Allowed

Mehernosh Keki Dumasia v. Sherry Mehernosh Dumasia

Bombay HC24 Jun 2013PS/6/2013

Case brief

AI extract

What is this about?

The plaintiff sued for divorce on grounds of desertion under Section 32(g) of the Parsi Marriage and Divorce Act, 1936. The defendant, who had migrated to New Zealand, had previously obtained a dissolution of marriage there but had not contended in Indian proceedings. The court found the desertion justified and decreed the divorce.

What did the court decide?

A decree of divorce dissolving the marriage solemnized on 17th December 1987 at Mumbai under Section 32(g) of the Parsi Marriage and Divorce Act, 1936.

Mehernosh Keki Dumasia Vs Sherry Mehernosh Dumasia — Matrimonial and Divorce | Bombay HC (2013)

PS6-13.doc

Sequeira

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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PARSI SUIT NO. 6 OF 2013

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Mehernosh Keki Dumasia of Mumbai, Parsi Zoroastrian, Indian Inhabitant, Age : 52 years, Occ.: Service permanent residence at Maneck Mansion, 2^nd floor, Flat 9, Station Road, Mahim Mumbai 400016 Working for gain in UAE since 1979 .. Plaintiff

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Sherry Mehernosh Dumasia. POI, Parsi Zoroastrian, Inhabitant Of New Zealand, Age : 49 years, Occ.: Service; residing at 2/138, Bucklands Beach, Auckland 2012 New Zealand .. Defendant

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Ms.Armaity S.Khushrushahi, for plaintiff

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CORAM: N.M.JAMDAR, J. Monday 24 June, 2013

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P.C.:

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This suit is filed by the plaintiff seeking a decree of divorce against the defendant on the ground of desertion, under section 32(G) of the Parsi Marriage and Divorce Act 1936.

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On 8 May 2013 the following order came to be passed in the suit-

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“The above suit is filed for divorce under the provisions of Section 32(g) of the Parsi Marriage and Divorce Act, 1936 on the grounds of desertion. Defendant/wife has acquired

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PS6-13.doc

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citizenship of New Zealand and the plaintiff/husband is an Indian citizen, who is working in U.A.E. Defendant filed proceedings in the Family Court at New Zealand against the plaintiff for dissolution of their marriage and the marriage was dissolved by the Deputy Registrar of the Family Court of New Zealand at Manukau on 17^th February, 2012. Since the marriage between them was solemnized in Mumbai as per the Parsi Zoroastrian rites and customs, the present petition is filed for dissolution of the marriage on the ground of desertion. The defendant has given no objection for dissolution of their marriage, which is at page 15 of the suit (Ex.'D'). Summons of this suit is already served and the service affidavit to that effect is already filed. However, none appears on behalf of the defendant. Plaintiff has also not filed affidavit in the form of examination-in-chief. The learned counsel for the plaintiff states that by the next date, evidence in the form of affidavit in lieu of examination-in-chief, will be filed in this Court.”

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The learned counsel for the plaintiff tenders affidavit of evidence, which is taken on record. The affidavit of service of writ of summons on the defendant is already filed on 9 April 2013, as noted in the order dated 8 May 2013. Inspite of this position, no written statement is filed nor any appearance is filed onbehalf of the defendant. In view of this position there is no option but to proceed with the suit exparte.

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It appears from the perusal of the plaint and the affidavit of evidence produced on record by the plaintiff that the plaintiff was married to the defendant on 17 December 1987 at Mumbai according to Parsi Zorastrian rites and customs. There are two issues out of this wedlock viz. son Delzad who is now 23 year old and daughter Freya who is now 18 year old. The plaintiff was residing in UAE prior to marriage. After marriage he went back to UAE. For some time the defendant and the plaintiff cohabited at UAE. Thereafter the defendant migrated to New

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PS6-13.doc

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Zealand with her two children and the plaintiff continued to work at UAE. It appears that differences arose between the parties around the year 2009. According to the plaintiff the defendant showed no interest to cohabit with the plaintiff .

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The defendant filed proceedings for dissolution of marriage in the Family Court in New Zealand on 18 January 2012 and an agreement for separation and division of matrimonial property was submitted in Family Court New Zealand, on 24 February 2012. On 18 March 2012 an order dissolving marriage was granted by the Family Court. This order has been annexed to the plaint as well as original copy is produced in the Court.

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The learned counsel for the plaintiff submits that the order dissolving the marriage has already been acted upon and there has been division of matrimonial property. It is also pointed out that the defendant has addressed a letter dated 5 March 2012 which is annexed to the plaint accepting the position that there was a divorce in the Family Court at New Zealand and further she has no objection for her husband i.e. the plaintiff to obtain divorce as per Zoroastrian Family law.

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The learned counsel for the plaintiff submits that the defendant has not filed her appearance in this court nor is filing affidavit to the effect that she is agreeable to take a divorce by mutual consent even though the order passed in the Family Court in New Zealand recording her consent and that she has written a letter dated 5 March 2012 that she is agreeable to obtain divorce as per Zoroastrian Law in India. The learned counsel

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PS6-13.doc

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for the plaintiff submits that in view of this position she has no option but to seek divorce on the ground of desertion.

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A perusal of the plaint which has gone uncontested demonstrates that before the marriage the plaintiff was residing in UAE and for some period of time both the parties resided together in UAE. Thereafter the defendant migrated to New Zealand along with the children. Thus, the position today is that the defendant has continued to reside in New Zealand for more than two years. She has herself moved for divorce in the Family Court in New Zealand which has been granted. The defendant is not appearing in the present suit to contest the averments made in the suit. Overall consideration of the facts indicate that the grievance of the plaintiff that the defendant has deserted the plaintiff is justified. A ground for granting decree under under section 32 (g) of the Act has been made out.

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In view of the above position, the suit is decreed in terms of prayer clause (a) :

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“Clause (a) -

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For a Decree for Divorce dissolving the marriage solemnized on 17^th December 1987, at Mumbai, under Section-32 (g) the Parsi Marriage & Divorce Act 1936”.

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Decree be drawn up accordingly.

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N.M.JAMDAR, J.

Mehernosh Keki Dumasia v. Sherry Mehernosh Dumasia

Case brief

What is this about?

What did the court decide?

Mehernosh Keki Dumasia v. Sherry Mehernosh Dumasia

Case brief

What is this about?

What did the court decide?

What the court decided

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