* IN THE HIGH COURT OF DELHI AT NEW DELHI + I.A. 7684/2004 and CS (OS) 1068/2004 Reserved on : 29th February, 2008 Date of decision :17th March, 2008 Shri Vidyanidhi Dalmia .... Plaintiff Through : Ms. Malavika Rajkotia with Mr. Krishenudu, Mr. Ashish Verma, & Ms. Jyoti Srivastav, Advocates :: Versus :: Smt. Nilanjana Dalmia, ..... Defendant Through: Mr. V.P. Narula, Sr. Advocate, With Mr. Gautam Narula, Advocate CORAM: Mr. Justice S. Ravindra Bhat 1. Whether reporters of local papers may be allowed to see the judgment? .Yes 2. To be referred to the Reporter or not? .Yes 3. Whether the judgment should be reported in the Digest? . Yes Mr. Justice S. Ravindra Bhat: 1. In this application, the defendant seeks rejection of the plaint, under Order 7, Rule 11, Code of Civil Procedure, 1908 (hereafter “CPC”) on various grounds, such as the plaint not disclosing a cause of action, the suit being barred and so on. I.A. 7684/2004 and CS (OS) 1068/2004 1 of 24 2. The plaintiff has, in the suit, seeks the following reliefs: a) Pass a decree of permanent injunction restraining the Defendant from entering into or attempting to enter into or approach within 100 metres of the plaintiff’s residence at F-1, Anand Niketan, New Delhi and from speaking to or approaching the Plaintiff’s staff in any manner whatsoever; b) Pass a decree of permanent injunction restraining the Defendant from speaking with or addressing any written communication to the personnel associated with the Plaintiff’s companies including Directors on any issue not relating to the respective companies; c) Pass a decree of permanent injunction restraining the Defendant from talking, threatening, addressing communications to the personnel associated with the Plaintiff’s companies including the Directors on any issues relating to day to day affairs and operation of the respective companies; d) Pass a decree of permanent injunction restraining the Defendant from addressing any communication to the Plaintiff’s family members, relatives, friends, acquaintances or associates which are abusive to the Plaintiff and which cast aspersions on his character and which intrude and invade or tend to intrude or invade the Plaintiff’s privacy or attempting to approach them and/or communicate with them for such purposes. e) Pass a decree of permanent injunction restraining the Defendant from addressing any communication to the Plaintiff’s family members, relatives, friends, acquaintances or associates which are abusive to the Plaintiff and which, in regard to the Plaintiff, intrude, invade upon and impose on their privacy, cast aspersions on their character and/or are derogatory to or defamatory to their reputation, prestige, esteem and standing in society or attempting to approach them and/or communicate with them for such purposes. I.A. 7684/2004 and CS (OS) 1068/2004 2 of 24 f) Pass a decree of permanent injunction restraining the Defendant from attempting to enter, attend and/or disrupt any social/private gathering hosted by the Plaintiff in a public or private place; g) Restrain the Defendant, her servants, agents from in any manner interfering with or transferring, alienating and creating any third party interest or encumbering in any manner whatsoever Plaintiff’s immovable and movable properties set out in paragraph 12 (q) above and h) Pass such further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. ” 3. The plaint, rather prolix, avers about the marriage of the plaintiff with the defendant, on 10-5-1978, according to Hindu rites; the birth of their two children- a daughter on 27-4-1984, and a son, on 12-2-1990. The plaintiff claims to have abided by his legal relationship with the defendant as a husband. He however alleges that the defendant has indulged in acts of cruelty which led to his leaving the matrimonial home, at 27 Akbar Road, New Delhi, and taking separate residence at F-1, Anand Niketan, New Delhi, on rent, after brief spells as a paying guest. He alleges to have stayed within the marriage relationship despite acts of cruelty by the defendant. 4. According to the plaint averments, the defendant has a tendency to keep control of all relationships and things, which resulted in her controlling his affairs and desiring that he acts according to her wishes. I.A. 7684/2004 and CS (OS) 1068/2004 3 of 24 There is advertence to an incident of 15/16-5-1996 when she took exception to his visiting her cousin and having dinner with her, at Mumbai. Similarly, the defendant’s dislike and maltreatment of Ms. Leonara Coster, his elderly childhood governess, has been alleged. The plaintiff also refers to some incident which allegedly occurred in 1978 when his college friend called upon him, which led to hysterical behavior by the defendant. Other acts of cruelty, against Ms. Coster, in 1984 after a sojourn by the couple in the USA, have been referred to. It is alleged that the defendant started to mention about her problems with the plaintiff, to her daughter, when she was about 3-4 years old. The care and attention given to Ms. Coster in 1990, when she suffered a heart attack, was allegedly objected to and resented by the defendant, who insisted that she should return to Patna. The plaintiff also avers about two further such incidents in 1996-2000 when Ms. Leonara Coster suffered heart attacks. Another act of cruelty alleged is of the year 2000 when the defendant objected to the plaintiff going to take care of Ms. Audrey Ann’s husband; the said Ms. Ann is Ms. Coster’s neice. On that occasion, the defendant allegedly hurled obscenities at the plaintiff. 5. The plaintiff refers to e-mails by the defendant to her brother in January and February, 1999 accusing the former of adulterous relationships, I.A. 7684/2004 and CS (OS) 1068/2004 4 of 24 and her discomfort or problems with women; the defendant also allegedly admitted that she had been foolish. The plaintiff alludes to his friend and classmate, Ms. Fiona Roche’s visit in 1990; this was not liked by the defendant, who suspected the plaintiff’s affair with the lady; this was despite the plaintiff’s entreaties that she was a guest. The plaintiff makes general allegations about abnormal and cruel behavior by the defendant during 1990-1993; her giving more attention to the son after his birth and neglecting the daughter, and so on. The couple visited Dubai for a vacation in 1995, which was allegedly a disaster. Later that year, they visited the defendant’s brother at New York; there too the defendant started controlling and limiting the plaintiff’s interaction with her family, rebuking him openly in front of her brother and escalating the tension between the parties. 6. The plaintiff alleges that during the period 1993-95, the plaintiff had health problems, some serious, but the defendant never cared to look after him or accompany him to a doctor. The defendant even refused to accompany him when he underwent colonoscopy on 4th February, 1993; likewise, she refused to be with him, when he underwent an eye check up in 1994. The defendant allegedly forbade the plaintiff from visiting her house, I.A. 7684/2004 and CS (OS) 1068/2004 5 of 24 when her mother died on April, 1996, which shocked and deeply hurt him. All these led the plaintiff to remove himself from the bedroom and into the study room, downstairs, in their house; this virtually ended their conjugal relationship for all practical purposes. The plaintiff also alleges that the defendant did not allow their children to spend time with him. She accused him of having extra-marital relationships with various people, including members of their family. The plaintiff also avers that the defendant never lost an opportunity to humiliate him. She also allegedly told him that it would be better that he moved out of the matrimonial home; in June 2001, she allegedly accused him of having sexual problems. Later that year, the defendant allegedly accused the plaintiff for not grieving her niece’s death. 7. Apart from the above incidents, the plaintiff alleges that the defendant maligned and defamed his reputation and self esteem by telling many people, including family members, friends etc that he was a loser, a bad businessman an adulterer and unfaithful wife beater. She however wrote some e-mails in 1999 admitting some of her mistakes and assuring him not to repeat them. The defendant is allegedly only a director in the plaintiff’s companies; yet she tries to assert herself in their functioning. The plaintiff, after leaving the matrimonial home, has been paying Rs.25,000/- I.A. 7684/2004 and CS (OS) 1068/2004 6 of 24 every month to the defendant, towards expenses; Rs. 21,000/- for herself, Rs.3000/- for the college going daughter, and Rs. 1000/- for the son. The plaintiff also avers that he has several assets, including shares and investments in companies; besides, he is non-executive director in some companies. The defendant has repeatedly, through several acts, sought to elicit information about him; besides she has written emails to business associates which are offensive. The suit also contains allegations about letters written by the defendant to the plaintiff’s friends and acquaintances, containing objectionable references, which allegedly distressed such friends and their relatives. The plaintiff alleges that the defendant falsely accused him of abandoning her, to his friends, and falsely alleging that he threatened to withdraw financial support, which is contrary to facts. He also alleges that the defendant accused him of moving from woman to woman and squandering away reserves on purchase of cars, holidays and visits to five star pubs and restaurants for women. The plaintiff alleges that the defendant has threatened to take legal action to seek partition. He mentions that the e-mails of the defendant assert that his business investments are from family funds, which are untrue; he has listed out his personal assets in para 12 (q), asserting that they are self acquired properties. I.A. 7684/2004 and CS (OS) 1068/2004 7 of 24 8. The plaintiff avers that he did not issue instructions to his staff members to prevent the defendant’s entry into business premises; she as his wife can assert her legal relationship. The demands of that relationship are being met by him to the best of his abilities; however she cannot assert the same relationship as regards business interests and their management. She, it is alleged, is misusing her relationship as wife to harass and intimidate him, maligning his reputation and business interests, which cannot be permitted. 9. On the basis of the above averments, the plaintiff seeks permanent injunction restraining the defendant from invading his privacy, defaming him and/or maligning his reputation. 10. The defendant applicant seeks rejection of the plaint; she alleges that the cause of action paragraph of the plaint itself shows that admittedly the parties are husband and wife. Therefore there cannot be any occasion for the plaintiff to allege that the defendant has attempted to invade his privacy. It is further submitted that under the Specific Relief Act, 1963, the reliefs of the nature sought for in the suit cannot be granted as there is a specific bar regarding maintainability of a suit of such nature. It is alleged that the suit therefore is liable to be dismissed. I.A. 7684/2004 and CS (OS) 1068/2004 8 of 24 11. It is averred that there is no cause of action is disclosed in the plaint which are the basis for claiming the reliefs. It is submitted that the plaintiff is guilty of not coming before the Court with clean hands as he has suppressed and concealed material facts from the Court; he has also taken recourse to total falsehood in the plaint for claiming ad-interim injunctive reliefs. It is also submitted that the case, based upon falsehood is liable to be nipped at the bud by exercising jurisdiction under order 7 Rule 11 CPC, as injunctive reliefs under the Specific Relief Act are discretionary. The reliefs cannot be claimed as a matter of right; therefore, the onus is on the plaintiff to prove that he has approached the Court for equitable and discretionary relief, by showing equity and also that he has no ulterior and oblique motive in instituting the suit. 12. It is submitted that an ex-facie reading of the plaint itself would reveal that the filing of the suit, besides inflicting mental cruelty upon the defendant, has the ulterior and oblique motive to abuse the process of the court by seeking injunctive relief in order to intimidate and/or pressurize the defendant to agree to the plaintiff’s larger design to prevent her from availing the remedies available to her in law. The defendant alleges that the I.A. 7684/2004 and CS (OS) 1068/2004 9 of 24 court should refuse discretionary relief if the suit has been filed as an intimidatory tactic on the face of the record. 13. Mr. Y.P. Narula, learned senior counsel for the applicant defendant, in addition to urging the pleas taken in the application for rejecting the plaint, submitted that the suit is barred because it is, in effect seeking judicial separation on the one hand, and the injunction sought, if granted, would amount to preventing the defendant from availing statutory remedies. These were impermissible. Counsel submitted that so far as the first aspect was concerned, the Hindu Marriage Act, 1955 (hereafter"HMA") being a special enactment dealing with marriage and divorce, bound the parties to matrimony. If one party to a marriage had grievances he or she had to seek remedies under that statute and no other. Inter se disputes, between parties to a matrimonial relationship, in all respects, are governed by statute law; the parties are bound to assert their rights in the relationship and also avail the remedies within the framework of that statute. The jurisdiction of civil courts is barred, as is the necessary implication of Section 4 of the said Act. 14. Counsel submitted that the content of the reliefs sought by the plaintiff was upon the same grounds he would have to establish for securing I.A. 7684/2004 and CS (OS) 1068/2004 10 of 24 a decree for judicial separation; indeed if the injunctions were to be granted, the court would be mandating in effect a judicial separation, without complying with the requirements of the HMA. The suit is therefore barred. It was also submitted that a vital component of a subsisting marriage is conjugal relationship, which cannot be disturbed by anyone, including the court, through an injunction. The law provided that such conjugal relationship could be limited through judicial separation, or extinguished, through a decree of divorce. Absent these two situations, the right of spouses to their conjugal relations, which extended to visiting each other, could not be subject matter of an injunction suit. It was also submitted that the decree sought for was impliedly barred, because it would be preventing the defendant from asserting her statutory right to seek restitution of conjugal rights. 15. Ms. Malvika Rajkotia, learned counsel for the plaintiff, on the other hand, submitted tha the suit disclosed a triable cause of action. The plaintiff was not disputing the marital relationship, or seeking to disturb its integrity. Indeed, he expressly averred that the marriage between the parties was subsisting and he had no intention of changing it. Yet, the behavior of the defendant was unwarranted, and the plaintiff was justified in asserting his I.A. 7684/2004 and CS (OS) 1068/2004 11 of 24 right to privacy within the marital relationship. Counsel submitted that advertence to acts of cruelty by the defendant did not automatically lead to the inference that such acts constituted alleged “cruelty” under the HMA; the plaintiff had no intention of seeking any remedy under that statute. 16. Ms. Rajkotia relied upon the judgment of the Bombay High Court, reported as Abdur Rahim –vs- Padma AIR 1982 Bom 341 and the decision of the Court of Appeal in Nanda –vs- Nanda 1967 (3) All ER. 401. 17. In Abdur Rahim (supra), a Division Bench decision of the Bombay High Court, dealt with the right to residence of a wife in the matrimonial home. The marriage between the parties there was subsisting, yet broken down beyond repairs. The husband filed a suit for injunction, restraining the wife from entering the matrimonial house. The Court held that an injunction subject to certain terms and conditions could be granted. The parties, due to their strained relationship could not be forced to live together. The court noted that flat was big enough to allow them to live separately. The High Court set apart separate portions for the parties, for living separately and restrained the wife from entering the portion in occupation of the husband. The husband was an eminent surgeon; the court held that he could have peace of mind to enable him to discharge his duties, efficiently. The husband was also directed to pay maintenance to the wife. Nanda on the other hand, is a decision by the Court of Appeals, I.A. 7684/2004 and CS (OS) 1068/2004 12 of 24 where the parties had married each other in India. The wife had succeeded in securing a decree for restitution of conjugal rights and sought to enter the husband’s new home, where he was staying with another woman. The husband’s claim for injunction on the ground of the wife’s trespass was upheld. The court held that the order for restitution could not be enforced. 18. Before a discussion on the merits of the application, it would be necessary to recapitulate some of the provisions of law, cited on behalf of the parties. Section 4 of the HMA reads as follows: “4. OVERRIDING EFFECT OF ACT. Save as otherwise expressly provided in this Act,- (a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.” ****** ****** ****** ****** ****** “9. RESTITUTION OF CONJUGAL RIGHTS. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. I.A. 7684/2004 and CS (OS) 1068/2004 13 of 24 Explanation.-Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.” ****** ****** ****** ****** ****** “10. JUDICIAL SEPARATION. (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub- section (2) thereof, as grounds on which a petition for divorce might have been presented. (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.” 19. The grounds for divorce – which are also grounds for seeking judicial separation, include adultery; treatment of one spouse with cruelty after marriage or that the offending spouse has has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. It would be necessary therefore, to decide whether the acts of cruelty complained of here are of the same magnitude and intensity required to be proved by an aggrieved spouse, or whether the aggrieved spouse can seek relief outside of the HMA. This is necessary, because only if this court holds that such exclusive jurisdiction vests in courts under the HMA can it be held that the present suit is barred. I.A. 7684/2004 and CS (OS) 1068/2004 14 of 24 20. Section 4 enacts, in a sense, the overriding nature of the Act. Its provisions are to prevail, notwithstanding any other custom, usage, or provision to the contrary. In the decision reported as Smt. Rohini Kumari –vs- Narendra Singh AIR 1972 SC 459 it was held that though the HMA’s preamble describes it as one to codify the marriage laws of Hindus, and the in such cases, the object essentially is that on any matter specifically dealt with, it should be sought for in the codified enactment alone when any question arises relating to that matter. Ordinarily the court is not at liberty to look to any other law. Yet, HMA not only amends but also codifies the law of marriage and it makes fundamental and material changes in the prior law. The court held that Section 4 of the Act gives overriding effect to provisions of HMA. Therefore, unless in any other enactment there is a provision which abrogates or amends those of the HMA, or repeals it expressly or by necessary implication, the provisions of the Act alone will be applicable to matters dealt with or covered by the same. The court noticed that Sections 9 and 10 of the Act provide for restitution of conjugal rights and judicial separation. Section 10 deals with judicial separation and once a decree for judicial separation has been granted a decree for dissolution of marriage can be passed under Section 13(1-A) provided there is no resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial separation. Section 13 gives several grounds for dissolution of marriage by a decree of divorce and one of the grounds is I.A. 7684/2004 and CS (OS) 1068/2004 15 of 24 the one contained in sub-section (1-A) of that section. 21. Under Section 9 of the CPC, the civil courts have jurisdiction to try and decide all civil causes, except those excluded. The courts in India, have dealt with different nuances of this issue, over the last six decades. Far back, in Secretary of State v. Mask & Co. (AIR 1940 PC 105) the question was considered in connection with Sea Customs Act (1878). It was held that: "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The Constitution Bench in Dhulabhai v. State of M. P. (AIR 1969 SC 78) said that: "Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions on civil courts are prescribed by the said statute or not." Much later, in connection with the Industrial Disputes Act, in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke (1976) 1 SCC 496 it I.A. 7684/2004 and CS (OS) 1068/2004 16 of 24 was pointed out by the Supreme Court that the