Family Feud Overturned: Unconditional Leave Granted.


27 March 2025 Domestic Violence >> Family Law  

A recent ruling in the matter of Radhika Kamal Mirani Rashmi Vijay Rijhwani v/s Nisha Purshotam Mirani., by the Bombay High Court has highlighted the complexities arising from intertwined matrimonial and financial disputes, granting unconditional leave to defend to a defendant in a summary suit. The case, originating from a familial disagreement, saw a mother-in-law suing her daughter-in-law for recovery of a loan, which the court found to be deeply rooted in an ongoing marital discord.

The plaintiff, the mother-in-law, claimed she had lent Rs. 13,23,000 to the defendant to facilitate her share subscription in a company founded by her son, the defendant's estranged husband. The suit, filed amidst multiple legal proceedings between the parties, including a domestic violence case, alleged that the defendant had agreed to the loan under the condition of being appointed a director in the company.

 
 

The defendant, however, argued that the suit was a continuation of harassment by her husband. She contended that her husband had controlled her personal and corporate affairs, and that the loan, transferred through a joint account, was not a voluntary transaction. The City Civil Court initially granted conditional leave to defend, requiring the defendant to deposit 25% of the principal amount, citing an email from the defendant as an acknowledgment of debt.

However, the Bombay High Court, in its recent ruling, overturned this decision. Justice [Judge's Name, if available] emphasized the need to consider the context of the marital discord and the defendant's claims of her husband's control over her finances. The court also noted that the initial court had previously declined to issue a decree based on the same email, highlighting the ambiguity of the communication.

A key point of contention was the maintainability of the summary suit, given that it was based on an honoured cheque. The High Court, referencing a Full Bench judgment in Jyotsna K. Valia vs. T.S. Parekh and Co., clarified that a summary suit cannot be based on an honoured cheque. This ruling underscored the necessity of a written contract for such suits, especially after the 1966 Bombay Amendment and the 1976 Amendment to the Code of Civil Procedure.

The court ultimately concluded that the defendant had raised a triable issue, warranting unconditional leave to defend. It emphasized the principle that when a defendant presents a fair and reasonable defense, they are entitled to unconditional leave unless there are strong reasons to deny it. The court also deemed the condition of depositing 25% of the sum as unduly burdensome, given the defendant's circumstances.

The ruling underscores the importance of considering the broader context of disputes, particularly when they involve complex familial and matrimonial issues. It also reaffirms the legal principles surrounding summary suits and the necessity of written contracts in such proceedings. The deposited amount of Rs. 2,00,000 was ordered to be refunded to the defendant with accrued interest.


  Protection of Women from Domestic Violence Act, 2005