1. This appeal against an order made by the City Civil Court at Bombay is filed by the original plaintiff who has been refused an injunction which she sought against her husband, the respondent herein, trying to restrain him to enter the home, being Flat NO. B-3 situate in 'Sagar' building, Shree Sarvottam Co-operative Housing Society Ltd., 73/74 Juhal Road, Daulatrai Desai Marg, Santa Cruz (West) Bombay. By the impugned order, the trial Court dissolved the ex parte injuction holding that the conduct of the plaintiff indicated that taking advantage of the absence of the husband she entered upon the property and was now trying to secure the same to herself by excluding her husband. Further is was found that the home with regard to which the injuction was sought is an matrimonial home of both the spouses whose marriage subsists and such an injuction would not be available to one of the spouses against another.
2-3. The parties are husband and wife. Plaintiff-wife seeks a declaration against the husband with regard to the suit flat that the husband has no right, title to interest therein. She further seeks a relief of injunction against the husband from in any manner disturbing or interfering with her quiet and peaceful possession of the suit property, being the Sarvottam Co-operative Housing Society Ltd. of which the plaintiff is the share-holding. for asserting the title, reliance is place on the shares of that society and the Income-tax assessment order of the year 1978. Thus, the assertion is that the exclusive title vests in the wife.
4. Before the present litigation, the facts not in dispute indicate that the present suit is filed after the defendants-husband filed a divorce petition in June 1982 in the Bombay City Civil Court and the plaintiff-wife initiate proceedings under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 seeking the right of maintenance in the Ahmedabad Court. It is further apparent from the facts that after the marriage some time in 1964, the parties were residing together as husband and wife. The husband was transferred to Bombay and in the year 1977 he acquired the present flat. Both the spouses were residing in the said flat, the husband, being the earning member of the family. They have one grown up son, who is taking education out of Bombay . It is not in dispute that the plaintiff herself was away from Bombay between June 1981 to October 1982 and having secured the entry behind the back of the husband in the flat, as is held by the Court below, some time in November 1982, the present suit is instituted in December 1982. The maintenance proceeding have been initiated on the basis that there is no separate income to the plaintiff and she is in need of an order to maintain herself from the income of her husband. There is no material to show that there was any separate. source to income to the plaintiff wife and it is not in dispute that both the spouses were residing in the suit house which according to Mr. Jha, who appears for the appellant, could be treated as a matrimonial home of the family.
5. On these facts Mr. Jha, the learned Counsel appearing in support of the appeal, contends that in spite of this position that the suit property partakes in the characters of a matrimonial home, the husband, could, be excluded because of the particular facts and circumstance of the present case involving false and a scurrilous allegations against the wife as are available in the divorce petition filed by the husband. He submitted that these allegations relate to the illicit relations, but the material tendered in the present litigation clearly shows that prima facie those allegation are false. According to the learned counsel, there is one incident wherein because of the letter of April 29, 1981 written to the husband by his girl friend, which resulted in a quarrel between the two in the which the wife was assaulted by the husband by throwing glass bottle. As the wife had to go for medical treatment the learned Counsel pointed out she had left a note, but the husband has been accusing that she has deserted the matrimonial home and the matrimonial obligations. The learned Counsel, therefore, submits that this is a case where the imminent threat by reason of the past conduct is clearly made out by the wife, particularly in the background of the false litigation already initiated by the husband seeking divorce. Under these facts and circumstance, the learned Counsel submitted that the wife would be entitled to an injuction because she has a prima facie case and also the balance of convenience would be in her favour. Reliance is placed on the two decision of this Court and one of the English Court, being A. v. B. : (1978)80BOMLR384 ; Banoo v. Jal C.Daruwalla : AIR1964Bom124 , so as to make a point that the facts of such kind do entitled the wife to have the interim injuction so as to exclude the husband from the matrimonial home.
6. Indeed, it is difficult it apply the principle of the cases on which Mr. Jha relied to the present controversy.
7. As stated earlier, it is not disputed that the suit premises are the matrimonial home and that they were taken when the husband moved to Bombay for occupation of the family. It is thus prima facie clear that there is no exclusive title to the wife, though she appears to be the holder of the shares, with regard to the property in question. Except the shares in the co-operative society, there is hardly and other material to show that the wife could be the exclusive owner of the flat. Furthermore, it is seen, and as is observed by the trail Court, that in the absence of the husband, she entered upon the property after the litigations were initiated by both the parties and by the present mother seeks to exclude the husband from the matrimonial home. As to whether the allegations in the divorce petition are false or otherwise or whether the wife will be entitled to claim the relief under Section 18 of the Hindu Adoptions and Maintenance Act 1956, in the respective litigations filed by both of them cannot be adjudicated in this controversy. Obviously, the present suit is a title suit seeking discretionary relief of declaration and injuction. The fact clearly suggest that on the date of the suit property was the family home and in possession and dominion of the husband, both of the spouses having entitlement as to its enjoyment. There is evidence showing the interregnum when the plaintiff was not even no the premises, that interregnum being at least June 1981 to October 1982. Thus, the respondent-defendant No. 1's possession thereof is neither unlawful nor without any title. Even if the principles of the matrimonial home were applied, it is difficult to exclude the husband by issue of an injunction from such home only because he. has, made allegations which are yet to be tried and there are counter allegations made by the other spouse.
8. The principles on the basis of which such relief can be granted are those that apply to the property matters and the small will have to be applied and, if applied, hardly it can be said that there is any error committed by the trial Court in refusing the injunction. In fact, the conduct of the appellant is indicative that she entered upon the property behind the back of the husband and now is trying to protect herself relying upon the fact that the property stand in her made and the conduct of the husband is such that he should be excluded from its enjoyment. On both the counts, the plaintiff is not entitled to succeed.
9. It may be mentioned that the cases relied upon by Mr. Jha involved in each case. The flat case of this Court dealt with an exclusive home that was made by the wife after leaving the husband's home and wherein the husband was trying to force his entry. The other entitlement. under the Parsee Marriage and Divorce Act. The English decision interprets the statutory provisions of State. 12 of the Married Women's Property Act, 1882. Even there, there is no absolute rule with regard to the grant of injunction. (See Hall v. Hall 1971 1 All ER 762. Thus, it is obvious that unless the suitor is in exclusive occupation of the premises and the defendants is trying to threaten that occupation by reason of the conduct which may be indecent, immoral, cruel or peace-breaking, injunction are not to issue. Such injunctions may be granted where the value or utility of the property itself of the very existence of the occupant is threatened. The present is not the case of that kind. There are accusations and counter-accusations on both sides. That is no reason to keep the matrimonial home to one party when both the spouses have equal entitlement to share and enjoy the same. It is indeed difficult to exclude either the parties from such enjoyment and occupation which is the minimum that is required to be permitted by reason of the act that the premises are a matrimonial home.
10. Unlike the provisions of the Married women's Property Act, 1882, the position in the context of the Indian law is quire different and still follows the rule of title to the property and the obligations arising out of marriage. The earlier case of this Court (A. v. B) 1978 (80) Bom LR 382 is distinguishable because of the act that the house belonged to the wife and it was the husband who was trying to force his entry which, part from the marriage because of the title, she was entitled to inhabit. The present is a property claim based on title and what is relevant to inhabit. The present is a proprietary claim based on title and what is relevant is to established a prima facie case and the balance of convenience in favour of the plaintiff so as it interdict the husband.
11. The facts being obvious and hardly in dispute prima facie show, as stated above, that the wife, is not having independent source of income and she appears to be a housewife for all purposes dependent on the husband. There is no other evidence to show that she could have separate source from where the consideration came except that of the husband's income. It is during the time when husband was transferred and the spouse cam to Bombay that the flat was purchases. The Commissioner's report shows that the flat is full of furnishing household articles, valuables. etc. to which the appellant has not claimed not can have exclusive title or/and which, in all probability, appears to be the property of the husband. Further the present suit itself was filed after the divorce petition was initiated and the appellant sought the relief of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, in Ahmedabad Court. Obviously, these factors indicate that the present litigation is a counter move or the part of the wife having entered upon the property in the absence of the husband . Under the maintenance proceeding, such wife has to make out a right to separate residence even at the interim stage. That obviously she has not attempted to document. A Hindu wife can seek such a relief as a matter of obligation arising from the existence of the marriage. the general principle being that a wife has to remain under the roof and protection of the husband. It is only by reason of the proof of misconduct and by reason of the clear refusal to maintain her in his own place or residence or justifying causes that she can work out the relief to separate residence as is provided for by sub-sec (2) of Section 18 of the Hindu Adoption and Maintenance. Act. It follows, therefore, that she has no general entitlement to exclude the husband from the matrimonial house, the tile to which is not clear. All these factors taken together clearly show that no prima facie case exists. Similarly, the conduct of the appellant in this regard is also not blame-free. After the maintenance petition was filed by her in Ahmedabad Court seeking relief of maintenance. which would include the right as to residence, she, behind the back of the husband and taking advantage of his absence, entered upon the suit property and initiated this action. At the interim stage she seeks to exclude the husband from the home. Merely because in the past there had been some incident between the husband and the wife. which may tantamount to cruelty and merely because a divorce petitioner is filed, such an entry and such usurpation is not justified. In fact, there being a continuous entitlement subsisting in favour of the husband and as prima facie it appear that the matter of title claimed by the plaintiff is doubtful, such a conduct on the part of the wife while the entitlement, of the husband to him home subsists smacks of civil trespass. No Court can issue process to further protect the fruits of any wrongful act, much less the act that borders on trespass. There is not good reason why either in the divorce petition or in the maintenance suit the appellant did not work not out her right to the property in dispute. If she is entitled to rely on the marital conduct of the husband, which is being strenuously relied upon for the purpose of the injuction the same was well available to her in the earlier litigations including that in the divorce petition filed by the husband.
12. The position of matrimonial homes available to spouses governed by provisions of the Hindu Marriage and Hindu Succession Act does not support such conduct. Only in given and exceptional cases on the ground of extraordinary immoral, vexations conduct the interim relief of the kind may be extended to a bona fide and helpless spouse so as to protect the purity of the home and maintain peace till matters are settle by Court, applicative rule being wife remaining under the roof of the husband. There is no universal principle to interdict husband only because he has made accusations against wife. When suits of the kind which relate to the property are filed, the wife has to work out exclusive title to the property. The principles applicable and operative are ordinary normal principles, in the those who are entitled to the enjoyment of the property while the entitlement subsists could not be exclusion from such entitlement by reasons of the allegation with regard to devious marital conduct which requires further investigation and clear proof. Moreover, when one of the parties forces entry without the aid of the Court relying on her entitlement, by reasons of such entry, she would not be entitled to protect such conduct and exclude the other spouse from the subsisting right or entitlement. The balance of convenience in such matters of would have always be in favour of the subsisting entitlement of the defending spouse.
13. The jurisdiction of the Court as is conferred in matters of granting preventive reliefs is a discretionary one and the grant or refusal thereof is a matter of discretion of the Court and is not a matter of right in either party. Such discretion has to be exercised jurisdiction and while doing that, the Court has to weigh the substantial mischief either complained of or threatened and compare the same with the ensuing results. Tested upon basic principles, no judicial discretion can hardly be used in favour of such a spouse.
14. After all, marriage is not a compromise at pleasure. Marriage, on the other hand, is a mutuality sustained and supportive to both the spouses, a buoyant web of rights and obligation. Law leans constantly towards its upholding and abhors break-ups. Even the principles of equity in such matters tend to help those whose conduct is aboveboard and is such that would sustain expected equilibrium. further, the canvass of obliging mutuality that the marriage represents, consistently spreads from bed to the rood. this mutuality will have to operate as shock absorber, so as to equalise the inevitable sense of individual tension and frustration generation by the behavioural oddities. Effort of justice in exercise of its discretion should be to hold peace and, in pursuant thereof, to subserve and uphold the entitlements. Matters of the present kind document not admit acceptance.
15. The order under challenger, therefore, does not call for any interference. The appeal is dismissed. However, it is made clear that looking to the tensions between the parties, the trial Court may consider according to law whether it would be just and convenient to appoint a Court Receiver of the property with a direction to supervise as convenient and as fair possible the division of the property for the respective peaceful occupation by both the spouses. With these observations, the appeal is dismissed with no order as to costs.
16. Appeal dismissed.