1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 23 OF 2007 IN REGULAR DARKHAST NO.378 OF 2006 IN PETITION NO.B-64 OF 2004 Mrs. Sarla Jayesh Solanki ] An adult, aged about 34 years, ] Occ : Housewife, ] R/o : Room No.52, 3rd Floor, ] Appellant New Bori Chawl, Alibhay Premji ] ( Ori. respondent) Marg, Grant Road (East), ] Mumbai-400 007 ] Vs. Mr. Jayesh Amrutlal Solanki ] An adult, aged about 36 years, ] Occ : Business-Tailor, ] Respondent R/o : Vashi Narayan Chawl, ] (Ori. petitioner) Room No.2, Ratan Nagar, ] Rajesh Compound, Dahisar (East), ] Mumbai- 400 068. ] ] Mr. Sameer Tendulkar, Advocate for Appellant. Mr. V. G. Mehta, Advocate for respondent. Coram : A.P. Deshpande, & Smt. R.P. SondurBaldota, JJ. Judgment Reserved on : 27th April, 2010. Judgment Pronounced on : 6th May, 2010. 2 JUDGMENT (Per Smt. R.P. SondurBaldota, J) : 1. This appeal arises out of the order dated 9th February, 2007 passed by the Family Court in execution proceedings initiated by the respondent husband to execute the interim order dated 6th May, 2006. 2. Appellant and the respondent were married on 21st May, 1994 and have a son born on 13th September, 1997. They had been residing in Room No.52, New Bori Chawl, 3rd Floor, Alibhai Premji Marg, Grant Road, Mumbai - 400 007 which are tenanted premises, the tenancy presently standing in the name of the brother of the respondent. The respondent is a tailor by profession and operates from the residence. According to him, the appellant has been leading adulterous life. After leaving the matrimonial house of her free will on 21st April 2003, she filed a false complaint against him under Section 498A IPC on 3rd May, 2003. The respondent surrendered before the police on 20th May, 2003 and was in custody for 43 days before he was released on bail. Taking advantage of the absence of the respondent, the appellant allegedly, along with her mother, brother and sister-in-law forcibly entered into the house by breaking the lock. The respondent therefore filed Petition No. B-64 of 2004 in the Family Court inter alia for permanent injunction to restrain the respondent from disposing off or parting possession or creating any third party right in respect of the matrimonial home. In that petition, the 3 appellant had filed interim application No.207 of 2003 to restrain the respondent from entering into the matrimonial home or residing therein. On that application, ad-interim order in favour of the appellant was passed on 10th June 2003. Consequently the respondent had to leave the house along with the son. Thereafter he filed the application at Exhibit 17 for allowing him to enter and stay in the matrimonial home in order to carry on his tailoring business. The application was allowed on condition that he makes arrangement for residential premises in a suitable locality for the appellant. The respondent had already acquired residential premises at Vashi Narayan Chawl, Room No.2, Ratan Nagar, Rajesh Compound, Dahisar (East), Mumbai - 400 068 and informed the respondent about the same. She visited the premises and disapproved it. Then the Family Court by consent of both the parties, appointed Commissioner to visit the premises. The Commissioner visited the premises on 30th June 2006 and submitted a favourable report that the premises is suitable for residential purpose of the respondent. 3. Simultaneously the appellant had challenged the order dated 6th May 2006 by preferring an appeal to this Court, in which she had expressed her reservations about the report submitted by the Commissioner. This Court then disposed off the appeal by directing the Family Court to consider the objections raised by the appellant to the 4 Commissioner s report within a period of two weeks. Accordingly the ’ objections came to be considered and rejected by the order dated 24th August 2006. 4. As the appellant failed to shift to the premises acquired for her, the respondent filed Regular Darkhast No.378 of 2006 for execution of the order dated 6th May 2006. The appellant once again raised the objections to the Commissioner s report to contend that the premises were not only ’ not suitable for her but were also not habitable. The Family Court while considering the execution application, perused the various applications filed by the parties, the reports made in the matter and the objections taken by the appellant from time to time. It noted that the alternative premises where the respondent is presently staying are habitable and suitable for residential purposes. The premises are situate in a good locality and most of the occupants of the building are Gujarathi, belonging to the same community as the respondent. With that the Family Court granted the Regular Darkhast and directed the appellant to hand over the possession of the matrimonial home to the respondent and further direction to the respondent to hand over vacant possession of the alternate accommodation to the appellant. The respective handing over of possession was to be done on or before 20th February 2007. 5 5. Mr. Tendulkar, learned counsel for the appellant submits that by passing the impugned order, the Family Court has travelled beyond the order dated 6th May 2006, which was sought to be executed. He points out that the order dated 6th May 2006 does not contain a specific direction that the appellant shall vacate the matrimonial home and shift to any alternative premises. We are unable to accept this submission for the simple reason that the entry of the respondent into the matrimonial home was allowed by the Family Court by the order dated 6th May 2006 on condition that he looks for an alternate accommodation for the appellant. This direction was given in view of the specific contention taken up by the appellant before the Family Court that it would be dangerous for her to occupy the matrimonial home along with the respondent. In that circumstance, it will not now be open for the appellant to refuse to shift to the alternate accommodation on the ground that there is no specific order directing her to do so. Mr. Tendulkar then tried to raise several objections as regards the suitability of the premises. We have gone through the report of the Commissioner, objections raised by the appellant thereto and the decision of the Family Court in overruling those objections. We are satisfied that the premises selected as alternate accommodation are suitable for residence by the respondent. Mr. Mehta, learned counsel for the respondent submits that the respondent 6 is well acquainted with the area of Dahisar as prior to her marriage, she was residing there. She has her several relatives residing closeby to the alternate accommodation. Therefore there can be no doubt about the alternate accommodation being suitable for residential occupation of the respondent. The record shows that the building in which the alternate accommodation is situate is mostly occupied by Gujarathis belonging to the same community to which the appellant and the respondent belong. Therefore, the respondent can be safe and comfortable in the alternate accommodation. There were a couple of more objections raised by Mr. Tendulkar as regards the legality of the premises and availability of water therein. The impugned order shows that the Family Court had summoned the landlady before it who had filed the documents to show that she is the owner of the premises offered by the respondent to the appellant. The Court also satisfied itself that there is sufficient supply of water to the premises before passing the impugned order. In the circumstances, the impugned order does not need any interference. In our opinion, the present appeal filed by the appellant is nothing but to attempt on her part to create hurdles in the way of the respondent occupying the matrimonial home and restarting his tailoring business therefrom. Therefore, the appeal is dismissed. 7 6. At this stage, the learned counsel for the appellant seeks stay of execution. In our view, there is absolutely no reason or justification to stay the execution. In the result, prayer for stay of execution is rejected. ( Smt. R.P. SondurBaldota, J.) ( A.P. Deshpande, J.)