ORAL ORDER

Heard Ms. Saumya i/by. Flavia Agnes, Advocate for the petitioner. This is a petition filed by the petitioner for the relief of judicial separation under Section 22 of the Indian Divorce Act, 1869.

2. The petitioner and the Respondent profess Christian religion. They were married on 24th May, 1975 according to the Christian rites at the Church of St. Francis Xavier, Dabul, Thakurdwar, Bombay 400 002. The original marriage certificate is annexed at Exhibit A to the petition.

3. From the pleadings the following issues arise:

1. Whether the petitioner proves that she is entitled to a decree of judicial separation under section 22 of the Indian Divorce Act, 1869

2. Whether the petitioner proves that she is entitled to custody of her minor children Sidney aged about 17 years, Christina aged about 16 years and Atkin 11 years

3. Whether the petitioner proves that she is entitled to permanent injunction restraining the Respondent from selling or creating any third party rights with regard to flat being Flat B-2, Ground Floor, Ashirwad Building, Opp. St. Charles School, Vakola Santacruz (E), Mumbai 400 055 and from dispossessing the petitioner and her children from the said matrimonial home

4. Whether the petitioner proves that she is entitled to permanent injunction restraining the Respondent, his agents, servants and relatives from entering the said matrimonial home at Flat B-2 Ground Floor, Ashirwad Building, Opp.St. Charles School, Anthony Street, Vakola, Santacruz (E), Bombay 400 055

4. The petitioner has deposed with regard to various acts of cruelty as well as regarding her right over the matrimonial home. Apart from the petitioner, the petitioners daughter Lyn also gave evidence with regard to various acts of cruelty including sexual abuse. A trained social worker Ms. Trupti Panchal has also given evidence with regard to various acts of cruelty and sexual abuse inflicted upon the daughter and the petitioner and also regarding the counselling being given to both; the petitioner and her elder daughter Lyn.

5. The petitioner has in her evidence in detail set out the repeated acts of chronic alcoholism as well as various acts of cruelty. She was also produced various NC complaint receipts in that behalf. The petitioner has also set out the shocking acts of sexual abuse committed towards their elder daughter Lyn and also the acts of stealing even school books and toys of the children.

6. The petitioner has also produced an affidavit sworn by the Respondent categorically stating that the petitioner and her children have full rights with regard to the aforesaid flat B-2, Ground floor, Ashirwad Building, Opp. St. Charles School, Vakola, Santacruz (E), Mumbai 400 055. She has also produced a bill and receipt issued by the Ashirwad Cooperative Housing Society Ltd. for the month of July 1998 showing clearly that the said flat stands in the name of both the petitioner and the Respondent.

7. The daughter Lyn had also stepped into the witness box and wholly supported the petitioner with regard to various acts of sexual abuse committed by her father. Even the trained social worker Ms. Trupti Panchal has deposed with regard to acts of sexual abuse and cruelty and alcoholism etc.

8. All this evidence has not been controverted and challenged, and the Respondent has not appeared and cross-examined.

9. Under these circumstances this evidence will have to be accepted, as uncontroverted.

10. From the aforesaid facts and circumstances and the evidence I answer the Issue No.1 in the affirmative, in the sense the Petitioner has clearly established various acts of cruelty which entitles her to a decree of judicial separation under Section 22 of the Indian Divorce Act, 1869.

11. Similarly in view of the alcoholism and the other depraved acts of the Respondent, it is very clear, that the petitioner is entitled to the custody of minor children, hence I answer Issue No.2 in the affirmative, that is to say the petitioner will be entitled to the custody of the minor children namely Sydney, Christina and Atkin. As far as Issue Nos.3 and 4 are concerned, in view of the behaviour and gross conduct of the Respondent and also in view of the fact that the Respondent had agreed that the petitioner and the children have equal rights with regard the aforesaid flat at B-2, Ashirwad Building, I answer the issues 3 and 4 in the affirmative.

12. Under these circumstances suit is decreed in terms of prayers (a), (b), (b1) and (b2) however with no order as to costs. Prayers read as under:

(a) that a decree of Judicial Separation under Section 22 of the Indian Divorce Act, 1869 be granted to the petitioner;

(b) that the custody of the minor children Lyn aged 17 years, Lavina aged 14 years, Sidney aged 13 years, Christina aged 12 years and Atkin aged 11 years be granted to her;

(b1) the Respondent be restrained by an injunction of this Honble Court from selling or creating third party rights in the said matrimonial home located at plot B-2, Ashirwad Building, Opposite St. Charles School, Anthony Street, Vakola, Santacruz (East), Bombay 400 055 and from dispossessing the petitioner or their children from the said matrimonial home;

(b2) the Respondent, his agents, servants and relatives be restrained by an injunction of this Honble Court from entering the said matrimonial home located at plot B-2, Ashirwad Building, Opposite St. Charles School, Anthony Street, Vakola, Santacruz (East), Bombay 400 055.

13. As far as prayer (b) above is concerned the two daughters Lyn and Lavina have attained the age of majority therefore is no order of their custody. As far as other minor children viz. Sidney, Christina and Atkin are concerned, their custody is granted to the petitioner.

14. Issuance of certified copy expedited.