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Smt. Kanchan Upadhyay Vs. State Of U.P.


Court:Allahabad High Court

Bench: JUSTICES S Harkauli, V Nath

Smt. Kanchan Upadhyay Vs. State Of U.P. On 19 January 2006

Law Point:
Wife cannot claim restoration of possession.





1. The petitioner is the wife. She claims that she has been dispossessed from the house in which she was residing by the respondents (particularly the respondent No. 7). Through this writ petition she prays for restitution of possession. As drafted and argued, the writ petitioner tried to give the impression that this is a case of house grabbing.

2. The facts show a totally different picture. Admittedly the house never belonged to the petitioner. It belonged to her husband (respondent No. 5). It transpires from the record that the husband has sold the house to the respondent No. 7.

3. The petitioner relies upon an interim injunction order dated 24-12-2005 obtained by her from the Family Court, Allahabad, restraining the husband from selling the house. For obtaining such an injunction two things are necessary. First, that the person seeking injunction should have a right to that effect. In this case, we do not see how the petitioner, merely on account of being wife, can claim the right to restrain the husband from selling property, which belongs to the husband. Therefore,. the injunction did not deserve to be granted on facts. Besides, this injunction, which has been granted in proceedings under Section 125 Cr.P.C., is wholly outside the scope of those matrimonial proceedings pending before the Family Court. Thus prime facie the Family Court had no jurisdiction to grant this kind of an injunction order.

4. A copy of this order will be sent within a week by the Registrar General to the Family Court, which has passed the order dated 24th December 2005 for future guidance.

5. The petitioner being the wife may at best have the right to claim for herself and her children maintenance under Section 425 Cr.F.C., or under Section 24 of the Hindu Marriage Act, and nothing beyond that. Thus there could be no restraint upon sale of the house or delivery of possession of the house pursuant to the Sale

6. The petitioner claims that even if the house could be sold by her husband, the petitioner was in exclusive possession of the house and could not have been dispossessed except after recourse to law. Firstly, the concept of exclusive possession of the house between husband and wife as difficult to accept on such casual averment to that effect, without an absolute case to that effect being made out by detailed facts if the husband has sold the house and delivered the possession, the wife who admittedly was not at Allahabad on the date of delivery of possession can not claim any right on the basis of the alleged exclusive possession. The decisions cited on behalf of the petitioner, list of which is given below have no application whatsoever to the facts of the present case, as these decisions do not relate to a case where the owner in possession sells the property and delivers possession.

1. Bishan Das and Ors. v. State of Punjab and Ors. ;

2. Commander N.P. Kulshreshtha and Ors. v. State of U.P. and Ors. reported in 1996 A.W.C. 1052.

7. In the circumstances, this writ petition has no merit with regard to the claim of restoration of possession to the petitioner.

8. However, considering the facts alleged by the petitioner, we direct the Family Court, Allahabad, to proceed with the disposal of the case under Section 125 Cr.P.C., as expeditiously as possible, without granting undue or unduly long adjournments to the husband, and if so requested to consider whether delay in disposal requires grant of an interim maintenance.

9. The writ petition is disposed of as above.

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