2013 Supreme(Bom) 675

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MRS. ROSHAN DALVI, J.
Mrs. Tripti Manish Sahni
Vs.
Manish Gobindram Sahni & Ors.
Civil Application Nos. 146, 286 of 2013 in Writ Petition No. 3682 of 2012
Decided On : 20th March, 2013

Headnote:Constitution of India, 1950 - Article 226 - Wife’s share in matrimonial house.

       Where suit flat was matrimonial home therefore spouses would be jointly entitled to remainder of sale proceeds. - The contribution of the wife was, therefore, seen to be deeper than only "financial contribution" initially contemplated in the case of Falconer, 1970 (3) All ER 449 : 1970 (1) WLR 1333. Any non-financial interest in a marriage which is a life partnership was also given due and equal importance. It is this profound concept of a sacramental relationship that is the bed-rock of common law as has developed from precedent to precedent as Alfred Lord Tennyson had poetically expounded and which the legislations in England and India have accepted and endorsed.

       In India the rights of the Indian wives in their matrimonial home were governed by the common law. Statutes in England, the Matrimonial Homes Act, 1967, the Matrimonial Proceedings and Property Act, 1970, the Domestic Violence and Matrimonial P roceedings Act, 1976 and the Matrimonial Homes Act, 1983 (Repealing the Act of 1967) appear to be the guiding force behind the Protection of Women from Domestic Violence Act, 2005 (D.V. Act).

       It is common knowledge that parties were married since 1997. The parties continued to be husband and wife until after the purchase of their last matrimonial home in 2006 and lived together in it until the winds of change rocked their marriage. The parties have begotten two children. No matter their disputes, the wife is entitled to continue in the m atrimonial home. The children also need the care and protection of a home. The husba nd has accepted this fact. Upon the case of the wife that her rights were being betrayed she sued in the Family Court for the necessary injunction in respect of her matrimonial home.

       The husband accepted that right and pretended to go along with the wife whom he had disputes. Hence he offered to sell the flat on the sustainable ground that he was in financial crisis after he took the loan and promised to obtain another, perhaps smaller, house for his wife and children. This was despite the fact that the flat stood in the name of the husband and his mother. He claimed the consent of his mother. He never contended that the mother had made payment of any consideration for the flat No. 703, their matrimonial home. The wife’s right must continue despite the husband’s camouflage in wanting to pay off the bank. The wife’s financial contribution is of no significance. She is an equal partner in matrimony. She lived in matrimony with the husband for more than a decade. She is entitled to an equal share in the matrimonial home. This right was her common law right now been statutorily recognized and enshrined in Section 19 of the D.V. Act. Upon the fraud of the husband (being the applicant’s son) in putting up his mother as the claimant who has roped even the income-tax authority to deprive his wife and children, the matrimonial Court must come to her rescue. It would be as Lord Denning had proclaimed in his golden words "justice for the bank with mercy for the wife". Justice has been done to the bank. The bank is finally paid up. The other created obstacle is the Income Tax Department. Justice would have to be done to the Income Tax Authority as well. It would have to be "Justice for Income Tax Department with mercy for the wife and children". This justice would be done from the husband’s share. The husband who is seen to be an upstart and who has receded into the background is manifestly the main hero of the entire act. He having failed in his attempt to show his mother’s share, only his share must be used for the attachment of the Income Tax Authority. The wife’s share must be kept secured. This would also be for the security of the children. The right of a wife to be protected in her matrimonial home came to be considered by Courts in England under the common law, the law of justice, equity and good conscience and later under the Matrimonial Homes Act, 1967. It cannot be gainsaid that wives who are equal partners in matrimony would have equal rights in their matrimonial home with their husbands.

       Protection of Women from Domestic Violence Act, 2005 - Section 19 - Wife’s right of occupation in matrimonial home.

       Wife being equal partner in matrimony, is entitled to equal share in matrimonial home as such common law right of wife, now statutorily recognised under Section 19 of Act. - If the wife is given the entire amount of Rs. 75 lakhs which indeed is the proceeds of the matrimonial home in which she is entitled to live with her children, the husband also would be entitled to live therein. In that case, as per the assurance of the husband in the family Court application-cum-reply being his assurance-cum-statement the purchase of the property worth Rs. 75 lakhs would be the alternative matrimonial home of the parties. Rs. 75 lakhs is seen indeed to be the proceeds of their matrimonial home alone in which they both are alone entitled to live with their children. However in view of the husband’s conduct and the disputes, it would be more appropriate for the Court to grant separately to both of them the 1/2 share in the sale proceeds which may belong to both of them separately instead of granting to them jointly as a matrimonial home.

       Hence 1/2 of the sale proceeds being Rs. 37.5 lakhs would belong exclusively to the wife as and for the alternative residence to her matrimonial home available for her and her children’s residence. The remainder of Rs. 37.5 lakhs would belong exclusively to the husband subject to his income tax liability. Since it is seen that the mother’s name was only a facade and her application is totally dishonest and she does not genuinely own or has paid for the suit flat which is the matrimonial home of the husband and wife, she cannot be granted any relief and cannot be disbursed any amount from the amount deposited in this Court as the part of the sale proceeds.