1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.767 OF 2008 Sunita S. Kalwar .. Petitioner Versus Sanjay Shardaprasad Kalwar .. Respondent Petitioner in person Mr.S.N.Vaishnava with R.D.Dave i/b. M/s.N.N.Vaishnava & Co. for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 7th February 2008 P.C. . This petition under Article 227 of Constitution of India is by the wife being aggrieved and dis-satisfied with the order passed by the Family Court on an application being Interim Application No.309 of 2007 in Petition No.A-2463 of 2006. The first order that the learned Judge has passed is dated 17th October 2 2007. Learned Judge has observed that the husband respondent before me submitted an application for temporary injunction restraining the wife from entering his house. However, he was not ready to provide alternate accommodation to the respondent wife and was not ready to pay maintenance to her. Therefore, his application for temporary injunction (Exh.A) was dismissed on 17th October 2007. 2. In the fresh application, according to learned Judge, the husband has shown his willingness to provide alternate accommodation to the wife and on that ground alone, so also holding that in a petition for divorce, it would not be proper that parties should live together, that the learned Judge granted temporary injunction in favour of the respondent husband against the petitioner wife restraining her from entering the residence of husband. The order was passed mainly because the petitioner husband 3 before the trial court agreed to and showed his willingness to provide alternate accommodation so also to pay some amount as maintenance. 3. The wife, therefore, was aggrieved and contending that despite no changed circumstances having been pointed out, in a span of less than one month, the restraint order could not have been passed, filed a review application praying for review of the order passed on 16th November 2007. 4. The review application was based upon several contentions including that the husband has failed to make out any case for passing of an order of the nature passed. On the other hand, once the application being rejected, she prayed that the restraint could not have been imposed upon her. More so, when she would be forced to stay away either with her parents or alone, with a minor 2 and half year old baby girl. 4 5. Learned Judge has rejected the review application also and that is how the present petition has been filed. 6. True it is that the petitioner - wife before me has presented her case in person. However, I noticed that atleast in this Court she was clear and articulate enough to pin point her grievance precisely. Be that as it may, it was for the court to have satisfied itself that the husband has made out a prima facie case that balance of convenience is in his favour and that grave and irreparable loss, harm and injury would be caused in case the restraint order is not passed. Ultimately, it was an order of injunction but upon a perusal of the impugned order dated 16th November 2007 so also the order dated 12th December 2007, it is clear that the learned Judge failed to apply his mind to this vital and fundamental aspects of the matter. A 5 restraint order ought not be passed mechanically and without necessary satisfaction. The concept of matrimonial home and the restraint from entering therein being emphasised time and again by this Court and the Hon’ble Supreme Court, the learned Judge should have applied his mind before passing an order against the wife. That being admittedly not done, both orders viz., dated 16th November 2007 and 12th December 2007 are quashed and set aside. 7. However, interest of justice would be sub-served if the interim application No.309 of 2007 in Petition No.A-2463 of 2006 is restored to file of the family court, Bandra and the learned Judge to whom the same is assigned is directed to pass appropriate orders thereon, after hearing both sides. 8. Petitioner wife is present before me and she makes a statement that despite the impugned 6 order being quashed and set aside, she undertakes not to enter the matrimonial home of the husband until Interim Application No.309 of 2007 is decided afresh as directed above. Undertaking and statement accepted. 9. Needless to state that the learned Judge should decide the matter without being influenced by any observations in the earlier order. The learned Judge should also not be influenced by wife’s without prejudice statement being recorded in the above terms. 10. While quashing and setting aside the impugned order, it is clarified that I have not expressed any opinion on the merits of the marriage petition or the interim application and both shall be decided on their own merits and in accordance with law. All contentions of both sides are expressly kept open. Petition disposed of in the above terms. 7 (S.C.Dharmadhikari, J)