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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1450/2009 and I.A. No. 10087/2009 (u/O 39 R 1 &
2 r/w Sec. 151 CPC)
Decided on: 22nd November, 2011
KIRAN BHATTY ..... Plaintiff
Through: Mr. Jawahar Raja and
Mr. Rajat Kumar, Advs.
versus
ASLAM QADAR KHAN ..... Defendant
Through: Ms. Franceeca Kapur, Adv.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
A.K. PATHAK, J. (ORAL)
1. By this application plaintiff has prayed that the defendant be restrained from creating any third party interest or dealing with the suit property, that is, A-27, Nizamuddin East, New Delhi - 110014 including raising any construction thereon.
CS(OS) 1450-2009 Page 1 of 8
2. Briefly stated, facts of the case, as emerging from the record, are that the plaintiff and defendant are husband and wife. Plaintiff is a Christian and defendant a Muslim. Their marriage was solemnized on 30th October, 1992 as per Christian rites and ceremonies at the Centenary Methodist Church, New Delhi at about 4 pm. Thereafter, on the insistence of defendant and his family, ceremonies of a Muslim marriage were performed on the same evening. From their wedlock two children (one female and one male) were born. After the marriage, defendant had been managing all the properties and funds of the plaintiff.
3. After the birth of their second child in the year 2001, behaviour of defendant became erratic against the plaintiff. Plaintiff was pursuing PhD from London School of Economics and was to submit her PhD thesis by 30th April, 2006. Defendant did not render any cooperation to the plaintiff, inasmuch as, started misbehaving with her. On 16th November, 2005 suit property was purchased in the name of plaintiff by the defendant in the course of defendant's dealings with the properties of the plaintiff. Despite all the mental trauma faced by her on account of erratic behavior of the defendant, plaintiff succeeded in submitting her thesis. Defendant stopped financially supporting the plaintiff, inasmuch CS(OS) 1450-2009 Page 2 of 8 as, he cut off her access to all the joint accounts, credit cards etc. Thus, plaintiff was forced to take up a job with a NGO, 'CORD' at a monthly salary of `30,000/-. In the month of April, 2006 plaintiff's mother was diagnosed with breast cancer and had to undergo major surgery in Apollo Hospital. In order to augment her financial needs, plaintiff took up a three month consultancy with the Commonwealth Education Fund, beginning July, 2006. During this period, defendant started accusing the plaintiff of infidelity. His behavior towards children also became impulsive.
4. In the month of July, 2006 plaintiff had to travel to Nairobi, (Kenya) for 4 days to attend a meeting. She requested the defendant to look after the children in her absence but he refused. In these circumstances, parents of the plaintiff had to take the children to Mussoorie for 4 days. When plaintiff made a call to defendant from Nairobi, she was horrified to learn that defendant had withdrawn the children from their schools i.e. 'British School' and 'Sanskriti' and had sent them to his sister's house at Kanpur, U.P. Plaintiff pleaded the defendant to bring the children back but he declined. Defendant flatly refused to bring the children to Delhi unless plaintiff signed a Memorandum of Understanding (MOU) on the terms dictated by him. MOU, inter alia, provided that CS(OS) 1450-2009 Page 3 of 8 children would return to Delhi only after the suit property is transferred in his name; the custody of the children would remain with the defendant until the suit property was registered in the name of the defendant. Plaintiff was forced to sign the papers in the interest of the children who were traumatized at that time. In terms of MOU, plaintiff was to move out of the matrimonial home along with the children. On 2nd August, 2006, plaintiff moved out of the matrimonial home and started residing at her parents' house at Zakir Bagh. Even thereafter, defendant kept the children with him i.e. at Sunder Nagar, New Delhi house. He again forced the plaintiff to sign another MOU, inter alia, containing a clause that plaintiff will cooperate with the defendant and go to Registrar's Office on 10th August, 2006 for getting the gift deed in respect of the suit property registered.
5. In nutshell, case of the plaintiff is that the gift deed was got executed by the defendant from plaintiff by exercising coercion, undue influence and fraud, thus, it was null and void.
6. Defendant has not denied the factum of his marriage with plaintiff on 30th October, 1992 at Delhi in a church. He has also admitted that 'Nikah' was held on the same day at 8 pm after the church ceremonies. Defendant has stated that he has divorced the CS(OS) 1450-2009 Page 4 of 8 plaintiff on 5th March, 2007 by pronouncing 'Talaq' in writing, duly received by the plaintiff as their marriage was governed by 'Mohammedan law'. It was denied that defendant had harassed or maltreated the plaintiff. It was alleged that defendant had purchased the suit property in the name of plaintiff, thus, was having exclusive right, title and interest in the suit property in view of Sections 3 and 4 of the Benami Transaction Act, 1988. Defendant has denied that gift deed was got executed from the plaintiff by exercising coercion, undue influence or by perpetuating any fraud. According to him, plaintiff was having adulterous relations with Jean Derez and Nikhil Dey, whom she had been visiting at Allahabad of and on. It was denied that defendant had taken away the children to Kanpur and held them in captivity or that MOUs and gift deed were forcibly obtained by putting pressure and undue influence. It is alleged that plaintiff was having no financial means to buy this property. It is the case of the defendant that relations between him and plaintiff became sour because of the adulterous relations which plaintiff was keeping with the two above named persons. Plaintiff is earning `90,000/- per month pursuant to her employment with UNICEF.
7. From the facts narrated above, it is clear that there is a CS(OS) 1450-2009 Page 5 of 8 matrimonial acrimony between the parties. Marriage between the parties still subsists. Admittedly, marriage was first performed as per Christian rites and ceremonies. After their marriage in a church, they became husband and wife. In view of this, subsequent 'Nikah' between married couple is meaningless and 'Mohammedan Law' will not govern the marriage between the parties.
8. MOUs and gift deed, prima facie, appears to have been got executed from the plaintiff by exercising undue influence, pressure and coercion. Plaintiff has made a categorical statement that defendant had taken the children to Kanpur after withdrawing them from their schools at Delhi in her absence. It is mentioned in the MOU (page nos. 51 to 52) that once the agreement is ready to be signed, children will come back to Delhi. This statement clearly indicates that children were held by the defendant in his captivity and he had agreed to bring them back to Delhi and handover to plaintiff only after the MOUs were signed. As per the MOUs plaintiff was to transfer the suit property in the name of defendant. In the second MOU dated 8th August, 2006, various terms have been incorporated including that the plaintiff will cooperate with defendant and go to Registrar's Office for registering the gift deed. CS(OS) 1450-2009 Page 6 of 8 Gift deed, which is under challenge in this suit, has been executed and registered on 10th August, 2006. All these facts, prima facie, corroborate the version of the plaintiff that gift deed was got executed from her by exercising undue pressure, coercion and fraud. Trauma of a woman who has been deprived of the custody of her minor children can be understood and that can be a ground for acceding to the demands of husband for executing documents which may even be detrimental to her interest. As regards Sections 3 and 4 of the Benami Transaction Act are concerned, the same would be considered at the time of disposal of suit, as the question regarding the manner in which property was acquired is subject matter of trial.
9. Before granting any interim injunction a court has to see as to whether plaintiff has succeeded in making out a, prima facie, case in his/her favour; in case restraint orders are not passed, plaintiff shall suffer irreparable loss and injury; balance of convenience is also in favour of plaintiff.
10. In this case, from the averments made in the plaint supported by the documents, in my view, plaintiff has succeeded in disclosing a, prima facie, case in her favour that the gift deed had been executed by her under coercion, pressure and undue influence; in CS(OS) 1450-2009 Page 7 of 8 case defendant succeeds in selling, transferring or alienating the suit property, plaintiff shall suffer irreparable loss and injury. Balance of convenience is also in favour of the plaintiff.
11. Accordingly, defendant is restrained from selling, transferring, alienating or creating any third party interest in respect of the suit property as also from raising any construction thereon.
12. Application is, thus, allowed with cost of `25,000/- (Rupees Twenty Five Thousand Only) which defendant shall pay to the plaintiff within four weeks.
CS (OS) No. 1450/2009 List on 1st March, 2012 for framing of issues. In the meanwhile, proposed issues be exchanged.
A.K. PATHAK,J.
NOVEMBER 22, 2011 ga CS(OS) 1450-2009 Page 8 of 8