AISHWARYA ATUL PUSALKAR versus MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY & ORS.

Citation: [2020] 6 S.C.R. 342 · Decided: 27-04-2020 · Supreme Court of India · Bench: DEEPAK GUPTA · Disposal: Disposed off

Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 6 S.C.R.
AISHWARYA ATUL PUSALKAR
v.
MAHARASHTRA HOUSING & AREA
DEVELOPMENT AUTHORITY & ORS.
(Civil Appeal No. 7231 of 2012)
APRIL 27, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Maharashtra Housing and Area Development Act, 1976 –
ss.2(25), 79, 95A and 177 – Family property of respondent no.8-
husband was redeveloped – During redevelopment, occupants
thereof shifted to temporary accommodation as required,
appellant-wife did not – She shifted on the order of High Court
passed in matrimonial proceeding pending between the parties –
In parallel developments pertaining thereto, the decree of judicial
separation granted to respondent no.8 was set aside – Plea for
divorce, dismissed – Appellant filed writ petition inter alia for
directions to MHADA to rehouse her in the two flats allocated to
respondent no.8 and his family in the redeveloped building, which
as per her is her matrimonial home – Dismissed – Held: When a
builder has discharged his obligation by accommodating the
original owners in the redeveloped portion as per such a scheme,
a lady married into that family is not entitled to invoke the writ
jurisdiction of High Court to enforce her right to matrimonial home
on the basis of said statute, if her husband does not permit her to
reside in the allocated portion – Though appellant was dishoused
as an occupier applying the provisions of 1976 Act, claim of her
rehousing is based on her status as respondent no.8’s wife – As
of now, the decree of judicial separation stands invalidated and
she is the legally wedded wife of respondent no.8 – However, the
original building that constituted her matrimonial home has been
demolished and large portions of the redeveloped building on
the same plot has been parted with – Traditionally, her
matrimonial home at present would be the premises in which her
husband is residing – Judicial forum having fact-finding
jurisdiction would be the proper forum for adjudicating claim
of this nature – Further, respondent no.8 and the builder
uniformly stated that a flat in the same building is available to
accommodate the appellant – Dispute pending for very long,
[2020] 6 S.C.R. 342
342
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directions issued u/Art.142 – Protection of Women from Domestic
Violence Act, 2005 – Hindu Adoption and Maintenance Act, 1956.
Disposing of the appeal, the Court
HELD: 1.1 The position as it stands now is that the decree
of judicial separation stands invalidated and as of now, the
appellant is the legally wedded wife of the respondent no.8. She
has been out of her matrimonial home since the year 2000. But
such right cannot be enforced invoking the writ jurisdiction.
Moreover, the original building that constituted her matrimonial
home has been demolished. Large portions of the redeveloped
building on the same plot has been parted with. Now going by its
traditional meaning, her matrimonial home at present would be
the premises in which her husband is residing. In this complex
perspective, a judicial forum having fact-finding jurisdiction would
be the proper forum for adjudicating her claim of this nature. The
appellant drew attention to Section 177 of the Maharashtra
Housing and Area Development Act, 1976 to contend that
disputes arising out of the said Act cannot be adjudicated upon
by a Civil Court. But, the dispute raised by her does not arise
out of any of the provisions of the 1976 Act. Though she was
dishoused as an occupier applying the provisions of the 1976
Act, claim of her rehousing is based on her status as wife of the
respondent no. 8. Such claim has to be adjudicated upon by the
Civil Court or the Family Court or any other forum the law may
prescribe. Such right of the appellant cannot be diffused with the
right of her husband under the 1976 Act, whose family property,
part of which he is the owner, has been reconstructed. [Para
11][353-C-F]
1.2 The Bombay High Court has in substance non-suited
her on the ground that the Writ Court was not the appropriate
forum for granting her relief.  The Court does not per se find any
error in such approach. But, in course of this appeal, the husband
(respondent no. 8) has filed an affidavit stating that he has set
apart the Flat No. 101 in which the appellant could be
accommodated. The appellant on the other hand has asserted
that the allocation of the same flat was earmarked for one Mr.
Nayak Satam, a tenant, as per the plan. Considering the fact that
the dispute is pending for a very long ti

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