.3.2001 it is disclosed that

the Respondent held shares of 12,74,520/-. He, however, denied

the suggestion that he had falsely stated that Vanita Fashion was
B

dormant company. In further cross examination he stated that the

Respondent is not concerned with Jayem Exports Pvt. Ltd. and that

his company belongs to him and the Respondent is not concerned

with the company.

74. He refused to answer in respect of annual return of

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27.9.2002 of Jayem Exports Pvt. Ltd which pertains to his company.

He continued his refusal to answer questions pertaining to his

rt
companies. He admitted that in column 3 of the balance sheet

ou
Exhibit 168 i.e. amount of loans and advances were shown as

Rs.6,50,88,008/-. He stated that the Respondent had only 10

equity shares of the company and therefore she does not become

C
owner of the company. He admitted that the loans and advances as

of 31.3.2005 in the said company is Rs.5,71,78,535/- and these are

h
entries of account adjustments. According to the witness on being
ig
shown Exhibit 166 he stated that the shares mentioned therein were

transferred on the advice of the tax consultant. He denied the

H
suggestion that said shares were transferred from the Respondent

in order claim maintenance in the matrimonial petition. He states

y

that whole group which also includes Jayem Exports was reorganised.
ba

He denied that the shares in Vanita Trust were transferred with aim

of manipulation to get maintenance. He admitted that all the

om

accounts of the Respondent were held jointly with the Petitioner and

Respondent had no individual NRE or NRO account. The accounts

in Indian Overseas Bank were closed in 1992 and opened in ICICI

B

bank. He undertook to produce statement of accounts of ICICI Bank

which he did on the next occasion. The income tax returns of the

year 2003-04 the witness was shown name of trust to the

Respondent is present to him the payment was made or in those

accounts, certain amounts were credited. This was admitted by him.

He admitted that the returns of assessment year 2002-03 were filed

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on 27.2.2002. The Respondent had received summons in the

matrimonial petition. The Income Tax returns for assessment year

rt
2001-02 bears name of the Respondent and therefore it was an

ou
individual return and not filed for Vanita Fashions. He admitted that

the Respondent received a resident permit for Lagos. During his

cross examination on 25th January 2008, he was shown document

C
received the Registrar of the company pertaining to Palmar

Investment and Trading Company Pvt. Ltd. and Samba Investment

h
and Trading Co. Pvt. Ltd. He admitted that Samba Trading and
ig
Investment Company was later converted to Sanwa Finance and the

Respondent and wife of witness were preferential share holders in

H
both the companies and were shown business executives as on that

date. The documents were taken on record and marked as Exhibit-

y

175. Palmar Investment Trading Company Pvt. Ltd. owned two flats
ba

in Mumbai The witness refused to answer a pertinent question. The

question and answer read thus :

om

“Q. Is the value of both these flats is 50 to 70 crores

today ?
A. I do not want to answer because I do not find the
B

question relevant in relation to the Respondent.”

75. He further deposed to the fact that the balance sheet of

Sanwa Finance Pvt. Ltd. as of 31.3.2006, the Respondent is neither

a Director nor a share holder of this company. He was unable to

answer any question relating to debt balance in the proprietary

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business of Vanita Fashions Rs.10,93,614/- has been credited to the

Respondent. It is admitted that balance carried forward was

rt
Rs.22,39,652/-. The witness admitted that at the relevant time the

ou
Respondent has received salary as a Director. During the cross

examination on 25.1.2008 the balance sheet of 31.3.2001 the

Investment in shares were shown as Rs.12,74,520/-. According to

C
him the Respondent has received the money of redemption of

preferential shares of 1000 each in current assets, bank particulars of

h
which are not shown. The investment in shares were redeemable
ig
shares of Sanwa Finance and Palmar Trading Investment, since both

these shares were redeemable and therefore balance amount was

H
Rs.1,000/-. According to witness, the Respondent received money

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

Exports Pvt. Ltd.

om

76. According to the witness a sum of USD 52,000 withdrawn

by the Respondent from joint account and transferred to Saniva

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

state how it was manage. According to him, the Respondent was

not concerned with the same. The witness later stated that the

amount was shown as loan to the company which was repaid by the

cheque. Later, he retracted the statement that the amount was

repaid but on being asked to produce balance sheet of International

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 65 fca105.14

Pvt. Ltd. he declined to produce and stated that he was not obliged

to produce the balance sheet of Saniva International PTE Ltd. in

rt
which amount of USD 52,000 was reflected. He disagreed that the

ou
amount was siphoned by the Respondent. The witness admitted that

the Respondent held 10 equity shares of Jayem Exports and Vanita

Trust as also equity shares in some of the companies. The shares

C
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

the accounts and balance sheet of the company. He declined to

H
answer the question as to whether the Respondent first engagement

had broken down. He also disagreed to the suggestion that in view

y

of break down of the first engagement he took special care prior

ba

when finding the alliance with the Petitioner. He did not gave the

reason as to why first alliance failed. According to him it is irrelevant.

om

He admitted that in 1993 to 1997 he has not filed any criminal

complaint against the Petitioner or his family. He admitted that he

was constituted attorney of the Respondent and had appeared on her

B

behalf in the Family Court. He has admitted that he has accompanied

the Respondent to pursue criminal complaint whenever he was in

town. He stated that the Respondent was not permitted to go to

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

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end the marriage since he had filed petition for the restitution of

conjugal rights and the Respondent was trying to reconcile. He

rt
admitted that he has not made any offer at Lagos where the

ou
Petitioner was living. He denied the suggestion that the Respondent

had brought her daughter without consent of the Petitioner's

parents. According to him, the Respondent made efforts to

C
reconcile. He admitted that his statement about the Petitioner

earning USD 2.5 million is based on rumours in the market. It is

h
also admitted that he was not personally aware whether the
ig
Petitioner has misappropriated partnership funds in business with his

brother Vinod. He was only informed that as a result of

H
misappropriation, the Petitioner was removed from his house by his

brother in which the Respondent and daughter were staying. He

y

denied the suggestion that he had interfered with married life of the
ba

Petitioner and Respondent. According to him, the Petitioner suffered

from an inferiority complex and could not tolerate success of the

om

witness in business. He denied the suggestion that the averment

made by him about misappropriation and the Petitioner suffering

inferiority complex was demeaning and humiliating to the Petitioner.

B

It is admitted that during the Petitioner's first visit to Singapore he

did stay with the witness and on second visit he stayed at hotel and

thereafter he never stayed at the residence of witness. He admitted

that the Respondent had visited Singapore alone while the child was

looked upon by the Petitioner and his parents.

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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

the Respondent-wife was affluent and had substantial assets of her

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

Finance Pvt. Ltd. Exhibit-117 at Page 6 and 9 other companies. She

H
held 650 preference shares in Palmar Investment and Trading Co.

Pvt. Ltd. and 16 other companies. She also held 50 preference

y

shares in Modfash Exports Pvt. Ltd. and in 14 other companies. She

ba

held 10 equity shares in Jayem Exports Pvt. Ltd. and 14 other

companies. She held 198 equity shares in Lekhraj & Sons (Exports)
om

Pvt. Ltd. which held shares in four companies. She held 18 equity

shares in Sanwa Capitals Pvt. Ltd. She held 18 equity shares in

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

Respondent on or about 18th March, 2002 and the Respondent filed a

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return of income in July 2002 by which time she had systematically

divested herself of the shares to create a facade of her being

rt
penniless and dependent upon the Petitioner. As far as Vanita Trust

ou
is concerned, upto March 2002 the trust held 750 equity shares in

Jayem Exports held diverse shares in 14 group companies. The trust

held 198 equity shares of Lekhraj Exports, Lekhraj Exports held

C
equity shares in four group companies, namely, Jayem, Sanwa

Capitals Pvt. Ltd., Vanita Apparels and Palmar. The trust held 18

h
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

Court divested herself of the shares.

y
ba

79. In addition Mrs.Rao submitted that the Respondent had

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

maintenance and affairs. It is seen that between 1.4.2001 and

31.3.2002 (for assessment year 2002-03). The Respondent gifted her

B

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

by the Respondent is also recorded in various documents referred to

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 69 fca105.14

above in particular at Page 31A-169, 31A-181, 31A-208 and other

documents. According to her, therefore, the Respondent is also

rt
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

thereafter resigned. It is matter of record that the Respondent had

transferred the money of her shares to various different persons

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

companies. In addition to this she is the share holder in Palmar

y

Investment and Trading Co. Ltd. M/s.Palmar Investment and Trading

ba

Company Ltd. also owns two residential flats, one in NCPA

Apartments at Nariman Point, Mumbai and one at Blue Haven,

om

Malbar Hill. She also held preference shares on Modfash Exports

Pvt. Ltd. which in turn held shares in 14 other group companies.

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

second trust by name Sanwa Trust also for benefit of the

Respondent and the said trust held shares in Modfash Exports Pvt.

Ltd. and Sanwa Finance Pvt. Ltd. Mrs.Rao further submitted that the

Respondent was the Director in a company at Singapore as well and

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has been receiving Director's fees as known from the Exhibit-131.

She submitted that the sum of USD 53,692.51 was suddenly

rt
withdrawn by the Respondent from the joint account without

ou
knowledge of the Petitioner. According to the Respondent she

withdrew the amount on account of expenses for medical treatment.

However, Mrs. Rao in the cross examination of the Respondent and

C
her father brought out the fact that it was not serious ailment which

required costly treatment. The Respondent has admitted in the

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

is concerned, he has admitted that the Respondent withdrew USD

y

53600 and transferred it to Sanwa Capital Pvt. Ltd. According to

ba

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

the company as loan from the Respondent or as the Investment and

Loan Advances. Mrs.Rao submitted that the Respondent father had

B

admitted that the amount of USD 53600 was shown as loan to the

company. He further admitted that the Respondent does not have to

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

it was deliberately withdrawn and transferred to Sanwa Capital Pvt.

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Ltd. showing it as loan. According to Mrs.Rao, the entire approach

of the Respondent is to mislead and make false statements before the

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

made false statement on oath. It has come in the evidence that as

far as the Respondent's bank account in Singapore is concerned, it

C
has come in the Respondent's cross examination in paragraph 47

that she was wealthy person with sufficient means.

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

residing in India. She made reference to cross examination. She

y

invited our attention to paragraph 26 of her cross examination

ba

wherein she admitted that she is filing income tax returns since prior

to her marriage although she volunteered that she had no income.

om

The income tax records shows the address is of the father's business

address of Saniva International Pte Ltd. at Jayem House, Apollo. In

her father's cross examination in paragraph 20 he admitted that

B

Vanita Fashions was a proprietary concern of the Respondent and

that he and his wife is not concerned with the acknowledgment

except that he helped the Respondent. He denied that he handled

financial transaction of the Respondent. Yet when confronted with

the Respondent's answer in cross examination that her father

handles all her financial transactions, he did not dispute that

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statement. Her father also admitted in paragraph 20 of the cross

examination Exhibit-116 did not disclose balance sheet of the

rt
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

2000-01 corresponding to accounting year 2000 and balance sheet

C
relating to personal return were filed. However, he did not produce

the same and denied that he was deliberately suppressing the

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

17th January, 2007. Thus, according to Mrs.Rao that the Respondent

y

held NRE and NRO bank accounts jointly with her father and that
ba

were opened for the business purpose and there was no transactions

for the relevant period. There was no need to open such accounts
om

and close them only to open fresh account in different bank.

Mrs.Rao stressed upon the fact that the Respondent was regularly

residing in Singapore as well since she had been appointed as the

B

Director in Singapore company. According to her Exhibit-173 at

page 760 of the compilation reveals that in order to be entitled to be

a Director in the company in Singapore it is necessary to be resident

of Singapore.

82. She relied upon deposition of PW 2 Murli Lekhraj, father

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of the Respondent who has admitted in paragraph 46 and 47 of the

cross examination that there were transactions between Vanita

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

was unable to explain the debit balance in the Vanita Fashions of

C
Rs.10,93,814/- which has been credited to Vanita Kripalani.

h
83. Mrs. Rao also relied upon the fact that the witness

admitted that the credit entry

ig of the Respondent that he had

received profits from Vanita Fashions and has also received salary as
H
the Director which is recorded in capital accounts particulars. In

fact as of 31.3.1994 according to Mrs.Rao the balance carried

y

forward of Vanita Kripalani capital account was Rs.22,96,322/-.

ba

Mrs.Rao then drew our attention to the fact that the Respondent's

allegations which were made during the examination in chief by the

om

Respondent were false. For instance she states that allegations of

misappropriation of the Petitioner's brother's monies contained in

paragraph 4 and 5 of the affidavit of evidence of the Respondent has

B

been falsified. She submits in the evidence, the Respondent has

admitted that she has no personal knowledge of having cheated his

brother. So also the Respondent's fathers evidence in his affidavit in

paragraph 6 and 8 relate to dispute of demands of gifts and instead

pertaining to the alleged dispute between brothers as a result in

Petitioner's elder brother refusing to accept keys to the suit were

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all hearsay. Likewise, the contentions of misappropriation in

paragraph 8 relate to the property belonging to his brother is not to

rt
his personal knowledge. Mrs.Rao highlighted the fact that the

ou
Respondent has made certain allegations for the first time in her

answers to the questions put to her. In paragraph 33 of her cross

examination the Respondent has made false allegations against the

C
Petitioner. Further allegations by the sister of the Respondent in

paragraph 18 to the effect that the Petitioner threatened to

h
Respondent with divorce was contradicted by the Respondent in
ig
paragraph 46 of her cross examination when she admitted that she

wanted the marriage to work and although there were quarrels

H
between them there was no talk of divorce between her and the

Petitioner.
y
ba

84. Mrs. Rao submitted that the Respondent has deliberately

made false statement on several occasions. Firstly, in paragraph 44

om

of her cross examination. According to Mrs.Rao the particulars of

travel provided in paragraph 44 did not match with the particulars

provided by the Respondent herself in Exhibit-84. Mrs. Rao also

B

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

with her friends. To this effect Mrs.Rao relied upon Exhibit-132 in

the compilation. According to her till the Respondent continued to

make several false statements such as being bed ridden from

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19.11.2005 to January 2006 whereas she was found to have

attended parties at least on 11.12.2005 and has admitted in her

rt
cross examination in paragraph 50. Furthermore, scrutiny of

ou
Respondent's passport reveals that she passed through immigration

on 16.12.2005 and went to Bangkok on 20.12.2005. She admits both

entries in the passport but denied that she made false statement

C
that she was bed ridden between 19.11.2005 and January 2006.

According to Mrs.Rao the Respondent has herself contended that she

h
had good relationship with the Petitioner. She made reference to
ig
the paragraph 24 of the written statement and paragraph 20 of the

affidavit of evidence wherein, admitted to have good relations with

H
the Petitioner. She also referred to paragraph 34, 46, 115, 167, and

170 of cross examination in order highlight her contention that she

y

has admitted that she travelled to Lagos. In this manner Mrs.Rao

ba

submitted that as far as allegations of cruel behavior is concerned,

there is no doubt that the Respondent had treated the Petitioner with
om

cruelty and she cited instances referred to us in the pleadings and

evidence.
B

85. Mrs.Rao further submitted that the Respondent is

extremely wealthy and has huge assets, self acquired as well as

derived from her father. She was not in need of maintenance and

therefore was not entitled to any maintenance at all, let alone

enhancement. She then contended that the Respondent had deserted

the Petitioner and highlighted various instances. First of all in

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August 1994, the Petitioner asked the Respondent to join him to

London to spend some time with him. The Respondent declined to

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

Lagos and that she wished to remain in Mumbai. Moreover, her

father informed the Petitioner that he would look after the

C
Respondent and that the Petitioner should look after his daughter

Ayesha. Mrs.Rao drew our attention that on 25th September, 1998

h
she withdrew monies from OCBC bank Singapore and took away

jewellery
ig
from the locker at Central Bank of India, Mumbai. On

6.10.1998 she allowed the Petitioner to take Ayesha to Lagos and in

H
December when the child Ayesha was suffering from chicken pox

although the Petitioner requested the Respondent to come to Lagos,

y

she declined despite having resident permit of Lagos. The

ba

Respondent, instead proceeded on holiday with parents to Bangkok.

This is evident from paragraph 44, 55 and 56 of her cross

om

examination. Further evidence of desertion according to the

Respondent is evident from the fact that on 2.11.2001 the

Respondent left matrimonial home at 26, Iris and her father

B

suggested that her daughter Ayesha to stay with Petitioner's parents.

It is admitted by the Respondent in paragraph 24 that between

2.11.2001 and 4.6.2001, the Respondent made no offer to reconcile

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

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complaint on 13th April, 2002 alleging that the Petitioner and his

parents were demanding money and obtained arrest warrant in the

rt
name of Petitioner's parents. She has admitted in the cross

ou
examination in paragraph 116 and 121 that she has no intention to

return to Lagos. Accordingly Mrs.Rao submitted that it has come in

her evidence that the Respondent deserted the Petitioner. Mrs.Rao

C
further submitted that the Respondent has filed Petition bearing

No.B-2 of 2006 in the Family Court at Bandra seeking maintenance

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

Supreme Court in the case of Padmaja Sharma Vs. Ratan Lal

y

Sharma AIR 2000 SC 1398 wherein it was held that while

ba

maintenance has not been defined in the Act nor it is specified as

to whose duty amongst the parents it is to maintain the children.

om

Under 18 of the Women Maintenance Act the wife should be entitled

to maintain during the lifetime. This is of course subject to the

conditions. In fact it is the duty of both parents to maintain the

B

child. The maintenance of wife in the present case is concerned

Mrs.Rao submitted that the Respondent had deserted the Petitioner

and left matrimonial home on her own. Hence, she is not entitled for

maintenance. She relied upon aforesaid judgment and contended

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

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Petitioner to leave matrimonial home nor had he threatened with

direct consequences if she did not leave the house she was not

rt
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

solitary incident but the Court has to come to conclusion whether

various acts were committed by either party amounting to cruelty.

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

there is cruelty on the part of the Respondent . All relevant

H
circumstances must be considered.
y

87. The Supreme Court in case of G.V.N. Kameswara (supra)

ba

the Supreme Court observed as follows :

om

"The mental cruelty in Section 13(1)(ia) can broadly be

defined as that conduct which inflicts upon the other
party such mental pain and suffering as would make it
not possible for that party to live with the other. In
B

other words, mental cruelty must be of such a nature

that the parties cannot reasonably be expected to live
together. The situation must be such that the wronged
party cannot reasonably be asked to put up with such
conduct and continue to live with the other party. It is
not necessary to prove that the mental cruelty is such
as to cause injury to the health of the petitioner. While

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arriving at such conclusion, regard must be had to the

social status, educational level of the parties, the

rt
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

Supreme Court observed that filing of criminal complaint is

y

sufficient to constitute mental cruelty. Mrs. Rao submitted that in

ba

the instant case Respondent had filed criminal complaint. The

complaint came to be filed on or about 2002 and was withdrawn.

om

Mrs.Rao submitted that it was only pressure tactics to get the

Petitioner to succumb to her demands since arrest warrants against

the Petitioner's parents has been issued. As a result of which the

B

Petitioner's parents were required to get anticipatory bail.

89. Mrs. Rao further submitted that the filing of the criminal

complaint was only by way of strategy since it is an admitted position

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

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Family Court shows that the Respondent had received the summons

on 2nd February, 2002. According to the Respondent, however, the

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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

the summons and hence a deliberate attempt to show the

H
respondent’s apparent concern for the daughter. She, then, referred

to a SMS sent by the Respondent to the Petitioner. The said SMS shall
y

stated as follows:-
ba

“CHEERS HAPPY NEW YEAR 01/01/02 9:37 Vinita

om

CHEERS HAPPY NEW YEAR 01/01/02 01:18 Vinita

Anil Why are you not talking to me. I need to talk.

08/01/02 11:02 Vinita
B

Please reply Anil. I am sori. Luv your wife Vinita

08/01/02 12:55 Vinita

I am still awaiting your reply 08/01/02 13:18 Vinita

Anil please do not hang up the phone on me. Have a

heart. 12/02/02 19:54 Vinita

I miss you a lot. Please do not be so angry with me. I

am very sori. Happy valentine

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to u. 12/02/02 21:12 Vinita

y dear anil happy valentine day to you luv always

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your wife vinita have a nice day. I

love you 14/02/02 08:49 Vinita

ou
thank u 4 being a nice papa. 20/02/02 10:48 Vinita

ANIL WHEN ARE YOU GOING TO STOP HANGING

UP THE PHONE ON ME

C
21/02/02 23:29 Vinita

dear anil. Miss u a lot I want everything to work out

h
bet us I luv u very much

10/03/02 02:10 Vinita ig

miss you a lot longing to be back with you again luy
your wife vinita 13/03/02 22:57
H
Vinita

anil don't u miss me at all? I know u luv. 13/03/02

23:04 Vinita
y

happy birthday to my dear darling Anil luy u a lot

08/04/02 22:23 Vinita
ba

I could never tell you how much I love you because I

luv u so much Vinita”
om

90. She sent a series of short text messages from her mobile

phone expressing concern for him and, therefore, relationship.

B

According to Mrs. Rao the fact that the Respondent was going out of

her way to create evidence of a happy relationship between them his

evidence at Exhibit-126 by which the Respondent had send a greeting

card to the Petitioner. She demonstrated her feelings for him. This

was sent on 9th April, 2002 on the occasion of the Petitioner's

birthday, merely to create an impression that she was favourably

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disposed towards him. Mrs. Rao then, referred to a greeting card sent

on Valentines day on 14th February, 2000. (We may also note here

rt
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

during the course of the acrimonious relationship between them. By

C
making reference to these, Mrs. Rao submitted that it is clear that

Greeting card and sms were sent during a period between November

h
2001 and 5th June 2002 during which period she was admittedly
ig
residing with her parents at the NCPA flat acquired by her parents

sometime during 1998-99. Mrs. Rao, therefore, submitted that the

H
fact that her conduct was cruel is clear from the fact that over six

months period she had sent the SMS and Greeting card merely to
y

create an impression that she was a loving wife and to prove the
ba

Petitioner as the wrong doer. Interestingly, in her cross examination

in paragraph 43 the Respondent herself has admitted that she has

om

made no official efforts for obtaining custody of her daughter from

November 2001 till March 2002 and, therefore, she was meeting her

at the child's school from January 2002. In these circumstances,

B

according to Mrs. Rao the evidence of the Respondent is not

believable and the Respondent had deliberately sought to make out a

case faulting the Petitioner.

91. On the aspect of maintenance, Mrs. Rao submitted that

the Respondent was self sufficient wealthy and financially

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independent. She had deliberately suppressed her assets and the

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,

ou
which companies have substantially stakes in each other. Mrs. Rao

further submitted that the claim for maintenance ought not to have

been allowed in the first place, much less liable to be enhanced.

C
According to her, no case whatsoever was made out by the

Respondent to seek enhancement of the maintenance granted by the

h
Family Court. She submitted that the Petitioner had paid all amounts
ig
and maintenance as per the order of the Family Court and regularly.

She further submitted that as far as her daughter is concerned apart

H
from the maintenance, the Petitioner had also paid the school fees for

the IB School at Bangalore totaling Rs.14,33,950/- between 9 th

y

September, 2010 and 6th April, 2012. According to the learned

ba

counsel for the Respondent the daughter is presently studying in

London since 2012. She has stated that she has instructions from her
om

client to submit to the order of this Court as far as sharing the cost of

the education of the daughter is concerned.

B

92. Mrs. Rao, then, referred to the decision of a Division

Bench, Nagpur Bench of this Court being First Appeal No.1194 of

2009 Shiv Kumar Singh Dagdusingh Thakur V/s. Smt.Malti w/o

Shivkumar Singh Dagdusingh Thakur dated 29th April, 2011. In

this case, the Division Bench held that, “the husband must maintain

the wife as provided under section 18 of the Hindu Adoption and

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Maintenance Act, 1956. The quantum of maintenance would depend

upon the circumstances and the provisions under section 23 of the

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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

section 23 of the Maintenance Act. This Court further held that

Hindu wife's first duty towards husband is to submit herself

C
obediently to his authority and to remain under his roof and

protection, her entitlement to separate residence or maintenance has

h
not been completely ruled out and it is permissible for a Hindu wife to
ig
stay separate and claim maintenance from her husband. Section 18(3)

also provides a circumstances under which a wife is not entitled to

H
separate maintenance from her husband if she is unchaste etc. but

these are not relevant to our facts. Mrs. Rao relied upon the
y

observations in that matter that the Division Bench came to the

ba

conclusion that the amount of maintenance ordinarily includes cost of

shelter, house, food, clothing, medical attention etc. It is relevant

om

according to Mrs. Rao and not only that the wife has suppressed her

income and assets but has deliberately failed and neglected to

providing answers to questions about the same. These particulars

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being within the special knowledge of the Petitioner, she submitted

that as the husband had adequately provided for education of the

daughter, there is no justification for seeking maintenance and the

claim for maintenance as set out in paragraph 18 of the judgment in

Shivkumar Singh's case (supra) could be justified only where there is

a refusal on the part of the husband to maintain her thereby causing

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her to live separately. Mrs.Rao submitted that in view of judgment of

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

ou
no doubt that the Respondent has chosen to walk out of the

Petitioner's life and stay separately. The Petitioner has not asked her

to leave and, therefore, there is no justification in the Family Court

C
awarding maintenance. Equally, there is no case whatsoever for

enhancement. According to Mrs. Rao, the Respondent has failed to

h
demonstrate that she was completely dependent on her father and,
ig
therefore, it required to be paid maintenance by the Petitioner. The

evidence admittedly points out towards the Respondent having

H
income and having business interest which were more than

substantial. According to Mrs. Rao the Respondent has also failed to

y

establish that she is required to incur the medical expenses. There is

ba

no justification of allowing the order of the maintenance of the

Respondent. Mrs. Rao has submitted that in the background of these

om

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

of IPC before the Magistrate Courts, there is no justification

B

whatsoever in awarding maintenance. She, therefore, submitted that

the claim for maintenance is liable to be denied.

93. In particular Mrs. Rao submitted that much is sought to

be made out by the parents of the Petitioner and his income.

However, there is a matter of record that his business suffered huge

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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

ou
that he spent more than 1,50,000/- on holidays for the family. The

Petitioner has deposed in paragraph 25 of the evidence that the some

US $ 53692.51 was from his savings during the period 1982-89 and

C
also the money received pursuant to the dissolution of the

partnership business with his brother. He submitted that amount of

h
around US $ 50,000/- was transferred from Oman Bank in Mumbai to
ig
American Express Bank and thereafter to the O.C.B.C. Bank. She also

submitted that the US $ 2,44,834/- was pertaining to business

H
transactions. The company could not open the bank account since

Indian suppliers were not accepting the letter of credit of a Nigerian

y

Bank and, therefore, he had used his Nostro account with Chemical
ba

Bank in New York and funds were transferred to Oman Bank and

through Chemical Bank. His brother-in-law Amit Mahajan was

om

appointed by the company Anivin Nigeria Ltd. to inspect the goods

against payment of commission. She further submitted that the

various cross entries in the accounts with Bank of Baroda pertaining

B

to the flat in Sanjeev Enclave. In fact, these were borrowed funds and

flat was purchased by the Petitioner's parents. Mrs. Rao submitted

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

that other entries in the bank account pertain to interest received

from UTI bonds and the amount of Rs.10,75,000/- received from the

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sale proceeds of the Sanjeev Enclave flat. These transactions were

carried out by the Petitioner's father who held up a power of

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attorney. The other amounts in the Bank of Baroda have also been

ou
explained by the Petitioner including Bank of Baroda and UTI. He

had explained most of the credit and debits which were called by the

counsel for the Respondent in particular. Mrs. Rao submitted that

C
the Petitioner had clarified that the car was purchased for

Rs.6,32,093/-. Various other amounts amounting to

h
Rs.7,49,69,003.35 which had passed through the Oman Bank Account

between June 1994 to June

ig 1998 were all business related

transactions, representing the cost of goods and freight. He also

H
given a calculation on the share holding of Anivin Nigeria Ltd. and he

admitted having paid Naira 3 lakhs for purchase shares of Anivin

y

Nigeria Ltd.
ba

94. In this manner, Mrs. Rao canvassed that the Petitioners

om

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
B

cruelty being meted out to the wife, she was not entitled to

maintenance. In fact, in that case the wife had alleged cruel

treatment at the hands of the husband and his relatives after six

months of marriage. There was no evidence of cruelty. This Hon’ble

Court has held that the wife was guilty of desertion without any

reason. Mrs. Rao, then, referred to the judgment of the Hon’ble

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Supreme court in the case of Poonam V/s. Mahinder which

reiterated earlier decision of Hon’ble Supreme Court in the case of

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Smt. Rohtash Singh V/s. Ramendri (Smt.) 2002 (2) R.C.R. 286

ou
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

the decision of the Hon’ble Supreme Court in K.Srinivas V/s. K.

C
Sunita wherein the Court held that if a false criminal complaint is

preferred by either spouse, it would invariably and indubitably

h
constitute matrimonial cruelty, would entitle the other spouse to
ig
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
H
of a criminal complaint under section 125 of the Cr.P.C, and an

application for maintenance filed by the Petitioner which contained

y

allegations of demand of dowry and cruelty by the husband and which

ba

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

left the matrimonial home without any justifiable grounds. In that

situation, the Supreme Court held that the Respondent was not

entitled to maintenance. Thus, relying on these decisions, Mrs. Rao

B

submitted that the Appeal is liable to be allowed to the extent that the

order of the Family Court granting maintenance is liable to be set

aside while maintaining the decree of divorce on the ground of

cruelty.

RESPONDENT'S SUBMISSIONS

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95. Mr. Narula, the learned counsel, appearing on behalf of

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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

remuneration received by the Respondent as director (b) investments

and other assets which were not disclosed (c) deposits in ICICI Bank

C
accounts and its entitlement to maintenance on account of desertion.

Mr. Narula submitted that case of desertion had never been pleaded

h
by the Petitioner. According to Mr Narula it is undisputed that the
ig
Petitioner and the Respondent stayed in Lagos upto year 2000 and

came back to India in February 2000. The learned counsel submitted

H
that the Petitioner had failed to establish that the Respondent was

qualified to take up employment. He further submitted that the

y

Petitioner had failed to lead any evidence as her eligibility to take up

ba

the employment. Further more, he submitted that no questions were

asked as to the source of income. Mr. Narula submitted that after the

marriage was solemnized on 19 th May, 1993 they were been living

om

separately since 3rd November, 2000 daughter was born on 13 th April,

1994 and she had now become a major. Mr. Narula submitted that in
B

between 1994-98 there were no major instances or the dispute arises.

The Petitioner abruptly seeking separation then confronted the

Respondent with a petition under section 13(1)(a). According to Mr.

Narula the couple were happily married and the allegations of cruelty

being made are non issues. Such contention would not entitle the

Petitioner to divorce on the ground of cruelty. Thus, the family court

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is mistaken in its order granting divorce. According to Mr. Narula the

entire attempt on the part of the Petitioner is to discredit 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

assault by the Petitioner. He submitted that the Petitioner's mother

C
took up quarrels with the Respondent frequently and in this respect

he made reference to paragraph 6 of the affidavit of evidence of

h
Respondent page 291 of the paper book of evidence wherein the
ig
Respondent has stated that the Petitioner's mother took up quarrels

with the Respondent and started taunting her parents had not given
H
sufficient wedding gifts to her and the Petitioner. According to the

Respondent, the Petitioner had abused the Respondent in filthy

y

language and also insulted and ridiculed her although she was six
ba

months pregnant at that time. She also abuses the Petitioner of

beating her during her stay during the months of February to April
om

1994. In this respect, reference is made to paragraph 7 and 8 of her

deposition. Mr.Narula then, pointed out that in paragraph 13 of the

deposition the Respondent had stated that there were frequent

B

quarrels and assaults by the Petitioner as a result of which she

assaulted on her face and back. The mother of the Petitioner would

instigate the Petitioner against the Respondent and her parents.

Making further reference to the ill treatment of the Respondent, Mr.

Narula referred to paragraph 17 of her affidavit in lieu of evidence

wherein she had deposed that she had developed a fear complex

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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

ou
stay at the matrimonial home. On one occasion the Petitioner's

parents made up an excuse to bringing her for staying in the

matrimonial house by contending that the Petitioner's brother's wife

C
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

h
went at fathers place but without her daughter. She continued to

stay at Iris.
ig
She also alleged that she developed a serious

hypothyroid which had been cancerous. She stated that the

H
Petitioner would not pay any money for her medical treatment. She

had to use her own monies for medical treatment and had to
y

withdraw $ 52500/- lying in the OCBC Bank Singapore. She further

ba

deposed that she spent the monies that she withdrew on her medical

expenses and for her daughter Ayesha and the Petitioner as well. Mr.
om

Narula drew our attention to the fact that the Petitioner's took away

his daughter Ayesha to Lagos without informing the Respondent and

prevented the Respondent from talking to the daughter. He referred

B

to paragraph 23 and 24 of her evidence where she deposed that she

suffered damage to her spinal cord as a result of assault and torture

by her in-laws and the Petitioner. According to her she was unable to

tolerate it any further and she lodged a complaint on 3 rd November,

2001. As a counter-blast, the Petitioner's parents did not allow her to

enter the matrimonial home at Iris, Cuffe Parade. These aspects

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according to the learned counsel for Respondent had not been

challenged in cross examination.

rt
ou
96. Mr. Narula further submitted in paragraph 19 of the

evidence of Murli Lekhraj, father of the Respondent, it is clearly

stated that the Respondent was being beaten by the Appellant and his

C
parents. As a result of which he, father of the Respondent was forced

to go to the house of the Petitioner. Narrating the events, he stated

h
that on 2nd November, 2001 the Respondent's father received a call
ig
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
y

Petitioner was beating the Respondent in the presence of all. He

ba

further deposed that when he tried to stop the Petitioner, he pushed

him and the Petitioner's parents were hiding behind their bed room
om

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
B

did he allowed the Respondent's father to take their daughter along

with with the Respondent. Mr. Narula submitted that there was

absolutely no cross examination on this aspect. He therefore

submitted that those contentions that his client was subjected to

physical and mental abuse must be accepted.

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97. He submitted that the Respondent has no income.

Referring to paragraph 35 of the evidence, he submitted that all the

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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

maintained by him including the filing of the returns etc. According to

her, she is unaware particularly the business of Sanwa Finance and of

C
the ICICI bank account she had jointly with her father. She states that

she has received no remuneration. Mr. Narula, then, made reference

h
to paragraph 40 of the evidence page 325 of the paper book of
ig
evidence that the Respondent has transferred US $ 52,500/- to her

father's account i.e. Saniva International (Pte)Ltd. He, then, made

H
reference to paragraph 49 of the evidence at page 340 wherein she

deposed that the amount shown as Directors remuneration balance

y

sheet had not received by her. Further reference is made to

ba

paragraph 54 of her deposition in cross examination to state that her

father uses her name in his business and she was a nominee director
om

in Sanwa Finance Ltd. and Jayem Exports Pvt. Ltd.without drawing

any salary. She made reference to Exhibit 122 to say that her father

controlled all the businesses. According to Mr.Narula, the

B

Respondent resigned from the various companies and gifted the

shares to her sister Varsha as per the instructions of her father. He

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

these companies accounts were handled by the accountant and his

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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

any connection with companies. This statement was duly confirmed

C
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.

h
Mr. Narula, then, was at pains to support this contention and took us
ig
through the evidence highlighting material facts pertaining to each of

the businesses.
H
98. With reference to Sanwa Finance Company Ltd. he
y

submitted that the Respondent had held 610 preferential shares. His
ba

preferential shares were redeemed on 19 th January, 2000. According

to the evidence of the Respondent, the Respondent is not a

om

shareholder in Sanwa Finance Company Ltd. He referred to Exhibit

166 and submitted that on perusal of the statement showed that the

Respondent did not hold any shares in any of the companies.

B

99. On the other hand, Exhibit 166 shows that the shares of

Horizon Fashions Pvt. Ltd., Sanwa Capitals Pvt. Ltd., Balmoral

Fashions Pvt. Ltd., Vanita Apparels Pvt. Ltd., Lekhraj & Sons

(Exports) Pvt.Ltd., Jayem Fashions Ltd. all were sold on 9th April, 2001

whereas shares of Jayem Fashions Ltd. were sold on 30 th April, 2001

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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

only the sum of Rs.6,00,000/- as result of redemption of shares on 15 th

November, 2001. He referred to the ICICI Bank statement at Exhibit

C
172 of paper book which is at page 751 which reveals that sum of

Rs.6,00,000/- were cleared on 15th November, 2001. (In our view

h
there is nothing to suggest that the aforesaid amount of Rs.6,00,000/-
ig
was received as a result of redemption of shares.)
H
100. With reference to Palmar Investment & Trading Co. Pvt.

Ltd., Mr. Narula submitted that the Respondent was having 650
y

preferential shares which were redeemed on 20 th November, 2001.

ba

He referred to Exhibit 172 at page 751 to demonstrate that the sum

of Rs.6,50,000/- was received from the aforesaid redemption. It may

om

be pertinent to mention here that Palmar Investment & Trading

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
B

company Jayem Exports and stated that the Respondent held 750

shares in Jayem Exports which were sold in two tranches on 27 th

December, 2001 and 29th March, 2001. He, then, made reference to

Exhibit 170 which showed that it received a consideration for 300

shares. [there is nothing to show that the amount deposited in the

ICICI bank account jointly held by Respondent and his father was

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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.

Similarly the amount of Rs.1,80,000/- was paid to Palmar Investments

on 27th February, 2003, [This entry is also not explained.]

C
101. Mr. Narula, then, made reference to Sanwa Finance and

h
stated that the Respondent held 18 shares in financial year 2000-
ig
01and sold them to Varsha her sister. Similarly, shares of the

Respondent in Vanita Fashions and other companies were indicated

H
as seen from Exhibit 159 resulting in the capital account of the

Appellants showing only amount invested in those years to the tune of

y

Rs.1,341,770/-, Rs.49,100/- towards PPF investment in jewellery and

ba

ornaments amounting to Rs.1,035,050/-. Incidentally, the balance

sheet also shows loan and advances to Vanita Trust amounting to

om

Rs.305,000/- as of 31st March, 2004. Mr.Narula, then, attempted to

demonstrate that his client, the Respondent was not a person of

means. She was without any income of her own is required to bring
B

up her daughter Ayesha and she only has her father to support her.

He, therefore, submitted that the Respondent was entitled to

maintenance commensurate with the life style sh had come to expect

inasmuch as the Petitioner's lifestyle was luxurious. He had, at Lagos,

two cooks, three maid, two cars, had shopped for furniture in London,

huge amounts of money passed through his accounts. The holidays

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in Europe and America and had established a lifestyle whichthis

Petitioner was bound to prove to the Respondent. He therefore

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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

amount of Rs.25,000/- p.m. each awarded by the Family Court was

insufficient. In the facts and circumstances, she was entitled to

C
enhanced maintenance According to him, she requires at least

Rs.1,50,000/- p.m. for herself and her daughter. She has been also

h
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
y

has held that under section 125 read with section 23 of the Hindu
ba

Adoptions and Maintenance Act, 1956, a major daughter is entitled

for maintenance till her marriage. The Supreme Court observed

om

that in that case it was manifest that the minor girl's right for

maintenance till attaining majority and till her marriage is recognised

in section 20(3) of the Hindu Adoptions and Maintenance Act and,

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therefore, no exception can be made. Mr.Narula submitted that in

the present case as well, the daughter is also entitled to maintenance

till her marriage.

103. Mr.Narula then, relied upon the decision of the Hon'ble

Supreme Court in the case of Naveen Kohli V/s. Neelu Kohli

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reported in (2006) 4 Supreme Court Cases 558 and harped on the

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

ou
Marriage Act, 1955. The said provision had found recognition in the

judgment of Naveen Kohli (supra). He submitted that the Apex Court

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

recommended to the Union of India to seriously consider an

h
amendment to facilitate dissolution on the ground of irretrievable

break down.
ig
Mr.Narula submitted that in the instant case, the

marriage was broken down irretrievably. He then made reference to

H
the decision of the Hon'ble Supreme Court in the case of

Dr.N.G.Dastane V/s. Mrs. S.Dastane reported in (1975) 2

y

Supreme Court Cases, 326 and submitted that the Petitioner had
ba

treated the Respondent with cruelty and in any event, the Petitioner

is bound to maintain the Respondent and her daughter.

om

104. Mr.Narula then made reference to the decision of this

Court in the case of Rachana Oswald Malhotra / D'Silva V/s.

B

Oswald Fredrick D'Silva alias reported in 2014(3) Mh. L.J. 711

to which one of us (A.S.Oka,J.) was a party. The facts of that case

reveals that the husband had significant financial ability and the wife

filed for enhancement of the maintenance. he issue in the said appeal

was that of enhancement of maintenance as it is in the present case.

The Court came to the conclusion that the Appellant had established

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and demonstrated from the record and proceedings that the

Respondent had far more than substantial financial assistance and

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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

month as interim measure and thereafter, at the disposal of the

appeal, the Respondent therein was directed to pay the Appellant an

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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.

h
The Petitioner has not disclosed his correct income and the
ig
Respondent was entitled to enhancement of the maintenance.
H
105. Mr. Narula, then, referred to the decision of the Hon'ble

Supreme Court in Vishwanath Agarwal V/s. Sarla Vishwanath

y

Agarwal and submitted that cruelty has an separable nexus with

ba

human conducrt and is always dependent on social strata. He

referred to paragraph 72 of the said judgment in which the Hon'ble

om

Supreme Court has observed that these earlier decisions in the

matter of Parveen Mehta V/s. Indrajeet Mehta which held that mental

cruelty in the state of mind and cannot be established by direct

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evidence. It is necessary and matter of interference to be drawn from

circumstances. He further submitted that in the matrimonial dispute

any outsider to come and to depose family members, relatives and

friends are the most natural witnesses in the veracity of their

testimony is to be decided on objective parameters and not to be over

bold on the ground that the witnesses are related to the spouse. He,

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therefore, contended that the evidence on behalf, the Respondent

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

ou
submitted that while granting maintenance due regard has to be

shown to other ancillary aspects. He submitted that the Respondent

is entitled to maintain a standard of living. Accordingly, he submitted

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that the sum of Rs.25,000/- granted by the trial Court will be wholly

insufficient considering the fact that the lifestyle of the Respondent

h
has been used to living along with the Petitioner. He referred to the
ig
evidence lead in this behalf and submitted that there is a strong case

for increasing the amount of maintenance granted.

H
CONCLUSIONS
y
ba

106. Having heard both the learned counsel for the parties and

having given an anxious thoughts to the dispute, the evidence led, we

om

are of the view that the impugned orders do not call for any

interference. The Family Court Appeal No.105/2008 has been filed by

the Respondent-wife challenging the grant of divorce dated 19 th May,

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1993 and the quantum of maintenance awarded. On the other hand,

the Family Court Appeal No.128/2008 has been filed by the Petitioner

husband essentially challenging the grant of maintenance per se on

the basis that it is inconsistent with the evidence adduced by the

parties. The Family Court framed the following issues :-

Issues Findings

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1. Does the Petitioner prove that the

Respondent has treated him with

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Cruelty? Yes

ou
2. Is he entitled for a decree of divorce of

Divorce of for judicial separation? Entitled for divorce

3. Is the Petitioner entitled for custody of

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the child Ayesha? No

4. Whether the Respondent is entitled

h
for maintenance for herself? If yes,

At what rate?
ig Yes, as per final order

5. Whether the Respondent is entitled

H
for maintenance for her minor child? Yes, as per final order

If yes at what rate?

y

6. What order and decree? As per final order.

ba

107. The issue pertaining to cruelty was decided in favour of

the Petitioner. It was held that the Respondent had treated the
om

Petitioner with cruelty and, therefore, he was entitled to a decree of

divorce. Apropos custody, the Court decided against the Petitioner

husband holding that he is not entitled to custody of the child. The

B

Court also and also held in favour of the Respondent wife to the

extent it concerned maintenance for the Respondent and the child. In

arriving at affirmative finding on issue no.1 viz. the Petitioner having

been treated with cruelty, the trial court recorded that although the

Respondent wife herself had made various allegations of being

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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

Respondent wife treated him with cruelty.

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108. On the aspect of divorce, we have perused the pleadings

h
in Family Court Petition No.264/2002. The Petitioner's allegations of
ig
cruelty have been summarized by us in paragraph 4 of this judgment.

However, at the cost of repetition, we recapitulate the essence of the

H
allegations. It is the Petitioner's case that after the child is born, the

Respondent turn arrogant, abusive and defiant. She used foul

y

language against the Petitioner. The Respondent's mother who was

ba

present the police station when the Petitioner was summoned abused

the Petitioner and called him impotent in the presence of all

om

concerned thus treating him with cruelty. According to the Petitioner,

he was called on several times to the police station and humiliated.

The constant threats of filing criminal complaints against the

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Petitioner's parents allegedly for demanding dowry caused mental

stress and cruelty to the Petitioner. The Respondent has turned

violent at times throwing various items including glass articles at the

Petitioner. She and the daughter refused to travel London at the

request of the Petitioner and used non availability of a visa for the

daughter as an excuse.

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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

caused enormous harassment, amounting to cruelty. Ultimately, the

h
Petitioner's mother had to file a suit against the Petitioner and
ig
Respondent restraining them from entering the Petitioner's mother's

flat which had served as the matrimonial home. In August, 1997

H
when the Petitioner's sister gave birth to a son, the Respondent

accused the Petitioner of being the father of the child. Furthermore,

y

she attributed to him, falsely, a statement by which the Petitioner is

ba

alleged to have remarked that the Respondent's father was the

father of the Respondent's child. These are very serious and grave
om

allegations.

110. On the other hand, the Respondent has not been able to
B

dislodge the veracity of the Petitioner's evidence on these aspects. It

is also established that the allegations made without any basis which

can be seen from the fact that the Respondent has not cross-

examined the Petitioner on these aspects of his deposition. The

Petitioner has been cross examined extensively but the Respondent

has not been able to make any dent to his evidence on the aspect of

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cruelty. The Petitioner has also deposed to the instance of the

Respondent's failure to go to Lagos to attend to the daughter who

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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.

111. The Respondent's lack of honesty is also apparent in the

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manner in which she dealt with the joint account in OCBC bank,

Singapore. After withdrawing the amount, admittedly without the

h
consent of the Petitioner, she contended that the amounts withdrawn
ig
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
y

suffering from Hypothyroid condition and that she required treatment

ba

but the Petitioner had refused to give money for her medical

treatment. She, therefore, withdrew the said money, which according

om

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-

examination of the father. In her cross-examination, she admitted that

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

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any surgery treatment. In this view of the matter, it is clear that she

has made incorrect statement and the same are misleading.

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ou
112. It is also the Respondent's own case that the matrimonial

relations were not peaceful. According to her, the Petitioner had

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

also deposed that the Petitioner regularly assaulted her. The

h
Petitioner's mother also deposed that the Petitioner was very harsh
ig
with her, insulting her, scolding her as a result of which her suffered

especially during her pregnancy. As a result of the cruel treatment,

H
she had to undergo labour over four days. Even after the child was

born, the Petitioner treated her in extremely cruel manner. She

y

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,

daily life was a torturous, physical and mental. According to her, on

2nd November 2001 after the Petitioner started quarelling with her,
om

both the parents in law joined the Petitioner, in beating the

Respondent who were septuagenarians. (70). We find it difficult to

B

believe their statements. In this view of the matter, we do not see

how the Respondent can sustain any challenge to a decree of divorce

and in our view, the decree of divorce needs to be upheld.

113. Mental cruelty has not been defined in the Act. Although

the same is a ground for a grant of divorce. In the present case,

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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-

ou
husband with mental cruelty. One of the leading case on the issue is

of M/s.Samar Ghosh V/s. Jaya Ghosh reported in (2007) 4 Supreme

Court Cases 511. In this case, the Hon'ble Supreme Court held as

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follows:-

h
“99. Human mind is extremely complex and human behaviour
ig
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,
y

financial position, social status, customs, traditions, religious

ba

beliefs, human values and their value system.

100. Apart from this, the concept of mental cruelty cannot

remain static; it is bound to change with the passage of time,
om

impact of modern culture through print and electronic media

and value system, etc. etc. What may be mental cruelty now
may not remain a mental cruelty after a passage of time or vice
versa. There can never be any straitjacket formula or fixed
B

parameters for determining mental cruelty in matrimonial

matters. The prudent and appropriate way to adjudicate the
case would be to evaluate it on its peculiar facts and
circumstances while taking aforementioned factors in
consideration.

101. No uniform standard can ever be laid down for guidance,

yet we deem it appropriate to enumerate some instances of

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human behaviour which may be relevant in dealing with the

cases of “mental cruelty.” The instances indicated in the

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succeeding paragraphs are only illustrative and not exhaustive:

(i) On consideration of complete matrimonial life of the

ou
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.

C
(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.

(iv) Mental cruelty is a state of mind. The feeling of deep

y

anguish, disappointment, frustration in one spouse caused by

the conduct of other for a long time may lead to mental cruelty.
ba

(v) A sustained course of abusive and humiliating treatment

calculated to torture, discommode or render miserable life of
om

the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one

spouse actually affecting physical and mental health of the
other spouse. The treatment complained of and the resultant
B

danger or apprehension must be very grave, substantial and

weighty.

(vii) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard of
conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.

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(viii) The conduct must be much more than jealousy,

selfishness, possessiveness, which causes unhappiness and

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dissatisfaction and emotional upset may not be a ground for
grant of divorce on the ground of mental cruelty.

ou
(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.

C
(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

h
period, where the relationship has deteriorated to an extent
ig
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.
H
(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
y

vasectomy or abortion without medical reason or without the

ba

consent or knowledge of her husband, such an act of the spouse

may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for

om

considerable period without there being any physical incapacity

or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after

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marriage not to have a child from the marriage may amount to

cruelty.

(xiv) Where there has been a long period of continuous

separation, it may fairly be concluded that the matrimonial
bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law
in such cases, does not serve the sanctity of marriage; on the

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contrary, it shows, scant regard for the feelings and emotions of

the parties. In such like situations,it may lead to mental

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cruelty.”

ou
114. The Respondent also filed a case under section 498A of

IPC, which was found to be baseless. Attributing defamatory

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statements alluding to immoral nature of the Petitioner clearly

indicates that the Respondent has treated the Petitioner with cruelty.

The Hon'ble Supreme Court in the case of K.Srinivas V/s.

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

members being subjected to mental cruelty. In that case, the

y

Respondent in her complaint addressed to the Superintendent of

ba

Police alleged that the mother of the Appellant-husband asked her to

sleep with his father which angered him and caused humiliation to
om

the father and great anguish to him. The Hon'ble Supreme Court

found this also to be one more instance of mental cruelty. It will be

appropriate to reproduce the observations of the Supreme Court in

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paragraphs 13, 21, 22, 24 and 26 as under:-

“ 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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such which may warrant annulment of marriage is wholly

unsustainable.

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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
ig
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
y

this humiliation of his parents caused great anguish to him. He

and his family were traumatized by the false and indecent
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statement made in the complaint. His grievance appears to us

to be justified. This complaint is a part of the record. It is a part
of the pleadings. That this statement is false is evident from the
om

evidence of the mother of the Respondent-wife, which we have

already quoted. This statement cannot be explained away by
stating that it was made because the Respondent-wife was
anxious to go back to the Appellant-husband. This is not the
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way to win the husband back. It is well settled that such

statements cause mental cruelty. By sending this complaint the
Respondent-wife has caused mental cruelty to the Appellant-
husband.

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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together there is no question of the parties causing cruelty to

each other. Staying together under the same roof is not a pre-

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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

ou
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.

h
26. We are also satisfied that this marriage has irretrievably
ig
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
y

as a very weighty circumstance amongst others necessitating

severance of marital tie. A marriage which is dead for all
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purposes cannot be revived by the court’s verdict, if the parties

are not willing. This is because marriage involves human
sentiments and emotions and if they are dried-up there is
om

hardly any chance of their springing back to life on account of

artificial reunion created by the court’s decree. ”
B

115. In the facts and circumstance of the present case, we

have no doubt that the observations of the Supreme Court in K.

Srinivas Rao (supra) applied to the present case as well with equal

force. Furthermore, this Court had occasion to consider whether an

acquittal in a prosecution launched under section 498A of the IPC

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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.

116. The Respondent has no objection for grant of a decree for

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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

h
Respondent does not make out any case for a relief against the
ig
decree of divorce. The main crux of the argument was on the issue of

maintenance. The Respondent's case is that she has entirely

H
dependent on her father and she is legally entitled to be maintained

by the Petitioner.
y
ba

117. The only ground that is being taken up in the petition is

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

cruelties which were listed out above, in the written statement, we

find that the Respondent has also contended that she has been
B

treated with cruelty. The written statement has been filed on 5 th

March, 2005 after the petition came to be amended to seek divorce

under section 13A of the Hindu Marriage Act. Although the

Petitioner has initially filed the petition for judicial separation. Apart

from formal denials and the contentions of the Petitioner, the

Respondent has admitted the factum of marriage, cohabitation on the

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birth of their daughter Ayesha. Cohabitation at Lagos is also

admitted. The Respondent has also admitted that matrimonial home

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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

said matrimonial home. She has contended that even as on date of

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

h
attitude of the Petitioner towards her changed and the Petitioner was
ig
like a puppet in the hands of his mother who is alleged to have been

poisoned the mind of the Petitioner towards the Respondent. She

H
complained harassment and ill treatment including physical assault

by the Petitioner being instigated by his mother. The mother of the

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Petitioner started demanding that the Respondent's father should buy

ba

a flat in South Mumbai so that the Petitioner and Respondent would

stay there separately especially after the birth of the child. The
om

Respondent states that the Petitioner's attitude having changed as

aforestated has developed a habit of physically assaulting the

Respondent without any real reason. According to the Respondent,

B

the Petitioner and her in-laws often stated that the Petitioner had

married the Respondent in the hope that her parents would assist the

Petitioner to set up business. These are the basic allegations which

are believed to have caused the matrimonial dispute. The

Respondent has also alleged that in September 2000 the Petitioner

returned to India and he started harassing her and abusing her

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parents for not providing a flat. He threatened the Respondent to

throw out of the matrimonial home and on several occasions tried to

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physically “drag the Respondent out of matrimonial home”.

ou
Apparently these were the instances witnessed by the Petitioner's

family. According to the Respondent, the Petitioner and her in-laws

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

to their expectations. These are some instances of cruelty. Despite

h
this, she contends that she had expressed her immense desire to
ig
reconcile and reunite with the Petitioner for the betterment of the

daughter Ayesha. She contended that she had written a letter on

H
16th January, 2002 expressing her willingness to unconditionally

reunite. According to her, whenever the Petitioner and the

y

Respondent and the daughter were staying separately such as at

ba

Lagos, there were no problems between them, however, the

Petitioner's mother use to instigate him against her.

om

118. In paragraph 33 she contends that the petition is filed on

23rd January, 2002 for judicial separation without any fault on the part
B

of the Respondent and it is the Petitioner's intention to desert the

Respondent. She admits that on 13th April, 2002 she had lodged a

detailed complaint against the Petitioner and her in-laws alleging

harassment and ill treatment made by the Petitioner and in-laws to

her. Further more, in paragraph 41 of the written statement, she

contends that since the police has not taken cognizance of the

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complaints, the Respondent filed the complaint under section 498A

that the Petitioner and her in-laws in the Court of Metropolitan

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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

accommodation in the same vicinity of South Mumbai and

maintenance of Rs.50,000/- per month to the Respondent and

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Rs.25,000/- per month for daughter Ayesha. She has alleged that the

Petitioner being a successful businessman and earning large amount

h
and denied all the contentions in the Writ Petition. About the
ig
withdrawal of the monies from the joint bank account of OCBC Bank,

Singapore, she contends that the money belongs to her. This,

H
however, is untrue as we will see when we have deal with this aspect

later on in the judgment. When juxtaposing the contentions in the

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written statement with those in the petition and upon analysing the
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evidence led by the parties, it becomes extremely clear that both

parties have alleged cruelty against each other. What is interesting to

om

note that she admits that the complaint under section 498A was filed

only because the police failed to take any action. This complaint was

thereafter dismissed. This conduct in filing the complaint even

B

during the pendency of the matrimonial dispute in the Family Court

speaks volumes of the Respondent's conduct. It is, therefore, difficult

to believe that the Petitioner and his parents were harassing the

Respondent for dowry. It is also difficult to believe that the

Petitioner's parents and the Petitioner expected that after the

marriage the Respondent's father would help the Petitioner to settle

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in business. We say so because it is the Respondent's case that the

Petitioner is doing extremely well in business and is living a life of

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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

Respondent's claim for maintenance. In evidence, Respondent states

that they have taken several holidays abroad and they travelled

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regularly by business class. Several such instances have been cited

in support of her contention that the Petitioner is living a life of

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luxury and, therefore, liable to pay maintenance to the Respondent

and her daughter.

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In these circumstances, it is difficult to believe

that the Petitioner or his parents expected the Respondent's father to

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help in his business or settle him down in business. These

contentions have been taken up only by way of a counter blast. On

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the other hand, the conduct of the Respondent and the parents on
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various aspects need to be noted. For instance, it is the Petitioner

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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defiant soon thereafter. As against this, the Respondent also claims

that after the birth of the child,the Petitioner became arrogant and
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abusive towards her. The Respondent's evidence lacks credibility on

this aspect. There are very serious allegations of cruelty which have

been brought out by the Petitioner in his evidence. For instance, in

August 1997 when the Petitioner's sister Jyoti had given birth to her

child, the Respondent is alleged to have accused the Petitioner of

being the father of the said child. This evidence has not been

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seriously challenged by the Respondent. Time and again, the

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

station. The Respondent's mother is alleged to called the Petitioner

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impotent and stated that he should be sheltered under the frill of his

mother. Further more instances the Respondent has falsely

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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

the cross examination by the Advocate for the Petitioner.

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119. In the evidence of the Petitioner's sister Jyoti, she has
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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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of the altercations between husband and wife revolved around money.

120. In the present case, we cannot but help observe the

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manner in which the respondent-wife has behaved. She has filed a

baseless criminal complaint under Section 498A of IPC at a time

when the Petitioner was in Lagos. She has accused the mother-in-law

of keeping the Respondent and daughter Ayesha hugnry without

giving them food and without permitting them to either bring food

from outide. Making uncalled for allegations, she has indulged in

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character assassination of her husband when she attributed to the

Petitioner-husband a statement that the Respondent's father was the

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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

and his parents of making dowry demands which have remained

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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

childern. In fact, the Respondent appears to have spared nobody in

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the Petitioner's family. Juxtaposed with this is the Respondent's

behaviour after summons from the Court Court proceedings were

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served. Suddenly she started sending letters and SMS to the

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Petitioner feigning her love for him. Such conduct is unbecoming of a

spouse. Applying the aforesaid tests to the present case and having
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considered the fact situation there is no doubt in our mind that the

Respondent wife inflicted mental cruelty on the Petitioner husband,

as a result of which made it impossible for the parties to live

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together. Equally, it cannot be said that the Petitioner may also

behaved in a cruel manner. The Respondent has in our view failed to

prove that the Petitioner has treated her with cruelty. The evidence is

loaded against the Respondent. It is clear that the Petitioner cannot

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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We are satisfied that the Petitioner has been subjected to mental

cruelty over a period of time and the Respondent's indifferent and

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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

that we have reached. The marriage is, therefore, beyond repair.

The relationship had deteriorated to such a great extent that the

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Petitioner cannot reasonably be expected to live with the Respondent

any longer.

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121.
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Thus, it is clear that frivolous allegations have been made

against the Petitioner which in our view clearly amount to mental

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cruelty. The Respondent's attitude towards child also deserves a

mention. The child Ayesha had developed chicken pox in and around
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December 1998. The Petitioner informed the Respondent who was

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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

the child to Lagos. However, the Respondent declined to go to Lagos

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and the Respondent's father threatened the Petitioner that he would

be beaten up he attempted to take the child Ayesha to Lagos. In our

view, the various aspects of cruelty are deposed by the Petitioner and

his mother leave us in no manner of doubt that the Respondent has

treated the Petitioner with cruelty. On behalf of the Respondent there

has been no attempt to stave off the allegations of cruelty. The

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challenge to the decree of divorce in Family Court Appeal

No.105/2007 filed by the Respondent-wife must fail and apropos issue

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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

no reason to interfere with the decree of divorce.

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123.
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We will now deal with the contentions made by Mr.Rao on

the aspect of desertion. As regards the submission of Mrs. Rao that

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the Respondent-wife has deserted her husband although it is evident

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.
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Although it would be open for Mrs. Rao to contend that the Petitioner

cannot be prevented from taking up new ground by virtue of

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provisions of Order 41, no application has been made to add

additional grounds. Although, we have allowed her to make

submission on this aspect, the contention that the Respondent- wife

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had deserted the Petitioner clearly seems to be an afterthought.

Moreover, it is well settled that to sustain the plea of desertion, a

party alleging desertion must not only prove that the other spouse

was living separately but must also prove that there was animus

deserendi on the spouse. We are fortified in taking this view by

Hon'ble Supreme Court's decision in Ravi Kumar V/s. Julmidevi

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reported in (2010) 4 Supreme Court Cases 476 in which the

Supreme Court has held in para 13 as follows:-

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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. ”

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124.
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In the present case, we find that no such animus

deserendi or more or less there is no case of the Petitioner that the

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Respondent-wife had deserted him. The Petitioner originally prayed

for judicial separation and thereafter, by way of an amendment

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divorce is sought on the ground of cruelty. In the facts of the present

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case, the submission of Mrs.Rao that the Respondent had deserted

the Petitioner need not continue to engage our attention. Although

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the Respondent has in her written statement contended that the

Petitioner had deserted her, no attempt is made to make it good.

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

Petitioner has conducted himself willfully in a manner which

furnishes reasonable cause for the wife to stay away from the

matrimonial home.

125. Throughout the arguments before us the emphasis was

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on the question of maintenance. We will deal with this aspect of

maintenance which is the only real issue that needs to be considered.

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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

some amounts by way of maintenance from the Petitioner.

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127. The Family Court vide the impugned order directed the
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Petitioner to pay Rs.25,000/- p.m. Each to the Respondent-wife and

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the daughter from the date of the order i.e. 21st April, 2008. In

Family Court Appeal No.105/2007 filed by the Respondent-wife, the

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Respondent challenges the quantum of maintenance and have taken

out the Civil Application for the same. The Civil Application

No.258/2008 filed by the Respondent for enhancement of

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maintenance to the extent of Rs.75,000/- each to the Respondent and

the minor daughter. Besides the Civil Application has since been

ordered to be heard along with these Appeals by an order dated 15 th

July, 2010 passed by this Court while disposing of the Civil

Application No.114/2010 in Family Court Appeal No.105/2008 and

Civil Application No.117/2010 in First Appeal No.105/2008. The Civil

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Application No.114/2010 was taken out for order directing the

Petitioner to pay education of Respondent's daughter.

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128. While disposing of the application for education expenses,

this Court directed that the Petitioner-husband would deposited an

amount of Rs.6,54,000/- will extended and the main appeal itself

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came to be expedited. By further order dated 10 th December, 2012

the Petitioner-husband was permitted to deposit an amount of

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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

withdraw the said amount upon such deposit. Accordingly, we have

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informed that all amounts payable towards maintenance have been

paid.
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ba

129. As far as issue no.3 is concerned, the Petitioner has

denied custody of the child Ayesha, however, as we write this

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judgment that the child is already a major and is studying abroad. In

the grounds of Appeal the Petitioner-husband has not challenged

refusal of custody. Thus, the only surviving issues are the subject
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matter of challenge are whether the Respondent and the daughter

are entitled to maintenance and the quantum.

130. Both the Petitioner and the Respondent have successfully

demonstrated that the other was extremely wealthy and the

Respondent well provided for. This can be seen from the evidence

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first of the Petitioner wherein he stated that after separating from his

brother's business, he started another company called Anivin Nigeria

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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

Rs.30,000/- and in addition, the company provided car, residence and

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

extent of loss incurred. He contended that there was no resolution

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passed during 1998 to 2005 in respect of the wiping out of the losses.

He could not provide the information relating to the stock of goods

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held by the company in 1998.

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131. He admitted to having received US $ 1,00,000/- as his

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share upon leaving his brother's business time. He admitted that after

separation from his brother he rented a 3BHK apartment but he could

not recall the rent amount paid. He spent about US $25,000 for
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renovation, purchasing furniture from London and having the same

transported. All these costs were borne by the company. In 1993, he

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

perks that he enjoyed from 1993-98. The company had provided

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three cars but there is no document on record for the same. He

deposed that the cars were provided by way of an “oral agreement”

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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

by the company in those days of about Rs.10,000/- . He was not

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assessed to tax in India and could not state the salaries of other

persons looking for other company. He has admitted to having bank

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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

monies have passed through these accounts. There has been

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transactions between his sister Jyoti Mahajan between June 1994 and

1998. In the bank statement of Oman International Bank itself,

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Rs.7,49,69,003.35 had been credited to his bank account out of which

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a sum of Rs.6,63,55,965.41 was withdrawn. He admitted that certain

business transactions have been intermingling with personal funds,

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but no bifurcation was furnished. This is only an indication of the

fact that the amounts which have been passed through bank accounts

referred to may include business transactions. However, he was not

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willing to identify his personal funds. The fact that the Petitioner is a

wealthy and engaged in business in Nigeria where he continues to

work and run the businesses is beyond doubt.

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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admitted by the Respondent and her father, the Respondent's father

is extremely wealthy, far wealthier than the petitioned being based

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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,

managed, controlled by the Respondent and her father. The

Respondent was shareholder in Sanwa Finance Ltd., Palmar and

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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

Finance Pvt. Ltd. holds shares in 9 other group companies, Palmar

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Investment and Trading Pvt. Ltd. holds shares in 16 group companies,

Modfash Exports Pvt. Ltd. holds shares in 14 group companies, Jayem

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Exports Pvt. Ltd. holds shares in 14 companies, Lekhraj & Sons holds
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shares in 4 companies, Sanwa Capital Pvt. Ltd. holds shares in 2

companies and Vanita Apparels holds shares in 2 companies. It is

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pertinent to mention that Palmar Investment and Trading Pvt. Ltd.

also owns two valuable apartments one in Mumbai and one in the

Prestigious NCPA Apartments at Nariman Point, Mumbai and Blue

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Haven at Malabar Hill. At different point in time, the Respondent

Vinita Kripalani has held shares many if not all the businesses as set

out in Exhibit 117 and 177.

133. Apart from these contentions, a trust named Vanita Trust

held shares in Jayem Exports Pvt. Ltd., Lekhraj & Sons Exports

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Pvt.Ltd., Sanwa Capital Pvt. Ltd., Vanita Apparels Pvt. Ltd. and

through these four companies held shares in 22 other group

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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

Respondent, she promptly divested herself of personal holdings in

these companies. This has been brought in the cross examination of

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the Respondent as well as the cross-examination of the Respondent's

father Murli Lekhraj. Apart from these companies in India, the

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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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manufacture of garments. The Respondent was a director in the said

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two Singapore companies and a third company in which Sanwa

(Holdings) Pte. Ltd. Respondent was appointed as a director on 1 st

August, 1998 and continued to be director till 15 th May, 2003 when

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she has ceased be director presumably by way of resignation after the

petition was served upon her. The annual reports of the various
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companies which has been brought on record also reveal sizable

investments by those companies. For instance, the Annual Return of

Sanwa Capitals Pvt. Ltd. as of 9th May, 2002 reveals that it held 39900

shares of various group of companies listed above. The Sanwa

Capitals Pvt. Ltd. held shares in stocks of public limited companies of

a value of more than 1,30,97,062/- as of March 2001. In this manner,

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large amounts of investments are also seen in Sanwa Finance Pvt.Ltd.

which discloses holding in equity shares of companies and short term

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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

immovable property and other assets valued at Rs.10,39,05,268/- as

of 31st March, 2001. It includes two immovable properties which are

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more valuable today after the passage of 15 years from the date of

initial valuation. Modfash Exports Pvt. Ltd. had investments worth

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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

investments there will also be liabilities in businesses, however, even

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providing for these, the balance sheets and profit and loss accounts

produced on record reveal that more than substantial assets were

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under the control of the Respondent's family members. The

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Respondent has for obvious reasons sought to distance herself from

these business in order to create any impression and in our view

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deliberately stated that she has no income of her own and she is

entirely dependent on her father for survival. For the purpose of

these Appeals, we are not required to deal with into details of the
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investments and wealth of the Respondent. No case for enhancement

of maintenance has been made out. During the course of submissions

we inquired to Mrs. Rao, the learned counsel for the Petitioner as to

whether the Petitioner was willing to contribute towards the cost of

education of their daughter Ayesha who is presently studying in

Berkeley College in the U.K. The Petitioner has fairly agreed to share

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one half of the expenses. We are, therefore, of the view that the

Respondent is not entitled to any enhancement of the maintenance

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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

wife will be entitled to inform the Petitioner husband about the

expenditure required to be incurred on the education of the

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daughter. In the event, the Petitioner husband declines to

contribute within a reasonable time, the Respondent wife will be

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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

continue to receive maintenance of Rs.25,000/- per month for herself

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and further sum of Rs.25,000/- per month for maintenance of her

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daughter Ayesha. In addition to these amounts, the Respondent and

the Petitioner will share equally the daughter’s education expenses.

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The Respondent’s lifestyle does not appear to have undergone any

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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incorrect statements as to the need for medical treatment and cost of

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

USD 52000 was transferred to the Sanwa International (PTE) Ltd. It

was so transferred at the instance of her father and she has taken

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loans from her father. She claimed that she does not understand

finances or the business and as she is not educated therefore does

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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

believe that she is a person without means or capability. She has

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proceeded to educate her daughter in England without seeking the

Petitioner’s consent or permission with the express knowledge about

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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

sides have demonstrated huge reluctance in disclosing their real

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earnings and assets to the court. They have been extremely guarded

in disclosing matters of finance. We are not in agreement with the

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submission of Mrs. Rao that the Respondent is not entitled to

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maintenance on account of her having allegedly deserted the

Petitioner. At the same time, we do not find there is any case for
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enhancement of maintenance given the financial background of the

Respondent and the facade that she has no income of her own. In

these circumstances, we pass the following order:-

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i) Family Court Appeal No.105 of 2007 is dismissed;

ii) Civil Application No.258 of 2008 taken out by the

Respondent-wife do not survive. The same is also dismissed;

iii) Family Court Appeal No.128 of 2008 is dismissed;

iv) Civil Application No.59 of 2012 does not survive and the

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same is also dismissed;

v) The Petitioner i.e. Appellant in Family Court Appeal

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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

sum of Rs.25,000/- per month and also continue to pay

Rs.25,000/- to his daughter;

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vi) The Respondent wife will be entitled to inform the Petitioner

husband about the expenditure required to be incurred on

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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,

the Respondent wife will be entitled to approach the Family

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Court for appropriate directions.

vii) Each party to bear their respective costs.

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(A. K. MENON, J.) (A. S. OKA, J.)

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