The appellant challenged the injunction clause in a divorce decree that restrained him from entering the matrimonial house. The High Court dismissed the appeal, holding the injunction was valid to protect the respondent's possession, noting the issue of title to the flat had not been framed or decided by the lower court.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.101 OF 2008
Mr. Subhash Shankar Dokre. .. Appellant Vs Mrs. Shobha Subhash Dokre. .. Respondent
Ms. Pratibha Shelake i/b Shri P.J. Thorat for the Appellant. None for the Respondent.
CORAM : A.S. OKA & A.A.SAYED, JJ DATED : 7TH OCTOBER 2016
ORAL JUDGMENT ( PER A.S. OKA, J)
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and the Respondent was dissolved by a decree of divorce. There was an injunction granted in respect of the suit flat in terms of Clause (3) of the operative part of the impugned judgment and decree which reads thus:
“3. The respondent is hereby restrained from causing disturbance to the possession of petitioner in any manner over the matrimonial house namely, 101, Classic Building, Manjrekar Wadi, M.V. Road, Andheri (East), Mumbai – 400 069 unless followed due procedure of law.”
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granted. Her submission is that as the wife has not established any right in respect of the suit flat, the Clause (3) of the operative part of the impugned judgment and decree be quashed and set aside. Lastly, she submitted that in the event this Court is not inclined to interfere with the impugned judgment and decree, a clarification may be issued that the impugned decree of injunction does not prevent the entry of the Appellant in the suit flat.
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Petition is dealt with in Paragraph 13 of the written statement in which he contended that he has purchased the suit flat out of his hard earned money and he denied the allegation of contribution of Rs.5,50,000/allegedly made by the Respondent wife. It will be also material to note the averments made in Clause (xvi) of the Paragraph 31 of the written statement. The allegation made therein is that the Respondent wife with the help of her elder son did not allow the Appellant to enter into the suit flat. He has further averred that he contacted Andheri Police Station when he was denied the entry in the suit flat. He was advised by the Police to remain out of the suit flat to avoid any complications. In Clause (xviii) of the same Paragraph of the said written statement, he has pleaded that he has no independent shelter and, therefore, he will be on the street if he is not permitted entry in the suit flat. Thus, in the written statement, there is a clear admission that the Respondent was in possession of the suit flat.
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Respondent wife of her contribution or contribution made by her parents for acquiring the suit flat. In the cross-examination, she claimed that the amount was paid by her father by issuing five cheques. However, she admitted that she had not produced any documentary evidence to show that her father had issued five cheques.
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Court is that the Respondent wife was residing in the suit flat with her three children, daughter-in-law and grand son and the Appellant was residing in his father’s house which was in the joint name of his father, he himself and his brother. The learned Judge of the Family Court observed that it was necessary to grant relief of injunction for protecting the possession of the Respondent wife.
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alternative by the learned counsel appearing for the Appellant cannot be accepted.
2 issues framed by the court
Whether the decree of injunction restraining the appellant from entering the matrimonial house should be quashed given the lack of evidence regarding the wife's title claim.
Whether the appellant is entitled to enter the suit flat despite the injunction granted to protect the respondent's possession during the pendency of proceedings.
Mr. Subhash Shankar Dokre
Mrs. Shobha Subhash Dokre
A.S. Oka
A.A. Sayyed
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
