Disposed

Sunita Manoj Mistry v. Manoj Mohanlal Mistry

Bombay HC15 Sept 2023WP/5536/2023

Case brief

AI extract

What is this about?

The Court dismissed an interim application to implead a party and disposed of a Writ Petition challenging a Family Court order mandating the respondent-husband to provide alternative accommodation to the petitioner-wife under Article 226.

What did the court decide?

Interim application rejected; Writ Petition disposed with directions to ensure availability of alternative suitable accommodation.

Sunita Manoj Mistry Vs Manoj Mohanlal Mistry — Matrimonial and Divorce | Bombay HC (2023)

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VRJ

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.5536 OF 2023

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Sunita Manoj Mistry… Petitioner
V/s.
Manoj Mohanlal Mistry… Respondent

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WITH INTERIM APPLICATION NO.7757 OF 2023 IN WRIT PETITION NO.5536 OF 2023

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Mahesh Mohanlal Suthar… Applicant
In the matter of
Sunita Manoj Mistry…Petitioner
V/s.
Manoj Mohanlal Mistry… Respondents

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Mr. Rajeev Patil, Senior Advocate with Ms. Preeti Gada
for the petitioner.

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Mr. R.T. Lalwani with Mr. J.K. Shah with Mr. Omkar
Sawant with Ms. Pooja Shah i/by R.J. Law for the
applicant.

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Ms. Firoza Daruwala i/by Ms. Nerissa Almeida
for the respondent.

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CORAM :AMIT BORKAR, J.

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DATED:SEPTEMBER 15, 2023

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P.C.:

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INTERIM APPLICATION NO.7757 OF 2023

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1.The application is filed by erstwhile respondent No.2 to
implead himself in the present petition. According to him, the

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impugned order affects his rights as the Family Court under Clause
2 of order dated 8th March 2023 directed the wife to shift in the
alternative accommodation provided by the respondent as per
Clause 1 of the said order. By Clause 1 of the said order, the
respondent-husband was directed to provide 1BHK flat on leave
and license basis to the wife.

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2.According to the applicant, the wife is occupying the flat
which is subject matter of Clause 2 of the impugned order.
Therefore, any order passed in the present petition would
prejudicially affect his legal rights over the said flat.

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3.The subject matter of present petition under Article 227 of
the Constitution of India is order dated 8th March 2023 passed on
the application below Exhibit-62. The application below Exhibit-62
is filed by the husband seeking relief against the wife to forthwith
vacate the flat owned by the applicant to move to alternative
accommodation.

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4.Since the application was filed by the husband against the
wife, the applicant even if claims to be owner of the property, is
not necessary party in the writ petition as the subject matter of the
petition is the legality and validity of the impugned order. Only the
person who has filed application and the person against whom
relief is sought are the necessary parties. If any order passed by
this Court ultimately affect rights of any person, such person
always has right to challenge such order but based on
apprehension that order is likely to be passed by this Court which
may prejudicially affect his rights is no basis to allow such party to

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be added as party. The respondent in the present proceeding as it
is for the petitioner to decide whom he wants to make a party.

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5.If this Court comes to the conclusion that necessary parties
to the petition are not added, the necessary consequence would
follow. Hence, the interim application is rejected.

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WRIT PETITION NO.5536 OF 2023

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6.Challenge in this petition is to the order dated 8th March
2023 passed by the Family Court in an application filed by the
respondent-husband seeking direction against the petitioner-wife
to vacate present flat and move into flat proposed by him.

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7.The Family Court allowed the application by passing
following order:

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“ORDER

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1.The respondent husband is directed to provide 1BHK
flat on leave and license basis to petitioner wife in the
suitable and decent (it means not in SRA and slum) vicinity
of Ghatkopar (East) Mumbai within 15 days from the date of
this order and produce the copy of leave and license
agreement on record. He shall supply one copy of said
agreement to petitioner and her advocate by RPAD and
email, as early as possible and file the affidavit of compliance
of the order on record.

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2.The petitioner-wife, within 8 days from the date of
receipt of the email and copy of leave and license agreement,
shall shift in the alternate accommodation provided by the
respondent as per above direction.

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3.The respondent (husband) shall pay the amount of

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security deposit and rent (every month) to the landlord
without fail.”

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8.Learned Senior Advocate for the petitioner expressed
apprehension that there is possibility of husband committing
breach of license conditions or it is possible that lessor may
terminate the agreement or on expiry of agreement may call upon
the petitioner to vacate the premises. In that case the petitioner
will not have any residence.

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9.The apprehension expressed on behalf of the petitioner can
be taken care of by directing the husband as under:
(i)The husband shall regularly pay license fees/rent as
prescribed in the leave and license agreement;

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(ii)In case the licensor either orally or in writing
communicates petitioner or husband asking them to vacate
the alternative flat, in that event, the husband shall see to it
that alternative suitable and decent flat as per Clause 1 of
the impugned order is provided to the wife before she hands
over possession of alternative accommodation provided
under Clause 1 of the Order;

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(iii) If there is dispute as to whether the flat is suitable and
decent as per Clause 1 of the Order, the Family Court shall
decide that issue and the decision of the Family Court will be
binding on both the parties.

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10. The petitioner shall inspect the proposed flat within one
week and if she finds that it is not suitable or decent, she will file

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appropriate application before the Family Court within one week.
The Family Court within one week shall decide whether it is
suitable or not and take decision. The decision of the Family Court
about suitability of flat shall be binding on the parties.

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11. The writ petition stands disposed of.

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(AMIT BORKAR, J.)

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Note:This order is modified as per order dated 21 September 2023 to
correct the appearance of the respondent.

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Sunita Manoj Mistry v. Manoj Mohanlal Mistry

Case brief

What is this about?

What did the court decide?

Sunita Manoj Mistry v. Manoj Mohanlal Mistry

Case brief

What is this about?

What did the court decide?

What the court decided

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