Ca 39/11 1 IN THE HICH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.39/2011 IN FAMILY COURT APPEAL NO.95/2009 Kanta T.Maun Applicant Vs. Tejas K.Maun Respondent Mr.Anand Grover appointed as Amicus Curiae for applicant Applicant present in person Mr.R.T.Lalwani for respondent CORAM- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR,JJ. DATE -29th March,2011 P.C. (Per Mrs.Mridula Bhatkar,J.) . This application is preferred by the applicant/ wife for interim injunction against respondent/ husband.The applicant prays that the respondent, his agents, servants,relatives be restrained from entering upon her matrimonial home i.e. Flat no.A / 403, Padmavati , 3rd Cross Lane, Swami Samarth Nagar, Andheri West Mumbai 58. 2 The respondent/husband filed Marriage Petition bearing no. A-1570 /2003 on the ground of cruelty which was allowed and decreed on 31/3/2009. The applicant/wife has challenged the said judgment and decree in the present appeal . The said appeal was Ca 39/11 2 admitted by this Court on 16/6/2009 . The appeal was dismissed for non prosecution on 20/9/2010. It is the case of the applicant that immediately on 22/9/2010 the respondent/husband remarried and now, he wants to bring his second wife at his residence where the applicant is also residing. Hence this application. 3 The applicant appeared in person . We requested Mr.Anand Grover to appear as amicus curiae and assist the Court. In the course of hearing on 18/3/2011, it was suggested by us to the parties to explore the possibility of settlement .The suggestion was accepted by both the parties. The matter was posted on 29/3/2011 . However, today amicus curiae and learned counsel for the respondent/husband conveyed that the settlement is not possible. Mr.Grover submits his report which is taken on record and marked X for identification. Thus,on the background of the submissions of both the learned counsel the application is decided. 4 The applicant objects to the entry of the respondent and the third person in the subject flat on the ground that it is her matrimonial home. It is her case that, she all along was sharing that house with her husband, hence she seeks injunction as prayed for . Ca 39/11 3 She claims that said house is purchased after their marriage and she has contributed 50% of the cost of the said flat . 5 Learned counsel for the respondent has challenged the maintainability of the application. He submits that as on today the respondent is married to other lady . Hence the application and appeal have become infructuous. As per section 15 of Hindu Marriage Act the decree holder should not perform second marriage till the appeal period is over. He submits that the respondent husband waited till the appeal was filed. However, the appeal was dismissed and, therefore, he married soon thereafter. 6 He further argued that the second wife of the respondent is entitled to reside in the house at Padmavati which is her matrimonial house. According to the respondent although the subject flat was purchased in the joint name of applicant and himself, the entire consideration was paid by him .Further, the applicant is residing elsewhere for several years and not in the subject flat. The applicant has alternate premises available at her disposal being No.C-19, Versova Andheri,Ankita CHS Ltd.at Andheri .She is falsely claiming to have sold that property. As a matter of fact an order of injunction Ca 39/11 4 is operating against her to forbear from disposing of that property. Thus, the applicant will not suffer any prejudice but if injunction as sought by her were to be granted the respondent would suffer irreparable loss and be dispossessed from his own property. In the alternative, the respondent gave offer to the applicant that the subject property which is purchased after the marriage and assuming that both have 50% share in the said property, to bring quietus to the controversy the property can be sold out to the third person and that both of them can share 50% sale price. The applicant did not accept this proposal. 7 Before we deal with the merits of the application we may refer to the point of maintainability raised by the respondent. Section 15 states about a waiting period for the successful spouse who holds decree of divorce in his or her favour. The Section reads as follows. Section 15 of the Hindu Marriage Act- “Divorced persons when may marry again- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has beenpresented but has been dismissed, it shall be lawful for either party to the marriage to marry again.” 8 By way of amendment in 1976 proviso to section 15 Ca 39/11 5 waiting period of one year to remarry prescribed for a successful spouse was deleted. The said point is elaborately discussed and decided in Chandra Mohini Srivastava Vs.Avinash Prasad Srivastava and Anr.(1967) 1 SCR 854 as well as in Tejinder Kaur Vs.Gurmit Singh,AIR 1988 Supreme Court,839. In both the cases SLPs were preferred, challenging the decision of the High Court allowing the appeals for decree of divorce. In section 15 there is no mention of SLP, however, it was held in the above cases that to avoid confusion of relationship and paternity and in the interest of public policy and morality the successful spouse is expected to wait for a period which is provided in law to take further steps. It is a duty of the decree holder spouse to wait for reasonable time and make sure whether any application for special leave has been filed. We place reliance on the said ratio and further hold that if the dismissal of the appeal takes place otherwise than on merit i.e.for want of prosecution then the successful spouse should wait for reasonable period to enable the other party to avail of appropriate remedy . After dismissal of the appeal or application for want of prosecution other party has right to move the application for restoration and for that purpose law provides period of 30 days to the other party. The decree holder spouse is required to wait for reasonable period and Ca 39/11 6 make sure whether wife/husband has filed application for restoration of the appeal and whether the said legal remedy is exhausted by her/him or not. In the case in hand the respondent/husband remarried on 22/9/2010 after the dismissal of the appeal for default on 20/9/2010. Though Section 15 does not envisage waiting period after dismissal of the appeal for want of prosecution, following the dictum of the Apex Court the argument of the respondent cannot be accepted. Therefore, we do not find any merit in the objection of maintainability of the appeal or present application. 9. Reverting back to the relief claimed in this Application, in the first place, even if the Applicant’s (wife) assertion is to be accepted as it is, it would mean that she is only a joint owner in the subject property along with the respondent (husband). If it is so, the relief as claimed by the applicant of restraining the respondent himself or persons claiming through him from entering into the subject flat cannot be countenanced. For, no such injunction can be granted against the joint owner. More so, because in the present case, the stand of the respondent (husband) is that the applicant is not residing in the subject flat for past several years. That assertion has not been countered by the applicant by filing any rejoinder affidavit Ca 39/11 7 or for that matter by relying on any contemporaneous record which would belie the said claim of the respondent (husband). Besides, the respondent asserts that the applicant is presently staying at Ulhasnagar. Even this assertion of the respondent has remained uncontroverted. In any case, the question of restraining the joint owner from entering upon the property will have the effect of passing mandatory order. The fact situation of the present case does not warrant passing of such mandatory order. We may place on record that both the parties have made allegations and counter allegations with regard to property owned and possessed by the other. However, in this application, it is unnecessary to delve into the said aspects as the limited relief that needs to be considered is: whether the respondent can be restrained from entering upon the property which is allegedly jointly owned by him. The answer to that question is an emphatic NO. We may also place on record that the respondent had shown willingness to arrive at arrangement which would bring quietus to the entire controversy between the parties but the said offer is not acceptable to the applicant. 10. Be that as it may, considering the fact that the relief claimed in this application is, in essence, to dispossess the Ca 39/11 8 respondent, who according to the applicant also is the joint owner of the subject flat and such injunction, if granted, would be in the nature of mandatory injunction. It is not possible to accede to the request of the applicant. Hence,the relief claimed in this application is devoid of merits. The same is, therefore, rejected. 11 The Court expresses word of gratitude for the able assistance given by Mr.Anand Grover as amicus curiae to the Court as well as for his sincere effort made to bring about amicable settlement between the parties at our request. (MRS.MRIDULA BHATKAR,J.) (A.M.KHANWILKAR,J.)