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2002 DIGILAW 585 (CAL)

V. MALA VISWANATHAN v. P. B. VISWANATHAN

2002-09-04

D.K.SETH, JYOTESH BANERJEE

body2002
D. K. SETH, J. ( 1 ) THE wife-appellant has preferred this appeal against order No. 19 dated 22nd of December, 1999 passed by the learned Additional District Judge, First Court, Alipore, in Matrimonial Suit No. 22 of 1999 granting an injunction restraining the wife-appellant from making any attempt of forceful entry in her matrimonial house till the disposal of the matrimonial suit. Submission on behalf of the Appellant: ( 2 ) MR. Sahu, learned counsel for the appellant, submits that there cannot be an injunction restraining one of the spouse from entering into the matrimonial house of which she becomes a part, relying on paragraph 31 of the decision in Valsamma Paul (Mrs.) v. Cochin University and Ors. , reported in (1996)3 SCC 545 . He had also relied on Pinckney v. Pinckney, reported in (1966)1 All ER 121 in order to contend that one of the spouse cannot be ousted from the house. Therefore, the impugned order appealed against cannot be sustained. RELYING on the decision in Chitra Sen Gupta v. Dhruba Jyoti Sen Gupta, reported in 1987 (1) CHN 450 , he pointed out that Order 39 Rules 1 and 2 of the Code of Civil Procedure (Code) has no manner of application in respect of a matrimonial proceeding where property is not involved. Though, however, section 151 could be resorted to for the purpose of granting injunction in appropriate cases. He had further contended that in the present case, the allegation that has been sought to be made does not make out sufficient cause for grant of injunction. HE also contended that the injunction has been granted on the basis of the allegations made in paragraph 27 of the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. This was sought to be affirmed as true to the knowledge while the statement runs that the incident happened when the deponent was not at home. Relying on the decision in A. K. K. Nambiar v. Union of India and Anr. , reported in AIR 1970 SC 652 , he contends that the said statement made in paragraph 27 cannot be accepted as supported by affidavit. Therefore, no reliance can be placed thereon for the purpose of granting injunction. Relying on the decision in A. K. K. Nambiar v. Union of India and Anr. , reported in AIR 1970 SC 652 , he contends that the said statement made in paragraph 27 cannot be accepted as supported by affidavit. Therefore, no reliance can be placed thereon for the purpose of granting injunction. Submission on behalf of the respondent: ( 3 ) THE learned counsel for the respondent, on the other hand, contends that Order 19 Rule 3 of the Code provides for the manner in which the affidavit is to be affirmed. According to him, the statements, which are true to the knowledge, are to be stated clearly and properly and those, which are based on belief, are to be supported by grounds on which they are based. Relying on the affidavit affirming the objection to the application under Order 39 Rule 1 and 2 of the Code filed by the appellant, he points out that it has not been properly affirmed. As such, no reliance can be placed thereon. Therefore, on the basis of the statements made in paragraph 27 of the application for injunction, the Court had rightly granted injunction. He relied on the decision in Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors. , reported in (1987)1 SCC 227 (paragraph 33 ). He contended that unless the belief is properly grounded, the same is not admissible, as was held in the said decision. RELYING on the decision in Chitra Sen Gupta (supra), he pointed out that even if Order 39 Rule 1 and 2 of the Code cannot be resorted to, still injunction can be granted in an appropriate case under section 151 of the Code as was held in the said decision. He relied further on the decision in Smt. Pratiksha v. Parvin, reported in 2002 Matrimonial Law Reporter 282. He contended that the facts involved in the said case are identical with the one involved in the present case and as such the ratio decided therein squarely applies to the present case. According to him, where even in a matrimonial suit, the property is involved, Order 39 Rule 1 and 2 of the Code can be resorted to. Alternatively, even if Order 30 Rule 1 and 2 of the Code cannot be resorted to, still injunction could be granted under section 151 of the Code. According to him, where even in a matrimonial suit, the property is involved, Order 39 Rule 1 and 2 of the Code can be resorted to. Alternatively, even if Order 30 Rule 1 and 2 of the Code cannot be resorted to, still injunction could be granted under section 151 of the Code. Therefore, according to him, the injunction was rightly granted and the appeal should be dismissed. THE learned counsel for the respondent had also relied on section 38 of the Specific Relief Act to contend that if there is an obligation and in discharge of such obligation, a party is bound to do something and if he fails to discharge such obligation, the breach of obligation can be prevented by an order of injunction. He had referred to the definition of "obligation" as provided in section 2 clause (1) of the Specific Relief Act. ( 4 ) WE have heard the learned counsel for the respective parties at length. Scope of injunction in Matrimonial proceeding: ( 5 ) IT appears that when a property is involved even in a matrimonial suit in order to prevent waste or other matters covered under Order 39 Rule 1 and 2 of the Code, the Court is free to resort to Order 39 Rule 1 and 2. It is only when the case comes within the purview of Order 39 Rule 1 and 2 of the Code, the Court is supposed to grant injunction. Unless an injunction sought for satisfies the tests laid down in Order 39 Rule 1 and 2 of the Code, no injunction can be granted. This was so held in Smt. Pratiksha (supra) and Chitra Sen Gupta (supra ). It is also a settled proposition of law that in case Order 39 Rule 1 and 2 of the Code cannot be invoked, if circumstances warrant, the Court has every jurisdiction to invoke section 151 of the Code for doing justice in a given circumstances. UNDER section 38 of the Specific Relief Act, a breach of obligation can be prevented by an order of injunction. Obligation, as defined in section 2 (a) of the Specific Relief Act, is a duty enforceable in law. Wherever there is a legal obligation enforceable in law, in order to prevent such breach, Court can grant injunction. There cannot be any doubt with regard to such a proposition. Obligation, as defined in section 2 (a) of the Specific Relief Act, is a duty enforceable in law. Wherever there is a legal obligation enforceable in law, in order to prevent such breach, Court can grant injunction. There cannot be any doubt with regard to such a proposition. But all these propositions of law, as stated above, has to be applied in the given facts and circumstances of the case. IN the present case, the main allegation on which the relief is sought for, is specified in paragraph 27 of the application for injunction, which runs as follows: "27. That the respondent along with some outsiders came near to your petitioner's residence at about 6 p. m. on 9. 3. 99 when your petitioner was out of his house and who threatened to enter into the house forcefully for taking away various articles belonging to your petitioner which the members of your petitioner's family objected and as a consequence thereof the respondent and her associates further threatened that in a near future they will again come and after entering into the house they will forcefully take away the required articles of your petitioner as per the choice. The situation has created such a panic because of such dreadful threatening the members of the petitioner's family are feeling unsecured, hence a prohibitory order of injunction is necessary to be passed in view of the extreme urgency in the matter. "for argument's sake, if we accept that the said statement has been properly affirmed and could be relied upon, even then, on the basis of the allegations made therein, it does not appear to us that this makes out a sufficient case of breach of obligation. If the said allegation can be construed to mean that it hinted about creation of nuisance, in order to prevent commission whereof injunction would be necessary, even then the allegations made in the said paragraph does not make out a reasonably clear case that it would amount to nuisance or that there was such ground made out. Section 41 of the Specific Relief Act in clause (f) provides that no injunction could be granted to prevent an act on the ground of nuisance when it is not reasonably clear that such act will be a nuisance. Section 41 of the Specific Relief Act in clause (f) provides that no injunction could be granted to prevent an act on the ground of nuisance when it is not reasonably clear that such act will be a nuisance. The allegation made in paragraph 27 says that she had threatened that she would be forcefully taking away the required articles of the petitioner according to her choice and that such a threat has created a panic in the mind of the members of the family, who are feeling unsecured. This allegation is not reasonably clear to make out a case of nuisance and as such it would definitely be hit by the mischief of clause (f) of section 41 of the Specific Relief Act. Effect of improper affirmation: Order 19 Rule 13 CPC: ( 6 ) BUT then the authenticity of the statement made in paragraph 27 of the injunction is to be assessed on the basis of the affidavit supporting the said allegation. The said paragraph 27 has been sought to be affirmed as true to the knowledge of the deponent. Whereas paragraph 27 makes out a case that the wife along with some outsiders had come near to the house of the petitioner/respondent when the latter was out of his house. Thus, at the material point of time, the petitioner was not present in the house. As such, he could not claim knowledge of an incident that took place in his absence. Therefore, though it was sought to be affirmed as true to knowledge, this very defect debars the Court from accepting the statement, relating to an incident alleged to have happened in his absence, to be true to his knowledge. THE opposition was sought to be affirmed by the appellant by stating that the statements made in the objection to the injunction application were true to the best of her knowledge and belief and submission without specifying as to which of the statements were true to her knowledge or belief respectively. Therefore, it is very difficult to rely on such an affidavit though it is noted that this was the system in which affidavits are affirmed in the trial Court. The decision in Shivajirao Nilangekar Patil (supra) deals with a case where the affidavits were sought to be used as evidence. It was not a case seeking to decide an interlocutory matter. The decision in Shivajirao Nilangekar Patil (supra) deals with a case where the affidavits were sought to be used as evidence. It was not a case seeking to decide an interlocutory matter. It was a case where the final decision was to be arrived at. Therefore, the question of belief, which could be admitted in an interlocutory matter, not being in question in the said decision, the ratio decided therein may not be attracted in the present case. Under Order 19 Rule 3 of the Code, a statement based on belief can also be admitted while deciding an interlocutory matter. But it is governed by the proviso requiring support through statement or ground on which such belief is based. If it is explained how the belief is grounded, then the same can very well be admissible as part of the affidavit and be relied upon. In the present case, however, no such ground having been disclosed, it may not be admissible. THE learned counsel for the respondent had sought to lay great stress on the affidavit of the appellant supporting the objection. Though he can succeed on his contention, yet the same will not lead him anywhere. Because the statement made in paragraph 27 itself cannot be treated to have been properly verified. It cannot be construed to mean to be a statement true to the knowledge of the deponent, when he was not present at the house where and when the incident had taken place. The revision in A. K. K. Nambiar (supra) also lays down a settled proposition that the affidavit has to be affirmed specifying the statements, which are true to knowledge and which are based on belief and also the ground on which the belief is based. We need not deal with the same any further. THE question of injunction is decided on the basis of affidavits. There on record is a certificate from the employer of the wife that on the said date, namely on 9th March, 1999 she was in her office from 10. 23 a. m. till 6. 30 p. m. in her opposition, she had stated that she was in office and that she had never been to her husband's house on the said date. It is also on record namely in the pleading of the husband that till 17th of January, 1999, the wife was in the matrimonial house. 23 a. m. till 6. 30 p. m. in her opposition, she had stated that she was in office and that she had never been to her husband's house on the said date. It is also on record namely in the pleading of the husband that till 17th of January, 1999, the wife was in the matrimonial house. Whereas the wife had stated that she was in the matrimonial house till 18th of February, 1999. Having regard to these cases made out by the parties, even if the affidavit part is overlooked, still then, it cannot be said that prima facie case was made out for grant of injunction in such a case. Injunction restraining spouse from entering matrimonial house: ( 7 ) NOW we may look at the question as to whether an injunction can be asked for against one of the spouse restraining him or her from entering into the matrimonial house. We may refer to the decision in Valsamma Paul (Mrs.) (supra) where it was held that the couple becomes one and the wife is half of the existence of the couple and becomes part of the matrimonial family as well as the house. We may refer to paragraph 31 of the said decision which runs as follows:"31. It is well-settled law from Bhoobun Moyee Debia v. Ram Kishore Acharj Chowdhury, (1865)10 MIA 279 : 3 WR 15) that judiciary recognised a century and a half ago that a husband and wife are one under Hindu law, and so long as the wife survives, she is half of the husband. She is 'spainda' of her husband as held in Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai, [ (1879)7 IA 212]. It would, therefore, be clear that be it either under the Canon Law or the Hindu law, on marriage the wife becomes an integral part of the husband's martial home entitled to equal status of husband as a member of the family. Therefore, the lady, on marriage, becomes a member of the family and thereby she becomes a member of the caste to which she moved. The caste rigidity breaks down and would stand no impediment to her becoming a member of the family to which the husband belongs and she gets herself transplanted. "now once a person becomes part of a house by reason of marriage, her right to reside in her matrimonial house cannot be denied. The caste rigidity breaks down and would stand no impediment to her becoming a member of the family to which the husband belongs and she gets herself transplanted. "now once a person becomes part of a house by reason of marriage, her right to reside in her matrimonial house cannot be denied. Therefore, when one of the spouse is sought to be restrained from entering into the matrimonial house, the Court has to be very careful in denying such right by granting an injunction restraining her or him from entering into the matrimonial house of which she or he is a part. It can be granted only when an exceptional case has been made out and there are strong prima facie case to believe that such a case is going to happen which would result into the breaking of the matrimonial home. THE learned counsel for the respondent had relied on a passage from Marriage and Divorce of A. N. Saha, Sixth Edition by M. N. Das at page 598, where reference was made to Silverstone v. Silverstone (1953)1 All ER 556 and Shanta Wadhwa v. Purshottam Mohonlal Wadhwa, 1977 Mah LJ 661, running as follows: "as to injunction in favour of a spouse restraining another from entering the house occupied by the plaintiff spouse, such an injunction can be granted but such jurisdiction is to be exercised with care especially where it involved the breaking up of the matrimonial home. "we did not have the benefit of looking into those two decisions since those were not made available before this Court. But, however, the said passage refers to involvement of breaking up of the matrimonial home. It seems that the Court has to be careful as to whether such grant would result into breaking up of the matrimonial home or not or this will result in ousting one of the spouse from the matrimonial house or one of the spouse would be successful in driving out another spouse from the house. This would be an instrument of driving out one of the spouse from the matrimonial house at the hands of the other. This would be an instrument of driving out one of the spouse from the matrimonial house at the hands of the other. Therefore, except in exceptional circumstances, supported by strong foundation, such a relief cannot be had by way of temporary injunction even if it comes within the purview of Order 39 Rule 1 and 2 or section 151 of the Code or section 38 of the Specific Relief Act, unless it is clearly established that it would amount to nuisance not excepted by clause (f) of section 41 of the Specific Relief Act. THE learned counsel for the respondent had also relied on a passage from Woodroffe on Injunction Second Enlarged revised Edition, page 329, paragraph 94. 01 where references were made to a few English decisions. The learned counsel had relied on a passage, the text whereof runs thus: "there is no specific provision for injunction in a marriage or divorce law in India. But in proper cases the Court can by order (whether final or interlocutory) grant an injunction in all cases in which it appears to the Court to be just and convenient to do either under section 151 CPC or under Order 39 Rules 1 and 2 CPC. It is the discretionary power of the Courts to grant an injunction in cases within their jurisdiction. An interlocutory injunction may be granted in matrimonial proceeding whenever it appears to be just and convenient or for the ends of justice. The Court shall grant an injunction to protect legal right or to protect the welfare of children. Where a dispute is pending for full hearing, the Court will normally try to preserve the status quo, although it is to be kept in mind that each case has its own peculiarity. In case of "ouster injunction" that is ordering one party to vacate the matrimonial home it is complicated. There are conflicting views on this issue in English Law (1 ). " 1. See Gurasi v. Gurasi, 1970 P 11 CA; Hall v. Hall (1971)1 WLR 404; Bassett v. Bassett, 1975 Fam 76 CA; Samson v. Samson (1982)1 VLR 252; Richards v. Richards (1983)1 All ER 1017 CA. It appears that even in the said passage, it is noted that the views are divergent. MR. " 1. See Gurasi v. Gurasi, 1970 P 11 CA; Hall v. Hall (1971)1 WLR 404; Bassett v. Bassett, 1975 Fam 76 CA; Samson v. Samson (1982)1 VLR 252; Richards v. Richards (1983)1 All ER 1017 CA. It appears that even in the said passage, it is noted that the views are divergent. MR. Sahu has relied on a decision in Pinckney v. Pinckney (supra) where the husband had got a mistress in the matrimonial house and was staying in one of the bedroom while the wife along with the children was also staying in the other part of the house. The sitting room of the house was sought to be used and utilised by the husband along with the mistress. In an injunction brought by the wife to compel the husband not to allow the mistress inside the house, the Court grant relief only to the extent that the husband shall not use the sitting room along with the mistress and that the mistress was permitted only to stay back in the bedroom. Therefore, no injunction was allowed against the husband, which might have resulted in driving him out of the house even where he was living with a mistress in the house itself. WHEN a question relating to grant on injunction restraining one of the spouse from entering into the matrimonial house comes before the Court, the Court has to deal with the same with utmost care and caution. Matrimonial suits are something very different from ordinary suits. It is a delicate affair. It involves the peace of the family. A family is the nucleus of the society. The nucleus is consisting of the husband and wife, who are treated but one and are so integral part of the other that they are treated as halves of each other all over the world. The offsprings are as much part of it. Combined together they are indivisible. This oneness of the family should be preserved. The Court is not supposed to do something, which might disturb the oneness. It has always to bear in mind that it has the responsibility to solve the problem and not to aggravate. The Court has a duty towards the society. It has to preserve the peace of the society. This oneness of the family should be preserved. The Court is not supposed to do something, which might disturb the oneness. It has always to bear in mind that it has the responsibility to solve the problem and not to aggravate. The Court has a duty towards the society. It has to preserve the peace of the society. A family being the nucleus of the society, it is the prime concern of the Court to maintain peace in the family to preserve and help prosper not endanger or disturb and never, even indirectly or passively, to contribute to its breakage. ON these principles one half of the one cannot deny the other half's right in the matrimonial home. By virtue of such marriage, one acquires the right to the property of the other under the Mitakshara school of Hindu law even during the lifetime of the other and after the demise of one under both Dayabhaga and mitakshara. Marriage confers a right to reside in the matrimonial home to both parties to the marriage and as well as to the offsprings. Such right is a joint and indivisible common right. Such right cannot be taken away from one by the other. The marriage carries a liability and right to maintenance of one or the other. Maintenance includes residence. Therefore, the Court has to weigh the material to see that whether the order of the Court will advance the cause or affect it in disturbance or breakage. Grant of injunction in such a case would be an exception and not a rule. It can be granted sparingly in a case where clear case for it is made out and such grant will not result in helping one to oust the other from the matrimonial house. In granting injunction, the Court has to consider the interest of the bride. (Khusal Chand v. Bai Mani, 11 ILR (Bom) 347 ). Conclusion: ( 8 ) HAVING regard to the facts and circumstances as discussed above, the present case does not satisfy the tests for grant of an injunction against the wife. For all these reasons, it appears that the order appealed against cannot be sustained. Order: ( 9 ) IN the result, the appeal succeeds. Order No. 19 dated 22nd December, 1999 passed by the learned Additional District Judge, First Court, Alipore in Matrimonial Suit No. 22 of 1999 is hereby set aside. For all these reasons, it appears that the order appealed against cannot be sustained. Order: ( 9 ) IN the result, the appeal succeeds. Order No. 19 dated 22nd December, 1999 passed by the learned Additional District Judge, First Court, Alipore in Matrimonial Suit No. 22 of 1999 is hereby set aside. The application for injunction is hereby dismissed. There will be no order as to costs. J. Banerjee, J.- I agree. Appeal succeeds.