Sunday, February 12, 2023

Wife Has No Right To Obstruct Sale Of Estranged Husband’s Home When He Is Willing To Provide Her Similar Rented Accommodation: Bombay High Court

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A woman doesn’t have the right to obstruct the sale of her estranged husband’s home if he is willing to provide her with a rented accommodation with similar facilities, the Bombay High Court has held.

The court made the observation while refusing to interfere with an order of the Family Court permitting the o-directed wife to move out of the accommodation and choose a  to sell the flat to clear an outstanding loan. The Family Court had a stable two-bedroom rental flat, failing which she would be handed over Rs. 50,000 per month.

“It is well settled that the wife has a right to lead a similar lifestyle as that of the husband. However, she has no right to impede the sale of a flat owned by her husband if the husband provides similar alternative accommodation in the vicinity. If the
husband is ready to provide alternative rental accommodation having similar advantages, she cannot refuse it on the ground that she is habituated in the existing flat,” Justice Amit Borkar said.

The court observed that such an order takes care of the rights of both parties and the wife can’t be heard to say that she would obstruct the sale merely because she is habituated to the flat. 

The Case 

The husband in 2021 filed an application to sell the flat, in his divorce petition pending before the family court. The family court allowed the application following which the wife assailed the order before the high court. 

The couple got married in 1996 and have two daughters, aged 24 and 16.

The husband through Advocate submitted he had paid forty-four (44) instalments for the flat amounting to Rs. 1.15 crore along with interest. However, due to Covid-19 restrictions, he wasn’t able to go back to the UK and was compelled to stay in India. He is now unable to pay the EMI and bear the expenses of two households, he said. 

He offered to pay rent instead. If the bank initiated recovery proceedings, his financial credibility and credit record would be damaged, his counsel said. 

The wife’s counsel Abhijit Sarwate instructed by Ajinkya Udane contended that the husband had raised a mortgage to purchase shares. It was alleged that his main aim was to oust her from her matrimonial home and denied that her husband was facing any financial problems. 


The court observed the Family Court order balanced rights of both parties. It is well settled that the wife has a right to lead a similar lifestyle as that of the husband, added the court.

“If the husband is ready to provide alternative rental accommodation with similar advantages, she cannot refuse it on the grounds that she is habituated in the existing flat.”

Regarding the wife’s apprehension of eviction, the court said the husband has already given an undertaking that he will pay rent for alternative premises on a monthly basis.

On the argument that the Family Court granted the husband more than what he sought, the bench modified the relief - it allowed the husband to sell the premises in question and directed him to keep Rs. 2 crores in a nationalised bank in fixed deposit, which, it said, shall not be liquidated without permission of the Family Court. 

“The material on record shows that the husband has continued to pay EMI of suit premises even after the separation of petitioner and respondent. This indicates that the husband's intention is not to evict the petitioner from the suit premises but to shift her to alternative accommodation suitable for her. The undertaking dated 13th January 2023 takes care of the wife's rights,” the court observed.

Justice Borkar said the husband's offer is "bona fide" and the material on record shows he continued to pay EMI of the premises even after separation. 

Also, the undertaking "takes care of the wife's rights." He concluded that "the equitable order" passed by the family court needs no interference 

and refused to stay it.

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