Bombay High Court
Rashi Manish Singal vs Manish Om Prakash Singal on 30 January, 2023
Bench: Amit Borkar
wp1103-2022-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1103 OF 2022
Rashi Manish Singal,
Age 50 years, Occu. Housewife,
Residing At A-101, Palm House,
16, Mogul Lane, Mahim,
Mumbai - 400 016 ... Petitioner
V/s.
Manish Om Prakash Singal,
Age 47 years, Occupation Service,
Residing at A-101, Palm House,
16, Mogul Lane, Mahim,
Mumbai - 400 016
Presently residing at
804, Aditya Elegance,
T.H. Kataria Marg, Mahim (West),
Mumbai - 400 016 ... Respondents
Mr. Abhijit Sarwate with Mr. Hardev K. Aidhen i/by Mr.
Ajinkya Udane for the petitioner.
Mr. Mohit Bhardwaj for the respondents.
CORAM : AMIT BORKAR, J.
RESERVED ON : JANUARY 13, 2023
PRONOUNCED ON : JANUARY 30, 2023
1
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JUDGMENT:
1. The petitioner/wife is challenging order dated 16th
December 2021 passed below Exhibit 11 by the learned Family
Court, Bandra, Mumbai in P.A. No.719 of 2021, thereby permitting
the husband to sell his flat to clear outstanding home loan. The
impunged order further directs the wife to choose suitable two
Bedroom-Hall-Kitchen (2 BHK) flat on rental accommodation for
herself and daughter within thirty (30) days and in case of failure,
it directs the husband to pay amount of Rs.50,000/- towards rental
charges.
2. The petition arises out of petition for divorce filed by the
husband. On 20th December 1996 marriage between petitioner
and respondent was solemnized. Out of the said wedlock, they
have two daughters (Kaira Alias Riya and Ira) born on 17th
February 1998 and 26th August 2005 respectively. Presently, Kaira
Alias Riya is around 24 years and Ira is 16 years of age.
3. During pendency of divorce proceedings, the husband filed
an application stating that he had obtained a loan from bank for
purchase of the flat in question. He had paid forty-four (44)
installments amounting to Rs.1,15,35,700/- along with interest.
The term of loan was initially till 15th August 2022 but now it is
advanced to 15th April 2029. Due to Covid-19 restrictions, he
could not go back to his workplace in United Kingdom and
compelled to stay in India. Now he is unable to meet EMI
obligation of the bank and expenses of two households. He,
therefore, offered 2 BHK rental flat to the wife and daughters in
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the vicinity of present flat along with security deposit for the said
flat. According to him, he can afford rent of Rs.40,000/-around the
vicinity of the existing flat. In case, the bank initiates recovery
proceedings against the husband, his financial credibility/credit
record would be damaged. He, therefore, offered flats at places
mentioned in the application in nearby area. Due to refusal of
wife, he filed application before the Family Court seeking direction
against wife to choose alternative rental accommodation. The
prayers in the application are as under:
"a) The Hon'ble Court be pleased to direct the Respondent
to choose an alternative rental accommodation of a 2 BHK
flat for herself and the daughters from the list already
provided by the Petitioner vide his email dated 26th April
2021 which is at Annexure-2 to this Application;
IN THE ALTERNATIVE
a1) The Hon'ble Court be pleased to direct the Respondent
to acquire a suitable 2 BHK rental accommodation of her
own choosing in the vicinity of Mahim, Mumbai for herself
and both daughters with a onetime refundable security
deposit capping to Rs.2,00,000/- and monthly rent ranging
between Rs.40,000/- to Rs.50,000/-;
b) The Hon'ble Court be pleased to direct the Respondent
to vacate Flat No.A-101 and A-104, Palm House, 16, Mogul
Lane, Mahim, Mumbai - 400 016;
c) The Hon'ble Court be pleased to restrain the
Respondent from changing the interiors of the said flat viz.
Flat No.A-101 & A-104, Palm House, 16, Mogul Lane,
Mahim, Mumbai - 400 016 and carrying out any
modification such as changing the locks of the house or using
it for commercial purposes;"
4. The respondent/wife contested the application by stating
that the applicant has raised mortgage loan to purchase shares. It
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is a plan to oust wife from the matrimonial home. Since she is
residing in matrimonial house for long, she is used to that
environment. She denied that the husband is facing financial crisis.
5. I have heard learned advocates for both sides. On perusal of
the impugned order, it appears that the order balance rights of
both sides. It is well settled that the wife has a right to lead similar
life style as that of the husband. However, she has no right to
impede sale of flat owned by husband if husband provides similar
alternative accommodation in vicinity. If husband is ready to
provide alternative rental accommodation having similar
advantages, she cannot refuse it on the ground that she is
habituated in the existing flat.
6. Learned advocate for the wife expressed apprehension that
the husband may not pay the rental amount if she shifts to rental
accommodation, resulting in her eviction. In response, husband
has filed undertaking in this Court stating that he shall pay rent of
alternative premises on monthly basis as per order dated 16th
December 2021 passed by the Family Court and he shall abide by
the said undertaking until further orders. The said undertaking is
taken on record and is accepted.
7. Learned advocate for the petitioner next submitted that the
Family Court has granted relief which was not prayed for. The said
submission appears to be attractive at the first blush but on deeper
scrutiny it pales into insignificance. The relief in the application is
a direction to the wife to shift to rental accommodation. Such
relief could be molded as rightly done by the Family Court, by
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granting permission to the husband to sell the premises in question
and keeping Rs.2 crore in the nationalized bank in fixed deposit
which shall not be liquidated without permission of the Family
Court. The direction is issued to the wife to choose suitable 2 BHK
flat on her own in the vicinity at Mahim, Mumbai. In my opinion,
to balance equities between the parties, permission to sell the
disputed flat was required to be granted. The offer by husband to
the wife to select any property up to rent of Rs.40,000/-, subject to
condition that she vacates the suit premises is, in my opinion, bona
fide offer. The material on record shows that the husband has
continued to pay EMI of suit premises even after separation of
petitioner and respondent. This indicates that the intention of
husband is not to evict petitioner from suit premises but to shift
her to alternative accommodation which is suitable for her. The
undertaking dated 13th January 2023 takes care of rights of wife.
The husband has been made aware of the consequences for breach
of this undertaking. Hence, in my opinion, the equitable order
passed by the Family Court needs no interference.
8. The writ petition is, therefore, dismissed. No costs.
9. At this stage, learned advocate for the petitioner seeks
continuation of ad-interim relief for eight (8) weeks. On perusal of
the impugned order, I find that the order takes care of rights of
both the sides and, therefore, the prayer for continuation of ad-
interim relief is rejected.
Digitally
(AMIT BORKAR, J.)
signed by
ATUL
ATUL GANESH
GANESH KULKARNI
KULKARNI Date:
2023.01.31
16:18:21
+0530
