Kiran Bhatty vs Aslam Qadar Khan

A.K. Pathak, J.—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.

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.

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 Rs. 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.

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 residingather 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.

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.

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 dayat8pmafter 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 Rs.

90,000/-per month pursuant to her employment with UNICEF.

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.

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.

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 favor;

in case restraint orders are not passed, plaintiff shall suffer irreparable loss and injury; balance of convenience is also in favor of plaintiff.

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 favor 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 favor of the plaintiff.

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.

Application is, thus, allowed with cost of Rs. 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.