1 WP.5234/2010 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5234 OF 2010 Swapna Sadanand Ayare ...Petitioner Vs. . 1. Mrs. Vaishali Dilip Tanwani ...Applicant 2. Mr. Dilip Shankardas Tanwani ...Respondents Ms. Jyoti Chanvan, Advocate for the Petitioner Ms. Zohra J. Shaikh, Advocate for Respondent No.1 CORAM : SMT. ROSHAN DALVI, J. DATED : 10TH DECEMBER, 2010 P.C. : 1. The applicant applied to be made party Respondent in the Petition filed by the Petitioner, wife of the Respondent in the Family Court, Mumbai being Petition No.B 122/2009. That Petition intrinsically was filed for protecting her possession in her matrimonial home. The applicant claimed to have purchased that matrimonial home and claims recovery of possession and other rights. Her application came to be rejected with costs. Hence this Writ Petition is filed. 2. The Respondent No.1 and the Respondent No.2 are wife and husband have had a acrimonious matrimony. The Respondent 2 WP.5234/2010 husband was alleged to have stabbed his wife on various parts of her person including her abdomen. He was charged under Section 307 of the I.P.C. He has been convicted on 24th May 2010. The conviction was suspended for 4 weeks. Thereafter he was to surrender or be taken into custody. In fact he was found to be at large. He dared to come to this Court in an application, which does not even concern him. Upon this Court realising that he was a fugitive, the Senior Inspector of relevant Police station being Mahim Police Station was called. He has now been taken into custody as per procedure established by law. It is in this set of circumstances that the applicant/Petitioner claimed her rights in the Family Court to intervene in a dispute which does not concern her at all. 3. The applicant/petitioner is the immediate neighbour of the Respondent No.1 and 2. They live in a chawl premises. Their premises is stated to be about 250 sq. ft built-up / 180 carpet area. The incident of stabbing took place in December 2008. The husband was arrested in January 2009. He appears to have been released on bail as an under-trial. He, therefore, naturally resided in the matrimonial home. It must only be imagined by Court as well as by others how the wife could have survived in her matrimonial home with her husband who had already once stabbed her. Given the situation in which most family are, neither of the parties has a choice of taking up another place of residence. The husband and the wife naturally 3 WP.5234/2010 continued to live together, their disputes notwithstanding. 4. The first payment by the applicant is stated to have been made in June 2009. The premises is tenanted from a landlady. The tenancy rights belonged to the mother-in-law of the mother-in- law of the Respondent No.1 wife. The tenant had already expired. The landlady agreed to the transaction to make the applicant/petitioner the tenant. The landlady required an indemnity from all the heirs. The heirs were the husband and the mother-in-law and the two sisters of the husband. The Respondent No.1 wife was nowhere in the picture. She lived in the premises with her two minor children. She would be none the wiser and none the safer. The transaction took place by the transfer of tenancy to the name of the mother-in-law of the Respondent No.1 and a surrender by the mother-in-law to the landlady. Thereafter, an agreement between the landlady and the applicant/petitioner was executed on 29th September 2009. 5. The Respondent No.1 came to learn of it much later. She claims that it was collusive and it was to deprive her and her children, not only of the matrimonial home, but of the proceeds of the matrimonial home. She claimed that the transfer reflected a much lower value than the market value. That claim is not only natural, but must be expected in the circumstances. 4 WP.5234/2010 6. The transfer was of September 2009. The Court must take into account the real estate values at that time which was a year ago. The transfer is shown to be for Rs.12 lakhs. The Respondent No.1 wife claims that the value of the premises was for Rs.35 lakhs. She claims that she learnt from the neighbours etc., That transaction was of Rs.30 lakhs. She claims to be deprived of the benefits of the transaction. 7. She is entitled to the matrimonial home and all the rights that flow from it. She is entitled to be secured and protected in her matrimonial home. It is seen that she lives in a family of violence. Even if an act of domestic violence is not made out by her, it is a bounden duty of the Court in such circumstances not only to take notice of it, but to protect her. Her protection is breached by the loss of the matrimonial home altogether by a transaction entered into by the husband and his relatives, including her mother-in-law who lives in the matrimonial home, to oust her therefrom and to render her homeless. Because the transaction may not reflect the entire and correct valuation she would not even be able to claim a part of consideration to obtain an alternative premises therefrom. 8. Under these circumstances the transaction between the applicant and the mother-in-law, which is to the total exclusion of the right of the wife in her matrimonial home, cannot be 5 WP.5234/2010 allowed. The applicant must file a civil suit to recover back her monies or possession of the property. The Petitioner wife would be the most proper and necessary party thereto. She would be entitled to resist any order being passed in such a suit also. No such order can be passed by the Matrimonial Court in favour of the applicant. 9. The application seeks to get a remedy of recovery of the sale price and/or recovery of possession by the applicant without payment of proper court fees and disregarding the purpose and object of the Domestic Violence Act essentially made for protection of wives in such cases. The rejection is, therefore, proper. 10.The Writ Petition deserves to be dismissed. However the Petitioner’s Counsel applies for its withdrawal. Hence it is allowed to be withdrawn. 11.The report made by the Senior Inspector of Police with regard to taking custody of the husband who has been convicted is taken on record. (SMT. ROSHAN DALVI, J.)