Tag Archives: Domestic Violence

Nor shared a household if parties residing in separate portions with separate kitchen. DV act not applicable !! No harassment possible 😂😂

In this classic is a delhi District Court clearly states that for DV provisions to become applicable a household should be a shared household and for such a shared household parties should be living under the same roof with the same kitchen and sharing the entire household.

People living in separate portions with separate kitchen cannot be considered as people living with in the shared household…

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Neha vs ) Smt. Rajo on 5 July, 2018
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL SESSIONS JUDGE-03
(SOUTH), SAKET COURTS, NEW DELHI

Criminal Appeal No. 65/18

1) Neha
D/o Sh. Hira Lal

2) Smt. Dakha Devi
W/o Sh. Ram Dhan

3) Simran (minor aged about 15 years)
D/o Sh. Hira Lal
All R/o H-I/188, Madangir,
New Delhi-110062
……….. Appellants

Versus

1) Smt. Rajo
W/o Sh. Hans Raj

2) Pappu
S/o Not known

3) Pinki
………..Respondents

Date of Institution : 13.02.2018
Arguments heard on : 05.07.2018
Date of order : 05.07.2018

JUDGMENT
1. This appeal has been preferred u/s 29 of Protection of Women From Domestic Violence Act (hereinafter referred as ‘ D.V. Act’) for assailing the order dated 12.01.2018 vide which the application filed by the aggrieved persons u/s 12 of D.V. Act was dismissed by the trial court by holding that there exists no domestic relationship between aggrieved persons and respondents.

CA No.65/18
Neha & Ors. vs. Smt. Rajo & Ors. Page No.1/7
2. Brief facts of the case which are necessary for the disposal of present appeal are that aggrieved person/appellant no.2 Smt. Dakha Devi is the mother in law of the respondent no.1. Respondent no.1 is the daughter of respondent no.2 while respondent no.3 is the niece of respondent no.1. As per the averments made in the application u/s 12 of D.V. Act, Smt. Dakha Devi with other aggrieved persons namely Neha and Simran who are her grand daughters, is living at the house no. H-I/188 Madangir. The father of aggrieved Neha and Simran is working as driver while their mother has already expired. It is alleged that respondent no.2 in collusion with her other relatives i.e. respondent no.2 & 3, is harassing and ill treating the aggrieved persons by using filthy language and picking up frequent quarrel with them. Whenever, respondent no.1 was asked to mend her ways, she extended threats to implicate aggrieved persons in false cases. Respondent no.1 also threatened the aggrieved persons to vacate the house or else she will dispossess them forcibly from the house. The husband of respondent no.1 had expired in the year 2010 as he was suffering from HIV and after his death, respondent no.1 went to her parental home where she resided for one year but thereafter, she again returned to her matrimonial home and started harassing the aggrieved persons. As per the application, the aggrieved persons are residing on the back side of the house while respondent no.1 is residing in the front portion of the same house.
3. Trial court record shows that before issuing summons in the matter, the DIR was called from protection officer and as per the DIR, respondent no.1 as well as the aggrieved persons are residing in CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.2/7 the different portions of same house and respondent no.1 has been using her separate kitchen for last 10-12 years. Whereas, respondent no.2 to 3 are the relatives of respondent no.1 and they are residing at their own house at a different address.
4. Vide impugned order, the trial court heard the arguments on the maintainability of the application and dismissed the application on the ground that there was no domestic relationship between the aggrieved persons and respondents so as to maintain the application under D.V. Act.
5. I have carefully perused the impugned order as well as entire trial court record.
6. Counsel for the has appellant vehemently argued that since the aggrieved persons as well as respondent no.1 are living in the same house belonging to aggrieved person Dhaka Devi and while living in the shared house, respondent no.1 has subjected aggrieved persons to the act of domestic violence therefore, Ld. Magistrate was not justified in dismissing the application at the outset for absence of domestic relationship.
7. On the other hand, Ld. counsel appearing for respondents argued that respondent no.1 is residing independently in the front portion of the house and she is maintaining her own kitchen and as such, there never existed any domestic relationship between her and the aggrieved person as they never resided under the same roof. It is further argued that respondent no.1 has never subjected the CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.3/7 aggrieved persons to any harassment as alleged by them.
8. At the outset, it is necessary to mention that D.V. Act was enacted with a specific purpose to provide protection to the aggrieved person who lives with the respondent in the shared household against the acts of domestic violence and for claiming any relief under D.V. Act, there needs to exist a ‘domestic relationship’ between the parties. Domestic relationship has been defines in Section 2(f) of D.V. Act which reads as under:-
“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
9. In Vijay Verma vs. State of NCT of Delhi & Ors., 2010 (118) DRJ 707, while discussing the ambit and scope of term ‘domestic relationship’ as defined in Section 2(f) of the Act, it was held that “domestic relationship comes to an end” once the son alongwith his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband ……..domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household.”
10. It is apparent that in order to make a person as respondent in a petition u/s 12 D.V. Act, there must exist a domestic CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.4/7 relationship between the respondent and the aggrieved person. If there is no domestic relation between the respondent and aggrieved person, the court of MM cannot pass an order against such person under the Act. The definition of domestic relationship under section 2
(f) of the act speaks of living together at any point of time. However, it does not speak of having relation at any point of time. Thus, if the domestic relationship continued and if the parties have lived together at any point of time in a shared household, a person can be a respondent but if the relationship does not continue and the relationship had been in past and is not in present, a person cannot be made respondent on the ground of past relationship. The domestic relationship between the aggrieved person and the respondent must be present and alive at the time when complaint under Domestic Violence Act is filed and if this relationship is not alive on the date when complaint is filed, the domestic relationship cannot be said to be there. Reliance placed on Harbans Lal Malik vs. Payal Malik, 2010 (3) CC cases (HC) 543 wherein, the Hon’ble High court further held as under:-
“18. Thus, in order to constitute a family and domestic relationship it is necessary that the persons who constitute domestic relationship must be living together in the same house under one head. If they are living separate then they are not a family but they are relatives related by blood or consanguinity to each other. Where parents live separate from their son like any other relative, the family of son cannot include his parents. The parents can be included in the family of son only when they are dependent upon the son and/or are living along with the son in the same house. But when they are not dependent upon the son and they are living separate, the parents shall constitute a separate family and son, his wife and children shall constitute a separate family. There can be no domestic relationship of the wife of son with the parents when the parents are not living along with the son and there can be no domestic relationship of a wife with the parents of her husband when son along with the wife is living abroad. ”
CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.5/7
11. Hence, though the definition u/s 2(f) of DV Act speaks of living together at any point of time in a shared household but, it covers within its ambit only those cases where domestic relationship continued and in said situation if the parties have lived together at any point of time in a shared household, the person can be respondent but if the relationship does not continue and has come to an end on account of parties shifting out of the shared household and setting up their own separate household, then such members can neither sue as an aggrieved person nor can be sued as respondent under D.V. Act.
12. Careful perusal of the trial court record shows that the aggrieved persons/appellants are living in the back portion of the house whereas, respondent no.1 was living in the front portion of the house but, they are living in their separate household having their separate kitchen. In the entire application u/s 12, it is nowhere the claim of the appellants that they have ever lived with the respondents in the same shared household as a member of joint family. The other two respondents are the relatives of respondent no.2 who are living at a separate address and even in the application or in the present appeal, their addresses have not been mentioned by the aggrieved person which shows that they are not even aware of address of said two respondents. In the DIR filed by the protection officer, it is clearly mentioned that respondent no.1 is though living in the same house but she is living in a separate portion and is having a separate kitchen for last 10-12 years. In said circumstances, it is apparently clear that there is no continuity of domestic relationship and hence, no domestic CA No.65/18 Neha & Ors. vs. Smt. Rajo & Ors. Page No.6/7 relationship exists between the appellants and respondent no1. Regarding allegation of ill treatment and harassment at the hands of respondents, the aggrieved persons may avail separate remedy under law but, the remedies provided under D.V. Act cannot be availed without establishing the existence of domestic relationship. Whereas, in the facts and circumstances of the case, there is no prima facie case of domestic relationship between the parties. Hence, I concur with the findings of the trial court that the application u/s 12 of D.V. Act was not maintainable and was liable to be dismissed. I do not find any illegality or infirmity in the order of the trial court. The appeal is found meritless and accordingly dismissed.
13. TCR be sent back to the trial court alongwith copy of this order.
14. Appeal file be consigned to record room.
Announced in open Court on 05.07.2018 (Sunena Sharma) Additional Sessions Judge-03, (South) Saket Courts, New Delhi Digitally signed John by John Doe Date:
2018.07.06
Doe 19:40:40
+0530

CA No.65/18
Neha & Ors. vs. Smt. Rajo & Ors. Page No.7/7
— Read on indiankanoon.org/doc/149025469/

Former Mr India accused of domestic violence: wife seeks 1 crore + 85000 per month ONLY 💰💰

6EE5CF6E-DEFC-486D-A7C9-9C1D948C6A1D.jpeg

 

FORMER MR INDIA ACCUSED OF DOMESTIC VIOLENCE: ‘HE SPLURGES ON STEROIDS, GETS VIOLENT IF I OBJECT’
By Sharmeen Hakim, Mumbai Mirror | Updated: Jun 11, 2018, 08.22 AM IST

Avanti and Jivesh Shetty
Fitness trainer Jivesh Shetty denied the charges; lawyer says wife filed a case as she did not get along with Shetty’s mother.

Popular fitness trainer and former Mr India, Jivesh Shetty has been accused of domestic violence by his wife Avanti, who claims that he tried to assault her when she objected to his spending huge sums of money on ‘banned steroids and body supplements’. Avanti, 30, has also accused him of shirking his responsibilities as a father by not paying their 5-year-old daughter’s school fees.

In a case filed before a metropolitan magistrate in Girgaum, Avanti has further accused her 37-year-old husband of using his build to intimidate her. Saying that their daughter stands to lose a year as Shetty has ‘refused’ to pay her school fee, she has sought Rs 1 crore in damages and Rs 45,000 and Rs 40,000 as maintenance for her daughter and herself. She has also named his mother in the case filed under Protection of Women from Domestic Violence Act of 2005, claiming that she would verbally abuse and taunt her.
— Read on mumbaimirror.indiatimes.com/mumbai/cover-story/former-mr-india-accused-of-domestic-violence-he-splurges-on-steroids-gets-violent-if-i-object/amp_articleshow/64534512.cms

right to residence does NOT mean you can squat @ In Laws House !! Delhi HC, 2010 !

“….We must emphasize once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. In order to illustrate this proposition, we may take an example of a house being allotted to a high functionary, say a Minister in the Central Cabinet and who resides in the same house along-with his wife, son and daughter-in-law. It is obvious that since the daughter-in-law and son reside in the said house, which otherwise is a government accommodation allotted to the father-in-law, the same could be regarded as the house where the son and daughter-in-law live in matrimony. Can the daughter-in-law claim that she has a right to live in that particular property irrespective of the fact that the father-in-law subsequently is no longer a Minister and the property reverts entirely to the Government? Certainly not. https://wp.me/p7s7-3tU It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband….”

 

Delhi High Court
Shumita Didi Sandhu vs Sanjay Singh Sandhu & Others on 26 October, 2010
Author: Badar Durrez Ahmed

 

THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on: 26.10.2010

FAO (OS) 341/2007

SHUMITA DIDI SANDHU ….. Appellant

versus

SANJAY SINGH SANDHU & OTHERS ….. Respondents

Advocates who appeared in this case:

For the Appellant : Mr Akhil Sibal with Mr Salim Inamdar

For the Respondents : Mr Chetan Shrma, Sr Advocate with Mr S.S. Jauhar and Mr P.K. Dey CORAM:-

HON’BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MS JUSTICE VEENA BIRBAL

 

Whether Reporters of local papers may be allowed to see the judgment ? Yes

To be referred to the Reporter or not ? Yes

Whether the judgment should be reported in Digest ? Yes

 

BADAR DURREZ AHMED, J

  1. This appeal raises interesting issues with regard to the concepts of „matrimonial home? and „shared-household? and also concerning the right of residence of a wife in the matrimonial home, shared-household or some other place. https://wp.me/p7s7-3tU
  2. This appeal is directed against the judgment and / or order dated 02.07.2007 passed by a learned single Judge of this court in IA Nos.291/2005 and 8444/2005 in CS(OS) 41/2005. The suit had been filed by the appellant against her husband, Mr Sanjay Singh Sandhu (defendant No.1), her father-in-law, Mr Hardev Singh Sandhu (defendant No.2) (since deceased) and her mother-in-law, Mrs Shiela Sandhu (defendant No.3). During the pendency of the suit as also the said applications, the appellant?s father-in-law (the said defendant No.2) passed away and his legal representatives, being his widow (Mrs Sheila Sandhu), son (Mr Sanjay Singh Sandhu), daughter, Mrs Zoya Mohan and another daughter (Mrs Tani Sandhu Bhargava), were brought on record.
  3. In the said suit, the appellant / plaintiff had sought the following reliefs:- “(a) Grant a decree of permanent injunction restraining the Defendant Nos. 1, 2 and 3 from committing themselves or through their agents / representatives acts of violence and intimidation against the plaintiff; (b) Grant a decree of permanent injunction restraining the Defendant Nos. 1, 2 and 3 and their agents / representatives from forcibly dispossessing the Plaintiff out of her matrimonial home without due process of law; (c) Grant any other / further relief / relief (s) as may be deemed fit and proper under the facts and circumstances of the case.”
  4. In IA No.291/2005, the appellant / plaintiff sought an interim order restraining the defendants from dispossessing her from her “matrimonial home”, which, according to her, was the property at 18-A, Ring Road, Lajpat Nagar-IV, New Delhi. It is her case that she was occupying the first floor of the said property and there was imminent danger of her being dispossessed from the said portion of the said property without following the due process of law. IA No.8444/2005 was filed by the appellant / plaintiff seeking interim orders restraining the defendants from creating any third party rights in the said property. The said applications were dismissed by the learned single Judge by virtue of the impugned order dated 02.07.2007. The learned single Judge was of the view that the plaintiff could not claim any right to stay in the said property as it did not belong to her husband (defendant No.1), but it belonged to her parents-in- law. Taking note of the statement under Order 10 of the Code of Civil Procedure, 1908 made by the defendant No.2 that the defendants have no intention to throw out the plaintiff from the first floor of the said property, which is occupied by her, without following the due process of law, the learned single Judge ordered that the said defendants would be bound by the statement. https://wp.me/p7s7-3tU However, the learned single Judge clarified that this would not prevent the defendants 2 and 3 from taking recourse to law for dispossessing the plaintiff.
  5. The learned single Judge in paragraph 9 of the impugned judgment and / or order observed as under:- “There is no dispute that the suit property belongs to the defendant Nos. 2 and 3. The plaintiff?s husband, namely, the defendant No.1 has no share and / or interest in the same.” Again in para 9 of the impugned judgment / order, the learned single Judge observed that:- “The question for prima facie consideration is as to whether the plaintiff has any right to stay in the suit property in which her husband has no right, interest or share and belongs to her father-in-law and mother-in-law. Incidental question for determination is as to whether it could be treated as matrimonial home of the plaintiff?”
  6. The learned single Judge, it is obvious from the aforesaid extracts, proceeded on the basis that the said property belonged to defendant Nos. 2 and 3, that is, the father-in-law and the mother-in-law and that there was no dispute with this proposition. https://wp.me/p7s7-3tU Consequently, relying on the Supreme Court decision in the case of S.R. Batra v. Taruna Batra: 2007 (3) SCC 169, he observed that the ratio of the said Supreme Court decision was clearly that the daughter-in-law has no legal right to stay in the house which belongs to her parents-in-law. The learned single Judge observed that the legal position which emerged was that the husband had a legal and moral obligation to provide residence to his wife and, therefore, the wife was entitled to claim a right of residence against her husband. He further observed that if the house in question where she lived after marriage belonged to her husband, the same could certainly be treated as a matrimonial home. Furthermore, if the house in question belonged to a Hindu undivided family in which her husband was a co-parcener, even that house could be termed as a matrimonial house. But, where the house belonged to the parents-in-law in which the husband had no right, title or interest and the parents-in-law had merely allowed their son alongwith the daughter-in-law to stay in the said house, it would amount to mere permissive possession on the part of the daughter-in-law and would not give her any right to stay in the said house inasmuch as the same would not be her matrimonial home.
  7. The learned single Judge also noted that there was a serious dispute as to whether the property could, at all, be termed as a matrimonial home. He referred to the pleadings from which it, prima facie, appeared that the appellant / plaintiff lived in the said property from the date of her marriage in 1994 till 1996 when she moved out to Defence Colony as her relations with the defendants had become strained. Interestingly, her husband (defendant No.1) also joined her and started residing with her in Defence Colony, which was a rented accommodation. In 1999, the appellant / plaintiff and her husband (defendant No.1) returned to the said property and resided in the first floor. Serious allegations have been hurled by the plaintiff as well as the defendant No.1 against each other with regard to their chastity. There is also an allegation that the defendant No.2 married another lady sometime in 2004 and that she had moved into the said property. It was alleged that because of these incidents, the appellant / plaintiff left the property in 2004. Of course, she re-entered the first floor of the said property on 10.10.2004 at 2.30 a.m. It is because of this circumstance, that the learned single Judge was prima facie of the view that there was some credence in the allegations of the defendants that the appellant / plaintiff had forced her entry into the said property on 10.10.2004 at an odd hour. Another circumstance which may be noted is that the appellant / plaintiff had also taken a flat in Mumbai for the period December 1999 to November 2000 and that the lease of the flat was in her name and she had stayed there for three-four months and her husband had also joined her. It is because of these circumstances that the learned single Judge was of the view that there was a serious dispute as to whether the suit property could, at all, have been termed as a matrimonial house, particularly when the appellant / plaintiff had left the said property in the early part of 2004 and had, prima facie, forcibly entered the same on 10.10.2004.
  8. Anyhow, the main thrust of the reasoning adopted by the learned single Judge was that the daughter-in-law (appellant/plaintiff) cannot claim any right to stay in the said property inasmuch as the said property belonged to her parents-in-law. This conclusion is based on the said decision of the Supreme Court in the case of S.R. Batra (supra).
  9. Mr Akhil Sibal, the learned counsel appearing on behalf of the plaintiff raised three points of attack insofar as the impugned decision is concerned. https://wp.me/p7s7-3tU His first and main point was that the learned single Judge had proceeded on the basis that there was no dispute that the property belonged to the defendants 2 and 3. He submitted that the plaintiff had nowhere admitted the defendants 2 and 3 to be the sole and exclusive owners of the said property. Consequently, the learned counsel submitted that since the very premise was wrong, the conclusion based on such premise was obviously erroneous. He also submitted that because the said premise was faulty, the decision of the Supreme Court in the case of S.R. Batra (supra) would not be applicable to the facts and circumstances of the present case.
  10. The second point of attack was that the learned single Judge had erred in holding that the appellant / plaintiff, could not, as a matter of law, claim any right in the property of the mother-in-law. He submitted that the plaintiff / appellant had a right of residence and that this proposition was not correct. The third point of attack was that since the learned single Judge had decided that in law, the appellant / plaintiff could not claim any right in the property of the mother-in-law, the suit as such had virtually been dismissed without returning any conclusive findings or recording any satisfaction on the factual aspects at all. He, therefore, submitted that this was a fit case for remand, after the impugned order was set aside.
  11. Elaborating on the first aspect of the matter, that the appellant / plaintiff had not admitted the defendant Nos. 2 and 3, jointly or the defendant No.3 by herself, to be the exclusive owner(s) of the said property, Mr Sibal drew our attention to the pleadings of the parties and, in particular, to the written statements filed on behalf of the defendant Nos.1, 2 and 3. Referring to para 3 of the written statement of the defendant No.1, Mr Sibal pointed out that the stand taken is that the said property belonged to defendant No.3 (the mother-in-law). https://wp.me/p7s7-3tU However, in paragraph 17 of the same written statement, a somewhat different statement has been made to the following effect:- “… The suit property lawfully belongs to the parents of the defendant No.1 and the plaintiff has no claim whatsoever in the said suit property.” Again, in para 21 of the written statement of the defendant No.1, it is stated as under:- “… the matrimonial house of the parties will be the residence of the husband i.e. defendant No.1 and not the house / property of the parents of the husband i.e. defendant No.2 and 3 to whom the suit property belongs. The suit property is the self acquired property of the defendant No.2 and 3 and no person except the defendant No.3 has any right, title or interest in the suit property. The matrimonial home of the plaintiff thus will be the house in which her husband i.e. defendant No.1 resides who has his residence in Dehradun and not in the suit property.”
  12. Mr Sibal submitted that from the aforesaid averments made in the written statement, the defendant No.1 has taken conflicting stands. https://wp.me/p7s7-3tU At one place, the defendant No.1 has stated that the property belongs to his mother (defendant No.3) and not to the plaintiff and at other places he has stated that it belongs to his parents, i.e., both defendant Nos.2 and 3.
  13. Referring to the written statement of the defendant No.2, Mr Sibal submitted that the defendant No.2 claimed the said property to have been built from his personal earnings and also on the basis of the loan which he had taken from LIC. He referred to the following averments in paragraph 6 of the written statement:- “6. That the correct facts in brief imperative for the proper adjudication of the present matter are that the house at 18A, Ring Road, Lajpat Nagar was built from the personal earnings of defendant No.2 and also the loan which he had taken from LIC. The defendant No.2 was living on the ground floor with his wife, defendant No.3 and three unmarried children. The plaintiff and the defendant No.1 got married in the year 1994. After the marriage, the plaintiff and the defendant No.1 lived with defendants no.2 and 3 in the ground floor of their house. Thereafter, in the year 1996, the plaintiff and the defendant No.1 left the said premises at Lajpat Nagar and took a separate residential premises for their living in C-461, Defence Colony, New Delhi which remained their residential premises till 1999. The said house was taken on lease by plaintiff and defendant No.1 and all the payments for rent and were duly reflected in defendant No.1?s Bank statement for the said period. Thereafter plaintiff and defendant No.1 had been living at different places from time to time. For the last few years plaintiff and defendant no.1 started living in defendant No.1?s house in Dehradun or at times at the First Floor of the suit property with permission of defendants no.2 & 3. Whenever they stayed at Lajpat Nagar House even though they maintain separate kitchen. Defendant No.2 had been paying all electricity and water charges including payment to security guards and other related expenses. For the said reasons the first floor at Lajpat nagar house belonging to defendant No.3 was never considered to be matrimonial home of plaintiff and defendant No.1.” The defendant No.3, in paragraph 11 (preliminary objections) of her written statement, has categorically stated that the suit property is the self acquired property of the defendant No.3 and no person except the defendant No.3 has any right, title or interest in the suit property. https://wp.me/p7s7-3tU In para 2 (parawise reply on merits), the defendant No.3 once again stated that she was the true and legal owner of the suit property and the defendant No.2 and 3 have been in possession of the suit property.
  14. In view of the averments made in the said written statements, Mr Sibal submitted that the stand of the defendants is unclear. At one point, they claim that the property belongs to the defendant Nos.2 and 3 and at other points they claim that the property belongs to defendant No.3 exclusively. Thus, according to Mr Sibal, the shifting stands are indicative of the ulterior designs of the defendants to oust the appellant / plaintiff from her matrimonial home.
  15. He then referred to para 21 of the replication, where, for the first time, the plaintiff raised the plea that the said property was not the self- acquired property of the defendants 2 and 3 and also denied that no person except the defendant No.3 had any right, title or interest in the suit property. It was, therefore, contended by Mr Sibal that there was a dispute with regard to the ownership of the suit property. Continuing further, Mr Sibal referred to the Order X statement made under the Code of Civil Procedure, 1908 by the defendant No.2, where once again, the said defendant took a different stand that the property bearing No.18-A, Ring Road, Lajpat Nagar, Delhi had been bought by his wife, Mrs Sheela Sandhu out of her own income and that the perpetual lease deed was executed by DDA in her favour.
  16. Mr Sibal also submitted that an application being IA No.8442/2005 had been filed by the appellant / plaintiff under order 6 Rule 17, CPC seeking amendment of the plaint. One of the amendments sought was the introduction of para 12-B, wherein the plaintiff proposed to allege that the defendant No.3, in collusion with the other defendants, had transferred part of the above said property in the name of defendant No.4 falsely claiming this to be her absolute property, knowing fully well that the said property was the joint ancestral property and by making false averments regarding possession and consideration. In other words, the appellant / plaintiff sought to take, inter alia, the plea of joint ancestral property by virtue of the said amendment application. https://wp.me/p7s7-3tU Mr Sibal said that that application is pending and is yet to be disposed of. He submitted that the learned single Judge ought to have disposed of the application for amendment prior to passing the impugned order. This, according to him, is another reason as to why the impugned order ought to be set aside and the matter be remanded to the learned single Judge for a fresh consideration.
  17. There was also some controversy with regard to a status quo order dated 08.01.2005. But, we need not go into that aspect of the matter. The main thrust of the arguments advanced by Mr Sibal was that the foundation on which the learned single Judge had premised his conclusions was itself faulty inasmuch as the learned single Judge, assumed that there was no dispute that the suit property belonged to the defendants 2 and 3 in which the appellant?s / plaintiff?s husband had no share or interest. He submitted that he has been able to show, prima faice, that there was a dispute as to whether the defendants 2 and 3 or the defendant No.3 alone was the exclusive owner of the said property and that the issue as to whether it was a joint family property also needed to be looked into. Therefore, the decision in the case of S.R. Batra (supra) would not be applicable to the facts and circumstances of the present case, because, in the Supreme Court decision, the position with regard to ownership, being that of the mother-in- law, was undisputed.
  18. Referring to the following decisions, Mr Sibal submitted that the property in question was the matrimonial home of the appellant / plaintiff and she had a right to reside therein and, therefore, she was entitled to an order restraining the defendants from dispossessing her and / or creating any third party interest therein:-
    1. 1) Kavita Gambhir v. Hari Chand Gambhir & Another: 162 (2009) DLT 459;
    2. 2) Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Ors.: 2007 (1) SCC 521;
    3. 3) Komalam Amma v. Kumara Pillai Raghavan Pillai & Others: AIR 2009 SC 636;
    4. 4) Mangat Mal (Dead) & Another v. Punni Devi (Dead) and Others: 1995
    5. 5) SCC 88; 5) S.R. Batra & Another v. Taruna Batra: 2007 (3) SCC 169;
    6. 6) S. Prabhakaran v. State of Kerala: 2009(2) RCR(Civil) 883;
    7. 7) P. Babu Venkatesh Kandayammal and Padmavathi v. Rani: [CRL. R.C. Nos.48 and 148 of 2008 and M.P. Nos. 1 of 2008 decided on 25.03.2008].
  19. Mr Chetan Sharma, the learned senior counsel, appearing for the respondent No.3, submitted that the present appeal is merely academic because the learned single Judge has virtually decreed the suit. He submitted that one of the reliefs claimed in the suit was to permanently injunct the defendants from forcibly dispossessing the plaintiff out of her matrimonial home “without due process of law”. https://wp.me/p7s7-3tU He submitted that this relief has already been granted by the learned single Judge by virtue of the impugned order, whereby he directed as under:-
    • 19. In view of the above, insofar as the right of the plaintiff to stay in the suit property is concerned, she cannot claim any such right as the property belongs to her parents-in-law. However, statement of defendant No.2 was recorded by the Court under Order X CPC where he stated that he or his wife had no intention to throw her out of the premises in question without due process of law. Therefore, while dismissing the applications of the plaintiff, it is ordered that the defendant Nos.1 and 2 shall remain bound by the said statement. This, however, would not prevent the defendants to take recourse to the law for dispossessing the plaintiff.”
  20. Mr Chetan Sharma further submitted that at the time when IA Nos. 291/2005 and 8444/2005 were being argued and which ultimately came to be disposed of by the impugned order, the appellant / plaintiff did not press for hearing of the amendment application. Consequently, she cannot now be permitted to submit that the said amendment application ought to have been decided prior to the said IA Nos.291/2005 and 8444/2005. He further submitted that the appellant / plaintiff did not press for any additional issue with regard to the title in respect of the said property. Referring to the Supreme Court decision in Om Prakash Gupta v. Ranbir B. Goyal: 2002 (2) SCC 256, Mr Sharma submitted that the rights of the parties stand crystallised on the date of institution of the suit and subsequent events are not to be taken into account unless the three circumstances referred to therein arise. The said three circumstances are:-
    • (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;
    • (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
    • (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.
  21. Mr Chetan Sharma fully supported the impugned judgment and contended that there was no infirmity in the same and, therefore, did not call for any interference. He submitted that the case of the appellant / plaintiff was that there was no abandonment of the matrimonial home and that she had a right to live in the matrimonial home even if it belonged to her in- laws. Earlier, the High Court decision in the case of Taruna Batra v. S.R. Batra & Another: 116 (2005) DLT 646 had been relied upon by the appellant / plaintiff as observed in the impugned order itself, but the Supreme Court decision in S.R. Batra (supra) reversed the decision of the High Court and sealed the fate of the appellant / plaintiff. Mr Chetan Sharma also referred to a decision of a learned single Judge of this court in the case of Neetu Mittal v. Kanta Mittal & Others: (2008) 106 DRJ 623 by way of persuasive value to submit that under the Protection of Women from Domestic Violence Act, 2005, there is no concept of matrimonial home. On the other hand, the concept is of a „shared house-hold?. In that case, the learned single Judge, after referring to and relying upon the decision of the Supreme Court in S.R. Batra (supra) held that a daughter-in-law has no right to live in the house belonging to her parents-in-law.
  22. Mr Chetan Sharma also submitted that in the present case, the said property cannot be regarded as the matrimonial home because, first of all, the appellant / plaintiff left the house in 1996 when she went to reside in Defence Colony. https://wp.me/p7s7-3tU Her husband, the defendant No.1 also left the said property and resided with her in Defence Colony. Secondly, the appellant / plaintiff resided in Dehradun and, thirdly, she resided in Mumbai and then in 2004, she once again left the said property, only to re-enter the same on 10.10.2004 at 2.30 a.m. He referred to the order X, CPC statement of the appellant / plaintiff, wherein she stated that she had married the defendant on 05.11.1994 and that she had shifted to Defence Colony in June, 1996 and remained there till March, 1999. She then stated that she was forced to leave her matrimonial home in 2004. She also admitted that she took a flat in Bombay during the period December 1999 till November, 2000 and that the lease of the Bombay flat was in her name and that she was in Bombay for three to four months and that her husband had joined her later on. She also admitted to her going to Pakistan in January 2004 and staying there for six days alongwith a number of other persons. Thereafter, she went to Pakistan again on 12.04.2004 to 24.05.2004 with a women’s organization. She also admitted that during the period February 2004 till 09.10.2004, no formal complaint was lodged by her.
  23. According to Mr Sharma, the Protection of Women from Domestic Violence Act, 2005, would come into play only when domestic violence takes place. This is not a case of domestic violence as there has been no whisper of any violence during February 2004 to 10.10.2004 when the appellant / plaintiff re-entered the said property at 2.30 a.m. He submitted that apart from this not being a case of domestic violence at all, the appellant / plaintiff having come to learn that the defendant No.3 was interested in disposing of the said property, wanted to put an impediment in the sale so as to extract some money from the defendants. For all these reasons, Mr Sharma contended that the appeal be dismissed.
  24. Let us first deal with the submission of the learned counsel for the appellant that the foundation of the learned single Judge?s decision that there was no dispute that the suit property belongs to defendant Nos. 2 and 3 was itself faulty and, therefore, the entire decision is liable to be set aside. It is true that the learned single Judge had proceeded on the basis that there was no dispute that the suit property belonged to defendants 2 and 3 and even the question which was taken up for prima facie consideration by the learned single Judge, as would be apparent from paragraph 9 of the impugned order, was founded on the understanding that the appellant?s husband (defendant No.1) had no right, title or share in the said property and that the said property belonged to the appellant?s father-in-law and mother- in-law. We have already noticed above that the learned counsel for the appellant was at pains to attempt to demonstrate that the appellant / plaintiff nowhere admitted that the said property belonged to her father-in-law and mother-in-law or to her mother-in-law exclusively. He had also pointed out that there is no admission by the appellant / plaintiff that her husband (defendant No.1) did not have any right, interest or share in the said property. https://wp.me/p7s7-3tU The learned counsel for the appellant had drawn our attention to the written statements filed by the defendants as also the replication filed by the appellant / plaintiff and the Order X CPC statement of the defendant No.2.
  25. On going through the relevant portions of the said documents, it appears that the defendant No.1 took the stand that the said property belonged to his mother (defendant No.3). However, in the very same written statement, the defendant No.1 had also stated that the said property belonged to defendant Nos. 2 and 3 and that it was their self-acquired property. In the very same paragraph (para 21 of the written statement of the defendant No.1), it is again stated that no person except the defendant No.3 has any right in the said property. The defendant No.2 in his written statement stated that the said property was made from his personal earnings and from a loan taken from LIC. However, in his Order X CPC statement, the defendant No.2, took a different stand and stated that the property was bought by his wife (defendant No.3) out of her own funds. The defendant No.3, however, took a clear stand in her written statement that the said property was her self- acquired property and no person except her had any right, title or interest in the same. She stated that while she was the true and legal owner of the said property, her husband (defendant No.2) and she were in possession of the suit property.
  26. It does appear from the averments made in the written statements of the defendant Nos. 1 and 2 that there is a shift in the stand taken with regard to the ownership of the said property. The defendant No.1 had taken the stand that the property belongs to his mother (defendant No.3) and that no person except the defendant No.3 had any right, title or interest in the same. However, he has also averred that the said property belonged to defendants 2 and 3. A similar ambivalence is discernible in the stand taken by the defendant No.2 in his written statement and his order X CPC statement. However, this much is clear that none of the defendants have stated that the appellant?s husband (defendant No.1) had any right, title or interest in the said property. There is only some lack of clarity in the pleadings with regard to the exclusivity of ownership of the defendant No.3. In other words, there is a degree of ambiguity, particularly on the part of defendant No. 2 as to whether the defendant No.3 is the sole and exclusive owner of the said property or whether it also belongs to the defendant No.2. However, there is no confusion with regard to the stand that the said property does not at all belong to the appellant’s husband (defendant No.1).
  27. In the replication, as pointed out earlier, the appellant / plaintiff has sought to introduce a new dimension to the case by making an allegation that the said property is not the self-acquired property of the defendant Nos.2 and 3. The appellant / plaintiff had also filed an amendment application under Order 6 Rule 17, CPC to introduce new para 12 B in the plaint where she has taken the plea of joint ancestral property. However, as pointed out above, the appellant did not press for a decision on this application at the time when IA Nos. 291/2005 and 8444/2005 were being argued before the learned single Judge. In any event, the plea of joint ancestral property has been sought to be introduced only by way of an amendment to the plaint after the defendants had filed their written statements. It cannot be said as to whether the amendment, which has been sought, will be allowed by the learned single Judge or not. Therefore, as on the date on which the learned single Judge passed the order, there did not exist any plea of joint ancestral property in the pleadings of the parties. https://wp.me/p7s7-3tU Furthermore, what is important is to examine the stand taken by the appellant / plaintiff in the plaint which unfortunately had not been alluded to by the learned counsel for the appellant. In para 2 of the plaint, it is merely stated that the property bearing No.18-A, Ring Road, Lajpat Nagar-IV, is the matrimonial home of the plaintiff since 1994 and that she is currently residing in the first floor of the said property and the defendants are living on the ground floor due to strained relations between the parties.
  28. In paragraph 8 of the plaint, it is alleged:- “The defendant Nos. 2 and 3 permitted the Defendant No.1 to live with “Chinu” in the matrimonial home of the Plaintiff with ulterior motives of driving the Plaintiff from the matrimonial home.” From the said averment, it is discernible that even as per the appellant?s / plaintiff?s understanding, the said property, which the plaintiff was regarding as her “matrimonial home” belonged to defendant Nos. 2 and 3 and the defendant No.1 only had permission to live in the same.
  29. In para 12 of the plaint, it has been averred that the plaintiff feared for her life and was filing the suit to protect her rights “in her matrimonial home”. The plea taken was that she feared that she would be “summarily thrown out without due process of law”. It was also stated that:- “… the defendants are trying to sell the house. They have already taken possession of a house being 201, Jor Bagh, New Delhi for their residence.”
  30. Two things are clear from the averments made in the plaint. The first is that it is nowhere alleged in the plaint by the appellant / plaintiff that the said property, which the appellant / plaintiff was referring to as her matrimonial home belonged to or was owned by her husband (defendant No.1). In fact, there is no averment in the plaint that the defendant No.1 had any right, title or interest or share in the said property. There is no averment that the property did not belong to the defendant No.3 exclusively. As pointed out above, it can be inferred that the appellant / plaintiff was of the view that the property actually belonged to the defendant Nos. 2 and 3. https://wp.me/p7s7-3tU The other point which emerges from the averments contained in the plaint is that the suit was filed to protect her rights in her „matrimonial home? as she feared that she would be summarily thrown out without due process of law inasmuch as she had learnt that the defendants were trying to sell the house. It is in this context that the prayer (b) of the plaint, which seeks the grant of a decree of a permanent injunction restraining the defendants from forcibly dispossessing the plaintiff out of her “matrimonial home” without due process of law, gains importance and significance.
  31. Thus, looking at the totality of the circumstances and the pleadings as well as the order X, CPC statements, it cannot be said that the learned single Judge was off the mark when he observed that there is no dispute that the suit property belongs to the defendant Nos. 2 and 3. Therefore, the first point of attack that the conclusion of the learned single Judge was founded on a wrong premise, falls to the ground.
  32. In order to examine the other points urged by the learned counsel for the appellant to the effect that the conclusion of the learned single Judge that the appellant / plaintiff could not claim any right in the property of the mother-in-law was erroneous and that the learned single Judge in so holding had virtually dismissed the suit itself without recording any satisfaction on the facts, it would be necessary for us to consider the decisions cited at the bar as also the provisions of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as „the said Act?). We shall first examine the decision of the Supreme Court in the case of Mangat Mal (supra) wherein a question arose as to whether the right of maintenance of a Hindu lady, includes the right of provision for residence. The Supreme Court held as follows:-
    • 19. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provisions for food and clothing and the like and take into account the basic need for a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady’s life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1).”
  33. Next, we refer to the decision of the Supreme Court in B.P. Achla Anand v. S. Appi Reddy and Another: 2005 (3) SCC 313, which is a decision which was relied upon by a learned single Judge of this court in the case of Kavita Gambhir (supra), which in turn, was referred to by the learned counsel for the appellant. In B.P. Achla Anand (supra), in the context of a deserted wife continuing in possession of a property in which her husband was a tenant, the Supreme Court observed that there was no precedent, much less a binding authority, from any court in India dealing with such a situation. However, the Supreme Court noticed that English decisions could be found. The following passage from Lord Dening?s Book – The Due Process of Law – was quoted by the Supreme Court:- “A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern. Thus the husband can no longer turn her out of the matrimonial home. She has as much right as he to stay there even though the house does stand in his name. … Moreover it has been held that the wife’s right is effective, not only as against her husband but also as against the landlord. Thus where a husband who was statutory tenant of the matrimonial home, deserted his wife and left the house, it was held that the landlord could not turn her out so long as she paid the rent and performed the conditions of the tenancy.”
  34. After considering several other decisions, under English law, the Supreme Court noted the Matrimonial Homes Act, 1983 applicable in England. The preamble of that Act stated that it was an Act to consolidate certain enactments relating to the rights of a husband or wife to occupy a dwelling house that has been a matrimonial home. The Supreme noted that one of the several rights expressly provided for by the Matrimonial Homes Act, 1983 in England was that so long as one spouse had a right to occupation, either of the spouses could apply to the court for an order requiring the other spouse to permit the exercise of that right. The Supreme Court observed as under:-
    • “32. In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and Rent Control Legislation, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.
    • 33. We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold – and we do so – that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wife’s right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlord’s right to eviction against his tenant to be subordinated to wife’s right to residence enforceable against her husband. Let both the rights co- exist so long as they can.”
  35. However, in B.P. Achla Anand (supra), the appeal filed by Smt. Achla was dismissed because, in the meanwhile, a decree for dissolution of marriage by divorce based on mutual consent had been passed. The Supreme Court noted that it was not the case of Smt. Achla Anand, the appellant, that she was entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her ex husband to provide residence for her as part of maintenance. Consequently, the Supreme Court held that she could not, therefore, be allowed to proceed with the appeal and defend her right against the claim for eviction made by the landlord.
  36. The third decision of the Supreme Court in this line is that of Komalam Amma (supra). In that decision, the Supreme Court took a view similar to that in Mangat Mal?s case (supra) that maintenance, in the case of a Hindu lady, necessarily must encompass a provision for residence. The Surpeme Court reiterated that the provision for residence may be made either by giving a lump sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady?s life, a residence and money for other necessary expenditure.
  37. The final decision in this line of cases is that of the Supreme Court in S.R. Batra (supra). The facts before the Supreme Court in S.R. Batra (supra) are somewhat similar to those in the present case and it would, therefore, be instructive to refer to them in some detail. Taruna Batra married Amit Batra and started living with him in the second floor of the house belonging to Amit Batra?s mother. It was not disputed that the said house at B-135, Ashok Vihar, Phase-I, Delhi belonged to Taruna Batra?s mother-in-law and not to her husband Amit Batra. Cross divorce petitions were filed by Taruna Batra and Amit Batra and because of this discord, Smt Taruna Batra shifted to her parents residence. She alleged that later on, when she tried to enter B-135, Ashok Vihar, she found the main entrance locked and consequently she filed a suit for mandatory injunction to enable her to enter the house. However, before any order could be passed in the said suit, Smt Taruna Batra, alongwith her parents, allegedly broke open the locks and entered the said property. Another aspect was that Amit Batra had shifted to his own flat in Mohan Nagar, Ghaziabad before the said litigation had ensued. In the said suit, the trial Judge granted temporary injunction restraining the appellants therein from interfering with the possession of Smt Taruna Batra in respect of the second floor of the said property. In appeal, the Senior Civil Judge, Delhi, by his order dated 17.09.2004, held that Smt Taruna Batra was not residing in the second floor of the premises in question and that her husband Amit Batra was not living in the said property and the matrimonial home could not be said to be a place where only a wife was residing. He also held that Smt Taruna Batra had no right to the properties other than that of her husband and consequently dismissed the temporary injunction application. Thereafter, a petition under Article 227 of the Constitution of India was filed before the Delhi High Court whereupon a learned single Judge of this court held that the second floor of the property in question was the matrimonial home of Smt Taruna Batra and he further held that even if her husband Amit Batra shifted to Ghaziabad that would not make the Ghaziabad home the matrimonial home of Smt Taruna Batra. On this reasoning, the learned single Judge of this court, held that Smt Taruna Batra was entitled to continue to reside in the second floor of B-135, Ashok Vihar as that was her matrimonial home. The Supreme Court disagreed with the view taken by the learned single Judge of this court. Referring to an earlier decision in the case of B.R. Mehta v. Atma Devi and Others: 1987 (4) SCC 183, the Supreme Court observed “whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right existed in India”.
  38. A reference was made to the following observations in B.R. Mehta (supra):- “… it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife.” However, the Supreme Court in S.R. Batra (supra) observed that the aforesaid extract was merely an expression of hope and it did not lay down any law and that it was only the legislature which could create a law and not the court. The Supreme Court further held:- “17. There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law. 18. Here, the house in question belongs to the mother-in-law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house. 19. Appellant No. 2, the mother-in-law of Smt. Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.”
  39. Thereafter, the Supreme Court considered the provisions of the said Act and particularly the concept of a “shared household” under Section 2(s) of the said Act as also the provisions of Sections 17 and 19(1) thereof and repelled the argument that since Smt Taruna Batra had lived in the property in question in the past, therefore, the said property was her „shared household?. The Supreme Court observed as under:- “26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband’s father, husband’s paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband’s relatives will be shared households and the wife can well insist in living in the all these houses of her husband’s relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd. 27. It is well settled that any interpretation which leads to absurdity should not be accepted.” The Supreme Court finally held as under:- “29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member, it is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a ‘shared household’. 30. No doubt, the definition of ‘shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.”
  40. From this line of cases, it is apparent that the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lumpsum in money or property in lieu thereof. It may also be made by providing, for the course of the lady?s life, a residence and money for other necessary expenditure. Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a “shared household” and such a household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a “shared household”. Clearly, the property which exclusively belongs to the father-in-law or the mother-in-law or to them both, in which the husband has no right, title or interest, cannot be called a “shared household”. The concept of matrimonial home, as would be applicable in England under the Matrimonial Homes Act, 1967, has no relevance in India.
  41. In the light of the aforesaid principles, the appellant / plaintiff would certainly have a right of residence whether as a part of maintenance or as a separate right under the said Act. The right of residence, in our view, is not the same thing as a right to reside in a particular property which the appellant refers to as her „matrimonial home?. The said Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a household.
  42. Let us now look at the relevant provisions of the said Act. They are:-
    • “2. Definitions. – In this Act, unless the context otherwise requires,
    • (a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
    • xxxx xxxx xxxx xxxx
    • (q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner;
    • xxxx xxxx xxxx xxxx
    • (s) “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”
  43. Chapter IV of the said Act deals with the procedure for obtaining orders or reliefs. The said chapter comprises of Sections 12 to 29. Section 12 provides for the making of an application to a Magistrate seeking one or more of the reliefs under the Act. Section 17 relates to the right to reside in a “shared household”. Section 18 prescribes the protection orders which the Magistrate may pass on being prima facie satisfied that domestic violence has taken place or is likely to take place. Section 19 contemplates the residence orders that may be passed by the Magistrate on being satisfied that domestic violence has taken place. Since the said provisions of Sections 17, 18 and 19 are relevant, they are set out in full hereinbelow:-
    • “17. Right to reside in a shared household. –
    • (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
    • (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
    • 18. Protection orders.-
    • The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from-
    • (a) committing any act of domestic violence;
    • (b) aiding or abetting in the commission of acts of domestic violence;
    • (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person;
    • (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact;
    • (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate;
    • (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence;
    • (g) committing any other act as specified in the protection order.
    • 19. Residence orders.
    • (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order –
    • (a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
    • (b) directing the respondent to remove himself from the shared household;
    • (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
    • (d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
    • (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
    • (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require: Provided that no order under clause (b) shall be passed against any person who is a woman.
    • (2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
    • (3) The Magistrate may require from the respondent to execute a bond, with or without sureties, for preventing the commission of domestic violence.
    • (4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
    • (5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the court may also pass an order directing the officer in charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
    • (6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties. (7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order. (8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to.”
  44. Another important provision is Section 23 which empowers the Magistrate to grant interim and ex parte orders on the Magistrate being satisfied that an application, prima facie, discloses that the respondent is committing or has committed an act of domestic violence or that there is a likelihood that the respondent may commit an act of domestic violence. The ex parte order may be passed on the basis of affidavits of the aggrieved person in terms of, inter alia, Sections 18 and 19 against the respondent. Section 26 of the said Act prescribes that any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceedings before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent, whether such proceeding was initiated before or after the commencement of the said Act.
  45. From the aforesaid provisions, it is clear that the expression “matrimonial home” does not find place in the said Act. It is only the expression “shared household” which is referred to in the said Act. “Shared household” is defined in Section 2(s) to mean a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity. The „shared household? also includes such a household which may belong to the joint family, of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. The word “household” has not been defined in the said Act, however, Black?s Law Dictionary, 9th Edition defines „household? in the following manner:- “household, adj. Belonging to the house and family; domestic. household, n. (14c) 1. A family living together, 2. A group of people who dwell under the same roof. Cf. FAMILY. 3. The contents of a house.”
  46. In contrast, the impression that we get by reading Section 2(s), which defines “shared household” is that the “household” which is referred to in the said provision, relates to the property and not just to the group of people who dwell under the same roof or the family living together. Therefore, we are of the view that the word “household” used in Section 2(s) actually means a house in the normal sense of referring to a property, be it a full-fledged house or an apartment, or some other property by any other description. This is also clear because the expression “household” has been referred to as a place where the person aggrieved lives or, at any stage has lived. It also refers to a property whether owned or tenanted or in which the aggrieved person or the respondent has any right, title, interest or equity. Therefore, in order to fall within the meaning of “shared household” as defined in Section 2(s), it is essential that the property in question must be one where the person aggrieved lives, or at any stage, has lived in a domestic relationship, either singly or alongwith the respondent. It also includes such a property whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either of them or both jointly or singly have any right, title, interest or equity. It also includes a property which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest therein. The Supreme Court has already observed in S.R. Batra (supra) that the definition of “shared household” in Section 2(s) is not happily worded, but the courts have to give it an interpretation which is sensible and which does not lead to chaos in society. In this backdrop and in the facts and circumstances of the present case, the property in question cannot be considered to be a shared “household” because neither the appellant / plaintiff, nor her husband (defendant No.1) has any right, title or interest or equitable right in the same. The property may belong to defendant No.3 exclusively or to defendants 2 and 3 jointly, but it certainly does not belong to the defendant No.1 or the appellant / plaintiff. The position as it exists today also does not indicate even prima facie that the property in question is the property of a joint family of which the defendant No.1 is a member. Therefore, in our view, the property in question does not fall within the expression “shared household” as appearing in Section 2(s) of the said Act.
  47. Section 17 of the said Act deals with the right of every women in a domestic relationship to reside in the shared household and, Section 17(2), specifically provides that such a woman shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. In other words, the wife can be evicted or excluded from the “shared household” after following the due procedure established by law and it is not an absolute right of the wife to reside in a “shared household”. However, in the present case, we need to go into this aspect of the matter because Section 17 in itself would be inapplicable in view of the fact that the property in question cannot be regarded as a “shared household”. The residence orders that may be passed under Section 19 are also subject to the Magistrate / court being satisfied that domestic violence has taken place. All the residence orders also relate to a “shared household”. Consequently, Section 19 would also not come in the aid of the appellant / plaintiff.
  48. The learned counsel for the appellant had also referred to single Bench decisions of the Kerala High Court and the Madras High Court in the cases of S. Prabhakaran (supra) and P. Babu Venkatesh Kandayammal and Padmavathi(supra) to indicate instances of cases where the Supreme Court decision in S.R. Batra (supra) was distinguished. Those decisions are single Bench decisions and that too of other high courts and are, therefore, of no precedential values insofar as this Bench is concerned. We feel that in view of the prima facie finding that the property in question does not belong to the appellant?s / plaintiff?s husband nor does he have any share or interest in the same, there is no question of the said property being regarded as a “shared household” in terms of Section 2(s) of the said Act. We also find that the expression “matrimonial home” is not at all defined in the said Act and the concept of the matrimonial homes as prevailing in England by virtue of the Matrimonial Homes Act, 1967 cannot be applied in India as pointed out in S.R. Batra (supra) and B.R. Mehta (supra). There is no doubt that the appellant / plaintiff has a right of a residence whether as an independent right or as a right encapsulated in the right to maintenance under the personal law applicable to her. But that right of residence does not translate into a right to reside in a particular house. More so, because her husband does not have any right, title or interest in the said house. As noted by the Supreme Court in the case of Komalam Amma (supra) as well as in Mangat Mal (supra), the right of residence or provision for residence may be made by either giving a lumpsum in money or property in lieu thereof. In the present case, we have noted earlier in this judgment that the learned single Judge had recorded that alternative premises had been offered to the appellant / plaintiff, but she refused to accept the same and insisted on retaining the second floor of the property in question claiming it to be her „matrimonial home?.
  49. We must emphasise once again that the right of residence which a wife undoubtedly has does not mean the right to reside in a particular property. It may, of course, mean the right to reside in a commensurate property. But it can certainly not translate into a right to reside in a particular property. In order to illustrate this proposition, we may take an example of a house being allotted to a high functionary, say a Minister in the Central Cabinet and who resides in the same house alongwith his wife, son and daughter-in-law. It is obvious that since the daughter-in-law and son reside in the said house, which otherwise is a government accommodation allotted to the father-in-law, the same could be regarded as the house where the son and daughter-in-law live in matrimony. Can the daughter-in-law claim that she has a right to live in that particular property irrespective of the fact that the father-in-law subsequently is no longer a Minister and the property reverts entirely to the Government? Certainly not. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband.
  50. In view of the foregoing discussion, no interference is called for with the impugned order and we also feel that the learned single Judge has amply protected the appellant / plaintiff by directing that she would not be evicted from the premises in question without following the due process of law. The appeal is dismissed. The parties shall bear their respective costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J

October 26, 2010

dutt

In the absence of proof regarding domestic violence, wife is not eligible to claim maintenance. Madras HC

We see many honest, innocent husbands being harassed with #fake498a #fakeDV and #FakeMaintenance claims. Here is one such husband who has been actually harassed by the wife

the Hon Madras HC summarises the fate of the husband in the following lines
“…21. It is a case where the respondent herein as a father, has made his daughter a professionally qualified personality having educated her upto B.Tech. Even before the claim for maintenance, the respondent has provided shelter, medical facilities, educational facilities, rental income etc. Apart from that, as per the compromise, suggested by the Police Official, he was willing to pay a sum of Rs.400/- per month at that point of time, but the wife was not willing to receive it. In a house built by the husband on obtaining loan, it is the wife and daughter, who were residing and getting rent also by letting out one portion, while the husband is staying away from his own house. These details are not at all stated by the petitioner in chief examination and these facts have been brought out only in cross examination.

a) Suppression of material fact in a case between the husband and the wife involving intimate interpersonal relationship itself would amount to cruelty.

b) Neglecting the husband, treating him as invisible, not inviting him for the marriage of his daughter, where throughout the daughter has been supported by the father, certainly would amount to humiliation causing mental cruelty to the husband. The provisions of Domestic Violence Act can be used as a shield / sword to get protection from the domestic violence and it cannot be used as a sword for the purpose of causing violence to the other partner in the life….”

While on the matter of maintenance, the Hon Madras HC clearly states that eligibility of maintenance is to be tested on facts “… But the question to be seen is whether the petitioner is entitled to maintenance under the context, conduct and the circumstances alleged.…..”

The Hon HC concludes that “… Perusal of Section 20 of P.W.D.V.Act would go to show that monetary relief including maintenance can be given to the woman, who is proved to be the victim of domestic violence. In the absence of the proof regarding domestic violence, the wife is not eligible to claim maintenance….”

Criticizing the wife for frequently filing complaints the HC states “…. There is no clarification as to what made the wife to prefer 15 complaints. The details ought to have been clarified and it has not been done. However, everyday life must be at home and not in the Police Station.….”

and refuses maintenance to the erring wife

===================================

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 15.10.2015

CORAM

THE HON’BLE MRS.JUSTICE S.VIMALA

Crl.R.C.(MD) No.138 of 2014

Jeyanthi … Petitioner / Appellant / Petitioner

-vs-

Jeyapaul … Respondent / Respondent / Respondent

Prayer: Criminal Revision Petition has been filed under Sections 397 and 401 of Cr.P.C., to call for records in Crl.A.No.76 of 2012 on the file of the learned II Additional Sessions Judge, Thoothukudi, Thoothukudi District and set aside the judgment dated 26.11.2013, confirming the order dated 26.08.2011 passed in M.C.No.5 of 2010 on the file of the learned Judicial Magistrate No.1, Thoothukudi, Thoothukudi District.

For Petitioner : Mr.A.Thiruvadikumar
For Respondent : Mr.N.Dilip Kumar
Orders Reserved on : 06.10.2015
Orders Pronounced on : 15.10.2015


O R D E R

Alleging violence in domestic relationship, the aggrieved party, namely, the wife filed a complaint against the husband under Section 12 of Protection of Women from Domestic Violence Act (hereinafter referred to as “the P.W.D.V.Act”) before the Judicial Magistrate No.I, Thoothukudi.

  1. The Court, after conducting enquiry, gave a finding that the allegation of domestic violence is not proved and that the claim of maintenance should be made in an appropriate Court. Challenging the same, the wife filed appeal before the Sessions Judge in Crl.A.No.76 of 2012. The order passed by the learned Magistrate in M.C.No.5 of 2012 dated 26.08.2013, was confirmed by the Sessions Judge, by the judgment dated 26.11.2013. This judgment is under challenge in this revision petition.
  2. While confirming the order of the learned Magistrate, the Appellate Court considered the financial supports rendered by the husband to the wife and his child, which are as follows;

a) the wife herself admitted that her husband met the education expenses of the daughter upto her studies in XII standard.

b) the husband provided 25 sovereign of jewels to her and daughter

c) medical facility was provided to her and daughter through the company in which the husband was employed;

d) at the instance of Police at Pudukottai Police Station, the husband was made to pay Rs.400/- to the petitioner, but she refused to receive the same.

e) the wife is receiving a sum of Rs.900/- per month by letting the upstair portion of the house on rent;

  1. The husband stated in his evidence that he met the educational expenses of his daughter and remitted the fees at Kalasalingam University and in support of the same, documents were filed. Giving a finding that as per Section 20 of the P.W.D.V.Act, an aggrieved person can claim the relief of maintenance, as a result of domestic violence, but domestic violence in this case is not proved, the dismissal was held proper.
  • In order to appreciate the merits of the judgment passed, it is necessary to look into the details of the petition filed by the wife.

  • The wife filed a petition under Section 12 of the P.W.D.V.Act, 2005, seeking the following reliefs:

  • i) to pass protection order prohibiting the respondent from committing any act of domestic violence either physically or mentally against her and daughter;

    ii) to pass a residence order, making provision for residence at the house, where the petitioner was residing.

    iii) to pass maintenance order for the petitioner and her daughter at Rs.10,000/- per month from the respondent.

    Facts in brief:

    1. The marriage between the parties took place on 08.12.1983. After marriage, they were living at Thoothukudi and a female child born during the year 1992 is alive and other two children born during the year 1985 and 1988 died. When she was pregnant, uterus operations were done and at the time, she was treated cruelly by the respondent.

    7.1. The respondent had illegal intimacy with his brother’s wife and on account of that, she was treated cruelly.

    7.2. The respondent is working as Labour in Tuticorin Port Trust and earning Rs.22,000/- as salary, but he did not give money for the maintenance of the petitioner and her daughter. The respondent is also earning a sum of Rs.27,000/- from his agricultural land.

    1. On 03.05.2008, the petitioner was beaten and injuries were caused to her and hence, she gave a complaint to Sipcot Police Station and a case was registered in Crime No.103 of 2008 under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. The husband filed a petition for divorce before the Sub Court, Thoothukudi on 07.05.2008 and later on, he withdrew the petition.
  • This petition, alleging domestic violence, was opposed by the husband as pregnant with false allegations; the alleged domestic violence is denied as false; the statement regarding income is an exaggerative one; the husband provided 25 sovereign jewels to the petitioner and her daughter and also provided a house, which was built by him worth Rs.8 lakhs and also provided household articles, apart from meeting all the educational expense of her daughter.

  • The petitioner gave complaint of dowry harassment falsely on three times against the respondent. During enquiry, the husband was asked to pay Rs.400/- per month to the wife, which was refused by her. About 5 years back, it was only the wife, who pulled and pushed the respondent and caused verbal and physical injury. She used to quarrel for nothing and use abusive languages. Unable to bear the cruelty, he sent a notice through Advocate on 10.01.2008. During the enquiry made by the Sipcot Police, the petitioner admitted her activities and assured to stop that, but she never stopped. Therefore, the respondent filed a petition for divorce in HMOP 40 of 2010 before Sub Court, Thoothukudi.

  • The wife examined herself as P.W.1 and the two documents marked were Ration Card and receipt for payment of college fees. On behalf of the respondent, he has been examined as R.W.1 and the documents marked are the receipt for having given a complaint along with the copy of the complaint apart from the salary certificate of the respondent.

  • The main contention of the learned counsel for the revision petitioner is that the complaint given by the wife has been registered by the Police, would remain as a proof for domestic violence and therefore, the order passed by the Courts below is liable to be set aside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • On the other hand, learned counsel for the respondent would submit that whether the complaint given by the wife was on account of the fact that the wife was an aggrieved party seeking redressal or whether the complaint was an outcome of making the husband as an aggrieved party to wreck vengeance against him is a matter for enquiry /trial and therefore, mere registration of the case alone would not amount to proof of domestic violence. This contention merits acceptance. The enquiry / trial alone would unearth the real facts.

  • 14. In view of the rival contentions raised, the following issues arise for consideration.

    i) whether there was any domestic violence to the wife

    ii) whether economic violence also would amount to domestic violence? If so, whether has the wife proved domestic violence.

    1. The word “Domestic Violence” has been defined in the P.W.D.V.Act, 2005. The P.W.D.V.Act creates three basic rights for victims of domestic violence.

    a) right to be protected from violence

    b) right to live in a shared household

    c) right to monetary relief

    1. The Act provides for very comprehensive definition of domestic violence and includes not only actual abuse, but threatened abuse that may be either physical, sexual, verbal, economical or emotional.
  • It is also a gender specific enactment, which means only woman can avail the provisions of this Act. “The Act clearly defines an aggrieved person as “any woman” who is, has been in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the husband…”

  • Respondent has been defined to mean any adult male person, who is or who has been in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought relief.

  • 18.1. The term economic abuse has been defined in Clause 2(ix) as including,

    a) the unreasonable deprivation of economic or financial resources to which a complainant is entitled under law or which the complainant requires out of necessity, including household necessities for the complainant and mortgage bond repayment or payment of rent in respect of shared residence or

    b) the unreasonable disposal of household effects or other property in which the complainant has an interest.

    3(iv) “economic abuse” includes:-

    (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

    (b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

    (c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household. Explanation II.—For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.”

    1. The definition of domestic violence itself clearly spells out that it is not necessary that the aggrieved person has to be ill-treated and assaulted by the respondent to constitute domestic violence. Any continuous deprivation of economic resources and prohibition as defined under Section 3 (iv) of the Domestic Violence Act comes within the purview of Domestic Violence (K.Ramaraju vs. Lakshmi Prathima, 2008 2 ALD Cri.1).

    20. The learned Magistrate, without understanding that the deprivation of economic resources to which the petitioner is entitled to, may amount to domestic violence, has given a finding that the petitioner can separately file a petition for maintenance. The rationale behind this decision is certainly incorrect. But the question to be seen is whether the petitioner is entitled to maintenance under the context, conduct and the circumstances alleged.

    1. It is a case where the respondent herein as a father, has made his daughter a professionally qualified personality having educated her upto B.Tech. Even before the claim for maintenance, the respondent has provided shelter, medical facilities, educational facilities, rental income etc. Apart from that, as per the compromise, suggested by the Police Official, he was willing to pay a sum of Rs.400/- per month at that point of time, but the wife was not willing to receive it. In a house built by the husband on obtaining loan, it is the wife and daughter, who were residing and getting rent also by letting out one portion, while the husband is staying away from his own house. These details are not at all stated by the petitioner in chief examination and these facts have been brought out only in cross examination.

    a) Suppression of material fact in a case between the husband and the wife involving intimate interpersonal relationship itself would amount to cruelty.

    b) Neglecting the husband, treating him as invisible, not inviting him for the marriage of his daughter, where throughout the daughter has been supported by the father, certainly would amount to humiliation causing mental cruelty to the husband. The provisions of Domestic Violence Act can be used as a shield / sword to get protection from the domestic violence and it cannot be used as a sword for the purpose of causing violence to the other partner in the life.

    1. There are three allegations levelled by the wife against the husband. So far as the 1st allegation is concerned, the incident is said to have taken place around 1985 to 1988 during which she is stated to have been ill-treated after uterus operation. The manner in which the illtreatment caused is not explained. The allegation is vague.
  • The 2nd allegation is that the husband was maintaining illegitimate intimacy with his brother’s wife. The Trial Court has said that no documents have been filed to prove it. The Court has given a finding that nobody else excepting the petitioner has been examined to prove the same. At least some near relatives could have been examined to speak about the probability of the allegation levelled.

  • So far as the 3rd allegation is concerned, it is pertaining to non providing of maintenance to the wife and child.

  • It is appropriate to quote Section 20 of the P.W.D.V.Act, providing for monetary relief:

  • “20. Monetary reliefs.—

    (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

    (a) the loss of earnings;

    (b) the medical expenses;

    (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

    (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

    (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

    (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

    (4) The Magistrate shall send a copy of the order for monetary relief made under sub-section (1) to the parties to the application and to the in-charge of the police station within the local limits of whose jurisdiction the respondent resides.

    (5) The respondent shall pay the monetary relief granted to the aggrieved person within the period specified in the order under sub-section (1).

    (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.”

    26. Perusal of Section 20 of P.W.D.V.Act would go to show that monetary relief including maintenance can be given to the woman, who is proved to be the victim of domestic violence. In the absence of the proof regarding domestic violence, the wife is not eligible to claim maintenance.

    1. As already indicated, the husband has provided several facilities, which has neither been disclosed in the evidence nor acknowledged in the complaint / petition. In all fairness, if the wife had stated that what was already provided was insufficient and what is the remaining amount of maintenance expected, it would have been fair. Now, the contention is raised with regard to justifiability of the wife to remain away from the company of the husband.

    28. Mere registration of a complaint will not amount to proof of cruelty, as registration of the First Information Report is towards the first step to investigate and to fine out whether the allegation stated in the complaint is true or not.

    1. When a query was raised with regard to the possibility of settlement either in terms of reunion or in terms of separation by mutual consent, having regard to the fact that already 30 years had elapsed, the parties having spent more time in Police Station and Court than at home, it was represented on the side of the wife that what is expected is only the order from the Court.
  • It is the case of the husband that she was always interested in humiliating the husband and was interested in seeing that the child is not affectionate towards the father; there was an intimidation to commit suicide often; levelling allegations; the husband was lavish in spending money; interested in preferring complaints before the Police Station; the wife frequently leaving the house without information; using abusive language against the husband etc.

  • In disputes relating to family matters, by analyzing a single incident, a Court cannot come to a definite conclusion. Only considering the totality of the facts and circumstances, Court will be able to find out what would have happened. The totality of the circumstances in this case indicates that the probability is, the case of the husband must be true, when the wife admits that she has preferred 15 complaints before various police station.

  • 32. There is no clarification as to what made the wife to prefer 15 complaints. The details ought to have been clarified and it has not been done. However, everyday life must be at home and not in the Police Station.

    1. Considering the facts and circumstances of the case, this Court finds nothing to interfere with the concurrent orders passed by the Courts below. The petitioner has not proved the alleged domestic violence as against her. This Court is conscious of the fact that provisions of the P.W.D.V.Act is a legislation providing for justice to victim. It is appropriate to quote the decision of the Hon’ble Supreme court, reported in 1984 AIR 1471 ( Sadhuram Bansal vs. Pulin Behari Sarkar & Ors.) :

    “In our opinion, there appears to be some misapprehension about what actually social justice is. There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then the Court would lean in favour of the weaker section of the society, Social justice is the recognition of greater good to larger number without deprivation of accrued legal rights of anybody. If such a thing can be done then indeed social justice must prevail over any technical rule. It is in response to the felt necessities of time and situation in order to do greater good to a larger number even though it might detract from some technical rule in favour of a party. Living accommodation is a human problem for vast millions in our country. The owners, in this case, are getting legally Rs. 1 lakh more.

    We must remember that in administering justice-social or legal jurisprudence has shifted away from finespun technicalities and abstract rules to recognition of human being as human beings and as human needs and if these can be fulfilled without deprivation of existing legal rights of any party concerned, courts must lean towards that and if the Division Bench of the High Court, in the facts and circumstances of the case, has leaned towards that, it is improper for this Court in exercise of the discretion vested under Art. 136 of the Constitution to interfere with that decision. We would do well to remember that justicesocial, economic and political-is preamble to our Constitution. Administration of justice can no longer be merely protector of legal rights but must whenever possible be dispenser of social justice.

    Call it social justice or solving a socio-economic problem or give it any other name or nomenclature, the fact of the matter is that this was the best course in the circumstances that could have been adopted by the court. Unfortunately, the Single Judge completely ignored the following important facts which have been indicated by me earlier:-

    (1) that a bulk of the consideration money, viz., Rs. 3 Lakhs out of Rs. 4 Lakhs, was not paid by the appellant even until the time when the learned Single Judge had passed the order nor was it paid even when the matter was in the High Court, and

    (2) the learned Single Judge overlooked the fact that an owner also has a right to impose certain conditions and in exercise of that he had imposed the condition that the purchaser would have to buy the land subject to the pending litigation whereas in the offer made by the purchaser he had placed the onus on the owners to give him a good marketable title free from litigation.”

    1. It would be appropriate to extract Section 20 of the Domestic Violence Act as under:

    “20. Monetary reliefs.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to,-19

    (a) the loss of earnings;

    (b) the medical expenses;

    (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

    (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

    (2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

    (3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

    1. From the provisions of Section 20(1)(d) of the P.W.D.V. Act, it is clear that the grant of maintenance under this Act is in addition to the amount awarded under any other enactment providing for maintenance. Therefore, even though the revision petitioners is not granted any maintenance, it is open to her to work out her remedy before any other law if found eligible.

    S.VIMALA,J.

    In the result, the Criminal Revision Petition is dismissed.

    15.10.2015

    Index: Yes / No

    Internet: Yes / No

    ar

    To:

    1. II Additional Sessions Judge,
      Thoothukudi,
      Thoothukudi District.
  • Judicial Magistrate No.1,
    Thoothukudi,
    Thoothukudi District.

  • PRE-DELIVERY ORDER IN Crl.R.C.(MD) No.138 of 2014

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    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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    The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman…..

    The Honbl. judge states : “…….    27. The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role.  As housemakers, women’s contribution to the household economy has remained unremunerated and unaccounted for. Even when women do earn, they rarely had control over their earnings. ………”

    Nothing is stated about the pitiable status of elderly women. Nothing is stated about son’s fathers and mothers thrown on the streets ..

    Strange ….

    IN THE HIGH COURT OF KERALA AT ERNAKULAM

    RSA.No. 703 of 2009()

    1. AGNES ALIAS KUNJUMOL, W/O.SEBASTIAN,
                            …  Petitioner
    2. NAYANA (MINOR),D/O.AGNES ,

                              Vs

    1. REGEENA THOMAS
                             …       Respondent

                      For Petitioner  :SMT.C.G.BINDU

                      For Respondent  :SRI.B.JAYASANKAR

    The Hon’ble MR. Justice P.BHAVADASAN

     Dated :18/05/2010

     O R D E R
                               P.BHAVADASAN, J.
                      ——————————————–
                         RSA Nos.703 & 958 of 2009
                      ——————————————–
                             Dated 18th May 2010

                                     Judgment

                  In a legal battle between the daughter-in-law and the mother-in-law, the mother-in-law succeeded. The suit filed by the daughter-in-law was dismissed, which was confirmed by the lower Appellate Court.

                  2. The first plaintiff had married Sebastian, the youngest son of the defendant on 06.09.1998. Two children were born in the wed-lock. It is claimed by the first appellant that at the time of marriage, a sum of Rs.1,00,000/- was given by her family to the family of her husband. It is also stated in the plaint that her late father-in-law was the owner of ‘Prakash Gold Covering shop’ situated near the Girls’ High School, Ernakulam.

                  3. The defendant is a retired Teacher. Apart from the first plaintiff’s husband, the defendant has two other sons and daughters. Her eldest son is running a gold covering business near Mathrubhoomi, Kaloor. It is claimed by the first plaintiff that her husband was having 75% share in the gold covering business and that all the properties standing in the name of the defendant were acquired by her husband in her name, utilising his funds.         The first plaintiff’s husband namely, Sebastian became mentally sick and the sickness aggravated to such a stage that he caused the death of one of their children.             He was prosecuted for the offence under S.302 IPC, but was given the benefit of S.84 IPC. He is now undergoing treatment in a mental hospital.

                   4. The appellants have no other place to reside, except the plaint schedule premises. It is claimed by the first plaintiff that as per the understanding in the family, the plaint schedule property is to be given to her husband. The amount of Rs.1,00,000/- given by her family at the time of marriage was utilised for the maintenance of the said residential building. Initially, i.e, from 30.06.2003 to 30.11.2003,  the   respondent    herein   was    providing Rs.1,000/- to her and her son Thomas was giving Rs.2,000/- for a period of six months.   But, after 30.11.2003, no amounts have been paid to her.

        5. The first appellant was surprised to receive Ext.A20 letter, whereby she was asked to vacate from the plaint schedule premises. She replied that she will be rendered homeless, but the defendant and her family members were not willing to provide anything for her and her daughter. She realised that the family members of her husband were taking advantage of the situation and were trying    to   get  rid  of   her.   Apprehending forceful dispossession, the suit was laid.

        6. The defendant resisted the suit. It was pointed out by her that the plaintiff was not entitled to any reliefs in the suit. She claimed that the plaint schedule property was purchased by utilising her own funds and disputed that it was purchased utilising the funds of her husband. She also denied receipt of any amount from the family of the first plaintiff at the time of marriage. Prakash Gold Covering business run by her husband was not a family business and after his death, the shop ceased to function.     The defendant would say that the first plaintiff was not concerned about her husband and she was only worried about her own welfare. Since the conduct and behaviour of the members of the family of the first plaintiff became unbearable, the defendant and her family members stopped paying any amount to the first plaintiff.     It is claimed that the defendant had to make arrangements for the treatment of Sebastian and she needed money for the same. The plaintiff has no manner of right over the suit property. She also laid a counter claim seeking a mandatory injunction directing the plaintiff to vacate the premises.

        7. The Trial Court raised necessary issues for consideration. The plaintiff examined herself as PW1 and Exts.A1 and A52 were marked. The defendant examined herself as DW1 and Exts.B1 and B2 were marked. On a consideration of the materials before it, the Trial Court came to the conclusion that the first plaintiff was unable to establish any manner of right over the suit property and therefore, dismissed the suit and allowed the counter claim filed by the defendant.

        8. The first plaintiff carried the matter in appeal as AS Nos.377/06 & 66/08. The Appellate Court, on a re-appreciation of the evidence on record, came to the conclusion that there were no grounds to interfere with the Judgment of the Trial Court and dismissed both the appeals.

        9. RSA No.958/09 is directed against the Judgment in AS No.66/08 and RSA No.703/09 is directed against the Judgment in AS No.377/06.

        10. The present dispute between the parties seems to be with regard to the right over the residential building. It is not in dispute that the first plaintiff in the suit was married to one of the sons of the defendant, namely, Sebastian. The materials on record show that the couple had two children. It appears, Sebastian, the husband of the plaintiff developed mental illness and it is understood that he caused the death of one of the children for which he was prosecuted and found guilty, but was given the benefit of S.84 IPC and sent to the mental hospital.

        11. The result of the above proceedings was that the first plaintiff was left with no home and she had to maintain her daughter. According to her, the plaint schedule property was to be given to her husband. She claimed that all the acquisitions in the name of the defendant were by utilising the funds of the husband of the defendant and the defendant was only a name lender. She also claimed that she had a right to reside in the building and that the defendant has no manner of right to evict her. Of course, she also laid a claim to the business of gold covering being carried out by the second son of the defendant.

        12. Both the courts found that being a Christian, there is no ‘tharawadu’ for the family and the first plaintiff has no manner of right over the suit property.

        13. It may be true that as a matter of right, she may not be able to claim her right over the suit property, since it stands in the name of the defendant.  The defendant was employed and she had her own means of income. Her claim that it was utilising her funds that the properties were purchased, was accepted by both the courts.

        14. Before going into the other aspects, one fact may be noticed. Both the courts have noticed that the plaint did not contain the schedule of the property and that is violative of Order VII Rule 3 CPC.  That is one of the grounds found by the Courts below against the plaintiffs. Going through the records, it is seen that while the plaint did not contain the plaint schedule, the plaintiffs have filed a separate schedule of property regarding which relief was sought for. Therefore, technically speaking, it has to be taken that there cannot be any difficulty in the sense that the property with respect to which reliefs were sought for, could be identified though, in the strict sense, it violates Order VII Rule 3 CPC. But, in the facts and circumstances of the case that omission need not entail dismissal of the suit.   Procedural law is to be used to promote justice. However, one fails to understand why remedial measures were not taken by the plaintiff even after this defect was pointed out by the Trial Court as well as the First Appellate Court.

        15. As far as the first plaintiff is concerned, it is indeed an unfortunate situation for her. There can be no dispute regarding the fact that she is entitled to maintenance from her husband. Her husband is alive, but, he is unable to provide funds for the sustenance of the plaintiffs. He has now, no means of income also. Their affairs will have to be safeguarded and they need protection. The lower Court observed that the first plaintiff was misguided about the nature of the right regarding the property and she had embarked on an adventurous pursuit. The Court below also found that the acquisition of properties was made by the defendant by utilising her own funds and the plaintiffs can have no claim over it.

        16. Strictly speaking, it could not be said that the findings of the Courts below are erroneous since the title of the property vests with the defendant.      But, the fact remains that the plaintiffs need a shelter and an income to sustain themselves.

        17. The first plaintiff was examined as PW1. The second plaintiff is her daughter. Her marriage was solemnized on 6.9.1998.    Her husband’s family was financially sound. PW1’s family was not so fortunate. Her father-in-law is no more. It is claimed by PW1 that her husband had 75% share in the gold plating business managed by her father-in-law. According to her, the business is now being run by Thomas, another son of DW1. She resides in the ‘tharawadu’ home. She claimed that the tharawadu house and the property was orally given to her husband by DW1. She points out that the other two sons of DW1 had already been provided for. It is her claim that at the time of marriage, a sum of Rs.1 lakh was paid by her family to her husband’s family, which was utilised for carrying out the maintenance of the tharawadu house. She then speaks about the calamity that befell on her. She had to leave for her parental house. She says that for a short period from 30.06.2003 to 30.11.2003, a sum of Rs.1,000/-was being paid to her. She then received a notice Ext.A20. Since her parents could not afford to maintain PW1 and her daughter, the first plaintiff decided to reside in the matrimonial house. She had to face various difficulties there. She denied that she was aware of the mental status of her husband even before the marriage.

        18. In the cross examination, she admitted that “Prakash Gold Covering’ business was being run by her father-in-law. She clarified that when he fell sick, it was entrusted to Sebastian, her husband and thereafter, he was running the business. She was unable to give the details of the business now being run by another son of DW1. She was asked whether she was willing to take care of her husband and look after him. Her reply was that if the doctor certifies, she is prepared to do so.     A specific question w as put to her whether she had any objection in selling the property where she was residing to raise funds to entrust it to a voluntary organisation, which had undertaken the care of Sebastian. The reply given by her was that she should know what is the provision that is going to be made for her and her child. In the cross examination, she admitted that she had rented a room of the building in which she was residing. She clarified that the rent received therefrom was the sole means of income. To a specific question whether she was willing to give a consent letter to have Sebastian entrusted to a voluntary organisation, she replied that it depends upon what will be her and her daughter’s fate. The Trial Court has noticed that at that point of time, PW1 had become very emotional.

        19. One has also to refer to the letters written by Sebastian to the first plaintiff and her replies to those letters, which were marked as Exts.A22 to A35. Those letters would indicate that what the first plaintiff says about the gold covering business is quite probable. In a few letters, her husband Sebastian asked her to manage the business till he returns, but there is no clear evidence as to what had happened to the business later.  The letters would also indicate that Sebastian was involved in the gold plating business.

        20. It has come out in evidence that the intention of the defendant is to sell the plaint schedule property. One may now, have a look at the evidence of the defendant. In the affidavit filed in chief, she says about her right over the property, its acquisition etc. She has, of course, denied receipt of Rs.1 lakh from the family of the first plaintiff at the time of marriage.  The defendant admits that her late husband acquired properties in her name utilising his funds. The defendant was staying with Sebastian. But, later, she took shelter with her eldest son. It has also come out from her deposition that there is another house, which has been let out for a monthly rent of Rs.3,500-4,000/-which is in her name, but acquired, utilising the funds of her husband. She asserts that even before the marriage, her youngest son Sebastian was mentally ill and this fact was known to the first plaintiff and the members of her family. She has also stated that she has not enquired as to how the plaintiffs are carrying on. She was unable to give the details of the plaint schedule property, which may be due to her advanced age. When a suggestion was made to her that if she wanted to raise funds for the treatment of her son Sebastian, she could sell the property, which has been let out to a third person, her answer was that she was not willing to do so because that was a means of income.

        21. The main attack against the plaintiffs is that she was unconcerned about her husband and was more concerned about her own welfare. It was contended by the learned counsel for the respondent that the plaintiffs have no right over the suit property and they have to vacate the premises.

        22. Legally, it may be true. But to say that the plaintiffs have no manner of right and she has to vacate the house, is something which cannot be accepted. That a Christian woman is entitled to maintenance from her husband, is no longer res integra in view of the decision in Chacko v. Annamma (1993(1) KLT 675). It has come out from the evidence of DW1 that the other sons have already been provided their shares of properties, which were standing in the name of the defendant, acquired by utilising the funds of her late husband. This makes the claim made by the first plaintiff that the suit property was intended to be set apart to her husband, probable. Of course, she can lay no claim as such in the strict legal terms.

        23. In such circumstances, is the Court totally helpless to come to the aid of persons like the first plaintiff? Is the court to simply dismiss their claims and leave them destitutes ? Cannot the courts find some methods to see that the interests of persons like the first plaintiff are safe guarded ?

        24. In such cases, Courts in equity, good conscience and justice, may have to deviate from the strict letter of the law. The courts may have to invoke the said principles, in order to render justice to the parties. In this context, it will be apposite to refer to the decision in Chacko v. Annamma (supra) wherein it is observed as follows :

             “7. Regarding the second question, viz.,
        whether the plaintiff is entitled to maintenance, we felt that
        there is no much controversy about it before us, both in
        regard to the liability as well as the quantum. It has to be
        noted that as regards the quantum, it is purely a question of
        fact and we will not be justified in interfering with the
        quantum of maintenance by the appellate court. As regards
        the liability of a Christian husband to pay maintenance for
        his wife, the matter is not covered by any statutory provision.
        The parties are Christians. Where there is no statutory
        provision governing the matter, if equity and good
        conscience and the attendant circumstances would compel
        the husband to pay maintenance, we are of the opinion that
        the court is not powerless to decree maintenance. In cases
        where there is no statutory provision in regard to matters like
        this, it is always profitable to refer to the Common Law of
        England and the practices followed in India. English Courts
        have relied on the principles of Common Law for the
        purpose of determining these kinds of questions, in the
        absence of a statutory provision. It is because the matters
        not governed by statute or customary law the principles of
        ‘justice, equity and good conscience that should apply’ and
        the principles of justice, equity and good conscience are
        supposed to be seen in the Common Law of England.
        Certainly, we are of definite opinion that the principles of
        justice, equity and good conscience that should be applied
        must be Indian and tuned and attuned with the high ideas
        and the great culture, tradition and heritage of India. It must
        harmonise     the  Indian   Philosophy    enshrined    in  our
        Constitution. It must consonate with the “Common Law” of
        India tuned to Indian conditions. Dicocting and distilling
        Indian precedents courts can and we would say that the
        court is obliged to evolve a common law of our own. In this
        process we can legitimately rely on English Common Law.
        We are attempting an Indian jurisprudential approach for
        determining what should be the principles of justice, equity
        and good conscience in the given circumstances in the light
        of the mandates of the Constitution and the principles
        followed and accepted in India in the matter in question. It is
        profitable to note the principles that have been followed in
        England applying the English Common Law in order to
        ascertain the principle to be applied in this case.
        ……………………………………………………………………………………

        .    11. We feel that we are not bound to hold that a
        Christian husband has no legal liability to maintain the wife.
        Criminal Law of the country and the personal law of Indians
        of other community make it plainly clear that the husband
        has got a liability to maintain the wife in certain
        circumstances. This obligation created by the criminal law is
        certainly applicable to a Christian husband also. We do not
        want to elaborate this question any further. We are of the
        opinion that the husband is liable to pay maintenance if
        conditions which would compel the wife to live separately. In
        this case, there is no difficulty, on evidence, to hold that the
        wife has acquired an entitlement to live separately on
        account of the misconduct of the husband. The court below
        has found that the husband is liable to pay maintenance.”

        25.   A similar issue was considered in the decision reported in Joy v. Usha (ILR 1996(2) Kerala 580), wherein it was held as follows :

             “It is in the light of the above principles this appeal
        between the parties who are Christians, in a suit for
        maintenance, will have to be considered for decision. In
        this process, because the parties are Christians, we will
        have to keep in mind that there is no specific statutory
        provision mandating Christians, a Christian father or a
        Christian husband to maintain his children and his wife.
        In this context, this court with advantage, observed that
        the matters not governed by a statute or where there is
        no accepted customary law, the Judge should be guided
        by that great principle of justice, equity and good
        conscience to the effect that with the Indian tradition, a
        citizen is bound to maintain his children which is the
        tradition of the society in accordance with justice, equity
        and good conscience, irrespective of the position in
        English law which are peculiar to the said system.”

    The issue was also considered in the decision reported in Jacob Kuruvila v. Merly Jacob (2010(1) KHC 573). The proceedings originated under S.125 of the Cr.P.C. And it was contended on behalf of one of the parties that the parties are Christians from Travancore and the principles of Common Law are not applicable to them. This Court refused to accept the above plea and held as follows :

          “The learned counsel contends that the parties are
        from Travancore and the principles of Common Law are
        not applicable to them. The Full Bench decision is
        founded on the principles of justice, equity and good
        conscience and we are of the opinion that it is applicable
        to any one whether he be a citizen of the former British
        India or not. The law declared that a Christian wife is
        entitled for maintenance from her husband is founded
        well on the principles of justice, equity and good
        conscience and in any view of the matter, the former
        citizens of the erstwhile kingdom of Travancore cannot
        claim exemption from that principle. We find no reason
        or necessity to refer the question to the Full bench for
        fresh consideration.”

        26. It is well settled that from a valid marriage, there arises between the spouses, a bond which, by its own nature, is permanent and exclusive. Moreover, a Christian marriage is a sacrament, consecrated with the imposing of rights, liabilities and duties on each other. The couple get a new legal position from which flows, both rights and obligations, not only as between the parties to the marriage, but, with regard to the community.

        27. The concept of maintenance under all matrimonial statutes stems from the financial subordinate status of the woman. Women are socialized into accepting being wives and mother, as their primary role.  As housemakers, women’s contribution to the household economy has remained unremunerated and unaccounted for. Even when women do earn, they rarely had control over their earnings. Hence in most cases, when women are compelled to leave their matrimonial house due to any reasons, they were rendered destitutes. More often then, the children became the sole responsibility of the women. Of course, S.125 Cr.PC. provides some relief to such women. But, such a state of affairs, is far from satisfactory.

        28. Protection of Women      from Domestic Violence Act (hereinafter referred to as the DV Act) also provides certain remedies to women. The Act, in fact provides for residential orders which ensure that the married woman has a residence to reside.

        29. It was contended that unlike Hindus, Christians are not entitled to statutory maintenance except under S.125 Cr.P.C. Repelling the contentions, it was held in the decision cited above, that the principles of justice, equity and good conscience should be invoked in such cases,    to grant maintenance to Christian women. As already noticed, now, some reliefs are available under the DV Act also.

        30.   It cannot be disputed that women are different from men. The principal task of woman for a long time remained as to bear and rear the children and that task occupied the best years of her life. Earlier, the concept was, on marriage, all the goods and chattels and all her money automatically belong to her husband. Her wedding presents belong to her husband. If she left him even for a good cause, she has no right to any maintenance even out of her own funds.

        31. In Common Law, the husband has no right to turn his wife out of the house. She has a right to reside there and it is not possible for the husband to drive her out.

        32. Probably, there was a time when the wives were treated as chattels. To put it in the words of Lord Denning, like a piece of furniture, the husband could bundle his furniture into streets, so he could his wife. All these have changed as time passed by and equitable principles came to be recognized. The law came to recognize that the wife had a right to stay in the matrimonial house and other matrimonial rights originating from her status.

        33. The Hindu Law has always recognized the independent status of a wife.     In fact, Koutilya in Arthasasthra and Manu in Manusmruthi, have dealt with the right of maintenance of the wives.

        ‘The aged parents, a virtuous wife and infant child must be maintained even by doing a hundred misdeeds.’ (Manu).

        34. The Hindu Adoptions and Maintenance Act, 1956 provides for maintenance of the wife and also for a widow so long as she occupies the status of a wife. During divorce proceedings and thereafter, the issue is taken care of by the Hindu Marriage Act.

        35. In the case on hand, the counsel were unable to point out any statutory provisions regarding maintenance or the residential rights as far as the parties in this proceedings are concerned during the subsistence of the marriage.

        36. No civilized country could recognize a cynical disregard for marital status. It is by now well recognised     that the wife has a right to stay in the matrimonial house. The plight of the deserted wife has also improved by passage of time, recognizing her rights of maintenance and residence.

        37. It will be too cruel to say that because the husband of a woman is either incapacitated due to any reason or is no more, the lady should vacate the matrimonial house and should be rendered homeless. It is something which does not stand to reason. In the case on hand, it has come out in evidence that the other sons have been provided for.

        38. The intention of the defendant is very clear and that is to sell the house. It is true that for a while, some amounts were being paid to the plaintiffs. The defendant would say that the conduct of the members of the family of the plaintiff was so abhorrent that the payments being made to the plaintiffs were stopped. The result was that the first plaintiff has no means of income and she has to look after her daughter also.

     39. During the hearing of these appeals, though several suggestions were made, nothing worked out as the parties could not agree to any one of the suggestions.

     40. The law may be harsh. But, that does not mean that the plaintiffs should be thrown to the streets. The first plaintiff is residing in her matrimonial house and she is entitled to remain there. Even the defendant has no case that the plaintiff has the status of only a trespasser. The defendant, in fact, concedes that ever-since the first plaintiff was brought to the house of her husband after marriage, she has been residing there. Of course, legally, there may not be any enforcible right for the plaintiff except possibly under the Protection of Women from Domestic Violence Act. That also is subject to certain conditions.

     41.    Halsbury’s Statutes Volume 27 Fourth edition extensively deals with matrimonial laws in England. We find that there are several statutes, taking care of the various situations. Such statutes are conspicuously absent in India as far as Christians are concerned.

        42. The husband has a duty to provide his wife and children, with a roof over her head. The Law has gone to the extent of saying that the husband and wife have joint ownership over the matrimonial house. Protection is now given to battered wives also.

        43. When clear illegality is being committed and the courts have seized of the matter, it will be quite improper to nonsuit a person who has come for a relief on the ground that there is no rule to help him. It is here that there should be an attempt to redress a particular injustice by bold interpretation of the law.

        44. One of the main subject of debate, controversy and central issues in matrimonial matters is with reference to property.

        45. Normally, the disputes regarding the properties have to be resolved with reference to the ordinary law of property where marital break down or such other facts are totally irrelevant. But, it will do no violence to slightly distort the law of property to do justice in order to protect and safeguard the interest of the wife and the children born out of the marriage. Have a look at the plight of the first plaintiff herein, her position is precarious. She cannot look up to her husband for help. She had toiled for the family members of her husband and they had the benefit of her service and labour.

        46. There is, therefore, an obligation on the part of the family of Sebastian to provide for the maintenance of the plaintiffs. This obligation cannot be ignored. The result of dismissing the suit and allowing the counter claim filed by the defendant is that the plaintiff will be left homeless and will be thrown into the streets. Such a contingency has to be avoided.

        47. On the evidence on record, it appears that the defendant has two houses, one of which is rented out to third persons and out of which she earns an income. She has made it clear that her intention is to sell the plaint schedule property and for that purpose, the plaintiffs have to be evicted. She is not willing to provide any shelter for the plaintiffs. If, as a matter of fact, she was in need of funds, she could have got the rented house vacated and provided it to the plaintiffs to reside. But, she is not willing to adopt such a course. Therefore, the apprehension of the plaintiffs seems to be fully justified.

        48. A contention was raised that the first plaintiff was unconcerned about her husband and she is worried only about her own welfare. She was criticized as showing that she had the interest only to have her position secured. On the other hand, the mother-in-law, who is the defendant in the suit is concerned about her son and wants to raise funds to give to the Organization which is now taking care of her son. Therefore, there is no justice nor equity in favor of the first plaintiff.

        49. One cannot accept the said contention. Admittedly, the defendant had two houses. One of them is rented out and the other one is involved in this proceedings. The defendant is unable to provide any shelter to her daughter-in-law and her grand child. There is nothing to show that the sale of the property where the rented house is situated, would not fetch a handsome price. There is also nothing to hold that by sale of that house, the defendant is unlikely to get sufficient amount which will be sufficient for herself and to provide for her son. The defendant is adamant and stubborn that she is planning to sell only the property involved in this proceedings. Even as admitted by the defendant, the first plaintiff’s matrimonial house is the house involved in this proceedings.

        50. Can she be simply be thrown out of the house ? Is there not any security for her and her child ? If she is to be treated as a mere piece of furniture or a chattel,   as was done before, all because there is no statutory law ?

        51. Of course, S.125 Cr.P.C. And the provisions of the DV Act provides for certain measures, but they are totally inadequate.

        52. As already noticed, the Common Law on the principle of equity, justice and good conscience, does confer certain rights on women, like the first plaintiff. Though it is not possible to find any statutory liability in favour of the plaintiff, the law in this regard is slowly, but surely moving in that direction. The principle of ‘UBI JUS IBI IDEM REMEDIUM’ applies in this case.

        53. One has to notice that the first plaintiff has to bring up her daughter. She cannot claim maintenance from her husband as he is mentally sick and he has no means of income. She has rented out a portion of the matrimonial house and from the rent so received, she meets her and her child’s needs. The Indian Divorce Act which is applicable to Christians, deals with maintenance during the pendency of the proceedings as per the provisions of the Act and thereafter. If that be so, surely, there must be some right to get maintenance and residence during the subsistence of the marriage also.

        54. The word ‘maintenance’ has been held to be very comprehensive and takes within its fold, food, clothing, residence, education, medical maintenance and treatment. See Mangat Mal v. Punni Devi (1995) 6 SCC 88), Rajesh Burmann v. Mitul Chatterjee (AIR 2009 SC 651) & Komalam Amma v. Kumara Pillai Raghavan Pillai (AIR 2009 SC 636).

        55. In the decision reported in Rajesh Burmann v. Mitul Chatterjee (supra), it has been held that relief can be given also relying on the provisions of another statute.

        56. Almost a similar question came up for consideration in the Delhi High Court. The Delhi High Court in the decision reported in Taruna Batra v. S.R.Batra (AIR 2005 Delhi 270) held that the respondents therein cannot prevent the petitioner from entering the matrimonial house. The respondents had contended that the petitioner and her husband had occupied the premises on a lease and their occupation was permissive. That was not accepted.

        57. The issue regarding maintenance and residence as far as Hindus and Muslims are concerned, is taken care of by the statutes. It is the Christians, who are left with no statutory remedy during the subsistence of the marriage. It is here that one has to highlight the need for a uniform civil code.

        58. As early as in 1985, the apex court had pointed out the need to have a uniform civil code and had called upon the Legislature to take necessary steps in that regard. In the decision reported in Mohammed Ahmed Khan v. Shah Bano Begum (1985(2) SCC 556), the apex court had observed as follows :

     “It is also a matter of regret that Article 44 of our
        Constitution has remained a dead letter. It provides that
        “The State shall endeavour to secure for the citizens a
        uniform civil code throughout the territory of India”.
        There is no evidence of any official activity for framing a
        common civil code for the country. A belief seems to
        have gained ground that it is for the Muslim community
        to take a lead in the matter of reforms of their personal
        law. A common Civil Code will help the cause of national
        integration by removing disparate loyalties to laws which
        have conflicting ideologies. Now community is likely to
        bell the cat by making gratuitous concessions on this
        issue. It is the State which is charged with the duty of
        securing a uniform civil code for the citizens of the
        country and unquestionably, it has the legislative
        competence to do so. A counsel in the case whispered,
        somewhat audibly, that legislative competence is one
        thing, the political courage to use that competence is
        quite another. We understand the difficulties involved in
        bringing persons of different faiths and persuasions on a
        common platform. But a beginning has to be made if the
        Constitution is to have any meaning. Inevitably, the role
        of the reformer has to be assumed by the courts
        because, it is beyond the endurance of sensitive minds
        to allow injustice to be suffered when it is so palpable.
        But piecement attempts of courts to bridge the gap
        between personal laws cannot take the place of a
        common Civil Code. Justice to all is a far more
        satisfactory way of dispensing justice than justice from
        case to case.”

        59. The issue was again highlighted in the decision in Sarla Mudgal v. Union of India (1995) 3 SCC 635), wherein it was observed as follows :

         “30. Coming back to the question ‘uniform
        civil code’, we may refer to the earlier judgments of this
        Court on the subject. A Constitution Bench of this Court,
        speaking through Chief Justice Y.V.Chandrachud in
        Mohd.Ahmed Khan v. Shah Bano Begum held as
        under (SCC pp.572-572 para 32).
        “It is also a matter of regret that Article 44 of our
        Constitution has remained a dead letter. It provides that
        “The State shall endeavour to secure for the citizens a
        uniform civil code throughout the territory of India”.
        There is no evidence of any official activity for framing a
        common civil code for the country. A belief seems to
        have gained ground that it is for the Muslim community
        to take a lead in the matter of reforms of their personal
        law. A common Civil Code will help the cause of national
        integration by removing disparate loyalties to laws which
        have conflicting ideologies. Now community is likely to
        bell the cat by making gratuitous concessions on this
        issue. It is the State which is charged with the duty of
        securing a uniform civil code for the citizens of the
        country and unquestionably, it has the legislative
        competence to do so. A counsel in the case whispered,
        somewhat audibly, that legislative competence is one
        thing, the political courage to use that competence is
        quite another. We understand the difficulties involved in
        bringing persons of different faiths and persuasions on a
        common platform. But a beginning has to be made if the
        Constitution is to have any meaning. Inevitably, the role
        of the reformer has to be assumed by the courts
        because, it is beyond the endurance of sensitive minds
        to allow injustice to be suffered when it is so palpable.
        But piecement attempts of courts to bridge the gap
        between personal laws cannot take the place of a
        common Civil Code. Justice to all is a far more
        satisfactory way of dispensing justice than justice from
        case to case.”

        31. In Jordan Diengdeh v. S.S.Chopra (1985) SCC 62),
        O.Chinnappa Reddy, J., speaking for the Court referred
        to the observations of Chandrachud, C.J. In Shah Bano
        Begum case and observed as under :

        “It was just the other day that a Constitution Bench
        of this Court had to emphasise the urgency of infusing
        the life into Article 44 of the Constitution which provides
        that :’The State shall endeavor to secure for the citizens
        a uniform civil code throughout the territory of India’. The
        present case is yet another which focusses on the
        immediate and compulsive need for a uniform civil code.
        The totally unsatisfactory state of affairs consequent on
        the lack of uniform civil code is exposed by the facts of
        the present case. Before mentioning the facts of the
        case, we might as well refer to the observations of
        Chandrachud, C.J., in the recent case decided by the
        Constitution Bench (Mohd. Ahmed Khan v. Shah Bano
        Begum).

        32. One wonders how long will it take for the
        Government of the day to implement the mandate of the
        Framers of the Constitution under Article3 44 of the
        Constitution of India. The traditional Hindu Law –
        personal law of the Hindus – – governing inheritance,
        succession and marriage was given a go-by as back as
        1955-56 by codifying the same. There is no justification
        whatsoever in delaying indefinitely the introduction of a
        uniform personal law in the country.

        33. Article 44 is based on the concept that there is no
        necessary connection between religion and personal law
        in a civilised society. Article 25 guarantees religious
        freedom whereas Article 44 seeks to divest religion from
        social relations and personal law. Marriage, succession
        and like matters of a secular character cannot be
        brought within the guarantee enshrined under Articles
        25, 26 and 27. The personal law of the Hindus, such as
        relating to marriage, succession and the like have all a
        sacrament origin, in the same manner as in the case of
        the Muslims or the Christians. The Hindus along with
        Sikhs, Buddhists and Jains have forsaken their
        sentiments in the cause of the national unity and
        integration, some other communities would not, though
        the Constitution enjoins the establishment of a common
        civil code for the whole of India.

        34. It has been judicially acclaimed in the United State of
        America that the practice of polygamy is injurious to
        public morals, even though some religions may make it
        obligatory or desirable for its followers. It can be
        superseded by the State just as it can prohibit human
        sacrifice or the practice of ‘Suttee’ in the interest of
        public order. Bigamous marriage has been made
        punishable amongst Christians by Act (XV of 1872),
        Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs
        and Jains by Act (XXV of 1955).

        35. Political history of India shows that during the
        Muslim regime, justice was administered by the Qazis
        who would obviously apply the Muslim scriptural law to
        Muslims, but there was no similar assurance so far
        litigations concerning Hindus were concerned. The
        system, more or less, continued during the time of the
        East India Company, until 1772, when Warran Hastings
        made regulations for the administration of civil justice for
        the native population, without discrimination between
        Hindus and Mahomedans. The 1772 Regulations
        followed by the Regulations of 1781 whereunder it was
        prescribed that either community was to be governed by
        its personal law in matters relating to inheritance,
        marriage, religious usage and institutions. So far as the
        criminal justice was concerned, the British gradually
        superseded the Muslim law in 1832 and criminal justice
        was governed by the English common law. Finally, the
        Indian Penal Code was enacted in 1860. This broad
        policy continued throughout the British regime until
        independence and the territory of India was partitioned
        by the British Rulers into two States on the basis of
        religion. Those who preferred to remain in India after the
        partition, fully knew that the Indian leaders did not
        believe in two-nation or three-nation theory and that in
        the Indian Republic there was to be only one nation –
        Indian nation – and no community could claim to remain
        a separate entity on the basis of religion. It would be
        necessary to emphasise that the respective personal
        laws were permitted by the British to govern the matters
        relating to inheritance, marriages etc., only under the
        Regulations of 1781 framed by Warren Hastings. The
        Legislation – not religion – being the authority under
        which personal law was permitted to operate and is
        continuing     to     operate,     the same    can     be
        superseded/supplemented by introducing a uniform civil
        code. In this view of the matter, no community can
        oppose the introduction of uniform civil code for all the
        citizens in the territory of India.

        36. The successive Governments till date have been
        wholly remiss in their duty of implementing the
        constitutional   mandate     under     Article  44  of   the
        Constitution of India.”

        60. There is a reference to this aspect in the decision reported in John Vallamattom v. Union of India (AIR 2003 SC 2902) wherein it was observed as follows :

        “42. Article 25 merely protects the freedom to
        practise rituals and ceremonies etc. which are only the
        integral part of the religion. Article 25 of the Constitution
        of India will, therefore, not have any application in the
        instant case.

        43. For the self-same reasons, Art.26 may also
        not have any application in the instant case.
        44. Before I part with the case, I would like to state that
        Art.44 provides that the State shall endeavour to secure
        for the citizens a uniform civil code throughout the
        territory of India. The aforesaid provision is based on the
        premise that there is no necessary connection between
        religious and personal law in a civilized society. Article
        25 of the Constitution confers freedom of conscience
        and free profession, practice and propagation of
        religion. The aforesaid two provisions viz. Arts.25 and
        44 show that the former guarantees religious freedom
        whereas the latter divests religion from social relations
        and personal law. It is no matter of doubt that marriage,
        succession and the like matters of a secular character
        cannot be brought within the guarantee enshrined under
        Arts.25 and 26 of the Constitution. Any legislation which
        brings succession and the like matters of secular
        character within the ambit of Arts.25 and 26 is a suspect
        legislation. Although it is doubtful whether the American
        doctrine of suspect legislation is followed in this country.
        In Smt. Sarla Mudgal, President, Kalyani and others v.
        Union of India and others (1995(3) SCC 635), it was
        held that marriage, succession and like matters of
        secular     character cannot be brought within the
        guarantee enshrined under Arts.25 and 26 of the
        Constitution. It is a matter of regret that Art.44 of the
        Constitution has not been given effect to. Parliament is
        still to step in for framing a common civil code in the
        country. A common civil code will help the cause of
        national integration by removing the contradictions
        based on ideologies.”

        61. This Court, while considering the plight of Muslim women under certain circumstances, in the decision reported in Kunhimohammed v. Ayishakutty (2010 (2) KHC 63) had occasion to observe as follows :

     “The impact of the constitutional fundamental right
        to equality under Article 14 and the fundamental right to
        life under Article 21 of the Constitution and the play of
        Article 13 have not been considered by the civil society
        in India, the Parliament of India or even the Courts in
        India. The stipulation in Muslim Law tolerating polygamy
        and the further stipulation enabling arbitrary unilateral
        pronouncement of talaq, which stipulations have been
        grossly misused by some unprincipled who have no
        commitment to the dynamism, liberalism and humanism
        underlying these stipulations in Muslim Law, have not
        been modified by the Parliament or subjected to judicial
        review under Article 13 of the Constitution so far. Most
        unfortunately, despite the mandate of Article 44 of the
        Constitution, Legislatures – Central and State, have not
        addressed themselves to the question. It is perhaps
        more unfortunate that the Courts have not so far tackled
        the bull by the horns and had not tested the
        constitutional validity of these stipulations which get the
        mandate for enforcement under the provisions in the
        Muslim Personal Law (Shariat) Application Act, 1937.
        Whether the stipulations of Muslim Personal Law
        tolerating polygamy and permitting arbitrary and
        unilateral termination of marriage by pronouncement of
        talaq   by   the   husband     offend   the   constitutional
        fundamental rights to equality and life under Articles 14
        and 21 of the female half of   Muslim population will
        certainly have to be considered by the constitutional
        Courts.”

    Inspite of all these, the Legislature remains unconcerned and unfortunately, no progress whatsoever has   been made in this regard for obvious reasons. The apex Court has made it clear that Articles 25 and 26 are no impediments for promulgating a uniform civil code which is an absolute necessity. But, other considerations seem to deter the legislature from codifying the laws and having a uniform civil code.

        62.    The    next    question   that   arises   for consideration is, what relief could be granted to the plaintiffs. It is, indeed, a difficult question to answer. But, one may take the aid of the DV Act. In fact, S.26 of the DV Act enables this Court to take recourse to the provisions of the Domestic Violence Act.

        63. The evidence is to the effect that the first plaintiff hails from a poor family and her family will not be able to support her, if she goes to her parental house. One can only say that the position of the first plaintiff and her daughter is deplorable and precarious. The only course now open to this Court, is to let the plaintiffs continue to reside in the plaint schedule property till they are provided with another home by her husband’s family members. As already stated, the plaintiffs may not have any statutorily enforcible right in this regard. But, certainly, she has a right to reside in the matrimonial house.

        64. One has also to remember that her husband is mentally ill and one can easily understand the plight of the first plaintiff and her daughter.

        65. Accordingly, these Appeals are allowed and in the result, the Judgments and decrees of the Courts below are set aside and the suit is decreed as follows :

        66. There will be an order of permanent prohibitory injunction against the defendant or any one claiming under her from dispossessing the plaintiffs from the plaint schedule property until they are provided with another suitable residence by the family members of Sebastian, her husband.

        67.     The    counter   claim filed    by  the respondent/defendant is dismissed.

        68. The plaintiffs are entitled to their costs throughout.

           P.BHAVADASAN, JUDGE
    sta
    SA 703 & 958/09    46
    SA 703 & 958/09    47

    Source :
    http://judis.nic.in/judis_kerala/qrydisp.aspx?filename=152289