1 WP.8897/2010 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8897 OF 2010 Dr. Ranjit Mukherjee ...Petitioner Vs. Dr. Smita Mukherjee ...Respondent Mr. S.N. Vaishnav a/w Mr. Anil Chauhan i/b. M/s. N.N. Vaishnawa & Co., for the Petitioner Mr. Ramesh T. Lalwani for the Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 7ST DECEMBER, 2010 P.C. : 1. Rule. Made returnable forthwith. 2. The parties are opthalmic consultants and surgeons. They have had a 20 year marriage and a 19 years old daughter. At such stage in their life there have been disputes resulting into a divorce petition. The bitterness between the parties have made both of them allege ugly acts on the part of each other not befitting their profession, their age or their station in life. 3. The parties live in a residential premises which is stated to be jointly owned. They have a clinic premises which is also jointly owned. In addition they carry on consultancy work in other 2 WP.8897/2010 clinics. The husband is attached to one Purandare Polyclinic at King’s Circle from the last 10 years. The wife has a clinic in Sanpada, which stands in the name of her brother and where she carries on consultancy. Their joint premises as well as their residential premises is in Chembur. They both have settled in their profession. 4. The wife has initially filed a petition for injunction restraining her husband inter alia from entering in the clinic premises including its operation theater during Monday to Saturday between 6 p.m. to 9 p.m. 5. The order came to be passed by the Family Court on 21st February 2008 granting injunction as aforesaid. Accordingly the husband practiced in the clinic from 10 a.m. to 6 p.m. The wife practiced there from 6 p.m onwards. 6. There are allegations of disturbance in the use and occupation of the operation theater by the husband made by the wife. Consequently, another order came to be passed by the Family Court on 7th March 2008 restraining the Respondent husband from disturbing the use of the operation theater by the wife on Wednesday and Thursday every week. Hence the operation theater has been allowed to be used by the wife throughout on every Wednesday and Thursday. 3 WP.8897/2010 7. The disputes have continued. The wife has filed several NC complaints. The wife has also filed the affidavit of one of her patients with regard to an incident after her cataract operation when she was moved to the patient recovery area. 8. In view of the disputes a further order came to be passed by the Family Court on 7th July 2009 inter alia observing that the husband was not obeying the court orders and respecting or accepting the Court Receiver and has not complied with specific directions passed by the Court. A notice came to be issued to show cause why action should not be taken against him for non-compliance of Court orders. 9. I am told that soon after the notice was issued instead of replying to the notice he challenged the jurisdiction of the Court. That would be much after the Petition was heard on number of occasions and orders were passed. The Court held that it had jurisdiction. He filed a Writ Petition which has been dismissed on 28th June 2010. 10.The wife claims that the husband does various acts to cause impediments in her work. Counsel on behalf of the wife has narrated that the husband removes the remote control of the AC or locks the computer by his password or takes away the keys of the cupboard where journals are kept. Counsel on 4 WP.8897/2010 behalf of the husband has stated that the new purchases which the husband has made of his own instruments as well as journals are kept locked and that the wife has damaged some of the machinery required for surgery. 11.In view of these disputes a private Receiver came to be appointed by the Family Court. The private Receiver has made certain reports. Counsel on behalf of the wife has taken me to some of them. The report dated 5th May 2009 shows that the husband remained in the clinic and finally met the Receiver at 7 p.m when he finished his work. The report dated 21st June 2009 shows that the premises was locked from front side, but the staff members of the husband were present in the clinic and the back-door was opened. The report dated 5th August 2009 shows that the husband was present in the clinic at 6 p.m when the Receiver visited the premises and inquired with receptionist; he was entertaining his patients. He allowed the Respondent husband to continue his work. The Respondent completed his work at 7.30 p.m and met the Receiver. 12.The Receiver has made a report to Court on 5th May 2009 suggesting appointment of one staff member to ensure strict compliance of the directions of the Court with regard to the timing, installment of CC TV, get the record of the clinic throughout the day, installation of the time card punching machine for staff as well as parties to record the time of their 5 WP.8897/2010 arrival and departure and to give directions for visit to the clinic for supervision and implementation of the Court’s order with regard to the time allowed to the parties to practice in the premises. 13.Under the impugned order after considering various acts of the parties the learned Principal Judge of the Family Court has passed directions in terms of 5 out of 6 of the directions applied for by the Receiver. That order has been challenged by the husband. 14. The essential challenge that is brought out before the Court is upon a case of denial. The husband, therefore, does not want any supervision over himself. A party who has been directed to comply with the orders of the Court with regard to timings and who scrupulously complies with the timings would not require to challenge acts that would supervise him. The very challenge shows that the husband desires not to abide by the order and not to be supervised. 15.Since the parties are professionals and must be taken to be mature enough to consider and sort out their grievances both Counsel offered to and were allowed to workout their differences. They were unable to do so. Supervision upon the husband is certainly required. Yet rather than policing the parties, putting an end to their disputes by allowing the parties 6 WP.8897/2010 specified days would not require the time, effort and resources for installation and monitoring technology to police them. 16.The Counsel on behalf of the wife suggested that both the parties may be entitled to practice on 3 days of each week. That would be a more sagacious as well as wise offer. It will allow both the parties to peacefully carry on their consultancy as well as surgery to the exclusion of the other so that the timings need not overlap. It is seen that in the time hours allowed to the husband, not only does he practice for 8 hours each day, but he spills over on to the wife’s time, which is hardly 3 hours at the end of the day. 17.It is argued that the suit premises is the main premises where the husband practices and the wife has alternative premises where she can go. Whatever that be, both the parties have their roots in Chembur. They have their residence as well as their consultancy and both the entitled exclusively to the premises jointly owned by them. It is for the parties who are settled in their profession for such years to be able to make alternative arrangement for an alternative premises to carry on their consultancy as well as surgery business. The husband, in any event, has access to Purandare Polyclinic, King’s Circle, just as much as the wife has access to another premises at Sanpada. The timing of the Polyclinic may be extended or any arrangement at any other place can be made by the husband, 7 WP.8897/2010 who is settled in the profession by virtue of his sufficient seniority. 18.The wife is stated to be attached to two hospitals on honorary basis. The Court, therefore, cannot put it past on husband who is equally settled in life to be able to get any such attachment as he would merit. That would have to be worked out by the husband individually and personally for himself. 19.Rather than be dependent on the capital input of technology, it would be simpler and better for the parties to use and occupy the premises for 3 full days in a week and equally on Sundays. The wife already has been held entitled to peaceful use of the operation theater on entire Wednesdays and Thursdays. Hence the husband has not been entitled to use the operation theater on Wednesdays and Thursdays since 7th March 2008. 20.A just and equitable order would, therefore, be as follows: 1. The wife shall be entitled to the use and occupation of the Chembur Clinic premises on every Monday, Wednesday and Thursday. 2. The husband shall be entitled to the use and occupation of the premises on every Thursday, Friday and Saturday. 3. The wife shall be entitled to use and occupy the premises on every Sunday from morning till 2 p.m., and the 8 WP.8897/2010 husband will be entitled to use the premises on every Sunday from 3 p.m onwards. 4. It is hoped that the parties behave as their profession as well as situation, demands and merits. 5. The order to the above extent is interfered with and modified. 6. Rule is granted to that extent. 7. The Writ Petition is disposed off accordingly. 8. This order is stayed for two weeks. (SMT. ROSHAN DALVI, J.)