1 ndm 20 cam.200.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 200 OF 2009 IN FAMILY COURT APPEAL NO. 149 OF 2009 Tejus Kanubhai Maun. ... APPLICANT Vs. Kanta Tejus Maun. ... RESPONDENT -------- Mr. R.T. Lalwani for the Applicant. Mr. A.V. Chatuphale for the Respondent. -------- CORAM : A.M. KHANWILKAR, J. A.A. SAYED, JJ. DATE : 07 th July, 2010. P.C. 1 Heard the learned counsel for the parties. 2 By this application, the husband has prayed for injunction against the wife restraining her from entering upon and/or occupying the suit premises namely, A-403, Padmavati, 3 rd Cross lane, Swami Samarth Nagar, Andheri (W) Mumbai – 58. It is noticed that same relief was claimed as interim relief as well as final relief in the petition filed before 2 the Family Court. While dealing with the said aspect, the Family Court negatived the claim of the husband on the following consideration. The relevant portion of the order passed by the Family Court dated 30 th September, 2005 rejecting prayer for interim relief during the pendency of the main petition reads thus: “10. So far as the direction to the Respondent to remove herself from the suit premises is concerned, admittedly the suit flat stands in the joint names of the Petitioner and the Respondent. At the interim stage, without recording the evidence, it would not be proper to grant any mandatory injunction in that regard. However, the Respondent has to be restrained from harassing the Petitioner as the Petitioner has made out prima facie case. The balance of convenience is in favour of the Petitioner and no prejudice is going to be cause to the Respondent, if the injunction in that regard is granted in favour of the Petitioner. Hence the following order: ORDER The application is allowed in following terms: Pending the hearing and final disposal of the petition, the Respondent is hereby restrained from harassing, inflicting physical injury and/or harming the Petitioner in any manner whatsoever; No order as to costs.” 3 The Family Court, however, to balance the equities, directed the wife by order of injunction to refrain from harassing, inflicting physical injury and/or harming the husband in any manner whatsoever. That arrangement continued during the pendency of the main petition. In the 3 main petition, mandatory injunction was prayed by the husband against the wife on similar lines as can be seen from prayer clause ( c ) of the petition. While dealing with the said aspect, the Family Court has negatived the stand of the husband for the reasons, which can be seen from paragraph No.89 to 91 of the impugned decision. The same reads thus: “89. It can be said that presently the house where they are residing in the matrimonial home. It is the right of the wife to have shelter. The house is also in her name and therefore she is not supposed to vacate the house and therefore it can be said that he is not entitled to have injunction to remove her from the matrimonial home. 90. So far as his prayer clause (c) is concerned, as per him when they resided together under one roof she always threatened him and also filed false complaints against him in the police station. In the cross-examination he has admitted that he has obtained the order of the Court and therefore the respondent wanted to bring on record that he is not entitled for any kind of injunction. 91. For grant of injunction the petitioner has to prove the prima facie case and balance of convenience. It can be said that from their evidence and statement of the witnesses and also the documents which he has filed on record that the behaviour of the respondent was not good and proper. Though she has denied she at any time threatened him or caused any injury, but he has filed doctor’s certificate and N.C. on record to show the 4 same and therefore she is hereby restrained by grant of injunction to harass him, ill-treated him or dispossess him from the matrimonial home and his prayer (c) is allowed and therefore I answer Issue No. 3(a) accordingly.” 4 In our opinion, the situation has remained the same either during the pendency of the main proceedings or even after the final decision of the Family Court on 31 st March, 2009. The Family Court in the final order, however, once again only restrained the wife by way of permanent injunction from harassing the husband in any manner whatsoever. There is nothing in the present application to indicate that in spite of the interim injunction granted by the Family Court or the permanent injunction, the wife has indulged in any act of commission or omission, which has the effect of contravening the order of injunction or of such nature that harm and injury has been caused to the husband at a later point of time. In other words, there is no changed circumstance to examine the grievance of the Applicant and in particular the relief of injunction as prayed. 5 To get over this position, the learned counsel for the husband would contend that the wife is staying independently at C-19, Ankita Co- operative Housing Society Limited, 75, S.V.P. Nagar, Andheri (West), Mumbai - 53, which premises were purchased in the name of the wife. On this premise, it is contended that the wife can occupy the said 5 premises until further decision of this Court and for which reason, no prejudice would be caused to the wife, if the order of injunction as prayed for is granted. As aforesaid, the situation which obtained during the pendency of the main proceedings or after the final order passed by the Family Court has not altered even a bit. The fact that the wife visits the premises occupied by the husband, which are standing in joint names of both the parties is not in dispute. If the wife is not permanently staying at the said premises as is contended by the husband that does not mean that she has no right therein whatsoever. A person, who is a joint holder and in joint possession, by virtue of the relief claimed by the Applicant would be dispossessed, albeit during the pendency of the appeal before this Court. Such extreme order cannot be passed in the fact situation of the case. The material, which is on record does not permit us to take such a view. In the circumstances, this application is devoid of any merits. The same is rejected. 6 It was argued that the Family Court while answering the issued of desertion has concluded that the wife has removed herself from the matrimonial house without any sufficient cause. If that finding is to prevail, it would run contrary to the basis on which the relief claimed by the Applicant has been denied. We see no merits in this submission. 7 Needless to observe that rejection of this application is not giving any licence to the wife to breach the permanent injunction 6 operating against her in any manner whatsoever. She is bound and is obliged to comply with the said permanent injunction, which is continuing against her during the pendency of the Appeal. Application disposed of accordingly. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]