Case Note & Summary
The appeal arose from an order dated 19.07.2014 passed by the City Civil Court, Dindoshi, Mumbai, in Notice of Motion No.1959 of 2011 in S.C. Suit No.1560 of 2011. Respondent No.2 (mother-in-law) had filed the suit seeking permanent injunction to restrain the appellant (daughter-in-law) and respondent No.1 (son/husband) from entering or remaining in the suit flat. The trial court allowed the notice of motion and granted interim mandatory injunction restraining the appellant from entering the suit premises. The appellant challenged this order before the Bombay High Court. The background involved matrimonial discord between the appellant and respondent No.1, who had filed a divorce petition in May 2011. In that proceeding, the Family Court had passed orders in favour of the appellant, restraining respondent No.1 from dispossessing her from the matrimonial home and later directing him to provide keys of the suit flat. The appellant contended that the present suit was collusive, filed by the mother-in-law in connivance with the husband to circumvent the Family Court's protective orders. She argued that the suit flat, although standing in the name of respondent No.2, was purchased from the sale proceeds of ancestral joint family property, giving her a right to reside there. She further claimed no alternate accommodation and invoked her rights under the Protection of Women from Domestic Violence Act, 2005. The appellant also highlighted that the trial court had earlier dismissed her jurisdictional challenge under Section 9-A CPC. The respondents supported the impugned order, asserting that the suit flat was exclusively owned by respondent No.2 and she had the right to decide who could reside there. The Bombay High Court's judgment, however, is not fully available in the provided text, and the final decision remains unmentioned.
Issue of Consideration
Whether the trial court erred in granting interim mandatory injunction restraining the appellant (daughter-in-law) from entering the suit premises during pendency of the suit filed by respondent No.2 (mother-in-law) for permanent injunction, particularly in light of prior orders of the Family Court and the appellant's claim of right to reside in her matrimonial home.
Law Points
- Right of residence in matrimonial home
- Protection of Women from Domestic Violence Act
- 2005
- Jurisdictional challenge under Section 9-A of Code of Civil Procedure
- 1908
- Interim injunction principles
- Collusive suit
Case Details
2016 LawText (BOM) (09) 71
APPEAL FROM ORDER NO.910 OF 2014 WITH CIVIL APPLICATION NO.1095 OF 2014
Dr. Shalini Phansalkar-Joshi, J.
Ms. Jai Kanade, I/by Sumit S. Kothari, for the Appellant. Mr. Hemant Mehta, i/by Mehta & Co. for the Respondent No.2. Mr. Ajit Kocharekar, for respondent No.1.
Mrs. Sarika Mahendra Sureka
1. Mr. Mahendra s/o Rajkumar Sureka, 2. Mrs. Kusumlata w/o Rajkumar Sureka
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Nature of Litigation
Appeal against interim order in a suit for permanent injunction restraining entry into residential flat.
Remedy Sought
Appellant (original defendant No.1) seeking to set aside the order of trial court that granted interim injunction restraining her from entering the suit premises.
Filing Reason
The trial court allowed respondent No.2's notice of motion for interim injunction, allegedly collusively to evict appellant from her matrimonial home, circumventing a Family Court order protecting her right to reside.
Previous Decisions
Family Court granted appellant's application for injunction restraining respondent No.1 from dispossessing her; Family Court also directed respondent No.1 to provide keys; trial court dismissed appellant's jurisdiction challenge under Section 9-A CPC; the present appeal is against the interim injunction order.
Issues
Whether the trial court erred in granting interim mandatory injunction restraining the appellant from entering the suit flat, given the Family Court's earlier protective orders and the claim that the flat was purchased from ancestral property proceeds.
Submissions/Arguments
Appellant argued that the suit was collusive and filed to circumvent the Family Court's orders; the suit flat was purchased from sale proceeds of ancestral joint family property, entitling her to reside there; she had no alternate accommodation; the trial court granted mandatory injunction without a prima facie case; her right of residence is protected under the Protection of Women from Domestic Violence Act, 2005.
Respondent No.2 argued that the suit premises were exclusively owned by her and she had the right to decide who could reside there.
Judgment Excerpts
the trial Court failed to take note of the fact that the present suit is filed by respondent No.2, in collusion with respondent No.1.
the matrimonial home, although standing in the name of respondent No.2 alone, it being purchased out of the sale proceeds of the ancestral joint family property, the appellant and respondent No.1, both are having equal right to remain in possession of the said flat.
Procedural History
The appellant married respondent No.1 on 22.05.1991 and continuously resided in the suit flat. Respondent No.1 filed divorce petition in May 2011 and sought to restrain the appellant from entering the matrimonial home. The appellant obtained an injunction order from the Family Court on 04.07.2011 restraining respondent No.1 from dispossessing her. Later, on 18.10.2012, the Family Court directed respondent No.1 to provide keys of the suit flat. Respondent No.2 filed S.C. Suit No.1560 of 2011 for permanent injunction against the appellant and respondent No.1, and also filed Notice of Motion No.1959 of 2011 for interim injunction. The appellant filed a jurisdiction challenge under Section 9-A CPC, which was dismissed. The trial court allowed the notice of motion on 19.07.2014, restraining the appellant from entering the suit premises, leading to the present appeal.
Acts & Sections
- Protection of Women from Domestic Violence Act, 2005:
- Code of Civil Procedure, 1908: Section 9-A
