Lakshmidevi W/o Chandrappa v. Jyothi W/o Obaleswarappa
2018-01-22
A.S.BOPANNA
body2018
DigiLaw.ai
ORDER : The petitioner is before this Court assailing the order dated 06.01.2014 passed in M.C. No.80/2013. The petitioner is the sister of respondent No.2. Respondent No.1 is the wife of respondent No.2. The relationship between the parties is not in dispute and the fact that there are certain matrimonial disputes between respondent Nos.1 and 2 inter se is also the accepted position. 2. Prior to the present petitions, which are pending against each other, respondent No.1 had instituted a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights in M.C. No.80/2013. Respondent No.1-wife, who had no objection to join respondent No.2-husband herein in the matrimonial home had acceded and a judgment was passed by the Court below ordering restitution of conjugal rights. It is at this point, the dispute as has presently arisen has taken place. 3. In view of the fact that by such stage, respondent No.1-wife was being prevented from occupying the premises, which according to her was the matrimonial home. Since the premises to which reference is made is the issue, the said premises, would be referred to as the house situated in IUDP Layout. In that view, respondent No.1 wife on finding that the judgment for restitution of conjugal rights though being sought by respondent No.2 husband was being frustrated in as much as the respondent No.1 wife was not being allowed to occupy the said house, she has filed the application under Section 151 of Code of Civil Procedure before the very Court. 4. The said Court on taking note of the said fact, through its order dated 06.01.2014 permitted respondent No.1 wife to enter the house by indicating the house of respondent No.2 husband herein as situated in IUDP Layout. It was further indicated therein that if the house is locked, the lock could be broke open and a direction was issued to the town police to provide security. It is in that view, the petitioner, who is none other than the sister of respondent No.2, is before this Court claiming to be aggrieved since she claims toto be the owner of the said house in IUDP Layout and contended that such right to occupy the house ought not to have been granted by the Court below, more particularly, in the circumstances, after the main petition is disposed of. 5.
5. Before taking note of the contentions on behalf of the petitioner’s learned counsel to the effect that the said order is passed in a disposed of petition, what is necessary to be taken note is that respondent No.2 husband herein, who was a party to the said proceedings has no such grievance. This on the face of it would indicate that respondent No.2 husband, who has certain matrimonial issues with respondent No.1-wife is seeking to litigate and deny the benefit to respondent No.1-wife through the petitioner, who is his sister. 6. It is in that light, an examination of the present position is necessary. To that effect what is also necessary to be taken note is that the petitioner herein claiming to be the owner of the property has filed a suit in O.S.No.29/2014 wherein the prayer for temporary injunction has been rejected and the suit is pending. That apart, respondent No.1-wife herein along with the children has filed a petition in Criminal Miscellaneous No.270/2014 under the provisions of the Protection of Women from Domestic Violence Act, 2005. If the said aspects are noticed, it is seen that these litigations pertain with regard to the background of the relationship between the parties herein and in that light, the right is being sought by respondent No.1-wife in respect of continuing her matrimonial relations and in that regard, having a right to reside in IUDP Layout house, which according to her is the matrimonial home. 7. In that background, even if it is assumed or accepted that the petitioner is the owner of the house, in view of the sale transaction, which is said to have been entered into between the petitioner and respondent No.2 herein, those are aspects based on which her right will have to be claimed by the petitioner in an appropriate proceedings. The Court below, no doubt as contended by the learned counsel for the petitioner has presently rejected the injunction in view of the order passed by the Court below in M.C. No.80/2013. Even if, that position is accepted, I am of the opinion that there is no reason for this Court to accept the contention of the learned counsel for the petitioner that the order dated 06.01.2014 passed on I.A. under Section 151 of Code of Civil Procedure after the disposal of the main matter in a matrimonial proceedings, call for interference.
Even if, that position is accepted, I am of the opinion that there is no reason for this Court to accept the contention of the learned counsel for the petitioner that the order dated 06.01.2014 passed on I.A. under Section 151 of Code of Civil Procedure after the disposal of the main matter in a matrimonial proceedings, call for interference. I am of the said opinion, for the reason that irrespective of the ownership of the building, the fact that arise for consideration at this point is only with regard to the possession as on the date when petition for the restitution of conjugal rights was ordered or prior thereto and the manner in which the said possession is required to continue. In this regard, the very petition filed by respondent No.2 in M.C. No.80/2013 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights would in fact indicate the address of respondent No.2 husband is of the house in IUDP Layout. In the said petition, even though the address of respondent No.1 wife is indicated differently, when the prayer is made by respondent No.2 husband that the restitution of conjugal rights is to be ordered and such petition is filed by him by indicating the address of the matrimonial home, even if at that point, respondent No.1 wife was residing elsewhere, when the judgment is ultimately made, it was for respondent No.1 wife to join husband in the said address. 8. Though the learned counsel for the petitioner contends that even prior to filing the petition, the sale transaction had taken place between respondent No.2 and the petitioner, as already indicated, the issue presently is not with regard to the ownership of the property but the nature of possession as on the date when the petition for restitution of conjugal rights was filed and in view of respondent No.1 having expressed her intention to allow the petition and grant the decree, the only place to which respondent No.1 was expected to go and join husband was in the house where she resided when she left the house due to certain dispute in her marital life and at the address indicated in the petition when it was filed seeking for restitution of conjugal rights.
If that be the position, all that the Court below has done through the order impugned herein is to permit respondent No.1 wife to join respondent No.2 in the house and if that be the position, if the conduct of the petitioner and respondent No.2 husband was noticed by the Court below so as not to allow respondent No.1 to occupy the house where an attempt was made to dispossess her without following due process of law, I am of the opinion that such order passed is in the interest of justice and to see that the judgment passed by the Court below is not frustrated by the parties by adopting such methods with malafide intentions. 9. Therefore, in such circumstances, when the order is passed, the same does not call for interference. As already indicated, even if the petitioner establishes in an appropriate proceedings that she is the bonafide purchaser of the property and therefore, the owner thereof and if possession of the premises is required, when it is noticed throughout that respondent No.1 wife is in possession of the same, it is to be obtained in accordance with law and secure possession of the premises. 10. To that extent, the contentions of the parties in any event would be open for consideration in an appropriate proceedings and the order passed by the Court below, which is impugned herein is to be reckoned only in so far as protecting the lawful possession of respondent No.1 wife herein. Therefore, for the above stated reasons, I do not find any justification to set aside the order impugned. The petitions are accordingly disposed of.