Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 1160 (GUJ)

Ankita Hiren Jhaveri v. Hiren Udayan Jhaveri

2019-12-16

A.G.URAIZEE

body2019
ORDER : 1. Heard Mr. Mohit A. Gupta, learned advocate for Mr. Aditya A. Gupta, learned advocate for the petitioner and Mr. Sudhir Nanavati, learned Senior Counsel assisted by Mr. Vandan Baxi, learned advocate for Nanavati & Nanavati. 2. The petition is taken up for final disposal with the consent of learned advocates appearing for the parties as the issue involved moves in a narrow compass. 3. The petitioner has preferred present petition purported under Articles 226 and 227 of the Constitution of India for the following substantive prayers :­ “(a) YOUR LORDSHIPS BE PLEASED to quash and set aside the impugned order dated 26.11.2019 passed by the Hon'ble Family Court No.2­Ahmedabad at ANNEXURE A to this petition vide which the ad­interim injunction granted in favour of the petitioner was vacated in the interest of justice. (b) YOUR LORDSHIP BE PLEASED to stay the operation and implementation of order dated 26.11.2019 passed by the Hon'ble Family Court No.2­Ahmedabad at ANNEXURE A to this petition, pending hearing and final disposal of this petition in the interest of justice. (c) YOUR LORDSHIP BE PLEASED to direct the respondent to forthwith deposit the arrear of maintenance granted to the minor son pending hearing and final disposal of the petition.” 4. The facts in brief giving rise to the present petition are that the petitioner and respondent got married on 9.2.2004 as per the Hindu Marriage Rites and Customs. From this wedlock son named “Anay” is born on 13.3.2005, who is presently with the present petitioner. The marriage between the petitioner and respondent has heat rough weather and the petitioner had filed the petition being Hindu Marriage Petition No.1082 of 2019 under Section 13 of the Hindu Marriage Act 1956, ('HM Act' for short) for dissolution of marriage with the respondent on various grounds. The petitioner has also taken out an application under Section 24 of the HM Act for maintenance pendente­lite which application is pending the adjudication before the Family Court, Ahmedabad. The petitioner has preferred an application Exh.17 under Order 39 Rule 4 of the Civil Procedure Code, 1908, ('Code' for short), to restrain the respondent from alienating his residential premises being “302, Shashwat Apartment, 5, Parshwanagar Society, Behind Suvidha Shopping Centre, Paldi, Ahmedabad­380007”, pending hearing and final disposal of the petition. The petitioner has preferred an application Exh.17 under Order 39 Rule 4 of the Civil Procedure Code, 1908, ('Code' for short), to restrain the respondent from alienating his residential premises being “302, Shashwat Apartment, 5, Parshwanagar Society, Behind Suvidha Shopping Centre, Paldi, Ahmedabad­380007”, pending hearing and final disposal of the petition. The Family Court, Ahmedabad on 30.09.2019, passed an ex­parte order, whereby the respondent was restrained from alienating his aforesaid residential premise. The respondent thereafter took out Exh.21 application under Order 39 Rule 4 of Code for vacating the interim injunction granted vide order dated 30.09.2019 passed below Exh.17. The application Exh.21 moved by the respondent came to be allowed after bipartite hearing and the learned Family Judge by his order dated 26.11.2019 vacated the interim injunction granted in favour of the petitioner by an order dated 30.09.2019 with immediate effect. The petitioner is aggrieved by the order vacating the interim injunction and therefore, present petition is preferred. 5. Mr. Mohit Gupta, learned advocate for the petitioner vehemently submitted that the respondent husband is likely to immigrate to US, as he has received interview call for grant of Green Card pursuant to 2008 application submitted by his mother, who is permanent resident of US. He further submitted that the petitioner has reasonable apprehension that the respondent is likely to dispose of/sale his residential premise before moving to US, which would frustrate the claim of maintenance under Section 24 of the HM Act, as the petitioner would not be able to recover the arrears of maintenance from the respondent. He has placed reliance upon the decision of the Calcutta High Court in the Case of Tata Chemicals Limited Versus Kshitish Bardhan Chunilal Nath and Others, MANU/WB/1654/2019, and in the case of Sourav Ganguly Versus Mahuaa Media Pvt. Ltd., MANU/WB/1399/2012 as well as the decision of the Madras High Court in the Case of Meenakshi Ammal Versus Ammini Ammal, MANU/TN/0421/1926. He submitted that the injunction to restrain the respondent husband is maintainable and the learned Trial Court has fallen in error in vacating the interim injunction, which was granted in favour of the petitioner vide order dated 30.09.2019. 6. Mr. Sudhir Nanavati, learned Senior Counsel appearing for the respondent have supported the impugned judgment. He submitted that the apprehension expressed by the petitioner that the respondent is likely to migrate to US is not genuine and real. 6. Mr. Sudhir Nanavati, learned Senior Counsel appearing for the respondent have supported the impugned judgment. He submitted that the apprehension expressed by the petitioner that the respondent is likely to migrate to US is not genuine and real. He further submitted that even if for the sake of arguments, it is assumed that the respondent is likely to move to US, in view of the decision of the Madras High Court in the Case of B. Gajendran Versus Adhilakshmi, MANU/TN/0401/2013 and the decision of the Allahabad High Court in the case of Kanchan Upadhyay Versus State of U.P. and Ors., MANU/UP/0054/2006, the injunction in respect of a property, which is not a subject matter of the dispute between the parties, cannot be granted. He further submitted that Section 24 application for maintenance pendente­lite is yet to be decided by the Trial Court and therefore also the application preferred by the petitioner is premature. He also submitted that in case, the petitioner succeeds in Section 24 application and the Trial Court grants interim maintenance in her favour, remedy is available to her to recover the arrears as well as running maintenance from the respondent. He submitted that the order passed by the learned Trial Court cannot be said to be perverse or illegal warranting interference in exercise of jurisdiction under Section 227 of the Constitution of India. 7. I have considered the rival submissions made by the learned counsels for the parties. 8. The petitioner moved an application under Order 39 Rule 4 for an injunction to restrain the respondent husband from transferring his residential premises in any manner pending her petition under Section 13 of the HM Act. The main ground canvassed in the application in support of her plea for injunction is that the respondent is likely to immigrate to US as his application of 2008 for Green Card is now rightly ripen and the respondent is called for interview and therefore, once he gets Green Card, he will leave India and he will live behind high and raise. He submitted that the present petition may be allowed and the respondent may be injuncted from alienating his residential premises to protect the interest of the petitioner. The bare reading of the application of the petitioner makes it abundantly clear that the application is preferred purely on apprehension, which does not appear to be real and genuine. He submitted that the present petition may be allowed and the respondent may be injuncted from alienating his residential premises to protect the interest of the petitioner. The bare reading of the application of the petitioner makes it abundantly clear that the application is preferred purely on apprehension, which does not appear to be real and genuine. It is not in dispute that Section 24 application taken out by the petitioner for interim maintenance pending the petition under Section 13 of the HM Act, which is still pending before the Trial Court. Before such an application is decided and interim maintenance is fixed in favour of the petitioner, I am of the view that the application for injunction to restrain the respondent from alienating his residential premises is premature as so far there is no decree against him, nay amount of his liability has also been crystallized. 9. Reliance on the decisions of the Kolkatta High Court in case of Tata Chemical (Supra) and Saurav Ganguli (Supra) is misplaced and they are not applicable to the facts of the present case. It emerges from the perusal of these two decisions that essentially the dispute was money dispute and in a sense the claim that was fixed sum of amount, whereas in the present case, it as noted herein above, the Family Court, Ahmedabad is yet to Rule on the application under Section 24 of the HM Act preferred by the petitioner. 10. So far as the decision of the Madras High Court in case of Minaxi (Supra) is concerned, though paragraph No.3 thereof has posed few debatable questions, but in the final analysis, the second appeal is dismissed and inter alia it is observed that the learned trial Judges held that the plaintiff had no cause of action which would entitle her to the declaration as prayed for. If in that case, there was a finding that the husband alienated the property in order to decreetal decree for maintenance, the reason of the case would have been different. This judgment, in my considered view, helps the case of the respondent rather than that of the petitioner. If in that case, there was a finding that the husband alienated the property in order to decreetal decree for maintenance, the reason of the case would have been different. This judgment, in my considered view, helps the case of the respondent rather than that of the petitioner. For the sake of repetition, it is noted that the trial Court is yet to decide the application of the petitioner under Section 24 of the HM Act and therefore the apprehension expressed by the petitioner that the respondent is likely to dispose of property in order to avoid her claim of maintenance, can not be countenanced. 11. The Madras High Court in the case of B. Gajendran (Supra) has observed as under : “9. Except the statement made in the above paragraph, nothing else has been stated in the plaint, which will be relevant to the relief sought for. Assuming that these averments made in para 16 of the plaint are true, the same have got nothing to do with the suit properties. If the petitioner/husband has not maintained the respondent/wife and her son, the remedy for her lies elsewhere. Interestingly, the present suit is not a suit for maintenance and it is only a suit for injunction to restrain the husband from alienating the suit properties. Thus, the dispute is not in respect of property over which the plaintiff claims any semblance of right. In my considered opinion, as rightly contended by the learned senior counsel for the petitioner, this suit is a clear abuse of process of Court and therefore, the same is liable to be quashed.” 12. Similarly, Alhabad High Court in the Case of Kanchan Upadhyay (Supra) has observed in paragraph No.3 as under :­ “3. The petitioner relies upon an interim injunction order dated 24­12­2005 obtained by her from the Family Court, Alhabad, restraining the husband from selling the house. For obtaining such an injunction two things are necessary. First, that the person seeking injunction should have a right to that effect. In this case, we do not see how the petitioner, merely on account of being wife, can claim the right to restrain the husband from selling property, which belongs to the husband. Therefore, the injunction did not deserve to be granted on facts. First, that the person seeking injunction should have a right to that effect. In this case, we do not see how the petitioner, merely on account of being wife, can claim the right to restrain the husband from selling property, which belongs to the husband. Therefore, the injunction did not deserve to be granted on facts. Besides, this injunction, which has been granted in proceedings under Section 125 Cr.P.C., is wholly outside the scope of those matrimonial proceedings pending before the Family Court. Thus prime facie the Family Court had no jurisdiction to grant this kind of an injunction order.” 13. I am in complete agreement with the preposition of law laid down by the Madras High Court in the case of B. Gajendran (Supra) and Alhabad High Court in the Case of Kanchan Upadhyay (Supra). I am therefore of the view that the learned Trial Judge has rightly relied upon the decisions of the Alhabad High Court in the Case of Kanchan Upadhyay (Supra) and the case of B. Gajendran (Supra) of the Madras High Court to vacate the interim injunction granted in favour of the respondent vide order dated 30.09.2019, which by stretch of no yardstick can be dubbed as perverse or illegal and therefore, I am of the view that the present petition does not require any further probing and deserves to be dismissed with no order as to cost.