Date of judgement:
19.9.2016
Bench:
Justice Dr. Shalini Phansalkar-Joshi
Parties:
Appellant – Mrs. Sarika W/O. Mahendra Sureka
Respondents – Mr. Mahendra S/O. Rajkumar Sureka
SUBJECT
In this case, the Bombay High Court quashed the interim mandatory injunction granted by the Trail Court. The High Court also highlighted that such mandatory injunction at the interim stage must be granted only in exceptional circumstances and must not be made a routine practice.
OVERVIEW
- The appellant, in this case, was married to the respondent No. 1 and had a 21 year old son born out of the wedlock.
- She used to reside in her matrimonial home with her husband, mother in law (respondent number 2) and other family members.
- The husband had filed a divorce petition on various grounds and had also filed an application for interim injunction restraining the appellant from entering the matrimonial home until the divorce petition was dismissed.
- The appellant, subsequently, move an application for restraining the husband and his family members from ousting the appellant from the matrimonial home. This application was granted by the Family Court.
- Thereafter, a Notice of Motion was filed by the mother-in-law seeking permanent injunction restraining the appellant from entering the matrimonial home.
- The Notice of Motion was allowed by the Trial Court restraining the appellant from entering or remaining in the suit premise.
- Subsequently, the appellant appealed before the High Court.
ARGUMENTS BY THE APPELLANT
- The appellant contended that the suit premise was bought by respondent no. 2 from the proceeds of the sale of the ancestral property.
- Furthermore, since the husband failed to get any favourable order from the Family Court, he colluded with respondent number 2 to file the present application.
- The respondent no. 2 did not have any independent source of income to purchase the suit premise.
- The appellant did not have any alternate accomodation and the Trial Court's order violated her right to reside at her matrimonial home which is recognised under the DV Act.
ARGUMENTS FROM THE RESPONDENT
- The respondents contended that the sale agreement of the suit premises was solely in the name of the respondent no. 2.
- The appellant did not have any independent right of residence at the suit premise as it was not a shared household.
- The counsel for the respondent further submitted that the actions of the appellant were causing harassment and torture to respondent No.2.
- The husband was himself residing at a separate premise of Goregaon and hence the appellant had no right to reside at the suit premise.
- Furthermore, the appellant had refused to reside in the premises in which the husband was residing.
ISSUES RAISED
- Whether the appellant had a right to reside in the suit premise?
RELEVANT PROVISIONS
The Protection of Women from Domestic Violence Act, 2005
- Section 17: Right to reside in a shared household
- Section 19:Residence orders
ANALYSIS
- The Court noted that the relief of interim mandatory injunction is to be given in rare cases and must not be made a routine practice. Such relief is to be granted only in exceptional cases and the plaintiff must make a strong case for the injunction.
- In the present case, the injunction order neither preserved/restored status quo ante nor did it compel the undoing of an illegal act. Rather, it disturbed the "settled possession of appellant in her matrimonial home".
- Furthermore, the respondent had not made a strong case as the appellant's contention that the respondent had no independent source of income to purchase the suit premise was not yet decided.
- The Court relied on the case of B.P. Achala Anand v. S. Appi Reddy and held that a deserted wife has a right to remain in possession of matrimonial home. This right is enforceable against the female relatives of the husband as well.
- The appellant had resided jointly with the respondent for 25 years. They used a common kitchen and common facilities. Thus, the suit premise was a shared household.
- The Court further observed that even though the appellant had not been able to produce any evidence, in the interim stage, to prove her contention that the suit premises were purchased from the proceeds of sale of ancestral property, she may be able to produce documentary evidence at the Trial stage.
- Furthermore, the relationship between the respondent no. 1 and 2 remained intact and in the absence of any deed, the suit property was ultimately to revert back to respondent number 1 in the event of death of the respondent no. 2.
CONCLUSION
It is a common practice that after failing to remove the wife from the matrimonial home, the husband either leaves the house or the parents disown their son in order to establish a ground of evicting the daughter in law. Therefore, the probability that the respondents had colluded to evict the appellant could not be eliminated. Hence, the Court rightly quashed the injunction order of the Trial Court.
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