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Karnataka High Court · body

2010 DIGILAW 540 (KAR)

Meenakumari v. T. Thirukumaran

2010-04-15

V.JAGANNATHAN

body2010
Judgment : The appellant is the wife of respondent 1 herein and the couple were married on 30.11.1998 at Madurai and out of the wedlock, they have a girl child by name Shruthi, who is ten years old. In her petition filed under Chapter III of Protection of Women from Domestic Violence Act, 2005 read with Section 9 of the Hindu Marriage Act, 1959, she contended that her husband, soon after the marriage, showed lack of interest and exhibited abnormal behaviour and went on changing his job and ultimately withdrew from matrimonial home in April 2003. 2. It was also the case of the appellant before the Family Court in her petition that several demands were made by respondent 1 husband on the appellant and she was insulted by Respondent 1 husband and was subjected to harassment and cruelty. She came to Bangalore in September 2000 along with her daughter and lived with the respondent-husband, but situation did not improve and again, the appellant had to go to her parental house and stayed there till May 2003. However, with the hope of saving the married life, the appellant contacted her husband and he in turn agreed to take care of the child’s welfare but did not show any inclination to continue to lead marital life with the appellant. It was also her case before the Family Court that her husband took her to Cochin and left her and the child and went to Mumbai. 3. Making further averment in the petition before the Family Court as regards harassment to which she was subjected to and refusal on the part of her husband to resume marital life, the appellant prayed for a judgment and decree to restore the conjugal rights of the parties and for maintenance to be paid to the appellant and her daughter at Rs. 40,000/- per month till the court restores the conjugal rights of the parties. 4. The respondent-husband, on his part, denied the petition averments in toto and also took up the stand that he was not earning any income from the business and he had undergone severe loss and also stated that he had purchased the suit schedule property in the year 2004 for Rs.20,00,0000/- and had borrowed Rs.17,00,000/- from Standard Chartered Bank and deposited the title deeds in the bank. He also took up the contention that the appellant was not entitled to any exclusive right to reside in the house belonging to him while admitting that the appellant is currently staying in the apartment that was purchased by him. 5. I.A.Nos.2 and 3 were filed by the appellant and maintenance of Rs. 40,000/- per month was sought in I.A.No.2 and I.A.No.3 was under Order 39 Rules 1 and 2 of the Civil Procedure Code, 1908 praying for an order of injunction against the respondent and other persons from interfering with the appellant’s possession and enjoyment of the suit schedule property. 6. Respondent-husband filed his objections to the said I.As. and the learned judge of the Family Court passed the impugned order on 18.10.2008 and allowed I.A.No.2, while was for interim maintenance and ordered that the respondent-husband shall pay Rs.5000/- per month from the date of the application for interim maintenance to the appellant and her daughter (by mistake mentioned as son in the impugned order), and I.A.No.3 filed by the appellant, however, was dismissed. This appeal by the wife is mainly directed against the rejection of I.A.No.3 by the Family Court. 7. I have heard learned counsel Shri Joshua H. Samuel for the appellant and learned counsel Smt. M.P. Geetha Devi for Respondent-1 husband and also learned counsel Shri B.C. Avinash for Respondent-2 Standard Chartered Bank. 8. The learned counsel for the appellant submitted that the main grievance of the appellant is that the Family Court ought to have permitted her to reside in the suit schedule property i.e., the apartment which is owner by her husband, and right of residence is an inalienable right being a component of right of maintenance and the court below ought not to have rejected I.A.No.3 filed by her. It was also submitted that it is not in dispute that there is a loan of Rs. 23,48,109.77 ps. It was also submitted that it is not in dispute that there is a loan of Rs. 23,48,109.77 ps. Outstanding and Respondent-2 Standard Chartered Bank is making efforts to bring the apartment where the appellant is residing for sale to recover the amount due to it and the appellant is ready to clear the bank loan and, due to her efforts, the bank also agreed to bring down the loan amount due to it to Rs.17,50,000/- and, therefore, the appellant be permitted to pay the said amount and to continue to reside in the house of her husband, which is No.E-106, Millenium Habitat, Gopalan Enterprises, I.T.P.L. Main Road, Kundalahalli, Bangalore. 9. In this regard, the learned counsel for the appellant also contended that, if the respondent-husband does not clear the loan amount to the bank, as according to the respondent – husband he is in great difficulty and if the bank proceeds with the sale of the house in question, the appellant and her daughter would be thrown to the street. Under these circumstance, either the appellant be given the option to pay the bank ban and continue to stay in the house of her husband where she was residing along with her husband or else till the Family Court decides all the issues before it including the application filed by the appellant under Section 23(2) read with 19(1)(d) of the Protection of Women from Domestic Violence Act, 2005 being decided, the appellant be permitted to reside in the house in question and thereby her right to residence is safeguarded. 10. Contending that the petition before the Family Court for restitution of conjugal rights is still pending so also the application filed under the Domestic Violence Act, under these circumstances and also in view of the impending threat of the bank taking any action under the Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (‘the Act of 2002’ for short), the appellant be permitted to reside in the house of her husband as an interim measurement. 11. 11. In support of the above submissions, the learned counsel for the appellant placed reliance on the decisions S.R Batra and Another v. Smt. Taruna Batra, AIR 2007 SC 1118: (2007) 3 SCC 169 : (2007) 2 SCC(Cri.) 56; Komalam Amma V. Kumara Pillai Raghavan Pillai and Others AIR 2009 SC 636 : (2008) 14 SCC 345 : 2008 AIR SCW 7799 and In the matter of Bharat Heavy Plates and Vessels, Limited, Visakhapatam AIR 1985 AP 207 and it was submitted that in view of the law laid down in the aforesaid decisions, the interim order as sought for by the appellant in I.A.No.3 be granted. One other submission made by the learned counsel for the appellant as regards the impugned order on I.A.No.3 is concerned is that the trial court did not give opportunity to the appellant’s counsel to make submissions on I.A.No.3 and, therefore, for this reason also, the impugned order on I.A.No.3 needs to be set aside. 12. On the other hand, learned Counsel Smt. Geethadevi for Respondent 1-husband at the outset submitted that the bank in question, i.e., Standard Chartered Bank was not a party before this Court at the first instance, but however, the bank has been shown as second respondent in the cause-title to the appeal memorandum and there is no indication of the Court having permitted the bank to be made one of the respondents and therefore, when the application filed by the appellant for impleading the bank itself has not been disposed of, the question of bank being a party before this Court as one of the respondents cannot arise and in this connection placed reliance on a Apex Court ruling State of Maharashtra V. Ramdas Shrinivas Nayak and Another AIR 1982 SC 1249 : (1982) 2 SCC 483: 1982 Cri. L.J. 1581 (SC): 1982 SCC (Cri.) 478. Further, submission made is that the bank in question cannot to restrained from going ahead with the proceedings in so far as recovery of the amount due to it is concerned and Section 34 of 2002 Act is a bar. 13. As far as payment of balance amount by the appellant-wife is concerned, submission made is that the property in question belongs to respondent and it is he alone who has got the right to pay the loan amount to the bank and the appellant cannot have any say in the matter. 13. As far as payment of balance amount by the appellant-wife is concerned, submission made is that the property in question belongs to respondent and it is he alone who has got the right to pay the loan amount to the bank and the appellant cannot have any say in the matter. All that the appellant is entitled is only to a right of residence and respondent would make necessary arrangements to secure a settled residence for the appellant to stay along with her child and once the appellant vacates the premises in question, it would be easier for the respondent-husband to bring the property for sale, clear the loan due to the bank and out of the remaining amount, respondent is also willing to deposit 50% of the balance amount in the name of the child and therefore, respondent is no agreeable to the appellant coming forward to clear the bank loan. In the alternative, it was also submitted that if the appellant does not vacate the premises in question, it will be difficult for the respondent to sell the property at the earliest and in that event, the bank in question can proceed to being the properties for sale and recover its dues. 14. As far as the application that was filed by the appellant before the Family Court under Section 23(2) read with Section 19(1)(d) of the Domestic Violence Act is concerned, the submission made is that whether the application is maintainable itself will have to be gone into by the Family Court and if at all the appellant is entitled to an order under Section 19 of the Domestic Violence Act, 2005, it would be under Section 19(1)(f) and as the respondent is also willing to look for an alternate accommodation to house his wife and child, it is for the Court to consider all these aspects of the matter. Learned Counsel also relied on a decision of the High Court of Delhi in Ajay Kumar Jain V. BaljitKaur Jain FAO (O.S.) No. 278/2007 (Del.) to contend that there can be no blanket order of injunction restraining the respondent from alienating or selling the suit property. Learned Counsel also relied on a decision of the High Court of Delhi in Ajay Kumar Jain V. BaljitKaur Jain FAO (O.S.) No. 278/2007 (Del.) to contend that there can be no blanket order of injunction restraining the respondent from alienating or selling the suit property. As far as the decision referred to by the learned Counsel for the appellant are concerned, it is argued that the said decisions have no application to the case on hand and more over there is no such legislation in our country like British Matrimonial Homes Act, 1967. Under these circumstances, that the order passed by the trial Court dismissing I.A.No. 3 does not call for any interference. 15. As far as the bank in question is concerned, submission made by the learned Counsel Shri B.C. Avinash for the bank is that the bank is interested only in securing amount due to it by the respondent – husband and it is immaterial as to whether the loan outstanding is paid by the husband or the wife. It is only where the loan is not cleared by either of them that the bank would resort to the next step of brining the property for sale and realize its dues. The learned Counsel for the bank also referred to the Memo filed wherein outstanding amount has been mentioned. 16. In the light of the aforesaid contentions put forward by the learned Counsel for the parties and the decisions relied upon, the first and the foremost point for consideration is whether the Standard Chartered Bank has been allowed to be one of the respondents in this appeal. 17. As far as this point is concerned, submission of the learned Counsel for the appellant is that the matter came up before the Division Bench of this Court earlier and in the course of hearing of the matter on I.A.No.1/2008 filed, the Court permitted the appellant to make Standard Chartered Bank also as one of the respondents and accordingly keeping in tune with the directions given, the bank was also indicated as second respondent in the cause title to the appeal. There afterwards, notice was ordered to the bank as well and as such, it is not as if bank was made a party without the permission of the Court. 18. There afterwards, notice was ordered to the bank as well and as such, it is not as if bank was made a party without the permission of the Court. 18. The above submission though was strongly refuted by the learned Counsel Smt. Geethadevi for respondent – husband for the reasons already stated in her arguments, and more so, on the ground that when there is no indication in the cause-title as to any permission having been given to implead the bank as one of the respondents and so also in the order sheet, the question of bank in question being one of the respondents therefore does not arise. As far as the decisions referred to in this connection by the learned Counsel Smt. Geethadevi is concerned, I have carefully gone through the said decision of the Apex Court in the case of Ramdas Shrinivas Nayak, wherein the Apex Court has observed that the court cannot allow the statement of the Judges to be contradicted by statements at the bar or by affidavit and other evidence and if Judges say in their judgment that some thing was done, said or admitted before them, that has to be the last word on the subject and the principles is well settled that statements of facts as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. 19. It was further held in the said case that if a party thinks that the happenings in the court have been wrongly recorded in a judgment, it is incumbent upon the party, while matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that statement made with regard to his conduct was a statement that had been made in error. 20. Apex Court also went on to observe in the said case that Judges’ record was conclusive and neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else and the court could not launch into inquiry as to what transpired in the High Court. 21. 20. Apex Court also went on to observe in the said case that Judges’ record was conclusive and neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else and the court could not launch into inquiry as to what transpired in the High Court. 21. If the above observations of the Apex Court is applied to the case on hand, in my opinion, it would justify the submissions made by the learned counsel for the appellant and decisions would rather help the case of the appellant than the respondent. This is because, the order sheet of this case when the matter was heard before the Division Bench on 6.4.2009 reads as under. “Issue notice to the respondents. I.A.1/2008 is allowed. Temporary injunction as prayed for is granted, until further orders. The question of maintainability is kept open”. 22. It is therefore clear from the aforementioned order of the Division Bench that notice was ordered to be issued to the ‘respondents’ and not to the ‘respondent’. This therefore, establishes that the Court did direct issuance of notice to respondents in the appeal and the first respondent is the husband of the appellant and second respondent has been shown in the cause-title as Standard Chartered Bank. As far as the contention concerning the application filed to implead the respondent No.2 – bank being pending is concerned, the very fact that by its order dated 6.4.2009, the Division Bench of this Court had directed notice to the respondents which obviously includes second respondent Standard Chartered Bank and consequently, the bank also has made appearance before this Court and made submissions on its behalf, the application filed to implead the Standard Chartered Bank as a party, therefore, is deemed to have been allowed under the above circumstances. 23. Coming to the order passed by the trial Court on I.A.No.3, the said I.A. was filed by the appellant herein to restrain respondent-husband, his agents, financiers, bank etc., from interfering with the appellant’s peaceful possession and enjoyment of the schedule property or from alienating the said property, till the disposal of the petition filed by the appellant under Section 9 of the Hindu Marriage Act. The Court below rejected the prayer of the appellant for the reasons assigned by it in para 11 of the impugned order. The Court below rejected the prayer of the appellant for the reasons assigned by it in para 11 of the impugned order. All that the Court has said while answering point No.2 is that the appellant cannot pray for injunction against the respondents including financiers, etc., merely on the ground that she is residing there and went on to further observe that the persons who have lent money have got every right to mortgage the property and also made an observation that it is the duty of the respondent to provide accommodation to the appellant. It is on these reasoning, I.A.No.3 came to be rejected. 24. It has to be mentioned at this juncture that during the pendency of this appeal, an effort was also made to bring out an amicable settlement between the parties so far as loan that is to be repaid to the bank is concerned and both parties along with their counsel were present in the chambers on 24.3.2010 and some time was sought by the parties to consider the suggestion made by either side. But, however, despite sufficient time being given, there was no amicable settlement of the issue and therefore, the Court will have to proceed to consider the submissions now made as above by the learned Counsel for the parties. 25. It is not in dispute that the appellant is the wife of respondent No.1 and as already mentioned, the couple have a child which is ten years old and as of now studying in 4th standard. The trial Court had granted maintenance of Rs. 5,000/- to the wife and child. As far as the right of residence is concerned, the protection of woman from Domestic Violence Act, 2005 (‘2005 Act’) recogninses in Sec. 19 that the Magistrate can pass an order very well as regards residence and 19(1)(f) provides that the Court can direct the respondent (husband) to secure the same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household. The appellant has also filed an application before the family court under Section 23(2) read with Section 19(1) (d) of the 2005 Act, for a direction to discharge the home loan availed from the Standard Chartered Bank by mortgaging the petition scheduled properties. 26. The appellant has also filed an application before the family court under Section 23(2) read with Section 19(1) (d) of the 2005 Act, for a direction to discharge the home loan availed from the Standard Chartered Bank by mortgaging the petition scheduled properties. 26. As far as the right to reside in a shared household is concerned, the Apex Court in the decision in the case of S.R. Batra, has held that that in order to claim the right into reside in a shared household, the property should belong to her husband or it should have been taken on rent by her husband or it should have been a joint family property in which her husband was a member. Section 17 of 2005 Act also provides for the right of every women in domestic relationship to reside in the shared household whether or not, she has any right, title, or beneficial interest in the same and Sub Section 2 of Section 17 further makes it clear that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent, save in accordance with procedure established by law. 27. The Apex Court in the case of Komalam Amma, dealing with the concept of maintenance has observed thus at para 9 of its judgment. “Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may by made either by giving a lump-sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenances and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1)”. 28. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenances and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1)”. 28. No doubt in the decision of Ajay Kumar Jain’s Case to by the learned Counsel Smt. Geethadevi for Respondent 1-husband, the High Court of Delhi has observed that the wife cannot have a right of living in a particular property and the same cannot become a clog on the property denying right of husband to deal with the property when he is willing to provide an alternative matrimonial home. The application of the said decision will have to be considered in the light of facts and circumstances of the case before us. 29. In the instant case, it is not in dispute that the house property in question belongs to the respondent-husband and he remains to be its absolute owner. It is also not a matter of controversy that the second respondent Standard Chartered Bank has to be paid Rs. 17,50,000/- towards full and final settlement of loan amount. Further fact which is admitted by the parties is that the appellant and her daughter are residing in the very same house property and respondent No.1 – husband is at Trichy. In the light of these submissions made by the learned Counsel for the appellant, the appellant is also ready to pay the bank amount due to it, i.e., Rs. 17,50,000/-. On the other hand, Respondent 1-husband has not come forward to indicate that he is also ready with the amount that is to be paid to the bank, though in the light of the submissions made by the learned counsel Smt. Geethadevi for Respondent 1-husband, respondent No.1 has also indicated that he would clear the bank loan after the appellant vacates the premises and has also given the option to the bank to go ahead with sale of the house property and recover the amount due to it. As far as the bank is concerned, submissions made by the learned Counsel Shri Avinash is that the bank is not very keen to bring the house property for sale but it is interested only in getting back the amount due to it. As far as the bank is concerned, submissions made by the learned Counsel Shri Avinash is that the bank is not very keen to bring the house property for sale but it is interested only in getting back the amount due to it. In the light of the aforesaid circumstances, one will have to consider the application filed by the appellant. 30. In the light of the Apex Court decision referred to by me above, and also having regard to the provisions contained in Sections 17 and 19 of 2005 Act, that every woman in a domestic relationship has the right to reside in the shared household whether or not she has any right, title or beneficial interest in the same, therefore, appellant herein has every right to reside in the shared household namely house property, which is presently occupied by the appellant and her daughter. As far as the bank is concerned, in view of the submissions made by the learned Counsel for the bank, all that the bank looks forward is to receive the amount due to it. 31. If the loan amount is not paid by the Respondent 1-husband as he happens to be the lawful owner of the house property in question and if the appellant-wife is also not permitted to clear the bank loan, non-payment of the loan amount by either of them would lead to the bank taking extreme step of bringing the property for sale to recover its dues and as there can be no injunction that can be granted by any Court in view of the bar contained in Section 34 of 2002 Act, if the bank were to proceed to bring the property for sale in the event of loan amount being not paid to it by the husband or the wife, the effect of such step would be that the appellant and her daughter would be thrown to the street. Such a situation cannot be permitted to take place not only from the point of view of various provisions of 2005 Act, as well as the right of maintenance of the wife under the Hindu Law, but it is also likely to occasion failure of justice and the duty of the Court ultimately is to see that justice is done. 32. 32. In this connection, it will be very useful to refer to the decision of the Andhra Pradesh High Court in the case of Bharat Heavy Plates and Vessles Limited. The facts of the said case also will have bearing on the case on hand. In the said case, husband and wife were living together in the company quarter and the husband was an employee of Government owned and controlled company. Due to difference between the husband and wife, the wife went to the Court and maintenance was granted to her. The husband left the company quarter and wife and child were in the said quarter. The husband by his retaliatory action against the wife terminated lease of company quarter exposing wife and children to eviction. The prospect of eviction let the wife for protection and in the suit filed by the wife, an order of injunction restraining the company from evicting the wife and her minor children was passed and when the company preferred revision petition against the said order, the said revision petition came to be rejected. In the course of its decision, the court observed thus. “By preventing the State instrumentality from rendering the wife and children homeless, this court is only preventing failure of justice”. 33. The case on hand is also more or less similar, if one looks at it from the point of view of appellant and her daughter. If the husband does not come forward to clear the loan amount and the wife is not permitted to pay the loan amount to the Bank, if the Bank goes ahead in bringing the house property for sale, the position would be appellant being the wife and her daughter would be rendered virtually a homeless, and the Court cannot be a silent spectator to such an event. 34. It is in the above circumstances, that the prayer of the appellant has to be considered and at the same time, the bank also should not be prevented from taking necessary action as is open to it in view of power conferred under Section 34 of the 2002 Act. 35. 34. It is in the above circumstances, that the prayer of the appellant has to be considered and at the same time, the bank also should not be prevented from taking necessary action as is open to it in view of power conferred under Section 34 of the 2002 Act. 35. Since the second respondent-bank has come forward to accept the balance loan amount, either from the husband or from the appellant, as the bank is only interested in securing its loan amount and as the learned Counsel for Respondent 1-husband has also submitted that the respondent husband would clear the bank loan after providing settled accommodation to the appellant and thereafter wards would raise the funds to sell the property and clear the bank loan, as the appellant has also come forward to pay the loan amount due to the bank and learned Counsel for the appellant also submitted that appellant is also ready with a cheque in that regard, taking all these factors into account and to meet the ends of justice, I pass the following order. i) The order passed by the Family Court on I.A.No.3 is set aside. ii) The respondent-husband is directed to provide the appellant the same level of alternate accommodation as enjoyed by her and her daughter in the shared household and, in the event of the respondent-husband securing to the appellant and her child the same level of alternate accommodation as enjoyed by them in the shared household, the appellant shall move to the said alternate accommodation, without any delay, and after making such a provision, the respondent-husband is also at liberty to raise funds by whatever legal means as is possible for him and shall clear the amount due to the bank, within 60 days of providing alternate accommodation to the appellant and her daughter. After clearing the bank loan, if the respondent-husband intends to sell the house property, preference shall be given to the appellant to purchase the same. iii) If the respondent-husband fails to clear the loan amount to the bank within the aforesaid period, Respondent-2 bank shall permit the appellant to pay the loan amount to the bank and after satisfaction of the loan amount due to it, the bank shall return all the title deeds to the respondent – husband. iii) If the respondent-husband fails to clear the loan amount to the bank within the aforesaid period, Respondent-2 bank shall permit the appellant to pay the loan amount to the bank and after satisfaction of the loan amount due to it, the bank shall return all the title deeds to the respondent – husband. iv) If the appellant clears the bank loan as indicated above, a charge shall be created in on of the house property in respect of the loan amount that is paid by the appellant to the bank. v) If, for any reason, either the appellant or the respondent-husband is not able to pay the amount due to the bank, the bank is at liberty to proceed with the sale of the house property in question and, in the event of the occasion arising for this extreme step to be taken by the bank, the bank shall give the parties i.e., the husband or the wife, option to purchase the said house property. vi) In the event of the bank selling the suit schedule property, the balance remaining after recovery of the loan amount due to the bank shall be paid to the husband and out of the balance amount received by the husband, 50% of the same shall be kept in fixed deposit in the name of the daughter of the appellant and the respondent-husband, till she attains majority. vii) The appellant is permitted to reside in the house property in question till one of the options referred to above is fulfilled. The appeal, therefore, stands disposed of in the above terms. The Family Court is directed to dispose of the main case itself before the end of December 2010. All the contentions urged by the learned counsel for the parties shall not have any bearing on the merits of the case pending before the Family Court.