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2011 (6) All MR 168
High Court of Judicature at Bombay
HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MR. JUSTICE R.Y. GANOO
Anwar @ Arvind Ramkrishna Mudbhatkal & Another
Versus
Shehnaz Sani & Another
FAMILY COURT APPEAL NOS. 131 of 2009 WITH FAMILY COURT APPEAL NO. 148 of 2009
Decided on : 16-09-2011
FAMILY COURTS ACT, 1984 - Section 19 - Claim of damages in matrimonial suit. Where a housing society was not and could not be made a party to petition before Family Court therefore damages in matrimonial suit as claimed by wife from housing society cannot be granted. The wife, after filing the written statement to the petition No. B-153 of 2008 filed by the husband has put up certain claims in the nature of her counter-claim and has prayed for certain reliefs which are set out in the prayers. We now propose to discuss whether such claim made by the wife can be granted. The wife has claimed a sum of Rs. 25 lakhs from the society on the ground that after the husband informed the society that the wife inserted her name in the flat purchase agreement by fraud and without the husband’s knowledge and consent, she was subjected to high handed abusive, insulting and contumacious treatment. According to her said members were representing the said society and therefore she has claimed the sum of Rs. 25 lakhs as and by way of compensation for damage, and injury suffered by her from the said society. After having considered the relevant portion of the evidence on this aspect, we are inclined to observe that the wife has not proved her case to support her claim for damages to the tune of Rs. 25,00,000/- or any part thereof. Except the bare word of the wife, there is other evidence placed before the Court in support of the claim made by her.
In any case, as per prayer (f) of counter-claim, she claims compensation from the said society. The relief of such a nature cannot be granted in favour of the wife in the present proceedings as the said society was not and could not have been made a party to the petition before the Family Court.
FAMILY COURTS ACT, 1984 - Section 19 - Suit for divorce. In absence of any evidence to support claim of wife in respect of 50% share in savings of husband on basis of understanding between wife and husband, bare word of wife cannot be accepted to grant her claim.
The wife has claimed 50% share in the income of the husband on the basis of understanding between the wife and husband. Except the bare word there is no evidence to support such a demand. The bare word of the wife as mentioned in examination-in-chief cannot be accepted to grant her claim.
R.Y. GANOO, J.
1. These two appeals are filed by the respective appellants so as to challenge the judgment and decree dated 1st June, 2009 passed by the learned Judge of the Family Court No.2, Mumbai, (hereinafter referred to as “Family Court”), in Petition No.B-153 of 2008. These two appeals can therefore be conveniently disposed of by a common judgement. Arvind Anwar @ Arvind Ramkrishna Mudbhatkal shall hereinafter be referred to as “husband” and Shehnaz Sani shall hereinafter be referred to as “wife”.
2. The wife had filed petition for divorce and other reliefs in the Family Court at Bandra, Mumbai, being M.J.Petition No.A-1945 of 1992. The said petition was decided by the learned Judge of the Family Court by judgment and order dated 30th September, 2005.
3. Being aggrieved by the said judgment and decree dated 30th September, 2005, the wife filed Family Court Appeal No.38 of 2006 in this Court. In the course of hearing of the said Family Court Appeal No.38 of 2006, it was brought to the notice of this Court that the suit filed by the husband against the wife, being Suit No.2065 of 1995 is pending. This Court, therefore, considered the point as to whether the said suit should continue to remain on Original Side or it should be transferred to the Family Court for decision on merits. After hearing the Advocate for husband and the wife, this Court by its Order dated 16th July, 2008 came to the conclusion that the said Suit No.2056 of 1995 should be transferred to the Family Court at Bandra, Mumbai and accordingly passed an order thereby transferring the said Suit No.2056 of 1995 to the Family Court, Mumbai, for disposal in accordance with the provisions of law. The said suit contains various prayers. This Court, by order dated 16th July, 2008 observed that the prayer clause (a) in the said suit has become redundant and therefore the Family Court is not required to decide the same. That order has been allowed to attain finality. This will mean that on transfer of the said suit to the Family Court, the Family Court was required to decide the prayers commencing from prayer clause (b) onwards.
4. The husband had prayed for following reliefs in the said Suit which was renumbered as Petition No.B-153 of 2008 :
“(b) that this Hon’ble Court be pleased to declare that the defendant has no right, title or interest of any nature whatsoever in the flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049.
.(c) that this Hon’ble Court be pleased to order and decree the deletion of the name of the Defendant from the records of the Milton Co-operative Housing Society Limited with regard to the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049, from the membership of the said society, from the shares bearing distinctive numbers 71 to 75 of Rs.50/- each issued by the said society in the Share Certificate No.15 dated 18th October, 1988 and from the Agreement for Sale dated 26th June 1985, being Exhibit “F” hereto:
(d) that this Honourable Court be pleased to restrain the Defendant by a mandatory order and injunction from entering into, remaining upon, using, occupying and/or possessing the said flat being Flat No.A-702, Milton Apartments, 7th Floor, Juhu Tara Road, Koliwada, Bombay 40 049 or any part or portion thereof:
(e) that this Hon’ble Court be pleased to restrain the Defendant, her servants, agents and/or representatives and/or any person or persons claiming under or through her by a perpetual order and injunction from in any manner dealing with, disposing of, mortgaging, transferring, assigning, selling, conveying and/or creating any third party right or interest in the said flat No.A-702, Milton Apartment, 7th Floor, Juhu Tara Road, Koliwada, Bombay 400 049 or any part or portion thereof:
(f) that this Hon’ble Court be pleased to restrain the defendant, her servants, agents, and or representatives and/or any person or persons clai
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