Armaity Jimmy Sukhia vs Victoria Robert Crasto

S.S. Nijjar, J.—This is a suit filed by Mrs. Jimmy Sukhia (Plaintiff) against the defendant who has been described as Miss. Victoria Robert Crasto falsely claiming and styling herself as Mrs. Victoria Sukhia and/or Mrs. Victoria Jimmy Sukhia for an order of perpetual injunction restraining the defendant from proclaiming, giving out, declaring, representing or impersonating herself and from allowing herself to be declared or represented as the wife of Jimmy Dara Sukhia or as Mrs. Sukhia or Mrs. Victoria Sukhia. Interim injunction is also sought in the same terms. The Notice of Motion has been taken out wherein an injunction is sought restraining the defendant in the same terms as were sought in the prayer Clause (a) of the suit. An affidavit in support of the Notice of Motion has been filed. The averments made in the plaint have been reiterated. The defendant has filed an affidavit attaching therewith certain documents.

The plaintiff states that she is a Parsi Zoroastrian and is residing in Pune. She was married to Jimmy Dara Sukhia of the same religion belonging to Pune on 7.2.65 in accordance with the rites and ceremonies of Parsi Zoroastrian religion and custom. There are two issues out of the said marriage between the plaintiff and Jimmy Dara Sukhia, hereinafter referred to as "Jimmy". Both the children are boys. First one named Darius Jimmy Sukhia was born on 2nd November, 1965. The second one named Cyrus Jimmy Sukhia was born on 7th February, 1975. The marriage of Darius took place on 27th Jan., 1991. The plaintiff and her husband are well known in social circles in Pune and Bombay. The plaintiff comes from a very well known Parsi respectable family of Pune. She is a member of the National Council of Women at all India level, a member and trustee of Pune Women Council Charitable Organisation, past President and past Trustee of Innerwheel Club of Pune Central, a trustee of Jehangir Byramjee Jeejeebhoy Charities, Bombay and associated with J.J. Agiary, Pune and Kadmi Shehanshahi Agiary, Pune. She also claims to take keen interest in young persons education and has acted on several occasions as a Judge for elocution and other competitions held by various schools in Pune. The marriage between the plaintiff and Jimmy has not been annulled nor has any divorce taken place. Thus the marriage between the plaintiff and Jimmy is subsisting and he continues to be lawfully wedded husband of the plaintiff. The plaintiff and Jimmy last resided together at Pune. The plaintiff''s husband owns a flat in Mumbai being Flat No. E-6, Dhaval Ganga Society, 1 Carter Road, Opp. Jogger''s Park, Bandra, Bombay-400050. She had the facility to stay in the said flat whenever she visited Bombay and her articles are still lying in the said flat. Her husband had to visit Bombay from time to time for business purposes. It appears he came into contact with the defendant. Defendant on several occasions visited the plaintiff''s home in Pune ostensibly for the purposes of business and has even stayed overnight on some occasions in the matrimonial home of the plaintiff and Jimmy. Jimmy is a member of Lions Club of Mahim and on going through the Directory of Members for the year 1994-95 of Lions Club the plaintiff was shocked and surprised to read on page 21 the name of defendant as the Lion Lady against the name of Jimmy and the marriage anniversary date being 20th July, 1990. The said particulars are also repeated at page 74 of the said directory and in the directory for the year 1995-96. Although Jimmy is a resident of Pune in the directory his address is shown as Flat No. E-6, Dhaval Ganga Society, 1 Carter Road, Opp. Jogger''s Park, Bandra, Bombay-400050. On making further enquiries she has discovered Jimmy had purported to have gone through some Muslim marriage ceremony with the defendant. In view of the fact that at the time of the purported marriage between Jimmy and defendant, he was lawfully married to the plaintiff. The purported marriage between Jimmy and defendant is void and illegal and has no legal existence. The marriage between plaintiff and Jimmy having been performed under the provisions of the Parsi Marriage and Divorce Act, hereinafter re I erred to as "the Act", can also be dissolved under the provisions of the said Act. The defendant is well aware of the subsistence of the marriage between Plaintiff and Jimmy, Inspite of the same the defendant is going around in public styling herself wrongfully and illegally, calling and proclaiming herself as Mrs. Victoria Sukhia and is impersonating and is representing herself to be the wife of Jim my Dara Sukhia. Defendant has even got a ration card issued in which she describes herself as Mrs. Victoria Sukhia. The address given is that of Jimmy in Bombay. The defendant is going about in the company of Jimmy in Bombay and in the social circles of Jimmy and declaring herself as Mrs. Sukhia. She is signing the club bills under the membership of Jimmy as V. Sukhia. In view of the publicity, acquaintances and relations of the plaintiff and Jimmy have been making enquiries of the plaintiff about the same which has been pulling the plaintiff to great embarrassment and mental anguish and pain. The plaintiff further goes on to state that defendant is carrying on and/or is connected with some business called "Dilinger Consultants" which is being carried on at Bombay. This concern has been advertising about the opportunities for education in Australia. The advertisements invite the candidates to contact Mrs. Victoria Sukhia at Phone No. 640 3362. These advertisement have appeared, inter alia, in Mid Day and Sunday Times, Because of the illicit relationship between Jimmy and the defendant, he has withdrawn from the society of the plaintiff. He has refused to continue to reside in the matrimonial home, This behaviour of Jimmy has also caused grave mental anguish, social and personal embarrassment to the plaintiff and has affected her social standing and reputation in social circles both at Pune and Bombay. The plaintiff further states that the defendant is responsible for the plaintiff being deprived of her husband''s society and for violation of her rights to consortium with Jimmy. She has tried her level best to persuade Jimmy to mend his ways but without any success. It is stated that defendant is guilty and wrongfully depriving the plaintiff of her husband''s society and companionship. The plaintiff has been deprived of the facilities to use and reside in her husband''s flat in Bombay. She reiterates that the marriage between defendant and Jimmy is wholly illegal and void. Defendant has no right to impersonate and/or to represent herself as the wife of Jimmy. In view of the above the plaintiff is entitled to a perpetual injunction restraining the defendant and her servants and agents from in any manner giving herself out or proclaiming, representing or declaring or allowing herself to be represented or declared as the wife of Jimmy Dara Sukhia or as Mrs. Sukhia or staying or describing or representing herself to be Mrs. Victoria Sukhia. The plaintiff further states that the defendant is guilty of wrongful conduct by depriving the plaintiff of her husband''s consortium or society and also lowering the plaintiff''s reputation and social status and causing her great deal of social embarrassment and mental anguish. By reason of the wrongful conduct and action of the defendant, the plaintiff has suffered a grievous wrong and damages which she estimates at Rs. 25 lakhs. A prayer for recovery of the said damages is also made.

The aforesaid facts have been reiterated in the affidavit in support of the Notice of Motion. The defendant has not at this stage filed any affidavit controverting any of the averments made in the plaint. No affidavit in reply to the affidavit in support of the Notice of Motion has been filed.

Counsel for the plaintiff has submitted that the plaintiff and Jimmy were married according to Parsi law. There are two boys born out of the wedlock. The flat in Bandra belongs to the husband of the plaintiff and she is fully entitled as the legally wedded wife to make use of the said premises and when it was convenient to her. She used to reside in the said premises as and when she had visited Bombay. Proof of this fact is available in that her articles are still lying in the said premises at Bandra. Defendant is fully aware about the fact that the marriage between the plaintiff and Jimmy has not been annulled. In any event the said marriage could only be annulled under the Act. Section 4 of the Act provides that no Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved, and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865, or under this Act, except after, a divorce, declaration or dissolution as aforesaid under either of the said Acts. Sub-section (2) of this Section provides that every marriage contracted contrary to the provisions of Sub-section (1) shall be void. Therefore, in view of the provisions of Section 4, the purported marriage between defendant and Jimmy is void ab initio. Merely because a declaration is not sought will not clothe the purported marriage with the characteristics of a lawful marriage. Section 5 of the Act provides as under:

Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the penalties provided in Sections 494 and 495 of the Indian Penal Code for the offence of marrying again during the lifetime of a husband or wife.

It is submitted that a perusal of this Section clearly shows that since the marriage between Plaintiff and Jimmy is subsisting Jimmy as well as defendant are guilty of having committed the offence of bigamy. It is only through goodness of the heart of the plaintiff that defendant or her husband have not been prosecuted for bigamy. It is further, submitted that it cannot be said that no injury has been caused to the plaintiff. According to the Counsel, injury has been caused in that the plaintiff has been deprived of the financial assistance from the husband. Furthermore, she has been deprived of all the other material benefits such as the benefits being enjoyed by defendant. One such example given by the Counsel is the use of the various social clubs by the defendant. It is submitted that even if material injury is necessary then it can readily be supplied by the fact that the plaintiff has been deprived of the use and occupation of the flat in Bombay which belongs to the lawfully wedded husband of the plaintiff. Counsel has also dwelled on the fact that the defendant has chosen not to file an affidavit in reply. The defendant has merely contended herself by placing certain documents on record. That being the position, it is submitted that the facts narrated in the plaint as also in the affidavit in support of Notice of Motion having remained uncontroverted, have to be accepted at their face value. Counsel thereafter referred to the provisions of Section 52, Sub-section (2) wherein it is specifically provided that the parties who have been married under Parsi Law, until the marriage is declared to be null and void under his Act shall remain bound by the provisions of this Act. Thus argues the Counsel, any other marriage cannot be declared legal in the face of the aforesaid provision. The plaintiff and Jimmy having been married under the Parsi Law can only be divorced under the Parsi law. Relying on these submissions, Counsel has submitted that the Plaintiff is entitled to the injunction, prayed for.

Counsel for the defendant has, however, submitted that the suit filed by the Plaintiff is not maintainable. Apart from making oral submissions Counsel has placed on record written submissions also. It has been sought to be argued by Mr. Grover, appearing for the defendant, that the plaintiff has herself pleaded that there is a second purported marriage. The plaintiff has, however, not sought a declaration to the effect that the said marriage is void. This fact alone is fatal to the maintainability of the suit by the plaintiff and in any case no relief can be granted on the basis of the pleadings. The marriage had to be declared void. Even if the marriage is void by operation of law, the same has to be declared to be so by a Court of law. The suit filed by the plaintiff in the nature of an action for jactitation of marriage. This action is about the false claim relating to a marriage which thereby becomes libellous. The action must, therefore, be instituted by the party against whom the false claim of boasting of marriage is made. The plaintiff must also show that the claim of marriage is absolutely false, without any basis, and malicious. In other words, if the plaintiff has given a licence to the defendant to claim him/her to be his/her spouse or that there is absence of malice then his/her action has to fail. For this proposition, Counsel has relied on (i) Rayden on Divorce, 14th Edn. pages 325 and 326, (ii) Lord Hawke v. Corri, 2HAG Con 280 (iii) Thomson v. Rourke, 1993 PCA 70 and (iv) Campbell v. Corley exp. Campbell (1862) 31 LJ PM 60. The present is a suit filed by the-wife of Jimmy. It is not a suit filed by Jimmy against defendant. It is only Jimmy who could possibly maintain an action such as the one filed by the plaintiff. Defendant and Jimmy have been living together since 1990. A child is also been out of this union in 1994 His name is Karl Sukhia. Jimmy has no objection to the defendant proclaiming herself to be his wife. In fact he has been presenting the defendant in society as his wife. There is a purported marriage between Jimmy and defendant which has not been challenged by the plaintiff. Thus there is a basis for the defendant to proclaim herself to be the wife of Jimmy Dara Sukhia. No malice is alleged against the conduct of the defendant. In the circumstances the action on the basis of jactitation cannot succeed. It is further submitted that in view of the bar provided u/s 32(d) of the Act, the plaintiff has disentitled herself from any relief. Proviso to Section 32(d) states that "Provided that divorce shall not be granted on this ground, if the suit has been filed more than two years after the plaintiff came to know of the fact." Counsel argues that the plaintiff knew long before the year 1994 that the defendant is proclaiming herself to be the wife of Jimmy. Having slept over the matter for so many number of years, it would amount to acquiescence on her part. Thus if not in law at least in equity she would not be entitled to any relief. Counsel further submits that even assuming, though it is not admitting, that by virtue of Section 4 the marriage between defendant and Jimmy is void the same had to be declared to be so by the Court. Unless and until the same is declared, the plaintiff cannot be heard to say that the defendant is not lawfully married to Jimmy. The plaintiff knew of the second marriage at least from 1991 onwards and that there was an issue from the purported marriage in 1994. Despite this, she has taken no action to dissolve the marriage. Thus in view of proviso to Section 32(d) all rights of the plaintiff under the Act have been extinguished. If any injury was caused by the second marriage then in view of the acquiescence the plaintiff is deemed to have accepted the second marriage. The plaintiff having tolerated the purported marriage of defendant and Jimmy for more than 7 years or at least 5 years beyond the statutory limit, cannot now be permitted to say that the said marriage is void. She is now not even entitled to claim divorce in view of proviso to Section 32(d) of the Act. That being the position, plaintiff could hardly claim of any injury having been caused to her. The so called injuries complained of by the plaintiff are not actionable. The loss claimed by the plaintiff are loss of society of the husband, Jimmy treating defendant as his wife and defendant doing well in her business. The aforesaid so called losses are not actionable in law. So far as relief is concerned it is submitted that this is not an enforceable legal right. A name is what a person is conventionally known by. In distinction to trade or commercial names the law does not recognise any proprietary right in a personal name. Further no name flows from the marriage. A married woman can retain her own name or adopt her husband''s name after the marriage. Even after divorce the woman can revert to her maiden name or carry on with her married name. It is all a matter of convention. It is not based on a legal right. Thus, no injunction can be granted on this basis. To buttress his argument Mr. Grover has cited (i) Lard Hawke v. Corri, 2HAG Con. 280. (ii) Du Boulay v. Du Boulay, ILR 1869 PC 430 (iii) Cowley v. Cowley, 1900 P 118 and (iv) Cowley v. Cowley. 1900 AC 450. In any event it is submitted that the defendant is using the name after declaration in the gazette after due notice. This gazette has been placed on the record with the compilation of documents. The said gazette is dated 16th April, 1992 and the name of defendant is shown at No. X-75. No challenge to this notification was made by the plaintiff. Apart from this, Counsel further submits that grant of any injunction at this stage against the name of Sukhia at least would cause irreparable loss and damage to the child which has been born out of the union between Jimmy and defendant viz. Karl Sukhia. This child is only 3 years of age. Lastly it is submitted by Mr. Grover that the plaintiff is not entitled to any relief as she has not come to Court with clean hands. She has suppressed all the documents which are germane to the determination of the issue which are now disclosed by the defendants. The suit itself has not been brought bona fide for vindication of any right but has in fact been filed maliciously. This apart, the plaintiff has approached this Court after inordinate delay. Thus no relief can be granted.

I have considered the submissions made by the Counsel for the parties. In view of the provisions of the Act, the plaintiff and Jimmy are still lawfully wedded to each other. Admittedly no divorce has been either sought or granted under the Act. This being the position, the purported second marriage between Jimmy and defendant is avoid ab initio. This is the position so far as the statute is concerned. But the fact remains that no declaration is sought to the effect that the marriage is void. The question that arises is whether or not any injury or damage is being caused to the plaintiff by the conduct of the defendant which has been narrated above. Mr. Sanghvi, Counsel for the plaintiff has strenuously submitted that since the plaintiff is the lawfully wedded wife of Jimmy she is entitled to complain that no other person should describe herself as wife of Jimmy Dara Sukhia. That being so, she is entitled to take out the present proceedings for injunction. This apart, it is submitted by Mr. Sanghvi that the plaintiff has lost materially also in that she is not being given the use of the premises in Bombay. She has also been deprived of financial assistance from the husband viz. Jimmy. I am inclined to agree with the submissions by the Counsel for the plaintiff but although it may not be possible to quantify in money, the loss of consortium of a spouse would be a substantial injury. If one looks at this proposition from the point of view of tort then one of the heads would be the loss of consortium also. Even otherwise it cannot be said that loss of matrimonial rights cannot be stated to be loss of material rights. It is a well known proposition of law on damages that the same is not restricted only to physical damages, but substantial damages are given for shock and mental suffering. It would, therefore, not be possible to hold that the plaintiff has suffered no damages even though defendant is pleaded to be responsible for causing the husband to leave the matrimonial home. The next submission of Mr. Grover against this proposition is that even if a suit such as this could be filed it could have been filed only by the husband. The plaintiff is in the position of a third parly. She could not have filed the present suit. The suit is in the nature of an action for jactitation of marriage. It is settled proposition of law, according to Mr. Grover by a string of authorities, that such kind of an action can only be filed by the husband or the wife to the purported marriage. All the cases which have been cited by the Counsel are cases filed by the parties who are directly aggrieved. These are cases where one of the parties to the purported marriage has claimed that there is no marriage or where a party has claimed that the other party is lawfully married to them. Damages have been sought by either of the parties on the ground that one of the parties is wrongfully claiming to he either husband or wife. Counsel, therefore, submitted that an action like this can only he brought by the husband and the plaintiff viz., Jimmy. The plaintiff has no locus standi whatsoever to maintain this action. Apart from the judgments. Counsel has relied on Rayden on Divorce for the aforesaid proposition. On page 325 of the said treatise the author has held out as under:

Jactitation. Jactitation of marriage means a persistent boasting of a marriage, falsely alleged lo have taken place between a boaster and the petitioner. The suit prays for a decree of perpetual silence on the subject : a petition in such a suit cannot be presented by any one except the person so misrepresented. This is the only case in which a matrimonial suit can, as of right, be proceeded without prima facie proof of a marriage be facto; in these days it is rarely necessary to seek such a remedy.

No doubt the aforesaid extract clearly stales that a petition in such a suit cannot be presented by anyone excepting the persons so misrepresented. I am unable lo construe the aforesaid expression in such a narrow context. This case will have to be decided on the basis of the Indian law, The plaintiff and Jimmy both being Parsi their rights will have to be determined according lo Parsi Marriage and Divorce Act, 1936. To my mind the notions of English law, that too of 19th Century, can hardly be imported when deciding matters which are essentially of a very Indian nature. Not only this the matter presently under discussion clearly falls under the purview of the Act. Once provision is made in a statute as to how the marriage is to be solemnised and how it is lo be dissolved, it is hardly necessary lo go to common law and that too of a foreign country. It is the admitted case of both the parties that although defendant purports to have married Jimmy there is no legal proof of any such marriage. In view of the provisions of the Act noticed above, undoubtedly the purported marriage would be void. It is also undoubtedly true that the marriage between the plaintiff and Jimmy is still valid and subsisting. A large number of details have been given in the plaint showing the social status of the plaintiff and Jimmy. There is no reply filed either to the affidavit in support or to the plaint controverting any of these factual averments which have been made. Thus the averments made in the plaint at this stage have to be accepted as true on their face value. That being so it cannot be held that the holding out of defendant as the wife of Jimmy is causing no injury to the plaintiff. The plaintiff has filed the present suit not as an action of jactitation as has been sought to be made out by the counsel for the defendant. The plaintiff has simply stated that she is the lawfully wedded wife of Jimmy, defendant, who has not legal relationship with the husband has misrepresented herself to be the lawfully wedded wife of the husband of the plaintiff. It cannot, in my view, be held that even in such circumstances no action can be brought by the aggrieved wife. As stated earlier, it is an accepted notion that damages are not necessarily always material. If that were so, then there would be no need to have the law of slander and defamation on the statute books. All these laws pertains lo loss of reputation due to wide publicity given by some third party. Even according to the Counsel for the defendant an action for jactitation is in the nature of an action for defamation. In the present case the plaintiff has given more than sufficient proof that defendant is misusing the name of Mrs. Jimmy Dura Sukhia. The facts pleaded have not been controverted. Mr. Grover has, however, submitted that the fact that the documents relied upon by the defendants have been placed on the record, they are to be treated as pleadings which controvert the averments made in the plaint. I am unable to accept this submission as it is a settled proposition of law, that whatever is not pleaded cannot be proved. If whatever is pleaded cannot be proved, can it be brought on record through the backdoor in support of the arguments? In my view this would not be permissible under the accepted principles on pleadings.

Mr. Grover has next submitted that the plaintiff having, not challenged the purported marriage by the defendant and Jimmy to be granted any relief unless and until the marriage between defendant and Jimmy is declared to be void the same will continue to have kept consequence. That being so the defendant is perfectly within her right to continue using the name Mrs. Jimmy Dara Sukhia. I am unable to agree with this submission of Mr. Grover. No doubt that the relief of declaration as stated by Mr. Grover has not been sought in the plaint but a perusal of the pleadings clearly shows that it has been stated that the so called marriage between. Jimmy and defendant is void ab initio. Keeping in view the provisions of the Act, prima facie it would appear that the marriage between defendant and Jimmy would be void. However, in view of the fact that the marriage between the plaintiff and Jimmy continues to subsist, it would be unnecessary at this stage to pronounce on the validity or otherwise of the so called marriage between defendant and Jimmy. Mr. Grover has next submitted that in order for the plaintiff to succeed it would have to be proved that the claim of marriage between Jimmy and defendant is absolutely false and without any basis. It would also has to be proved that the proclamation by the defendant is malicious. According to the Counsel, the present suit is not by the party with which the defendant claims to be married. He alone can maintain the action. Defendant and Jimmy have been living together since 1991. The defendant changed her name to Mrs. Victoria Sukhia w.e.f 16th April, 1992. In fact, she had been using the name of Mrs. Victoria Sukhia since 1991 itself. Moreover, a child viz. Karl Sukhia has been born out of their union in 1994. Jimmy has no objection to the defendant proclaiming herself to be his wife. In fact, Jimmy has been openly proclaiming defendant to be his wife. The validity of the purported marriage has not been challenged till date. No allegation of malice whatsoever has been made against the conduct of the defendant. Furthermore, the proviso to Section 32(d) of the Act disentitles the plaintiff from any relief. By virtue of proviso to Section 32(d) the plaintiff would not he entitled to divorce on that ground as she knew about the purported second marriage for more than two years. She knew not only about the purported second marriage but also about the birth of the child in 1994. Proviso to Section 32(d) extinguishes rights of a person who while knowing of the purported marriage tolerates the same for the periods specified. Thus the proviso removes the injury of the second marriage from being a ground as a cause of action in civil law. Thus in law the plaintiff will be seen to have tolerated the second marriage. Having acquiesced in the second marriage for seven years no relief can now be claimed by the plaintiff.

I am unable to agree with the aforesaid submissions of the Counsel. A marriage solemnised under the Act can only be under the provisions of the Act. The marriage can also be dissolved only on the grounds mentioned in the Act. A perusal of Section 32 shows that parties to a parsi marriage may sue for divorce any of the grounds mentioned therein viz. (i) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it. (ii) the defendant at the time of the marriage was of unsound mind. Divorce on this ground cannot be granted unless the plaintiff was ignorant of the fact at the time of marriage and has filed the suit within three years from the date of the marriage, (iii) that the defendant was at the time of marriage pregnant by some person other than the plaintiff. Here Again the proviso states that the suit shall be filed within two years of the date of marriage, (iv) the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence. Here again divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know about it. (v) the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or, where the defendant is the husband has compelled the wife to submit herself to prostitution. Here again the divorce shall not be granted if the suit is filed more than two years after the cause of action, (vi) the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code. This ground would also not be available unless the defendant has prior to the filing of the suit undergone at least one year''s imprisonment out of the said period, (vii) that the defendant has deserted the plaintiff for at least three years, (viii) a decree or order for judicial separation has been passed against the defendant. Here again it is provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the plaintiff came to know of the fact. A bare perusal of the aforesaid provisions would show that the plaintiff would not be able to sue Jimmy for divorce on the ground as provided in Section 32(d). However, this will not negate all the rights of the plaintiff under the Act. The plaintiff will still have the right to claim divorce on the ground of discretion .There is no limitation whatsoever provided u/s 32(g). This apart, even the bar u/s 32(d) cannot be held to be a total bar for the grant of divorce on the ground mentioned therein. It would always be open to the plaintiff to seek condonation of delay from the Court either under the provisions of the Limitation Act, 1963 or under the inherent powers of this Court. This I am unable to agree with the submission of Mr. Grover that the conduct of the plaintiff is such as to disentitle her from claiming any relief. Even otherwise, the proviso to Section 32(d) is no bar to the plaintiff claiming that a third person ought not to describe herself as the legally wedded wife of her husband. The bar under proviso to Section 32(d) may well operate against the plaintiff if she were to sue for divorce on the ground provided u/s 32(d) of the Act. This bar cannot possibly disentitle the plaintiff from asserting her rights as being the legally wedded wife of Jimmy. Infact, the suit has been filed to vindicate her stand as the lawful wedded wife of Jimmy. In order to protect the legal right of being the lawfully wedded wife of Jimmy, the relief of injunction has been sought for against the defendant. As stated earlier, the facts narrated in the plaint, at this stage at least, have not been controverted by the defendant. At this stage, therefore, it would not be possible to hold that the plaintiff has no legal right to claim the injunction that tin.: defendant be constrained from holding herself out to be the lawfully wedded wife of Jimmy.

I am also not able to accept the submission of Mr. Grover to the effect that the act and the conduct of the defendant cannot be said to be malicious. Merely because the husband\\viz. Jimmy has given a licence to the defendant to proclaim herself to be his wife, cannot be treated as a licence granted by the wife. The Court cannot loose sight of the fact that Jimmy is interested in projecting the defendant as his lawful wife. In fact he has been proclaiming her to be the lawful wife in all the society. This, however, cannot be equated to an act of acceptance on the part of the plaintiff. The plaintiff has in fact categorically slated in the plaint that the defendant is fully aware that there is a valid and subsisting marriage between the plaintiff and her husband Jimmy. Inspite of the same the defendant is going about in public styling herself wrongly and illegally, calling and proclaiming herself as Mrs. Victoria Sukhia and is impersonating and representing herself to be the wife of said Jimmy Dara Sukhia. The plaintiff further states that in view of the continuous misrepresentation by the defendant, several of the plaintiffs and Jimmy''s friends acquaintances and relations have been making enquiries of the plaintiff about the same which has been putting the plaintiff to grave embarrassment and mental anguish and pain. The plaintiff has also claimed damages in the sum of Rs. 25 lakhs. Thus, it cannot be said that the plaintiff has not treated the misrepresentations made by the defendant as malicious. If the plaintiff had treated the misrepresentation as innocuous the present suit would not have been filed. The defendant knew at the time she purported to marry Jimmy that he was legally married with plaintiff. Prima facie the defendant had entered into a wholly illegal state of matrimony. This cannot be said to be an act which has been performed bona fide. Presumption of bona fide would only attach to the acts legally performed and not to the acts illegally performed. If the act is not bona fide then clearly it can be said to be malicious. Not only the plaintiff has not filed any proceedings for divorce, it is to be noted that even Jimmy Dara Sukhia has not taken any proceedings for divorce. Can it then be claimed by the husband that the plaintiff is no longer his legally wedded wife. Clearly the answer will have to be in the negative. If the husband cannot claim that the plaintiff is not the legally wedded wife then obviously he cannot claim that the defendant is his legally wedded wife. So, examined from any angle, legally the position remains that the plaintiff is the lawful wife of the husband Jimmy. Legally the position also remains that the defendant is not the lawful wedded wife of the husband Jimmy. If the defendant has no legal right to proclaim that she is the lawful wife of the husband Jimmy, no amount of equity will clothe an illegal union with the characteristics of a legal marriage. Thus I find force in the submissions made by Mr. Sanghavi, the Counsel for the plaintiff that unless and until the marriage between the plaintiff and defendant is dissolved according to law, the defendant will have no right in law to proclaim that she is the lawful wife of the husband Jimmy.

Mr. Grover then submitted that even if the defendant is not permitted to use the name Mrs. Jimmy Dara Sukhia she is certainly entitled in law to use the name Mrs. Ayesha Victoria Jimmy Sukhia. It is submitted, that by virtue of the notification dated 16th April, 1992, the name of the defendant has been changed as given in the notification from that date. The name having been changed in accordance with law, there is no legal impediment in the defendant using the said name. A name is what a person is conventionally known by. Unlike a trade or a commercial name where there is proprietary or a legal interest the law does not recognise a right in a personal name. By right no name flows from the marriage. Counsel has relied on a number of judgments to elucidate this point. The first in point is the judgment in the case of Cowley v. Cowley reported as 1900 A.C. 450. In this judgment it is clearly held "A man has no such property in his name as to entitle him to prevent a woman, not his wife, claiming to be such, unless she does so maliciously." That was a case where the marriage of a commoner with a peer of the realm had been dissolved at the instance of the wife, and she afterwards, on marrying a commoner, continued to use the title she acquired by her first marriage. It was held by the Court of Appeal that in such circumstances the continuous use of the name by the woman which she acquired by her first marriage would not amount to a legal wrong against a former husband. This was so because the use of the name would not so affect his enjoyment of the incorporeal hereditament he possessed in his title as to entitle him in the absence of malice to an injunction to restrain her use of the title. Counsel has thereafter referred to the decision of Belisle Du Boulay and Ors. v. Jules Rene Hermeneglide Du Boulay. ILR (1969) PC 430. In this case the Privy Council has clearly held that the assumption of a name, the patronymic of a family, by a stranger, who had never before been called by that name is not the subject of a civil action, as by the English Law there is no right of property in a person to the use of a particular name, to the extent of enabling him to prevent the assumption of his name by another. It is further held that as to the exclusive use of a name in connection with the trade or business, which right is recognised, and a party assuming it colour ably or otherwise, being an invasion of another''s right, is a fraud, for which a remedy lies either at Law or Equity.

Relying on the aforesaid authorities, Mr. Grover has further submitted that the defendant has been using the name after a declaration in the gazette after due notice. This declaration in the gazette was never challenged by the plaintiff at any stage. Consequently the plaintiff cannot claim that the defendant does not have even the limited right of using the name as given in the notification. Mr. Sanghvi, Counsel for the plaintiff has on the other hand Submitted that the defendant is trying to split up the cause of action and the relief sought. The relief sought is to the effect that the defendant shall cease to proclaim herself as the legally wedded wife of the husband of the plaintiff. Any use of any name which would tend to indicate that the defendant is the lawfully wedded wife of the husband would cause injury to the plaintiff. Therefore, inspire of the fact that the name has been changed and has been notified in the official gazette does not improve the case of the defendant. I had given my anxious thought to the rival contentions of the parties on this particular point. Legally it may be that the defendant is entitled to use the prefix Mrs. to the name Victoria Jimmy Sukhia. It is a matter of record that before the purported marriage defendant was known as Victoria Robert Crasto. After the purported marriage she started describing herself as Mrs. Victoria Jimmy Sukhia. In the notification there is a further change in that the first name Ayesha has been added so the entry in the notification reads Mrs. Ayesha/Victoria Jimmy Sukhia. The defendant has the legal right to use the said name. Even a perusal of the authorities cited by the Counsel shows that if the said name is being used maliciously then an injunction can be granted against the defendant. In the earlier part of the order this Court has already held that the description of the defendant as the lawful wedded wife of Jimmy Dara Sukhia is malicious. That being so in equity at cast the defendant would not be entitled to make use of the change in the name in the notification. This is more so as the name given in the notification merely describes Victoria as the wife of Jimmy Sukhia. Had the name ended Mrs. Ayesha/Victoria Sukhia, may be it could be said that the defendant has no intention of indicating that she is the lawful wedded wife of Jimmy Dara Sukhia. But a persual of both the names pre and post notification show that the only name relevant to the earlier name of the defendant is Victoria. Rest is description of the husband viz. Jimmy Sukhia. Consequently I am of the considered view that merely because the defendant has changed the name by notification does not lessen the injury which has been caused to the plaintiff.

Having said all this, the Court cannot be oblivious to the fate of the infant child Karl Sukhia who is said to be only three years old. Thus in view of the peculiar situation with regard to the son the relief will have to be appropriately moulded. Keeping the aforesaid discussion in view and in the peculiar facts and circumstances of this case, the Notice of Motion is made absolute in terms of prayers Clause (a) with the following clarification:

That the defendant shall be at liberty to use the name Ms. Victoria Sukhia or Ms. Ayesha Victoria Sukhia. It is further clarified that the infant Karl Sukhia s/o Jimmy Dara Sukhia shall be continued to be referred with his present name in all the official records.

Prayer Clause (a) reads as under:

(a) that pending the hearing and final disposal of the above suit for order and injunction restraining the defendant, her servants and agents, friends, relations and others from going about, proclaiming giving out, declaring, representing or impersonating herself and from allowing herself to be declared or represented as the wife of Jimmy Dara Sukhia or as Mrs. Sukhia or as Mrs. Victoria Sukhia.

Notice of Motion is made absolute in the above terms with no order as to costs.