IMPORTANT POINTS
(1) Protection of Women from Domestic Violence Act, 2005 contains adequate safeguards for enforcement of orders awarding maintenance amount.
(2) Karta has right to alienate ancestral property out of legal necessity.

JUDGMENT

Jyotsna Rewal Dua, J.—Application moved under Order 39, Rules 1 and 2 of the Code of Civil Procedure (CPC) for restraining the defendant from alienating, transferring and for creating charge over the suit land, has been dismissed by the learned trial Court. The order has been upheld by the learned Appellate Court. Being aggrieved, petitioner-plaintiff has moved this petition under Article 227 of the Constitution of India.

2. Facts.

2(i). Suit was instituted by the plaintiff-wife seeking declaration that suit land is ancestral property owned and possessed by the defendant-husband and charge be created over this property for the maintenance claim of the plaintiff. Decree for permanent prohibitory injunction was also prayed for restraining the defendant from transferring, alienating and creating charge over the suit land.

2(ii). Plaintiff claimed to be the legally wedded wife of the defendant, having solemnized a marriage with him in the year 1994. The couple has a son stated to be living with the plaintiff. Due to marital discord, plaintiff started residing with her father since the year 1998. It has been further submitted that an application for grant of maintenance etc. has been moved by the plaintiff under Section 12 of the Protection of Women from Domestic Violence Act, 2005, which was stated to be pending consideration before the Court of learned Judicial Magistrate 1st Class, Manali. Apprehending that in order to defeat her maintenance claim, the defendant might sell the suit land in favour of other persons, instant suit for declaration and injunction has been filed. In the plaint, it has been asserted that the suit land is ancestral property owned and possessed by the defendant, who has no right to alienate the same without there being any legal necessity.

Alongwith the plaint, an application under Order 39, Rules 1 and 2, CPC has also been moved for restraining the defendant from alienating, transferring and creating charge over the suit land.

2(iii). The defendant, in his written statement, admitted the plaintiff to be his legally wedded wife and asserted that she had left his society on her own about 17-18 years ago without any reason. The defendant expressed his willingness to accept the plaintiff back in his home. Allegations of cruelty/desertion were denied. Defendant admitted filing of an application by the plaintiff under Section 12 of the Protection of Women from Domestic Violence Act, 2005, but denied award of any maintenance amount to her. Defendant also denied threatening the plaintiff with sale of suit land, rather he stated that he had himself asked his son to cultivate and manage the suit land. Defendant also denied ancestral nature of the suit land. Plaintiff’s application for injunction was also opposed on similar lines.

3. Learned trial Court after noticing that as per plaintiff, the suit land was ancestral, relied upon 1988 (2) SCC 77, titled Sunil Kumar and another Versus Ram Prakash and others, wherein it was held that a coparcener has no right to get an injunction against Karta. Relying upon this judgment, it was held that in the instant case, defendant was Karta, therefore, he has legal right to alienate ancestral property in case of legal necessity. Plaintiff has no right to pray for injunction restraining the defendant from alienating the suit land. It was observed that plaintiff has remedy of challenging alienation of coparcenery property by Karta on the ground that alienation was not for legal necessity. The order passed by learned trial Court dismissing plaintiff’s application, was affirmed in appeal by the learned First Appellate Court.

4. Learned counsel for the petitioner contended that both the learned Courts below misdirected themselves in treating the civil suit as one filed by a coparcener to restrain and injunct Karta from alienating the suit land, whereas the civil suit was a case instituted by the wife for creation of charge over the property of her husband in lieu of mainten