Divorce HIV

Bombay High Court

Sunil Lakhotia vs Pratima Lakhotia, Hindu, Indian ... on 22 October, 2008

Bench: P. B. Majmudar, R.P. Sondurbaldota

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO. 189 OF 2008

Sunil Lakhotia ) C/o. Sunita Mantry, Age 44 years, ) Off. Service (at present), residing at Rainbow Bldg., ) 1st floor, 262, Shantilal Modi Marg, Kandivli (West), ) Mumbai-400 067 )..Appellant versus

Pratima Lakhotia, Hindu, Indian Inhabitant, ) Age 41 years, Occ. Housewife (at present) ) residing at Neha Apartment Hsg. Society Limited, ) CTS No. 12534, 4th floor, "B" Wing, Flat No. 401, ) Chincholi Bunder Road, Off. Link Road, ) Malad (West), Mumbai-400 064. )..Respondent. Mr. A.V. Anturkar with Mr. Pankaj Bhatt, instructed by Mr. S.B. Deshmukh for the appellant.

Respondent in person.

CORAM: P.B. MAJMUDAR &

SMT. R.P. SONDURBALDOTA,

JJ.

DATE: OCTOBER 22 & 23, 2008.

ORAL JUDGMENT (Per P.B. Majmudar, J.)

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

2. The respondent herein instituted proceedings for dissolving the marriage between herself and the appellant herein. The respondent had filed a petition under Section 13 (1) (ia) and 13 (1) (v) of the Hindu Marriage -2-

Act, 1955 (hereinafter referred to as "the Act"). Initially, the said petition was decided ex-parte in favour of the present respondent and a decree of dissolution of marriage was passed by the learned Judge of the Family Court. The appellant herein subsequently challenged the said order by filing an appeal before this Court and a Division Bench of this Court vide its common order dated 29th November, 2007 passed in Family Court Appeal Nos. 26 of 2006 and 67 of 2007 set aside the judgment and decree and remanded the matter to the Family Court with liberty to the present appellant to defend the case by submitting his evidence. After remand, the learned Judge of the Family Court vide her order dated 7th August, 2008, allowed the petition and the marriage solemnized between the appellant and respondent was dissolved by decree of divorce. The Family Court allowed the custody of minor son Devang with the respondent. The appellant was directed to pay a sum of Rs.20,000/- per month to the respondent towards permanent alimony for herself and Rs.15,000/- per month to the minor son Devang till he attains the majority from the date of the order. The appellant was also restrained from selling or alienating or disposing off the matrimonial house as mentioned in amended paragraph 22 of the petition till residential accommodation is made available to the respondent. The appellant was also directed to return the stridhan to the respondent within 15 days from the date of the order. It was further directed that the appellant shall provide a well furnished three bed room residential apartment to the respondent somewhere between Andheri and Malad and till such apartment -3-

was made available, the appellant was directed to pay Rs. 10,000/- per month to the respondent towards rent. The aforesaid judgment and decree of the learned trial Judge is impugned in the instant appeal at the instance of the appellant-husband, who was respondent in the petition.

3. So far as the factual aspect of the matter is concerned, the marriage between the appellant and the respondent took place on 23rd January, 1988, as per the Hindu Vedic Rites at Mumbai. Out of the said wedlock, two issues were born viz. Dhruv and Devang. Both the children are staying with the respondent-wife. It is the case of the respondent in her petition that theirs was a love marriage. It is the case of the respondent that she belongs to an educated and respected Marwari family and that after the marriage, it was noticed by her that the appellant had a phobia for sex and that he had a mental block for sex. In view of the same, they consulted a well-known Sexologist Dr.Prakash Kothari, who opined that the appellant was physically fit but had a mental blockage due to some past incidents. It is the case of the respondent in her petition that instead of developing intimacy with her, the appellant did not cooperate and the marriage was consumed with great difficulty. Some averments have been made in the petition in connection with certain allegations made by the in-laws against the respondent. It is averred in the petition that she was not allowed to mingle with outsiders nor was allowed to speak to her parents. In her petition it is also alleged that in December, 1988 when the family had gone to Lonavala -4-

for few days, her sister-in-law's husband Mr. Kailash Mantry tried to act in an indecent manner. It is her say that the appellant at that time was totally drunk and did not react to the situation and did not uphold her dignity which caused her mental pains. It is also her allegation that she was not allowed to have proper rest during her pregnancy. It is also stated in the petition that the appellant's brother Mr. Rakesh Lakhotia tried to make indecent advances towards her at the time when the appellant was away. When she informed him about the said incident, she was told that he was helpless and could not do anything in the said matter. It is also her allegation that the appellant even though had several businesses could not get success in any manner and he incurred huge losses in his business and thereafter he has never tried to do any constructive work. In the petition, there is also an averment to the effect that when the appellant was dealing in garment business, he was required to commute frequently during that period. It is her case that she was accused of being characterless by her in-laws. It is also her case that she was compelled to confess that she had extra marital affairs and her father-in-law pressurised her to make such confession. It is also her case that she developed gynaecological problems during her second pregnancy. It is also alleged by her that she came to know about the adulterous behaviour of the appellant and his extra marital affairs and because of the same, some time in 1996-1997, the appellant's health started deteriorating and he became very weak. Several medical investigations were carried out for the appellant as well as for the -5-

respondent. The report of respondent was found to be normal. The report of the appellant showed that he was suffering from HIV- I and II positive, which finally leads to AIDS. According to her, her in-laws blamed her for this state of affairs. It is her further case that in 1998, her father-in-law purchased a separate flat on the first floor in the same building and the appellant and the respondent were forced to live separately in the said flat. It is also her case that on 25th April, 2000 she had to lodge a N.C. Complaint bearing No. 2006 of 2000 with the Dindoshi Police Station, Malad. It is also the case of the respondent that at the requests of the appellant and in view of the promise given by the appellant not to harass her that she returned back to the matrimonial home on 15th May, 2000. After about two weeks, the appellant made a demand to restore sexual relationship and in view of such unusual demand, as he was suffering from HIV, a quarrel took place between them on 14th July, 2000, and subsequently the respondent was forced to leave the matrimonial home. It is her case that she was not allowed to take her jewellery with her. It is the say of the respondent in her petition that the said incident caused a lot of mental pains and agony to her and in view of the appellant's abnormal sexual demands, the respondent's physical and mental health was affected. On the aforesaid grounds, the petition was filed by the respondent for annulment of marriage. In her petition, she has also prayed for separate residence and maintenance for herself and for her children.

4. The appellant in his written statement to the petition alleged that -6-

the respondent has been leading adulterous life. She initially had love affair with one Ramesh, who was driver of the van in which son Dhruv used to go to school. The appellant had caught them red-handed. When confronted, the respondent had assured to mend her ways. However, thereafter, she got involved with one Satish Kalang and then with one Om Hari Malang. As regards the allegations made by the respondent in the matrimonial petition against the appellant and his brothers-in-laws, according to the appellant, the allegations of advances made by his brothers-in-laws towards her, are false and are made only by way of covering up her own adulterous conduct. As regards his own medical condition of being HIV +ve, the appellant did not dispute the same. However, he sought to give an explanation as to how he contracted it. The appellant contended that in March 1995, he was suffering from a cut to the skin of his penis. The respondent compelled to him to go to Kelkar Hospital, Andheri (West), where he was operated under local anesthesia. Since that time, he was having health problems which at a later stage was diagnosed as HIV Positive. The appellant denied all the allegations of cruelty on his part. It is his contention that after the respondent left the matrimonial home on 24th April, 2000, she returned not on 15th May, 2000, but on 14th July 2000, only to carry her belongings, including Stridhan. After packing her belongings, she called her parents who came accompanied by a Police Sub-Inspector and two police Constables. She took away all the belongings under the escort of her parents and police personnel. She gave a writing to the effect that she had taken away all the belongings, ornaments, -7-

jewelery etc.

5. As pointed out earlier, the petition was allowed by the learned Judge of the Family Court vide ex-parte order dated 6th July, 2005, and decree of dissolution of marriage was accordingly passed. The learned Judge of the Family Court at that time, directed the appellant to pay an amount of Rs. 15,000/- per month towards maintenance to the respondent and to pay Rs. 10,000/- per month for maintenance of each of the children. The Judge of the Family Court also granted injunction in connection with creating third party rights/interest in the properties viz. 1/A Terrace Flat at Saraf Apartment, Rani Sati Marg, Malad (East), Mumbai as well as in connection with other properties i.e. Commercial premises at Gambhir Industrial Estate, Khopoli and motor cars. The Judge of the Family Court also directed the appellant to hand over the stridhan of the respondent and personal belongings of the children and pay costs of Rs.50,000/-. As pointed out earlier, an appeal was filed by the appellant being Family Court Appeal No. 26 of 2006 and a Division Bench of this Court by its order dated 29th November, 2007 set aside the said order while granting an opportunity to the appellant to defend the matter. The matter was thereafter remanded to the Family Court with a direction to expedite the hearing. After remand, the learned Judge of the Family Court has passed the impugned order which is the subject matter of this appeal.

6. Mr. Anturkar, learned counsel appearing for the appellant, has -8-

challenged the decree of the trial Court on the ground that the trial Court has committed an error in passing the decree under Section 13 (1) (v) of the Act by coming to the conclusion that the appellant is suffering from venereal disease in a communicable form. Mr. Anturkar has also challenged the decree passed by the trial Court on the ground of cruelty and in his submission the trial Court has committed an error in passing the decree on the ground of mental cruelty. It cannot be said that any case regarding mental cruelty has been made out by the wife. The finding of the trial Court regarding return of stridhan as well as award of maintenance has been challenged by Mr. Anturkar. So far as the question regarding stridhan is concerned, it is argued by Mr. Anturkar that since respondent-wife had already taken away the entire stridhan at the time of leaving the house of the appellant for which a receipt was also given, no order regarding return of stridhan was required to be passed, especially when such receipt was executed in the presence of the Police Constable from Dindoshi Police Station as well as in the presence of her father.

7. On behalf of the respondent, the respondent has argued her case in-person and she has supported the judgment and order passed by the learned Judge of the Family Court. She has mainly relied upon her written submissions filed before the trial Court as well as the affidavits filed by her at the time of trial.

October 23, 2008

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8. We have heard both sides at great length. We have gone through the voluminous documentary evidence on record and we have also perused the affidavits filed by the parties and the cross-examination of the parties.

9. The appellant has been suffering from HIV virus and is at the second stage of infection. Learned Trial Judge granted decree of divorce under Section 13(1) (v) of the Act, observing "It is well established that HIV Virus leads to AIDS which is venereal disease, which is sexually transmittable and so is communicable. Under such circumstances, the disease squarely falls within the ambit of Section 13(1) (v) of Hindu Marriage Act". Mr.Anturkar, the learned counsel for the appellant takes strong objection to the above observation. He submits that it is so far not established anywhere that condition of HIV +ve is a venereal disease. According to him, this condition cannot be treated so for various reasons.

10. Mr.Anturkar has taken us through the meaning of word "venereal disease" from Concise Oxford Dictionary. The meaning given therein is "any of various diseases contracted chiefly by sexual intercourse with a person already infected; a sexually transmitted disease." He submits that as per the dictionary meaning, a disease can be said to be a venereal disease only if it is transmitted sexually. He has next taken us through Miller-Keane Encyclopedia and dictionary of Medicine, Nursing and Allied Health. (Sixth Edition) published by W.B. Saunders Company. Page 1707 of this dictionary gives following meaning of the word 'Venereal" :

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Venereal - Pertaining to, related to or

transmitted by sexual contract.

V. disease - Sexually transmitted disease.

Mr.Anturkar submits that venereal disease is thus seen to be essentially a sexually transmitted disease. However, the same cannot be said to be of condition of HIV +ve or AIDS. As per medical science the virus of HIV gets transmitted by four different means, (i) sexual contract (ii) blood transfusion, (iii) sharing of hypodermic needles and (iv) from mother to child either during pregnancy or breastfeeding. Therefore, according to Mr.Anturkar, it would be incorrect to put HIV virus infection or AIDS in the class of venereal disease.

11. Mr.Anturkar has next tried to compare the HIV virus infection with the infection of meningitis which is not considered as venereal disease. Meningitis is transmissible by means of sexual contract but that is not the primary vector for the pathogens that cause meningitis. Thus, there can be no comparison between the two.

12. It is not possible for us to accept the above submission of Mr.Anturkar. The term "venereal disease" is not defined anywhere and that is rightly so thereby removing the rigours of rigidity. It loosely describes a class of diseases that are transmitted not "exclusively" by sexual contact but "chiefly" by sexual contact. Some decades back the existence of HIV virus, it's means of transmission, it's infection and consequences thereof were unknown. Had the term been defined by specifying the diseases falling -11-

therein, it would have been impossible to consider the infection by HIV virus as a venereal disease. That being not the position, we will have to look for the common factors between the diseases that are accepted to be venereal diseases and the infection of HIV virus. The main common factor is the means of transmission. Like other venereal diseases of syphilis, gonorrhea, Hepatitis B etc., the infection of HIV virus is chiefly transmitted sexually. The other means of transmission are less common. Merely because there are other means of transmission, it is not possible to restrict the meaning of "venereal disease" and omit infection of HIV virus therefrom.

13. Mr.Anturkar has then submitted that unless a private organ is affected, it cannot be said that a person is suffering from venereal disease in a communicable form. This argument nowhere fits into the meaning of venereal diseases pointed out by Mr.Anturkar himself.

14. Mr.Anturkar then draws our attention to the decisions of the Supreme Court in the case of Mr.X V/s. Hospital Z, reported in (1998) 8 S.C.C. Page 296 and Mr.X V/s. Hospital Z, reported in (2003) 7 S.C.C. Page 500. The two cases are relating to "suspended right to marry" and "medical ethics in connection with maintaining secrecy" respectively. They were not concerned with a proceeding under Section 13(1)(v) of the Act. Hence, both the decisions are not relevant for the present purpose.

15. In all the above circumstances, we hold that infection of HIV virus leading to AIDS is covered by ground of divorce at Section 13(1)(v) of the Act. The learned trial Judge was right in passing decree of divorce under the -12-

provision.

16. The next ground raised in the petition is in connection with cruelty. So far as aspect of cruelty is concerned, the respondent has cited certain incidents to substantiate her say as to how such an act constitutes cruelty. In this connection, in her petition as well as in her affidavit which she has filed, she has narrated the instances occurred when the family visited Lonavala. In connection with the allegation about cruelty, she has narrated various incidents from time to time. In our view, some may be relevant and some may not be of much relevance for deciding the point regarding cruelty. In her petition, cruelty aspect has been narrated by her in paragraph (g). So far as the alleged misbehaviour of her sister-in-law's husband is concerned, even as per the say of the respondent in her application that the appellant was in a drunken condition. In her affidavit given by way of examination in chief, she has stated in para 7 thus:

" I say that the Respondent's family members used to misbehave with me and once his brother Mr. Rakesh

Lakhotia and brother-in-law Mr. Kailesh Mantri made

advances towards me when I was alone at home. I disclosed about the said incident to the Respondent as well as to my in-laws showing his inability the respondent ignored the said incident. I suffered extreme mental agony as neither the respondent nor his parents were supportive against my ill- treatment in the hands of other family members. "

It is pertinent to note that she has not stated that the said Mr. Kailesh Mantri -13-

has misbehaved at Lonavala. The allegation in this behalf against the said person is, in our view, vague. It is, therefore, not possible to believe that she was subjected to cruelty because of the aforesaid behaviour of Mr. Kailash Mantri (brother in law of the appellant). So far as the other allegation of the respondent-wife about her husband is concerned, she has stated in her affidavit as well as in her application that even though she pointed out this fact to the appellant, the appellant neither tried to protect her nor gave any warning or lodge any protest before his brother-in-law in this behalf.

17. So far as the aforesaid incident is concerned, in her evidence which she has tendered by way of affidavit, the same is clearly narrated and nothing has been brought out in her cross-examination by which it can be presumed that she is telling lies. Similarly, she has narrated the incidents regarding ill-treatment meted out to her by other family members. In connection with the disease of the appellant, accusations and allegations were made against the respondent by the family members of the appellant. It may be true that the husband himself cannot be directly said to have committed cruelty. However, if his brother-in-law has misbehaved with the respondent, it was the paramount duty of the husband to protect her in all respects. If any untoward incident has occurred, a married lady, who has left her parental house after the marriage, can only draw attention of the same to her husband as ultimately it is the duty of the husband to protect his wife and it is expected of her husband to take all reasonable care to protect the safety -14-

of his wife with a view to see that the matrimonial home runs smoothly. From the evidence, it is clear that the appellant has not bothered to take care of the respondent and never tried to protect her. It has come in evidence that at the time when it was detected that the appellant was suffering from HIV-I, even allegation was made against her by the in-laws that it is because of her that he has contacted such disease which is ultimately found to be incorrect as per the evidence on record. It has also come in the evidence that she was not at all looked after by the appellant. She was subjected to certain allegations for which there was no basis. In our view, the respondent wife has made out her case about cruelty meted out to her. The question of cruelty is to be judged on the totality of the circumstances. Under Clause (ia) of Sub-section (1) of Section 13 and under sub-section (1) of Section 10 of the Act, cruelty is a ground of divorce as well as judicial separation respectively. Whether a particular act or conduct complained of, is covered under the ground of cruelty or not, is to be decided on the facts and circumstances of each of the case. The question as to whether a particular act or behaviour would amount to cruelty or not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. Cruelty is classified into two heads i.e. physical cruelty and mental cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Mental cruelty can be inflicted in various ways. In the instant case, the learned trial Judge after considering the evidence on record -15-

has passed decree of divorce and, in our view, it cannot be said that no case of cruelty has been made by the respondent wife. The respondent wife has already narrated the incident in her affidavit which she had tendered in lieu of examination-in-chief and nothing substantial has been brought on record on behalf of the appellant in the cross-examination of the respondent-wife. Considering the same, it cannot be said that the allegations made by the respondent against the appellant are false. Considering the evidence on record, in our view, the decree passed by the trial Court regarding dissolution of marriage, therefore, is required to be upheld and we uphold the same.

18. The next question is in connection with the decree passed by the trial Court in connection with the stridhan of the respondent. So far as the question about stridhan is concerned, it is required to be noted that as per the receipt placed on record at Exh. 87, which is in her own handwriting, she has stated that she was leaving the house by her own will with her parents and kids along with her personal belongings and stridhan. Though in the said receipt, no particulars are given but nonethless it is an admitted fact that the said receipt has been given by her in her own handwriting. It is also required to be noted that on the relevant day i.e. 14th July, 2000, the father of the respondent along with a police constable from the Dindoshi Police Station came at the residence of the appellant. At that time, while leaving the house of the appellant, she had executed the said writing. It is also required to be noted that after executing the said writing, she had not taken out any separate proceedings in any manner nor made any complaint in -16-

writing to anyone that such writing was taken by way of force or under coercion. Though in the N.C. Complaint filed by the appellant, when she was summoned to the police Station, according to her, she made a complaint in this behalf about stridhan. But the fact remains that the respondent has never tried to lodge any grievance in this behalf for a considerable period. The respondent has not even written a single letter for a considerable period regarding non-return of the entire stridhan. Even the Police Constable who was present on the relevant day was also not examined.

19. Considering the said fact, there is a word against word in connection with the stridhan. However, there is documentary evidence in the form of receipt given by her coupled with the fact that a police constable was also present. Even if any shortfall of stridhan is there, the respondent was not expected to give it in writing as at the time of executing such writing, she was not under any fear as her father as well as the Police Constable were also present with her. Under these circumstances, we are of the opinion that the finding of the learned trial Judge in connection with handing over of stridhan is not required to be upheld as from the evidence on record, it can be inferred that at the time of leaving the house, she had taken away her stridhan with her.

20. So far as decree regarding maintenance is concerned, Mr.Anturkar submitted that for the maintenance of the children, the Act is applicable and the Family Court has no jurisdiction to grant maintenance for -17-

the children under the Act and the respondent was required to take out appropriate proceedings in this behalf. Under Section 25 of the Act, the Court exercising jurisdiction under the Act may, at the time of passing any decree or at any time subsequent thereof, on application made to it, pass an order of maintenance. Even under Section 26 of the Act, the Court has power to pass a decree for the maintenance of the children. Section 26 of the Act reads as under.

"26. Custody of children.- In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon

application by petition for the purpose make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

Provided that the application with respect to the

maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent."

Considering the aforesaid Section and its proviso, it is not possible for us to accept the said argument that the Court has no power to grant maintenance under the Act.

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21. Mr. Anturkar further submitted that the trial Court has erred in passing decree for alimony as the appellant has no means by which he can pay the maintenance. In this behalf, reference is required to be made to various documentary evidence in the form of profit and loss account and balance-sheet maintained by the appellant in the ordinary course of his business. The said documents form part of the record and it is seen from the said documents that the appellant was shown to have sufficient income at the relevant time. Considering the aforesaid documentary evidence ie. Profit and loss account and balance sheet of various years, it cannot be said that the appellant is not in a position to pay alimony to his children and wife. It has come in evidence that he was having a frequent travellers card of an airline. He was having his own telephone. There are certain properties which were initially in his name. The wife in his application has stated that his monthly income was Rs. One crore from various sources and that he led an extravagant life. The trial Court, after considering the evidence on record, has observed as under in paragraph 51 of the judgment. " 51. The respondent has tried to avoid his responsibility by stating that he has very negligible income and he is merely earning about Rs. 7000/- per month by doing a job.

However, the evidence shows that though the respondent i residing separately, there is no evidence to show that he is severed himself from the joint family of his father which carried on huge business and has huge income. It also seems that besides the terrace flat at Saraf Apartment, respondent also owned a commercial premises at Gambhir Industrial Estate flat No. 101, 102 and 103 and 5 acres land at Khopoli, which he again transferred to his father during the -19-

pendency of this petition. Considering this financial status of the respondent and considering that he is a member of the join family having a large business also, it is just and proper to direct the respondent to make arrangement for

accommodation o the petitioner as he has transferred her matrimonial house defeating her rights. Hence, petitioner's prayer for providing residential flat is allowed. The petitioner has deposed that presently she is residing in a rented flat, for which Rs. 10,000/- rent is being paid by her father. Hence, till the residential accommodation is made available to her, respondent is directed to pay Rs. 10,000/- per month as rent, to the petitioner. Hence, additional issue No.5 is answered accordingly."

On the basis of the evidence on record, the learned trial Judge has arrived at the above finding. It has been rightly found that the appellant and the respondent were residing in a terrace flat at Saraf Apartment, Rani Sati Marg, Malad and that the wife had a right in the said matrimonial house. The said flat is subsequently sold to the father-in-law of the respondent and we find substance in the argument of the respondent that the same has been done only with a view to see that the order of alimony may only remain a paper decree. It is not in dispute that at the time when the proceedings in connection with permanent alimony were pending, the flat was sold by the appellant to his father and, in our view, it can safely be said that the same has been done only with a view to defeat the right of the respondent in connection with permanent alimony. The transaction of the said flat has already been carried out during the pendency of the proceedings and even after the remand order of the High Court. Considering the series of documents in the nature of balance-sheet and profit and loss account of -20-

earlier periods and considering the fact that the appellant is a frequent traveller, in our view, the order of permanent alimony passed by the trial Court is not required to be disturbed in this appeal and hence the order of the trial Court in this behalf is confirmed.

22. During the course of hearing, the respondent has submitted that her father-in-law made a charity of a large amount. Be that as it may, it is not possible for us to conclude that so far as other properties of her father-in-law are concerned, the same was a joint family property, especially when against the finding of the trial Court, no cross appeal or cross objections have been filed. During the course of hearing it is pointed out that in the past the appellant was ready to pay a considerable amount to the respondent towards her maintenance and maintenance to the minors but at that time the respondent was not willing to accept the same. Mr. Anturkar submitted that now the father of the appellant is not willing to help him and, therefore, there is no scope for settling the dispute.

23. So far as the direction of the trial Court regarding providing apartment to the respondent between Andheri and Malad is concerned, in our view, the trial Court was not justified in directing the appellant to provide the same only in a particular area. However, it is required to be noted that the respondent is also required to be provided accommodation in an area, keeping in mind the fact that her children are also studying in the school and -21-

if alternative accommodation is given at a great distance, it may cause great inconvenience to her. Considering the totality of the facts and circumstances of the case, we modify the said direction regarding providing residential accommodation between Andheri and Malad and direct that the appellant shall provide a well furnished decent accommodation to the respondent in a good locality within the area between Andheri and Borivli. The rest of the order of the trial Court regarding payment of Rs. 10,000/- per month till residential accommodation is made available to the respondent is confirmed. The appellant may try to provide such accommodation expeditiously and without any reasonable delay so that the respondent may not have to wait indefinitely for getting such accommodation.

24. The award of Rs.20,000/- per month to the respondent towards permanent alimony for herself and Rs. 15,000/- to her minor son Devang till he attains majority is also confirmed. The decree of divorce granted by the trial Court is also confirmed on both th grounds.

25. The decree in connection with the return of stridhan is set aside and the rest of the decree of the trial Court is confirmed. Appeal is accordingly partly allowed to the aforesaid extent.

P. B. MAJMUDAR, J.

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SMT. R.P. SONDURBALDOTA, J.

th

18 December,2008

26. After the judgment was dictated in the open court and before it was signed, the respondent had preferred a Civil Application bearing No. 345 of 2008 for giving further direction in the judgment as regards providing residential accommodation within a fixed period. Since the judgment was dictated in the open court, it was felt necessary to issue notice to the appellant and accordingly notice was issued on the said application. As per the endorsement of the Registry, the same has not received back. Respondent, therefore, submitted that in order to see that the signing of the judgment is not further delayed, she is not pressing the said Civil Application. The said Civil Application is disposed of today by passing a separate order. P. B. MAJMUDAR, J.

SMT. R.P. SONDURBALDOTA, J.