BACHEL BENJAMIN Vs. BENJAMIN SOLOMON BENJAMIN
LAWS(BOM)-1925-9-38
HIGH COURT OF BOMBAY
Decided on September 23,1925

BACHEL BENJAMIN Appellant
VERSUS
BENJAMIN SOLOMON BENJAMIN Respondents

JUDGEMENT

- (1.) This is a suit between a husband and a wife of the Jewish persuasion. The wife, who is the plaintiff, seeks for relief against the defendant, the husband, on the ground of cruelty and adultery. The facts which are admitted are as follows: The families of the parties live in Bombay. On August 12, 1918, there was an agreement in writing between the fathers of the two parties whereby each agreed to contribute Rs. 10,000, the whole sum of Rs. 20,000 to be invested in the joint names of the two parties. This sum of Rs. 20,000 was apparently intended to be the wife s dowry (Ex. 7). That agreement is the starting-point of the history of this case and it is clear that the intention expressed in this writing was never departed from, but that full effect was not given to it. Some time in March 1919 War Bonds of the face value of Rs. 20,000 were purchased. To this sum plaintiff s father contributed Rs. 10,000, and the defendant Rs. 10,000. Bonds of the face value of Rs. 10,000 were bought in the name of plaintiff, and bonds of a similar value in the name of defendant. Plaintiff or her father kept the bonds in her name, and defendant kept the bonds in his name. In May 1919, it was decided to sell the bonds as it was thought that the value would fall. The sale was through Messrs. Forbes & Croft, and two cheques were issued by them, each cheque representing the sale proceeds of one of the two lots. The sale proceds, Rs. 20,000, were invested in piecegoods and the transactions resulted in a loss. Prom August to the end of October 1919 there was correspondence over this matter, and some settlement was effected. On November 4, 1919, the parties were married. At the time of the marriage a Kethuba was executed. Shortly after the marriage plaintiff s father, who was engaged in business in piecegoods, went to Basra. There he suffered a heavy loss. He returned about February 7, 1920. On February 15, 1920, plaintiff left defendant s house and complained to the police that defendant had assaulted her. On February 17, 1920, she applied to the Chief Presidency Magistrate for an order for maintenance under Section 488 of the Code of Criminal Procedure. On February 19, 1920, the parties appeared before the Magistrate and the matter was compromised. Thereafter plaintiff returned to the defendant s house. On February 22, 1920, defendant produced the plaintiff s jewellery and plaintiff signed a receipt for it. On March 10th, 1920, plaintiff again left the defendant s house. She returned in April 1920, and remained until July 5, 1920. On that date she again left the defendant and on August 17, 1920, she wrote a letter to Mr. A.J. Raymond, at that time the elected Head of the Jewish community in Bombay, asking for his intervention. On August 22, 1920, a son was born to plaintiff, and, by the intervention of friends, a reconciliation was effected. On August 28, 1920, plaintiff returned to the defendant s house and remained where till June 5, 1921. On that day she again left the defendant. On June 6, 1921, plaintiff s father complained to the police that defendant had assaulted plaintiff. On June 7, 1921, plaintiff filed a complaint to the Second Presidency Magistrate under Section 323 of the Indian Penal Code. On June 23, 1921, the Magistrate dismissed the complaint for want of independent evidence. Correspondence followed, but plaintiff declined to return to her husband. On May 16, 1922, defendant went through the form of marriage with another woman. On May 22, 1922, plaintiff complained to the Jewish Benevolent Society. A meeting was held on May 31, 1922, at which both parties were present. The consideration of the matter was referred to five Rabbis. This meeting was adjourned to June 7. On that day the five Rabbis pronounced their decision which was in favour of plaintiff. Defendant refused to abide by it, and was excommunicated.
(2.) There are various matters of fact in dispute. These I shall deal with later. The plaintiff s case, put shortly, is that her husband cruelly ill-treated her, drove out of the house, and contracted a second marriage which is invalid under the law by which the parties are governed. She contends (1) that the decision of the Rabbis has dissolved the marriage, (2) that if that is not so then defendant should be compelled to give her a bill of divorcement, or alternatively that the. Court should decree dissolution of the marriage. She claims various reliefs on the dissolution of the marriage of which the principal one is that defendant should be ordered to pay to her the sum of Rs. 25,555 specified in the Kethuba executed at the time of the marriage. The main defences are a denial of the allegation of ill-treatment and an assertion that the second marriage is valid ; the plaintiff is not, therefore, entitled to a divorce in pais; the Court has no jurisdiction to entertain a suit of this nature between parties professing the faith.
(3.) It will be convenient to set out the issues which have been raised: (1) Whether plaintiff is entitled to the payment of Rs. 25,555 as claimed in the plaint. (2) Whether plaintiff s father gave Rs. 10,000 to the defendant as part of plaintiff s dowry. (3) Whether plaintiff brought with her. clothes, ornaments and wearing apparel of the value of Rs. 5,000 as alleged by her (4) Whether plaintiff left behind her jewellery, ornaments, wedding presents and furniture as mentioned in Ex. C to the plaint. (5) Whether defendant ill-treated and molested the plaintiff as alleged in the plaint. (6) Whether plaintiff is entitled to any maintenance. And, if so, what. (7) Whether plaintiff is entitled to a declaration that her marriage with defendant is dissolved. (8) Whether plaintiff is entitled to a decree directing the defendant to give a divorce to the plaintiff. (9) Whether this Honourable Court has jurisdiction to grant a declaration and pass a decree as stated in the two preceding issues. (10) Whether plaintiff is entitled to a decree for dissolution of marriage. (11) Whether defendant was entitled according to Jewish law and custom to marry a second wife during the lifetime of plaintiff.;


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