Kiran Bhatty vs Aslam Qadar Khan
2011 Latest Caselaw 5630 Del

$~30
*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.

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

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

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

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

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.

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

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