The High Court dismissed a contempt petition filed by an ex-husband challenging the wife's transfer of flat tenancy to her name. The court held the transfer complied with consent terms aimed at securing benefits for daughters and quashed the petition for substantial defects.
Contempt petition dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
914-CONPP-18.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CONTEMPT PETITION NO. 1 OF 2018
IN
PARSI SUIT NO. 26 OF 1989
Mehrooz Adi Ghadiali
Versus
Ruby Ghadiali
…Petitioner
…Respondent
Mr Wasim Siddiqui, i/b Akshay Pawar, for the Petitioner.
Mr DR Zaiwala, i/b DH Nanavati,for the Respondent.
CORAM: G.S. PATEL, J DATED: 8th March 2018
PC:-
1.The Petitioner is the ex-husband of the Respondent. Their
matrimonial disputes in Parsi Suit No. 26 of 1989 resulted in
Consent Terms dated 20th December 1989. A copy of the order on
those Consent Terms, along with the Consent Terms themselves is
at Exhibit “A” from page 21 to page 28.
2.For the purpose of the present Petition two clauses of the
Consent Terms are relevant and these are clauses 16 and 18 at pages
25 and 26.
16.Ordered that during her lifetime, the Plaintiff do
have a right of undisturbed residence in the said flat and
neither the Defendant nor the Defendant’s parents or any
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other relative shall interfere with the Plaintiff’s said right of
residence in any manner whatsoever. Ordered further that
the tenancy rights in respect of the said flat do enure for
the ultimate benefit of the two daughters Manaz and Farah
and no one will be entitled to surrender the tenancy rights
in respect of the said flat. Ordered further that the Plaintiff
be and is hereby restrained from creating any third party
rights in the said flat and/or inducting any third person in
the said flat even though she may marry at any time.
Ordered that the Plaintiff be entitled to lock her room in her
sole discretion.
18.Ordered that the Defendant is hereby restrained
from residing in the said flat or any part thereof overnight.
Ordered further that the co-Defendant is hereby
permanently restrained from entering the said flat. Order
further that after the demise of the Defendant’s parents,
and during the lifetime of the Plaintiff, the Defendant is
restrained from entering the said flat.
3.The flat in question also the subject matter of clause 14. This
is Flat No. 36, Building No. 5, Wadia Baug, Parel Tank Road,
Mumbai 400 033. Clause 15 of the consent terms also made it clear,
especially when read with clause 18, that it was the Defendant, the
present Contempt Petitioner, who was restrained from residing in
the flat.
4.On behalf of the Contempt Petitioner (the husband) it is
argued that the Respondent has illicitly and in connivance with the
trustees of the Bombay Parsee Punchayet Trust and Funds
transferred the tenancy of the flat to her own name. This is said to
be in contempt of clause 16 of the Consent Terms. It is argued that
the two daughters Manaz and Farah have thus being deprived of the
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tenancy benefits. It is also urged that there was a Will by the
Contempt Petitioner’s mother purporting to make a bequest of the
tenancy in favour of the Contempt Petitioner and that Probate has
been obtained to this.
5.The last point is clearly irrelevant because there can be no
bequest by a testamentary instrument of a tenancy. The making of a
Will confers no rights in that regard.
6.As to the question of whether a transfer of the tenancy in
favour of the Respondent (the wife) can be termed even prima facie
as contempt, the answer will have to be in the negative. The clause
itself only says that the tenancy rights must “enure for the ultimate
benefit of the two daughters”. All that this means is that Manaz and
Farah should not be deprived of the benefits of the tenancy. As
between the Contempt Petitioner and the Respondent, they could
not have purported to transfer the tenancy by virtue of these
consent terms. The clause in question therefore quite rightly did not
make any such provision. Both daughters are married and reside
elsewhere. Indeed, correctly read all that the relevant portion of
clause 16 said or intended was that the shelter and residence of the
minor daughters should not be affected during their minority by
virtue of any party purporting to surrender the tenancy. None
attempted any such surrender. The two parties to the divorce action
could not, inter se, purport to create any tenancy rights without the
consent of the landlord trust.
7.In any case it is difficult to see how the Contempt Petitioner
can bring this action without joining the trustees and the two
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daughters. This is a material defect in Contempt Petition. These are
matter that are to be construed strictly and not liberally. The two
daughters have so far made no claim to this tenancy. Prima facie,
therefore, it is difficult to appreciate what is being suggested: that
though the tenancy cannot be in the daughters’ names; cannot be in
the Contempt Petitioners’ name; even so it cannot be in the
Respondent’s name, though this is where she lives. This is an
entirely perverse approach. What the submission overlooks is that
by taking the tenancy in her name, and given the state of the law
regarding heritability of tenancy, the Respondent has actually
ensured that the tenancy enures to the parties’ daughters. The
purpose of Clause 16 is fully achieved by having the tenancy in the
Respondent’s name. It is not subserved by the Contempt
Petitioner’s case that it should be in nobody’s name (since it
evidently cannot be in the names of the two daughters at this stage).
8.Last but not least, I find that the prayer in the Contempt
Petition are also defective in that it does not set out specifically the
act of contempt, or when it was said to have been committed.
9.In my view the Contempt Petition is without substance. It is
dismissed. There will be no order as to costs.
10.Affidavit in Reply to be filed in the registry after proper
pagination.
(G. S. PATEL, J)
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3 issues framed by the court
Whether the transfer of tenancy rights to the wife constitutes contempt of consent terms intended for daughters.
Whether the contempt petition is maintainable without joining the trustees and daughters.
Whether the petition sufficiently specifies the act of contempt and its timing.
Mehrooz Adi Ghadiali
Ruby Ghadiali
G. S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court