BHARTI SURENDRA SHAH Vs. SURENDRA RAMANLAL SHAH

JUDGEMENT

(1.) This appeal against an order made by the City Civil Court at Bombay is filed by the original plaintiff who has been refused an injunction which she sought against her husband, the respondent herein, trying to restrain him to enter the home, being Flat NO. B-3 situate in "Sagar" building, Shree Sarvottam Cooperative Housing Society Ltd., 73/74 Juhal Road, Daulatrai Desai Marg, Santa Cruz (West) Bombay. By the impugned order, the trial Court dissolved the ex parte injunction holding that the conduct of the plaintiff indicated that taking advantage of the absence of the husband she entered upon the property and was now trying to secure the same to herself by excluding her husband. Further is was found that the home with regard to which the injunction was sought is an matrimonial home of both the spouses whose marriage subsists and such an injunction would not be available to one of the spouses against another.

(2.) The parties are husband and wife. Plaintiff-wife seeks a declaration against the husband with regard to the suit flat that the husband has no right, title to interest therein. She further seeks a relief of injunction against the husband from in any manner disturbing or interfering with her quiet and peaceful possession of the suit property, being the Sarvottam Co-operative Housing Society Ltd. of which the plaintiff is the share-holding. for asserting the title, reliance is place on the shares of that society and the Income-tax assessment order of the year 1978. Thus, the assertion is that the exclusive title vests in the wife.

(3.) Before the present litigation, the facts not in dispute indicate that the present suit is filed after the defendants-husband filed a divorce petition in June 1982 in the Bombay City Civil Court and the plaintiff-wife initiate proceedings under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 seeking the right of maintenance in the Ahmedabad Court. It is further apparent from the facts that after the marriage some time in 1964, the parties were residing together as husband and wife. The husband was transferred to Bombay and in the year 1977 he acquired the present flat. Both the spouses were residing in the said flat, the husband, being the earning member of the family. They have one grown up son, who is taking education out of Bombay . It is not in dispute that the plaintiff herself was away from Bombay between June 1981 to October 1982 and having secured the entry behind the back of the husband in the flat, as is held by the Court below, some time in November 1982, the present suit is instituted in December 1982. The maintenance proceeding have been initiated on the basis that there is no separate income to the plaintiff and she is in need of an order to maintain herself from the income of her husband. There is no material to show that there was any separate. source to income to the plaintiff wife and it is not in dispute that both the spouses were residing in the suit house which according to Mr. Jha, who appears for the appellant, could be treated as a matrimonial home of the family.