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ndm

20 cam.200.09

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPLICATION NO. 200 OF 2009

IN

FAMILY COURT APPEAL NO. 149 OF 2009

Tejus Kanubhai Maun.

... APPLICANT

Vs.

Kanta Tejus Maun.

... RESPONDENT

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Mr. R.T. Lalwani for the Applicant.

Mr. A.V. Chatuphale for the Respondent.

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CORAM :

A.M. KHANWILKAR, J.

A.A. SAYED, JJ.

DATE : 07

th July, 2010.

P.C.

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Heard the learned counsel for the parties.

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By this application, the husband has prayed for injunction

against the wife restraining her from entering upon and/or occupying the

suit premises namely, A-403, Padmavati, 3

rd Cross lane, Swami Samarth

Nagar, Andheri (W) Mumbai – 58. It is noticed that same relief was

claimed as interim relief as well as final relief in the petition filed before

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the Family Court. While dealing with the said aspect, the Family Court

negatived the claim of the husband on the following consideration. The

relevant portion of the order passed by the Family Court dated 30

th

September, 2005 rejecting prayer for interim relief during the pendency of

the main petition reads thus:

“10.

So far as the direction to the Respondent to

remove herself from the suit premises is concerned,

admittedly the suit flat stands in the joint names of

the Petitioner and the Respondent. At the interim

stage, without recording the evidence, it would not be

proper to grant any mandatory injunction in that

regard. However, the Respondent has to be

restrained from harassing the Petitioner as the

Petitioner has made out prima facie case. The

balance of convenience is in favour of the Petitioner

and no prejudice is going to be cause to the

Respondent, if the injunction in that regard is granted

in favour of the Petitioner. Hence the following order:

ORDER

The application is allowed in following terms:

Pending the hearing and final disposal of the

petition, the Respondent is hereby restrained from

harassing, inflicting physical injury and/or harming the

Petitioner in any manner whatsoever;

No order as to costs.”

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The Family Court, however, to balance the equities, directed

the wife by order of injunction to refrain from harassing, inflicting physical

injury and/or harming the husband in any manner whatsoever. That

arrangement continued during the pendency of the main petition. In the

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main petition, mandatory injunction was prayed by the husband against

the wife on similar lines as can be seen from prayer clause ( c ) of the

petition. While dealing with the said aspect, the Family Court has

negatived the stand of the husband for the reasons, which can be seen

from paragraph No.89 to 91 of the impugned decision. The same reads

thus:

“89.

It can be said that presently the house where

they are residing in the matrimonial home. It is the

right of the wife to have shelter. The house is also in

her name and therefore she is not supposed to

vacate the house and therefore it can be said that he

is not entitled to have injunction to remove her from

the matrimonial home.

90.

So far as his prayer clause (c) is concerned, as

per him when they resided together under one roof

she always threatened him and also filed false

complaints against him in the police station. In the

cross-examination he has admitted that he has

obtained the order of the Court and therefore the

respondent wanted to bring on record that he is not

entitled for any kind of injunction.

91.

For grant of injunction the petitioner has to

prove the prima facie case and balance of

convenience. It can be said that from their evidence

and statement of the witnesses and also the

documents which he has filed on record that the

behaviour of the respondent was not good and

proper. Though she has denied she at any time

threatened him or caused any injury, but he has filed

doctor’s certificate a