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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHALINI PHANSALKAR-JOSHI, J.
Mrs. Sarika Mahendra Sureka - Appellant
Vs.
Mr. Mahendra s/o Rajkumar Sureka & Anr. - Respondents
Appeal From Order No. 910 of 2014 With Civil Application No. 1095 of 2014 In Appeal From Order No. 910 of 2014
Decided On : 19-09-2016
The court held that the daughter-in-law is entitled to protection of her right of residence even against mother-in-law, irrespective of the fact that the premises stand in the name of mother-in-law. The court distinguished the facts of the present case from the decision of the Supreme Court in S.R. Batra (supra), where it was held that "shared household" cannot include "household" where person aggrieved lived or at any stage had lived. The court held that in the present case, the appellant has resided jointly with respondents in the shared household for a continuous period of more than 25 years and hence the suit flat is "shared household" of appellant within the definition of Section 2(s) of the Act. Therefore, she becomes entitled for protection of her residence in the shared household.
Fact of the Case:
The appellant, daughter-in-law of respondent No.2, filed an appeal challenging the order of the trial court granting interim injunction restraining her from entering or remaining in the suit premises, which was her matrimonial home. The appellant claimed that she was continuously residing in the suit premises since her marriage in 1991 and that her father-in-law had purchased the suit property from the sale proceeds of the ancestral joint family property. The respondent No.2, mother-in-law of the appellant, filed a suit seeking relief of permanent injunction to restrain the appellant and respondent No.1 from entering or remaining in the suit premises. The trial court granted interim injunction in favor of respondent No.2.
Finding of the Court:
The court held that the impugned order of granting interim mandatory as passed by the trial Court, cannot be sustained and needs interference, so as to set aside the same. The court held that the appellant is entitled to protection of her right of residence even against mother-in-law, irrespective of the fact that the premises stand in the name of mother-in-law. The court distinguished the facts of the present case from the decision of the Supreme Court in S.R. Batra (supra), where it was held that "shared household" cannot include "household" where person aggrieved lived or at any stage had lived. The court held that in the present case, the appellant has resided jointly with respondents in the shared household for a continuous period of more than 25 years and hence the suit flat is "shared household" of appellant within the definition of Section 2(s) of the Act. Therefore, she becomes entitled for protection of her residence in the shared household.
Issues: 1. Whether the appellant is entitled to protection of her right of residence in the shared household even against mother-in-law, irrespective of the fact that the premises stand in the name of mother-in-law? 2. Whether the impugned order of granting interim mandatory as passed by the trial Court can be sustained?
Ratio Decidendi: The court held that the appellant is entitled to protection of her right of residence even against mother-in-law, irrespective of the fact that the premises stand in the name of mother-in-law. The court distinguished the facts of the present case from the decision of the Supreme Court in S.R. Batra (supra), where it was held that "shared household" cannot include "household" where person aggrieved lived or at any stage had lived. The court held that in the present case, the appellant has resided jointly with respondents in the shared household for a continuous period of more than 25 years and hence the suit flat is "shared household" of appellant within the definition of Section 2(s) of the Act. Therefore, she becomes entitled for protection of her residence in the shared household.
Final Decision: The appeal is allowed. The impugned order of interim mandatory injunction as passed by the trial Court of directing appellant to quit from the possession of suit premises, is hereby quashed and set aside. Accordingly Notice of Motion filed by Respondent No.2 before the trial Court stands dismissed.
1. This appeal takes an exception to the order dated 19.07.2014, passed by City Civil Court, Dindoshi, Mumbai, in Notice of Motion No.1959 of 2011, filed in S.C. Suit No. 1560 of 2011. The said Notice of Motion was preferred by respondent No.2, seeking relief of interim injunction restraining appellant and respondent No.1 herein from entering upon and remaining in the suit premises, situate at A/5, Model Town Co-op Hsg. Soc. Gulmohar Cross Road No.7, J.V.P.D. Scheme, Mumbai and/or not to disturb her peaceful use and occupation of the suit premises in any manner whatsoever.
2. Brief facts of the appeal can be stated as under:- The appellant is the daughter-in-law of respondent No.2 and wife of respondent No.1. The marriage of appellant with respondent No.1 took place on 22.5.1991 and since then appellant is continuously residing alongwith respondent Nos. 1 and 2, with other family members, in the suit flat being her matrimonial home. The appellant is also having one major son, born within the wedlock, who is 21 years of age and his name is Abhishek.
3. It is the case of appellant that her father-in-law Rajkumar Sureka was having joint ancestral property at 96/A, Darya Mahal, 80 Nepean Sea Road, Mumbai, where he was residing alongwith the family members till the year 1985. On 8.12.1985, said property was sold by Rajkumar Sureka and from the sale proceeds of the said property, suit flat was purchased in the name of respondent No.2.
4. It is further case of appellant that on account of marital discord between respondent No.1 and her, respondent No.1 had filed divorce petition No. A.1270 of 2011, against her on various grounds, in May, 2011. In the said petition, respondent No.1 had moved an application for interim injunction restraining her from entering matrimonial home till disposal of the divorce petition. In that application, respondent No.1 had categorically averred that the matrimonial home was his premises. As respondent Nos. 1 and 2 and other family members were trying to oust the appellant from her matrimonial home by adopting various devious methods, appellant was constrained to file Interim application bearing No.23 of 2011, in the said divorce petition for restraining respondent No.1 from dispossessing her from the matrimonial home. The Family Court vide its order dated 04.07.2011, was pleased to allow the appellant's application for interim injunction, thereby restraining respondent No.1, her husband, from ousting her from the possession of the suit flat without following due process of law. As despite the said order, respondent No.1 and his family members were obstructing appellant’s entry to the suit flat, the appellant filed Interim Application No.47 of 2012 in the said Divorce Petition, seeking one set of keys of the suit flat. Respondent No.2, intervened in the said application on the ground that she is the sole owner of the suit flat. The Family Court, by its order dated 18.10.2012, rejected the contention of respondent No.2 herein, and allowed appellant’s application directing respondent No.1 to provide a set of keys of the suit flat to her.
5. It is the contention of the appellant that as respondent No.1 failed to get any favourable orders from the Family Court, conversely as the Family Court passed order in favour of appellant, respondent No.1 colluded with his mother, respondent No.2 and taking advantage of the fact that the agreement of sale of the suit flat stands in the name of respondent No.2 alone, the present suit bearing No.1560 of 2011 was filed by respondent No.2 against appellant, impleading therein respondent No.1, seeking relief of permanent injunction to restrain appellant and respondent No.1 from entering in or remaining in possession of suit flat.
6. In this suit, respondent No.2 filed Notice of Motion No.1959 of 2011, seeking relief of interim mandatory injunction restraining appellant from entering or remaining in the suit flat during pendency of the suit. The appellant herein resisted
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