Sheenaz Dastur(Plaintiff No.1) v. Hormazd Noshir Dastur(Plaintiff No.2)

1 3-PS-22-2022.doc by MULEY SHUBHAM PRAVINRAO Date:

2022.12.26 16:07:53 +0530 MULEY SHUBHAM PRAVINRAO

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION PARSI SUIT NO. 22 OF 2022 Sheenaz Dastur ... Plaintiff No. 1 AND Hormazd Noshir Dastur ... Plaintiff No. 2 ----- Ms. Nerissa Almeida i/b Ms. Armaity S. Khushrushahi for Plaintiffs ----- CORAM :

ARIF S. DOCTOR, J.

rd DECEMBER 2022 DATE :

P.C. :

1.

The present Suit is filed under Section 32-B of the Parsi Marriage & Divorce Act, 1936 ("PMD" Act), whereby the Plaintiffs have prayed for divorce by mutual consent. Both the Plaintiffs are present in Court. The plaint sets out that the Plaintiffs got married on 9 th May, 2004 at St. Joseph Convent Primary School Compound, Mumbai, according to the Parsi Zoroastrian rights and customs. A marriage certificate dated 11 th October, 2007 is annexed to the Plaint as Exhibit "A".

2.

The Plaintiffs do not have any children born from the marriage. After the marriage the Plaintiffs co-habited and resided together at 369 Villa Queenie, st Floor, Flat No. 5, 16 th Road, TPS III, Bandra (West), Mumbai-400050. The

2 3-PS-22-2022.doc Plaintiffs state that some years after marriage serious disputes and differences cropped up between the plaintiffs which caused a rift between them. It eventually grew and brought about an unpleasant atmosphere in the house as a result of which both the Plaintiffs started drifting apart from each other. Being unable to resolve their disputes and differences as also unable to lead a harmonious married life together, Plaintiff No. 1 on 28 th June, 2019 left the matrimonial home severing all matrimonial ties with Plaintiff No.2. Thereafter despite several attempts were made by the Plaintiffs themselves as well as the family members and friends to resolve their disputes and differences, but the same have proved futile. The Plaintiffs have been thus living separately since from June 2019 to till date i.e. for more than one year before filing of this Suit. 4.

It is in these circumstances that the Plaintiffs have decided to mutually agreed that their marriage should be dissolved amicably. Plaintiffs have entered into the consent terms a copy of which is annexed to the Plaint as ExhibitC. For ease of reference the said consent terms is scanned and reproduced as under:-

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7 3-PS-22-2022.doc The Plaintiffs have also tendered their respective affidavits in lieu of evidence as per the provisions of sub-rule 1 of Rule 4 of Order VIII of the Code of Civil Procedure. Both the affidavits of evidence are dated 23 rd December, 2022. The Plaintiffs have tendered the same in Court and have deposed to the correctness of the contents of the same. Accordingly, the testimony of the Plaintiff as contained in their respective affidavits of evidence stand accepted so as to true and correct facts as placed before the Court in support of the averments made in the plaint. 5.

I have heard learned counsel appearing on behalf of the Parities. In so far as the requirement for this Court to exercise jurisdiction under Section 32B of the PMDC Act is concerned, from the perusal of the record as also having interacted with the parties, it appears to be not in dispute that the plaintiffs are living separately for a period of more than one year. It is quite clear that the plaintiffs have not been able to live together due to irreconcilable differences which have arisen between them as stated by them in the plaint as also in their affidavit of evidence. Thus, there is sufficient material for this Court to exercise jurisdiction under Section 32B of the PMDC Act as the plaintiffs are not in a position to live happily in their marriage. There is no dispute that the plaintiffs' marriage was solemnized under the PMDC Act as seen from the Certificate of Marriage dated 7 th May, 2004 issued by the Registrar of Parsi marriages, High

8 3-PS-22-2022.doc court, Bombay. Further the consent of the parties for a decree of divorce by mutual consent is also a free consent. In these circumstances, the present suit for divorce by mutual consent would be required to be decreed. 6.

The consent terms dated 7 th December 2022 as entered between the plaintiffs stand accepted and shall form a part of the decree to be drawn by the Court. The undertakings as contained in the consent terms stand accepted. The suit is accordingly decreed in terms of (a) and (b). 7.

The undertakings made by the parties in the consent terms and more particularly set out in paragraphs 2, 3, 4 and 5 of the consent terms are accepted as undertakings to the Court.

8.

Testamentary Suit is therefore disposed of in the above terms. (ARIF S. DOCTOR, J.)