Bombay High Court
Angellina Arenja vs Nitij Arena on 14 August, 2025
2025:BHC-AS:35325
WP.4442.2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4442 OF 2025
Angellina Arenja
Aged about 44 years
Hindu Inhabitant Permanently
residing at 6C, Balmoral Hall, Petitioner
Mount Mary Road, Bandra
(West), Mumbai - 400050
Occupation : Housewife
Versus
Nitij Arenja
Aged about 47 years
Hindu Inhabitant, Presently
residing at 1204, Signia Pearl Respondent
G Block, Bandra - Kurla
Complex, Mumbai - 400051
Mr. Prabhjit Jauhar a/w Ms Tanvi Wagle, Ms. Anushka
Pavaskar and Mr. Ajinkya Udane, Advocates for the
Petitioner.
Mr. Atul Damle, Senior Advocate a/w Mr. Sumanth Anchan
i/b Mr. Hrishikesh Amembal, Advocates for the
Respondent.
CORAM : MANJUSHA DESHPANDE, J.
RESERVED ON : 14th JULY 2025
PRONOUNCED ON : 14th AUGUST 2025
JUDGMENT
1. The Petitioner challenges the order dated 10 th March 2024
passed by the Family Court at Bandra, Mumbai (below Exhibit -
19 and 20) in the Divorce Petition No. A-447 of 2022. The
Petitioner and the Respondent are husband and wife. The
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Respondent-husband instituted Divorce proceedings against the
Petitioner-wife which are pending before the Family Court at
Bandra. The marriage between the Petitioner and the Respondent
was solemnized as per Hindu rites and customs, on 8 th December
2002 at New Delhi. After marriage they resided at Balmoral Hall,
Mount Mary Road, Bandra (West), Mumbai. They have two
children out of the wedlock born on 6th January 2006 and 18th May
2008 respectively. It is alleged that the Petitioner has suffered
grave mental agony and domestic violence alongwith economic
abuse at the hands of the respondent and his relatives. He is also
guilty of parental alienation, as the minor children have been
alienated from the the Petitioner. The Respondent has
brainwashed the children and has used them as pawns against the
her. Because of the sufferings caused to her by the Respondent
she has filed a Divorce Petition bearing No. HMA/ 1044/2022
before the Family Court, South, Saket, New Delhi.
2. It is alleged that the Respondent has deserted her in
February 2022, and left the matrimonial home alongwith two
children. Since then the Respondent is staying in a rental
apartment alongwith two children and he has never returned to
the matrimonial home till date. It is submitted that the fact about
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leaving matrimonial home in February 2022 has been admitted by
the Respondent in his pleadings in the cases filed by him and in
his written statement in Divorce Petition bearing No.
HMA/1044/2022. According to her, he is enjoying a luxurious
and affluent life, while she has been left to deal with the situation
on her own without any resources. She is being deprived of her
necessary amenities of which she has become accustomed to while
residing with the Respondent. As a result of severe mental agonies
suffered by her, she was required to undergo therapy session since
mid 2022.
3. It is alleged that on 29th July 2022, all of a sudden the
Respondent barged into her matrimonial house and inquired with
the maids, whether the lock of the main door has been changed.
He thereafter warned the Petitioner to vacate the matrimonial
home or else face the consequences. She thereafter filed the
Divorce Petition before the Family Court at Saket, New Delhi. The
Respondent also filed Divorce proceedings before the Family
Court at Bandra, Mumbai. The Petitioner received notice of the
said Divorce Petition on 5th September 2022. The Petitioner-wife
and the Respondent-husband have filed the Divorce proceedings
against each other.
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4. It is the case of the Petitioner that, though there was an
order of restraint issued by the Family Court at Saket, New Delhi
vide order dated 20th August 2022 and 20th September 2022 in the
Divorce Petition filed by her, the Respondent in breach of the said
orders, has installed CCTV Cameras in the living room of their
house and has also changed the locks of the main door and one of
the bedrooms with the sole intention to dispossess the Petitioner.
On 28th October 2022, the Respondent has intentionally and
forcefully tried to trespass into the matrimonial home and has
intimidated the Petitioner and her mother of dire consequences.
He has threatened the Petitioner and her mother giving them an
ultimatum to leave the house, for which she has also filed a
complaint at Hill Road Police Station.
5. In view of criminal intimidation and intentional
dispossession by the Respondent, from her matrimonial home, the
Petitioner was constrained to file an application before the Family
Court at Saket, New Delhi for initiation of action against the
Respondent- husband for committing disobedience of the orders
passed by the Family Court at Saket, New Delhi.
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6. According to the Petitioner, in March-April 2024 she had
undertaken repair, maintenance and repainting work of her
matrimonial home. During the repairs and maintenance, she had
sent certain piece of furniture for repolishing. On 23 rd January
2025, while she was sending the double bed, headboard with two
side tables for repolishing through the movers and packers, the
security-guard of the building on instruction of the Respondent
refused to open the main gate of the building and stopped the
passage of the tempo. Thereafter, the Respondent's office staff
called her and made false allegations of disposing the
Respondent's furniture. Though she tried to explain that the
furniture was merely sent for polishing, false allegations are made
by the Respondent. Considering the allegations made by the
Respondent, she asked the packers and movers to return the said
furniture to the Respondent. Accordingly it was returned to the
Assistant of the Respondent, who has collected the furniture and
stored it in the flat no. 13A of the same building which is owned by
the family of the Respondent.
7. After the incident of 23rd January 2025, the Respondent
filed an application for injunction at Exhibit - 20 on 29 th January
2025, in Divorce Petition No. 447 of 2022 filed by him which is
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pending before the Family Court at Bandra with following prayers;
(i) for injunction restraining the Petitioner from dispossessing the
Respondent from the matrimonial home, and (ii) to permit the
Petitioner to reinstate all his fixtures and furniture as per list
Annexure- 'G'. The application at Exhibit-20 was heard
alongwith the application at Exhibit-19 filed for appointment of
the Court Commissioner, with prayer to conduct inventory of
furniture and fixtures in the matrimonial home. Both the
application were heard and decided vide common order dated 10 th
March 2025.
8. In an elaborate order the learned Judge Family Court at
Bandra, allowed the application for injunction (below Exhibit-20)
and appointment of Court Commissioner (below Exhibit-19).
Vide the impugned order dated 10 th March 2025, the learned
Judge has restrained the Petitioner from dispossessing the
Respondent from the matrimonial home situated at Flat No. 6-C,
Balmoral Hall, Mount Mary Road, Bandra (West), Mumbai,
without following the due process of law. With further directions
that the present Petitioner shall not interfere with Respondent's
peaceful possession and occupation of the premises and the
Respondent was permitted to reinstate his furniture and
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household belongings as enlisted in per Annexure- G to his
application. The Judge, Family Court, further restrained the
Petitioner from removing, disposing of, or obstructing the
Respondent's reinstatement of his belongings in the matrimonial
house.
9. Insofar as application (below Exhibit - 19) for appointment
of Court Commissioner is concerned, one Advocate - Swati
Mukadam is appointed as Court Commissioner, to conduct the
inventory of all the furniture, fixtures and household articles in
the matrimonial home. The Court Commissioner is directed to
conduct the visit in the presence of both the parties and their legal
representatives for preparing an inventory which will be
videographed and photographed in order to maintain the
transparency.
10. Heard Mr. Prabhjit Jauhar, learned counsel for the
Petitioner and Mr. Atul Damle, learned senior counsel for the
Respondent.
11. It is submitted by Mr. Prabhjit Jauhar, learned counsel for
the Petitioner that, the order passed by the Family Court at
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Bandra, Mumbai is without jurisdiction and the relief granted to
the Petitioner is beyond the prayer made by him.
12. The grant of aforementioned reliefs has been challenged by
the Petitioner on the ground that, the Petitioner has never
restrained the Respondent from entering house, therefore there is
no question of granting relief in the nature of restraining the
Petitioner from dispossessing the Respondent, from his place of
residence i.e. 6-C, Balmoral Hall, Mount Mary Road, Bandra
(West), Mumbai. According to the Petitioner, in fact, the
Respondent has deserted her and left the matrimonial home
alongwith the two children in February 2022, and has started
residing in a rental apartment situated at 1204, Signia Pearl, BKC,
Bandra (East), Mumbai alongwith the two children. After he has
left with the two children in February 2022, he has never resided
in the matrimonial home till date. This position has been admitted
by the Respondent in his various pleadings in the pending
proceedings between the parties.
13. It is submitted that the Petitioner had undertaken repairs
and renovation works of her residence, and as a part of such
renovation on 23rd January 2025, when she was in process of
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sending the double bed headboard and two side tables for
repolishing to the agency, the security-guard of the building,
stopped the passage of the tempo of the movers and packers.
When she was informed about it, she requested the security-guard
not to harass her. Only when she threatened of police complaint,
the gates were opened by the security-guard and allowed the
tempo to leave the building premises. Thereafter, the tempo with
the furniture returned inside the gate of the building, and handed
over to Mr. Ajay Goswami, along with the helpers. Now the said
furniture is stored in Flat No. 13A of the same building, which is
owned by the Respondent's family.
14. Mr. Prabhjit Jauhar, learned counsel for the Petitioner
submits that, the Petitioner has never tried to dispossess the
Respondent, therefore there is no question of passing any order
preventing his dispossession. Even otherwise, the Respondent
had already left the matrimonial home in February 2022 itself.
The said position has been admitted by the Respondent in his
written statement filed in his Divorce Petition bearing HMA No.
1044/022 before the Family Court, Saket, New Delhi. More
particularly, in the averment made by the Respondent in the Writ
Petition filed before the High Court at Delhi, which is annexed to
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the Writ Petition. In paragraph 11 of the said Writ Petition he has
categorically stated that in the year 2022, due to deteriorating
relations between the parties, he was constrained to shift to his
father's rented accommodation. Similarly, even before the Family
Court at Saket, New Delhi, in reply to the application under
Section 24 of the Hindu Marriage Act, in paragraph no. 2 it is
stated by the Respondent that, he was forced to shift to his father's
rented accommodation.
15. Before the High Court of Delhi in MAT APP (FC) of 2024, in
the Appeal filed by the husband he has averred that, the parties
have started living separately in Mumbai from 2022, the husband
was compelled to move out of their matrimonial home with both
the children, so as to protect them from the toxic environment
created by the wife, since then he is residing in the rented
accommodation of his father.
16. It is strenuously contended that, it is the consistent stand of
the Respondent-husband in the various proceedings that, he was
forced to move out of their matrimonial home. It can be therefore
discerned that the Respondent was not residing with the
Petitioner in the matrimonial home since February 2022. In such
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circumstances, the prayer made by the Respondent to restrain the
Petitioner from dispossessing him from his place of residence viz
6-C, Balmoral Hall, Mount Mary Road, Bandra (West), Mumbai is
not maintainable.
17. It is submitted that though the litigation between the parties
started on 16th February 2022, the application is filed by the
Respondent in the year 2025, which is without any cause of
action. So far as the other relief to permit the Petitioner to
reinstate all his fixtures and furniture as per list Annexure- G is
concerned, that would be in nature of mandatory injunction. It is
further submitted that the Respondent-husband wants to enter
the matrimonial house with the aid of the order of permanent
injunction when, in fact, his prayer should have been for
mandatory injunction, since he had already left the house, and
thus is not in possession of the house.
18. The learned counsel for the Petitioner submits that there is
no cause of action for the Respondent, to file the suit seeking
injunction. Considering the averments made by the Respondent
in the various proceedings reiterating that he has left the
matrimonial house in February 2022, neither there is prima facie
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case nor balance of convenience lies in his favour. The
Respondent has failed to establish the irreparable loss that would
cause to him if the injunction is not granted in his favour.
Therefore, the Respondent is not entitled for the relief granted in
his favour by the Judge, Family Court at Bandra, Mumbai vide
order dated 10th March 2025, which deserves to be quashed and
set aside.
19. The learned Counsel for the Petitioner has placed reliance
on the judgment of Balkrishna Dattatraya Galande V/s.
Balkrishna Rambharose Gupta and Anr. {(2020) 19 SCC
119} in support of his submission that a person who is seeking
prayer of permanent injunction restraining the defendant from
disturbing possession of the plaintiff, can only be granted when he
proves that he was in lawful and actual possession on the date of
filing of suit. The burden lies on a person who claims relief, to
prove that, he was in actual and physical of the property on the
date on which the suit is filed.
20. Per contra, Mr. Atul Damle, learned senior counsel
appearing for the Respondent husband submitted that, due to the
hostile atmosphere in the house and the mental torture the
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Respondent was constrained to leave his house. Even if he is
residing in a rented premises with his parents, he has not given up
his residence. According to the learned counsel for the
Respondent, he was always in possession of the matrimonial
home. He is joint owner of the matrimonial home alongwith his
brother Anuj Arenja. He is paying the maintenance bills of the
premises which are occupied by the Petitioner.
21. The learned senior counsel, relies on the maintenance bill
dated 15th April 2024, Mahanagar Gas bill for the period 6 th July
2024 to 5th September 2024 and tax bill for the period 1 st April
2024 and 31st March 2025 to establish his possession. Learned
senior counsel submits that, the matrimonial home belongs to the
Respondent and in capacity of owner he is paying the taxes,
maintenance bills as well as gas connection charges of the said
premises, which proves his possession. Though the Respondent
had shifted in February 2022, he used to frequently visit in his
house. His bedroom was in his exclusive possession. All his
personal belongings, furniture, articles and other accessories were
kept in his matrimonial home. It is his categorical stand that,
though he had shifted from his house he has never attempted to
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dispossess the Petitioner from the premises which was their
matrimonial home.
22. On 23rd January 2025, he received a call informing him that,
the Petitioner had called the packers and movers to remove the
furniture, household articles, and his personal belongings from
the house and those were packed in cartons with an intent to
dispossess and dishouse him. The secretary of the building one
Mr. Vijay Shetty informed him about it. Since he was at a far
distance from the house, he requested his office person Mr. Ajay
Goswami to reach the sight and stop the tempo from moving.
However, his office staff could not stop the tempo from taking way
his possessions. They are now kept at his parental home in the
same building at house no. 13A, since the Petitioner did not allow
the re-entry of the furniture inside their matrimonial home.
23. Mr. Damle, learned senior counsel contends that, the
Secretary and the watchman of the building were witness to the
incident and they have also filed affidavits to that effect. The
incident had taken place while the Petitioner and the Respondent
were in the process of mediation, as referred by the Hon'ble Delhi
High Court. According to him, since the Petitioner has not allowed
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the Respondent's furniture to be reinstalled in his matrimonial
house he was constrained to file the application for injunction
restraining the Petitioner from dispossessing him from his place
of residence and also to permit him to reinstate all the fixtures and
furniture as per the list given by him at Annexure - G.
24. Learned counsel for the Respondent has further drawn my
attention to the contents of the reply of the Petitioner to the
Interim Application filed by the Respondent for appointment of
the Court Commissioner, to conduct the inventory of the
Respondent's furniture and fixtures. In her reply, it is
categorically mentioned by the Petitioner that, she had voluntarily
offered to handover the Respondent's favourite teak wood study
table and three paintings to him through his office staff since the
Respondent had sentimental value and attachment to it.
25. It is contended that if the stand of the Petitioner is to be
believed, there should not have been any objection on her part to
reinstate the said furniture in their matrimonial house, when the
tempo returned with the furniture alongwith the movers and
packers. This conduct of the Petitioner itself speaks in volumes
that she has been trying to dispossess the Respondent from his
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own house. Had he really abandoned his matrimonial house, there
was no reason for him to continue to pay the expenses of
maintenance, property tax, gas connection etc. His claim of
possession is fortified from the belongings which were present in
the matrimonial house, which are attempted to be removed by the
Petitioner. It is contended that the Secretary and Watchman of
the building have sworn affidavits confirming that the Petitioner
has attempted to remove the furniture and personal belongings of
the Respondent without his consent. Undoubtedly, the incident of
loading of the Respondent's furniture, personal belongings has
taken place on 23rd January 2025, which only confirms that the
Petitioner has tried to forcibly dispossess him from his
matrimonial home.
26. It is the stand of the Respondent that he has only
temporarily moved from the matrimonial home for the wellbeing
of the children. It was never his intention to permanently abandon
the matrimonial house or relinquish his legal right to reside in it.
In fact, the conduct of the Petitioner in removing the furniture and
belongings of the Respondent without his consent, is supported by
the affidavits of witnesses which proves that he is still in
ownership and possession of the said house. Unilateral removal of
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the household articles without his consent has to be construed as
an act of interference with his possession. The temporary absence
or a change in residence for personal reason, cannot be construed
to mean that he has permanently relinquished his right of access
or residence in the property, of which he retains ownership and
interest. Hence, the balance of convenience lies in his favour.
27. It is not in dispute that the legal right, title and interest of
the property vests in his favour, thus his removal would cause
undue hardship and instability, hence the Judge, Family Court at
Bandra, Mumbai has rightly passed an order restraining the
Petitioner from dispossessing the Respondent, from their
matrimonial home and not to interfere with the Respondent's
peaceful possession and occupation on the said premises. In view
of the restraint order, the application for reinstating the furniture
is a consequential relief which was required to be granted, since
the Petitioner refused to reinstate the furniture which she has
removed illegally. According to the learned counsel for the
Respondent, the order passed by the Judge, Family Court at
Bandra, Mumbai is just, proper and legal which does not warrant
interference at the hands of this Courts in its jurisdiction under
Article 227 of the Constitution of India.
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28. After hearing the respective counsel for some time and upon
going through the impugned order alongwith the prayer made in
the application, the first and foremost question that needs to be
decided before granting relief of a preventive order i.e. an order
restraining the Petitioner from dispossessing the Respondent
from his place of residence is that, whether he is in established
possession of the premises from which his dispossession is to be
prevented. In order to establish the possession of the Respondent
it is submitted that, he is owner of the said premises alongwith his
brother, hence he is in continued possession, in spite of shifting in
the rented accommodation alongwith his children in February
2022. In support of his claim of possession, the Respondent
places reliance on the property tax bills for the Period of 1 st April
2024 to 31st March 2025, Mahanagar Gas bill for a period of 6 th
July 2024 to 5th September 2024 and maintenance bill dated 15th
April 2024 for the period April to June 2024.
29. Reliance is also placed on the photocopy of the share
certificate of the Flat No. 6-C, Balmoral Hall, Mount Mary Road,
Bandra (West), Mumbai. Though it is not disputed that, the
Respondent is the owner of the property but considering the
prayer made by him in the application, the Respondent is bound
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to establish his possession. The Respondent has filed the
application for injunction with the following prayers:
(a) Hon'ble Court be pleased to restrain the Respondent
from dispossessing the Petitioner from his place of
residence viz. 6-C, Balmoral Hall, Mount Mary Road,
Bandra (West), Mumbai 50.
(b) The Hon'ble Court be pleased to permit the Petitioner to
reinstate all his fixtures and furniture as per list Annexure
"G";
Unless a person is already in possession of the premises, such
a prayer seeking order of restraint would not be maintainable. All
through out the litigation between the parties the consistent stand
of the Respondent has been that, he was constrained to leave the
matrimonial house alongwith his children to his father's rented
accommodation situated at 1204, Signia Pearl, "G" Block, BKC,
Mumbai. Since then he is residing alongwith his children in the
rented accommodation and continues to reside there. At the same
time, he claims to be still in possession of the shared household
with the Petitioner.
30. It is further claimed by the Respondent that the Petitioner
has attempted unlawfully to dispossess him, by hiring movers to
remove his belongings on 23rd January 2025.
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31. From the categorical averments made by the Respondent
about leaving the matrimonial house in February 2022, coupled
with the statements made by him in the application about his
personal belongings and furniture from his room being moved out
of the house by the Petitioner clearly indicates that, he is not in
possession of the matrimonial home. Though it is claimed by the
Petitioner that she was sending the furniture for polishing during
the works of repairs and maintenance, the fact remains that the
furniture was not allowed to be reinstalled in the house by her.
This fact is also not disputed by either of the parties.
32. Though admittedly the Respondent is the owner of the
matrimonial house, however, considering the nature of prayer
made by him is such that, it is necessary for him at the outset to
establish that, in spite of shifting to the rented premises alongwith
his children in his parents household, he is in continued
possession of the house alongwith the Petitioner. It is also not
denied by the Respondent that the Petitioner is in possession of
the matrimonial house.
33. The incident of 23rd January 2025, which is narrated by the
Respondent, which has given cause of action for him to file the
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Application for injunction itself shows that, he has already been
dispossessed from the matrimonial home. Therefore, the
Respondent had failed to establish that he was still in possession
of the matrimonial house. The prayer of the Respondent to
restrain the Petitioner from dispossessing him from the shared
household could not have been granted by the Judge, Family
Court at Bandra, Mumbai. The fact of dispossession of the
Respondent finds support from the affidavits of the watchman, the
employee of the Respondent Mr. Ajay Goswami as well as the
Secretary of the building, which fortifies the dispossession of the
Respondent on 23rd January 2025.
34. It is trite law that if possession is proved, the court may issue
injunction to restrain the defendant from interfering with the
possession, however, if he fails to prove possession, suit may be
dismissed even if one has a claim to the property. In the present
case, the Respondent has failed to prove his possession. In fact,
from the averments itself it can be evinced that the Respondent is
not in possession, therefore, the question of grant of any relief of
restraining the Petitioner from dispossessing him does not arise.
In this regard it would be apposite to refer to the judgment of the
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Hon'ble Supreme Court in case of Ramji Rai and Anr. V/s.
Jagdish Mallah (Dead) through L.Rs. And Anr.1
The Hon'ble Supreme Court has categorically observed that,
under Section 38 of the Specific Relief Act, 1963 an injunction
restraining disturbance of possession will not be granted in favour
of the plaintiff who is not found to be in possession. In the case of
a permanent injunction based on production of possessory title in
which the plaintiff alleges that he is in possession, and that his
possession is being threatened by the defendant. If possession is
not proved the suit is required to be dismissed.
35. Similarly, the other application filed by the Respondent
(below Exhibit-19) is also allowed by the common order which is
impugned in the present Writ Petitioner. The application (below
Exhibit- 19) seeking appointment of Court Commissioner has
been filed by the Respondent; with a view to reinstate his
furniture and belongings in his matrimonial home which were
removed without his knowledge and consent. Due to the removal
of his belongings and furniture, it is necessary to conduct the
inventory, of the articles which have been removed by the
petitioner, and in order to ascertain about the articles moved out
1 AIR 2007 SC 900
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of the house by the Petitioner, it is necessary to appoint the Court
Commissioner. It is argued that though the articles which have
been stored in the other house belonging to his parents in the
same building, the applicant is not aware about the remaining
articles removed from his room, therefore, in order to ascertain it
is necessary to appoint the Court Commissioner.
36. While opposing the application for appointing a Court
Commissioner, the Petitioner has opposed it on the ground that, it
is an tactic to harass and intimidate her and infringe on her
privacy and cause interference with her peaceful possession.
According to the Petitioner, the process of preparing inventory
would worsen her mental health. A report of the psychologist has
been relied upon by the Petitioner.
37. As far as the application for the appointment of Court
Commissioner is concerned, the Judge, Family Court at Bandra
has discussed it in detail, in which the Judge has deprecated the
practice adopted by the psychologist of causing interference in the
judicial process, by suggesting the Court to refrain from passing
order, due to potential emotional distress caused to her patient. It
is rightly held by the learned Judge, that such recommendations
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exceed the scope of duty of a Doctor of giving professional
opinion. The learned Judge has rightly refused to take into
consideration the medical opinion of the psychologist and has
passed an order of appointment of Court Commissioner to
conduct the inventory of all the furniture, fixtures and household
articles in the matrimonial home at 6-C, Balmoral Hall, Mount
Mary Road, Bandra, Mumbai. By way of abundant precaution, the
Court Commissioner is directed to visit the premises in presence
of both the parties and their legal representatives.
38. Appointment of Court Commissioner as provided under the
Civil Procedure Code is governed by order 26 Rule 9 which reads
thus:-
"9. Commissions to make local
investigations.- In any suit in which the Court
deems a local investigation to be requisite or proper
for the purpose of elucidating any matter in dispute,
or of ascertaining the market-value of any property,
or the amount of any mesne profits or damages or
annual net profits, the Court may issue a
commission to such person as it thinks fit directing
him to make such investigation and to report
thereon to the Court:
Provided that, where the State Government has
made rules as to the persons to whom such
commission shall be issued, the Court shall be bound
by such rules."
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39. The application is filed by the Respondent on the
background of the fact that, behind his back the articles from his
room have been removed and he has been restrained from
entering the house and reinstalling the articles. The application is
filed for preparation of the inventory of the articles that could be
still in his room and also assist the Court to arrive at a proper
decision. Considering the nature of the allegations made by the
parties against each other, it would certainly assist the Court while
deciding the dispute between the parties. Though the Petitioner
has opposed the application on the ground that it would cause her
mental distress, which is supported by the report of the doctor,
since much has been said by the Judge, Family Court at Bandra
about the advisory jurisdiction exercised by the doctor, I do not
find it necessary to take any other view, but agree with the learned
Judge of the Family Court, about appointment of the Court
Commissioner.
40. Though the Respondent is admittedly the owner of the
house in view of his own averments, he has already shifted
alongwith his children to his father's residence, therefore, I do not
find any favour in the contention of the Respondent that he is still
in possession of the matrimonial home. My view stands fortified
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by the incident that has taken place on 23 rd January 2025. When
the belongings of the Respondent were removed from their
matrimonial house resulting in his dispossession. While deciding
the correctness of the impugned order, it would be necessary to
ascertain about fulfillment of necessary conditions while granting
injunction. Relief claimed in the application is that the Petitioner
should be restrained from dispossessing him from the
matrimonial home, and on the other hand he claims that his
personal belongings alongwith furniture has been removed from
the matrimonial home on 23rd January 2025. If the cause of
action is considered, it is the removal of his personal belongings
from his matrimonial house. On the background of the cause of
action, the Respondent has made a prayer seeking direction to
restrain the Petitioner from dispossessing him. Such prayer is not
maintainable for the reason that, the Respondent himself has
made an averment that, his belongings were removed from the
house. Therefore, the fact of his dispossession is established from
his own statements made in the interim application, which is
supported by the affidavits of the persons in whose presence the
belongings have been removed. Therefore, in my opinion the
prayer made by the Respondent could not have been granted by
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the learned Judge, Family Court at Bandra, Mumbai, in view of
the unequivocal statement of the Respondent himself that he had
shifted alongwith his children in February 2022 itself, and his
belongings and furniture were removed on 23rd January 2025.
41. The Respondent has failed to prove that he continues to be
in possession, hence his prayer to prevent his dispossession could
not have been granted. So far as the application allowing the order
appointing the Court Commissioner is concerned, I do not find
any error in the order granting prayer of the Petitioner to that
extent. Hence, the order to the extent of appointment of Court
Commissioner is not interfered with.
42. As a result, the Writ Petition is partly allowed. The order
granting prayers in application (below Exhibit- 20) filed by the
Respondent in clause nos. 1 to 5 of the impugned order dated 10 th
March 2025 are quashed and set aside.
43. The Writ Petition is disposed off in above terms.
[MANJUSHA DESHPANDE, J.]
Digitally
signed by
RUSHIKESH
RUSHIKESH VISHNU
VISHNU PATIL
PATIL Date:
2025.08.14
20:21:02
+0530
14th August 2025
R.V.Patil
