Tag Archives: Shared household defined

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

Interm mandatory injunction granted IN FAVOR of elderly inlaws. DIL can’t occupy InLaw’s house! Delhi HC

The Honourable Delhi HC grants interim injunction in favour of elderly in laws and against a Daughter in law who is occupying their residence! the daughter in law refuses to move in spite of being offered Rs 30,000 p.m. for an alternate accommodation !! In addition to granting injunction and ordering DIL to vacate the house within a month of order, the case also decides some key issues listed below

Important issues decided in this case are
*****************
* Daughter in law cannot occupy father in law’s property if that is NOT a shared household “…..The defendant No.1 being a daughter-in-law has no right to reside in the subject property which belongs to her father-in-law as the said property is not covered by the definition of ‘shared household’, the same being neither a joint family property in which her husband is a member, nor it belongs to the defendant no. 2 and is not even a rented accommodation owned by the defendant No.2….”
* The Hon court goes on to explain the term Matrimonial home and that the son cannot be a lifelong liability of the parents. The court affirmatively quotes an earlier decision as says : “….26. The aforesaid view was reiterated by this court in the case of Neetu Mittal v. Kanta Mittal reported in 152 (2008) DLT 691 and the relevant Paras of the same are reproduced as under:-
    “8. … ‘Matrimonial home’ is not defined in any of the statutory provisions. However, phrase “Matrimonial home” refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life……..”
* The mere fact that plaintiff (father in law) has another property at Calcutta cannot deprive him from residing in his Delhi property and therefore non-disclosure of a residential property at Calcutta in the present suit cannot be taken as a suppression of a material fact so as to dis-entitle the plaintiff from the grant of discretionary relief. There is thus no merit in this plea raised by defendant No.1.
* The court considered the position of the daughter in law very equitably “…… The court can also not lose sight of the fact that the defendant no. 1 has already been offered by the defendant no. 2 to reside with him in his rented accommodation or in the alternate has also been offered a sum of Rs. 30,000 to reside in some other rented accommodation. The defendant no. 1, being herself not happy with the conduct of her in-laws and husband, can avail this facility and shift to another equally good accommodation for which her husband is ready to bear the monthly rental expenses. By such an arrangement, in my opinion, interest of both the parties would be secured at such an interim stage……”
* The court has understood the DIL’s moves “…32. In the facts of the present case, the plaintiff is aged about 80 years and his wife is aged about 74 years and they are suffering from various old age and other ailments. It is also an admitted position that the defendant No.1 left the subject premises on 20.10.2010 but again entered the said premises later although her husband started residing in a rented accommodation….”

Finally the court decrees “….35. In the light of the above discussion, the balance of convenience strongly lies in favour of the plaintiff as against defendant No.1. The non- grant of the interim mandatory injunction will result in causing more prejudice to the rights of the plaintiff in comparison with the alleged rights of the defendant No.1 to stay in an accommodation which is neither a matrimonial home nor a shared household accommodation.

36. Interim mandatory injunction is therefore granted in favour of the petitioner and against the defendant no. 1. Defendant No.1 is accordingly directed to vacate the subject property bearing No. B-197, Greater Kailash, Part-I, New Delhi…..”

******************************************************

IN THE HIGH COURT OF DELHI AT NEW DELHI

CS(OS) 2795/2011                     Judgment delivered on: 05.02.2013
MR. BARUN KUMAR NAHAR                                  ….. PLAINTIFF
Through           Mr. Amit Sibal, with Ms. Prachi Vasisht, Adv.

versus

PARUL NAHAR & ANR.                                 ….. DEFENDANTS
Through           Mr. Medhanshu Tripathi for D-1
Ms. Geeta Luthra, Sr. Adv. with Mr. S.K. Arora, Mr. Atin Rastogi & Mr. Gautam Bajaj for D-2

CORAM:  HON’BLE MR. JUSTICE KAILASH GAMBHIR

IA No. 17986/11 (O. 39 Rule 1 &2 of CPC)

1. By this order I propose to decide the application moved by the plaintiff under Order 39 Rules 1&2 read with Section 151 of CPC.

2. Before I deal with the rival contentions raised by the counsel for the parties, it would be appropriate to give brief summary of the facts of the present case. The plaintiff herein is a father-in-law of the defendant no.1 and father of defendant no.2. The plaintiff has filed the present suit for permanent and mandatory injunction. A decree of mandatory injunction has been sought by the plaintiff to direct the defendant no.1 to vacate the premises bearing No. B-197, Greater Kailash, Part-I, New Delhi, while a decree of permanent injunction has been sought by the plaintiff so as to restrain the defendant no.1, her parents, agents, representatives, assignees, associates etc. from creating disturbance in the peaceful possession and occupation of the plaintiff’s self-acquired property bearing no. B-197, Greater Kailash, Part-1, New Delhi. In prayer Para (b) instead of claiming permanent injunction the plaintiff has wrongly claimed mandatory injunction and such inadvertent mistake on the part of the plaintiff can be ignored.

3. The main allegation of the plaintiff in the present suit is that he is the sole and absolute owner of the property bearing no. B-197, Greater Kailash, Part-1, New Delhi consisting of ground and first floor. It is also the case of the plaintiff that the said property was purchased by him vide sale deed dated 10.8.1971 through his own funds and since then the plaintiff and his wife are residing in the same property. It is also the case of the plaintiff that he and his wife aged around 80 years and 74 years respectively are suffering from various old age ailments. It is also the case of the plaintiff that the defendant no.1 is of a very violent nature and she has made the life of the plaintiff and his wife a living hell. It is also the case of the plaintiff that the defendant no.1 is having matrimonial discord with her husband, defendant no.2, herein and the plaintiff and his wife are being subjected to suffer at the hands of the defendant no.1 because of such matrimonial dispute between the spouses. It is also the case of the plaintiff that he and his wife are living on the ground floor premises and the defendant no.2 being the son of the plaintiff was occupying the first floor of the premises as a licensee. It is also the case of the plaintiff that the defendant no.1 being the wife of defendant no.2 was also using the first floor until the relations between the defendant no.1 and defendant no.2 became edgy. It is also the case of the plaintiff that the defendant no.1 was having extra marital affair with servant Shambhu and the relationship between the defendant no.1 and defendant no.2 turned embittered after the discovery of the said extra marital affair . It is also the case of the plaintiff that the defendant no.1 left the house and she had also executed an affidavit stating her separation from her husband, i.e. defendant no. 2 herein. It is also the case of the plaintiff that the right of the defendant no.1 to live as wife of defendant no.2 got terminated in terms of the affidavit dated 18.10.2010. It is also the case of the plaintiff that the temporary stay of the defendant no.1 as a guest on the first floor of the premises since March 2011 does not give her any right to occupy the said premises as her statutory right to occupy the premises was by virtue of her being a wife of defendant no.2 with whom her relationship is claimed to be terminated w.e.f. 18.10.2010. It is also the case of the plaintiff that in the first week of August 2011, defendant no.1 had assaulted and pushed the wife of the plaintiff after which she fell on the floor and injured herself. It is also the case of the plaintiff that defendant no.1 misbehaves, beats and abuses the domestic staff and because of such demeanor by the defendant no.1, the domestic staff left the said premises leaving the plaintiff and his wife with no option but to take care of the entire household work themselves. It is also the case of the plaintiff that the defendant no.1 and her father have continuously blackmailed the plaintiff and his family members to give crores of rupees or else they would implicate the plaintiff and his family members in false and frivolous cases. It is also the case of the plaintiff that on 22.9.2011, the defendant no.1 abused the plaintiff and as a result whereof the plaintiff had to be rushed to the Doctor and he was strictly advised by the Doctor to avoid any kind of stress and similarly on 28.9.2011 the defendant no.1 had abused the wife of the plaintiff with filthy language , consequently she was rushed to the Doctor and the Doctor advised that the environment of the plaintiff’s wife should be changed. Similar incident as per the plaintiff had also taken place on 31.10.2011. It is also the case of the plaintiff that the wife of the plaintiff has been diagnosed to be suffering from a serious heart problem and because of the extreme stress her sugar level had also shot up to an alarming proportion. With these allegations, the plaintiff prayed that the defendant no. 1 be directed to vacate the suit property so that the plaintiff and his wife are able to lead the evenings of their lives peacefully without any stress or trauma.

4. In the original suit the plaintiff did not seek the relief of mandatory injunction so as to seek vacation of defendant No.1 from the subject premises. But later on, the plaintiff incorporated the said relief of grant of mandatory injunction through an amendment. Along with the amended suit the plaintiff also filed a fresh application under Order39 Rule 1 & 2, CPC for the grant of interim mandatory injunction to seek a direction to the defendant No.1 to vacate the subject premises till the final disposal of the suit.

5. Defendant No.1, the daughter-in-law of the plaintiff has mainly contested the said stay application while defendant No.2 who is the son of the plaintiff has come in support of the said application.

6. Counsel for the plaintiff very strongly contended that the suit property in question is a self-acquired property of the plaintiff who had purchased the same by way of registered Sale Deed dated 10.8.1971 and therefore he is fully entitled to peacefully reside in the said property along with his old wife without any sort of interference or disturbance at the hands of defendant No.1. Counsel also submitted that plaintiff and his wife are senior citizens aged about 80 and 74 years respectively, suffering from various ailments and because of continuous and unabated torture at the hands of defendant No.1, the life of the petitioner and his wife has become miserable and they can collapse at any time if defendant No.1 continues to reside in the said property. Counsel further submitted that defendant No.2 has already shifted from the said premises to reside in a rented accommodation and instead of shifting with her husband, the defendant No.1 has continued residing at the suit property and has been harassing the plaintiff and his wife by abusing and humiliating them daily and also calling the police every now and then on false pretexts so as to further embarrass them in the presence of their neighbors. Counsel also submitted that due to the marital discord, defendant No.1 had left the said premises permanently on 18.10.2010 and she had also signed an affidavit dated 18.10.2010 to that effect but again she had illegally occupied the guest room on the ground floor of the said premises. Counsel also submitted that defendant No.1 had no legal right to stay in the said premises and her occupation was permissive only when she was residing in the suit property with her husband, defendant No.2 herein and once defendant No.2 has shifted to some other accommodation, the defendant No.1 cannot force her to stay in the premises which is exclusively owned by the plaintiff. It was also submitted that defendant No.2 had given many proposals to defendant No.1 to reside with him at the rented accommodation or to reside in some other alternative accommodation at par with the rented accommodation of defendant No.2 or to accept an amount to the tune of Rs.30,000 towards the monthly rent for an accommodation to be selected by her but none of these offers have been accepted by defendant No.1. Counsel further submitted that the legal position is now well settled that daughter-in-law has no legal right whatsoever to reside in the property owned by her parents-in-law and parents- in-law have no obligation to provide a residence to their daughter-in-law. In support of his arguments counsel for the plaintiff has placed reliance on the following judgments:-

1. S.R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC
2. Kavita Chaudhari v. Eveneet Singh and Anr., 2012 (130) DRJ 83
3. Neetu Mittal v. Kanta Mittal, 152 (2008) DLT 691
4. Umesh Sharma v. State, 2010 (115) DRJ 88
5. Kulwant Singh v. Laljee Kent( DR.) and ors., 162 (2009) DLT 625
6. Shumita Didi Sandhu v. Sanjay SinghnSandhu and ors., 174 (2010) DLT 79 (DB)

7. Counsel for the plaintiff also submitted that defendant No.1 had earlier obtained an ex-parte injunction from the court of Ld. MM, Saket in a petition filed by her under the Domestic Violence Act by suppressing the fact of filing of the present suit by the plaintiff. Counsel further informed this court that the said ex-parte order dated 20.12.2011 already stands vacated vide order dated 11.1.2012.

8. Counsel further argued that there are no fetters on the powers of this court to grant interim mandatory injunction in favour of the plaintiff and against the defendant no. 1, keeping in view the facts of the present case where the life of the plaintiff and his wife have become hell because of the continuous nuisance, torture and harassment being caused by defendant No.1. To support his arguments counsel for the plaintiff placed reliance on judgments of the Hon’ble Apex court in the case of Sant Lal Jain. Vs. Avtar Singh (1985) 2 SCC 332 and Dorab Cawashji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117.

9. On the other hand Counsel for the defendant No.1, strongly opposed the grant of the said relief of mandatory injunction at the interim stage. Counsel submitted that the relief of temporary injunction is a purely equitable relief and the same cannot be granted to a person who has played fraud upon the court by suppressing material and vital facts from the court. Counsel submitted that the plaintiff is a permanent resident of Calcutta and came to Delhi in the year 2010 in connivance and conspiracy with defendant No.2 with the sole objective to ouster the defendant No.1 from the suit property. Inviting attention of this court to the documents like voter ID card, passport , certified copy of the application dated 23.4.2012 moved before the family court of Saket, counsel submitted that these documents squarely goes on to show that the plaintiff is a permanent resident of Calcutta and not of Delhi. Counsel also submitted that the plaintiff has played serious fraud upon the court by not disclosing this very fact thereby violating, Section 17 of the Representation of People Act, 1951.

10. The next limb of argument taken by counsel for defendant No.1 was that grant of interim mandatory injunction by this court in favour of the plaintiff would amount to finally decreeing the present suit in favour of the plaintiff and therefore the said relief at the interim stage is impermissible in terms of the settled legal position.

11. The next argument advanced by counsel for defendant No.1 was that the suit property is an ancestral property and being ancestral property it falls in the category of ‘shared household’ in terms of Section 2(s) of the Domestic Violence Act, 2005. Counsel also submitted that the children of the defendants have every right to reside in the suit property under the Hindu Mitakshara Law.

12. Counsel further argued that the allegations levelled by the plaintiff in the present suit are infact reproduction of the allegations levelled by the husband-defendant No.2 in other proceedings i.e. divorce case and a petition filed by him under Guardianship and Wards Act.

13. Counsel also argued that the amended application under Order 39 Rule 1 & 2 CPC is not maintainable in the eyes of law as the amendment envisaged under Order 6 Rule 17, CPC relates to the amendment of pleadings, which includes the plaint and the written statement, and not the amendment of applications under Order 39 Rule 1 and 2 filed by the parties.

14. Counsel further argued that the present suit is bad for non-joinder of children of the defendants as the necessary parties, as the children of the defendants who are also residing in the said property along with defendant No.1, are the ones whose rights would be equally affected by the decision of the court.

15. Counsel further argued that as per the settled principles for the grant of interim injunction, the plaintiff is not entitled for the grant of any interim relief of mandatory injunction.

16. In support of his arguments counsel for the defendant placed reliance on the following judgments:-

1. S.P. Chengalvaraya Naidu (Dead) by L.R.s v. Jaggannath (Dead) by L.R.s and others, (1994) 1 SCC 1
2. Indore Development Authority v. Mangal Amusement Private Limited, (2010) 12 SCC 514
3. Bharat Sanchar Nigam Ltd. and others v. Prem Chand Premi and another, (2005) 13 SCC 505
4. Purshottam Vishandas Raheja and another v. Shrichand Vishandas Raheja, (2011) 6 SCC 73
5. Davender Lal Mehta v. Sh. Dharmender Mehta and Anr., AIR 2009 DELHI 189
6. Ramachandra Tanwar v. Ram Rakhmal Amichand and another, AIR 1971 RAJASTHAN 292
7. Nandan Pictures Ltd. v. Art Pictures Ltd. and others, 1956 CALCUTTA 428
8. B.P. Achala Anand v. S. Appi Reddy and another, (2005) 3 SCC 313
9. S. R. Batra and anr. v. Smt. Taruna Batra, 2006 (4) Crimes 433 (SC)

17. During the course of arguments counsel for defendant No.1 also gave a proposal that defendant No.1 would shift along with her two minor children to the first floor of the suit property so that the plaintiff and his wife and defendant No.1 with her children can peacefully reside in separate portions of the said property and there is no face-off between the plaintiff and defendant No.1. Counsel also submitted that defendant No.1 is prepared to give an undertaking not to enter in the ground floor of the premises occupied by the plaintiff but will allow the plaintiff and his wife to enter the first floor so that they can meet their grand children.

18. In his rejoinder arguments, counsel for the plaintiff stated that the plaintiff has not played any kind of fraud upon the court by not disclosing about his residential property in Calcutta. He stated that he has been residing in the suit property since the year 1971and to support his stay in the Delhi Property, the plaintiff has also placed on record various documents viz. voter ID card and electricity bills etc. Counsel further submitted that in the given facts of the present case this court has abundant power to grant the relief of interim mandatory injunction. Counsel also submitted that the grant of interim mandatory injunction cannot be confined only to restore the last uncontested status quo of the property. counsel also argued that the proposal given by defendant No.1 to permit her to reside on the first floor of the property is not a workable solution as the two floors of the suit property are inextricably inter- connected through a common entrance, internal staircase and the common kitchen which is located at the ground floor and even with such an arrangement the verbal and physical abuse and harassment at the hands of the defendant no. 1 would still be persistent.

19. I have heard learned counsel for the parties at considerable length and given my anxious consideration to the arguments advanced by them. I have also carefully perused the material placed on record by them.

20. Through the present application the plaintiff by way of interim mandatory injunction is seeking direction to the defendant no. 1 to vacate the premises bearing number B-197, Greater Kailash, Part-I, New Delhi. Plaintiff has claimed that he is residing in the said property along with his aged wife of 74 years. It is also the case of the plaintiff that he and his wife are suffering from various ailments and in support thereof he has placed on record some medical documents as well. The age of the plaintiff and his wife is not in dispute and so far as the ownership of the property is concerned, the plaintiff has placed on record the photocopy of the Sale Deed dated 10.8.1971 and therefore the title of the plaintiff to the subject property also cannot be of any dispute. It is also not in dispute that defendant No.2 who is the son of the plaintiff has already walked out from the said accommodation to reside in a rented accommodation while his wife, defendant No.1 along with two children continued to live in the subject property. It is also a matter of record that the plaintiff and defendant No.1 have been lodging several complaints to the police against each other and the kind of allegations leveled by them demonstrates the extent of hatred and venomous they have against each other.

21. Ld. counsel for defendant No.1 heavily placed reliance on the preposition that grant of interim mandatory injunction in favour of the plaintiff would result in granting final relief to the plaintiff and secondly that the grant of interim mandatory injunction can be granted only to restore the status quo ante. To support his argument counsel for defendant No.1 placed reliance on the case of Dorab Cawasji Warden v. Coomi Sorab Warden & Ors. (supra). Counsel for the plaintiff also placed reliance on the same case to counter the argument of counsel for defendant No. 1. The Apex Court in this case observed that the relief of interlocutory and mandatory injunction is generally granted to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. The following paras from the said judgment would further amplify the legal position.

“15. In one of the earliest cases in Rasul Karim A Anr. v.
Pirubhai AMrbhm, ILR 1914 38 Bom. 381, Beaman, J. was of the view
that the court’s in India have no power to issue a temporary
injunction in a mandatory form but Shah, J. who constituted a Bench
in that case did not agree with Beaman, J. in this view. However, in
a later Division Bench judgment in Champsey Bhimji & Co. v. The Jamna
Flour Mills Co. Ltd., two learned Judges of the Bombay High Court
took a different view from Beaman, J. and this view is now the
prevailing view in the Bombay High Court. In M. Kandaswami Chetty v.
F. Subramania Chetty , a Division Bench of the Madras High Court held
that court’s in India have the power by virtue of Order 39 Rule 2 of
the CPC to issue temporary injunction in a mandatory form and
differed from Beaman’s view accepting the view in Champsey Bhimji &
Co. v. Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman, it
was held that the High Court was competent to issue an interim
injunction in a mandatory form. It was further held in this case that
in granting an interim injunction what the Court had to determine was
whether there was a fair and substantial question to be decided as to
what the rights of the parties were and whether the nature and
difficulty of the questions was such that it was proper that the
injunction should be granted until the time for deciding them should
arrive. It was further held that the Court should consider as to
where the balance of convenience lie and whether it is desirable that
the status quo should be maintained. While accepting that it is not
possible to say that in no circumstances will the Courts in India
have any jurisdiction to issue an ad interim injunction of a
mandatory character, in Nandan Pictures Ltd. v. Art. Pictures Ltd.
and Ors., AIR 1956 Cal 428, a Division Bench was of the view that if
the mandatory injunction is granted at all on an interlocutory
application it is granted only to restore the status quo and not
granted to establish a new state of things differing from the state
which existed at the date when the suit was instituted.

16. The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the last
non-contested status which preceded the pending controversy until the
final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done or the
restoration of that which was wrongfully taken from the party
complaining. But since the granting of such an injunction to a party
who fails or would fail to establish his right at the trial may cause
great injustice or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party who succeeds
or would succeed may equally cause great injustice or irreparable
harm, courts have evolved certain guidelines. Generally stated these
guidelines are:

(1) The plaintiff has a strong case for trail. That is, it shall
be of a higher standard than a prima facie case that is normally
required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury
which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking
such relief.

17. Being essentially an equitable relief the grant or refusal
of an interlocutory mandatory injunction shall ultimately rest in the
sound judicial discretion of the Court to be exercised in the light
of the facts and circumstances in each case. Though the above
guidelines are neither exhaustive or complete or absolute rules, and
there may be exceptional circumstances needing action, applying them
as prerequisite for the grant or refusal of such injunctions would be
a sound exercise of a judicial discretion.”

22. It would be seen from the aforesaid observation of the Apex Court in the said case that the relief of interlocutory mandatory injunction is granted generally to preserve or restore the status quo of the last contested status. The expression ‘generally’ in the above observation gives a clear indication that the grant of interim mandatory injunction does not only confine to restore the status quo of the last contested status. The Apex Court in the said judgment further observed that being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest on the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances of each case. The Court also observed that there may exist exceptional circumstances for the grant or refusal of such injunction and it would ultimately depend on the facts of each case for the Court to exercise the equitable jurisdiction in favour of one party in preference to the other party.

23. Testing the present case in the light of aforesaid discussion, the court is of the view that the plaintiff has been able to establish a very strong prima- facie case in his favour. The defendant No.1 being a daughter-in-law has no right to reside in the subject property which belongs to her father-in-law as the said property is not covered by the definition of ‘shared household’, the same being neither a joint family property in which her husband is a member, nor it belongs to the defendant no. 2 and is not even a rented accommodation owned by the defendant No.2.

24. Referring to the decision of the Apex court in the case of S. R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC 169, which has extensively dealt with the legal position regarding the right of a daughter-in-law in a shared household under Section 17(1) of the DV Act, it was held as under:-

“16. There is no such law in India, like 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.

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…

30. No doubt, the definition of “shared household” in section
2(s) of the Act is not 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 the society.”

25. In S.R. Batra case (supra), the property in question belonged to the mother-in-law and there also the defence taken by the daughter-in-law was that the said property was a joint family property and therefore she enjoyed a protection under Section 17(1) of Domestic Violence Act, 2005. However, the court took a view that daughter-in-law cannot claim any right in an accommodation which belongs to mother-in-law or the father-in-law as such an accommodation does not satisfy the test of share household accommodation as envisaged under Section 2(s) of the Domestic Violence Act, 2005.

26. The aforesaid view was reiterated by this court in the case of Neetu Mittal v. Kanta Mittal reported in 152 (2008) DLT 691 and the relevant Paras of the same are reproduced as under:-

“8. … ‘Matrimonial home’ is not defined in any of the statutory
provisions. However, phrase “Matrimonial home” refers to the place
which is dwelling house used by the parties, i.e., husband and wife
or a place which was being used by husband and wife as the family
residence. Matrimonial home is not necessarily the house of the
parents of the husband. In fact the parents of the husband may allow
him to live with them so long as their relations with the son
(husband) are cordial and full of love and affection. But if the
relations of the son or daughter-in-law with the parents of husband
turn sour and are not cordial, the parents can turn them out of their
house. The son can live in the house of parents as a matter of right
only if the house is an ancestral house in which the son has a share
and he can enforce the partition. Where the house is self-acquired
house of the parents, son, whether married or unmarried, has no legal
right to live in that house and he can live in that house only at the
mercy of his parents upto the time the parents allow. Merely because
the parents have allowed him to live in the house so long as his
relations with the parents were cordial, does not mean that the
parents have to bear his burden throughout the life.

9. Once a person gains majority, he becomes independent and
parents have no liability to maintain him. It is different thing that
out of love and affection, the parents may continue to support him
even when he becomes financially independent or continue to help him
even after his marriage. This help and support of parents to the son
is available only out of their love and affection and out of mutual
trust and understanding. There is no legal liability on the parents
to continue to support a dis-obedient son or a son which becomes
liability on them or a son who dis-respects or dis- regards them or
becomes a source of nuisance for them or trouble for them. The
parents can always forsake such a son and daughter-in-law and tell
them to leave their house and lead their own life and let them live
in peace. It is because of love, affection, mutual trust, respect and
support that members of a joint family gain from each other that the
parents keep supporting their sons and families of sons. In turn, the
parents get equal support, love, affection and care. Where this
mutual relationship of love, care, trust and support goes, the
parents cannot be forced to keep a son or daughter in law with them
nor there is any statutory provision which compels parents to suffer
because of the acts of residence and his son or daughter in law. A
woman has her rights of maintenance against her husband or
sons/daughters. She can assert her rights, if any, against the
property of her husband, but she cannot thrust herself against the
parents of her husband, nor can claim a right to live in the house of
parents of her husband, against their consult and wishes.

27. In yet another case Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors. reported in 174 (2010) DLT 79 (DB), the Division Bench of this Court took a view that a property which neither belongs to husband nor is taken on rent by him, nor is a joint family property in which husband is a member, cannot be regarded as shared household and, therefore, the daughter-in-law has no right to claim right to stay in such a property, which belongs to either the father-in-law or mother-in-law. The Hon’ble Division Bench also held that the right of residence which a wife undoubtedly has does not mean right to reside in a particular property and it is only in that property in which the husband has a right, title or interest that wife can claim residence and that too if no other commensurate accommodation is provided by the husband. The following paragraphs from the said judgment are reproduced as under:-

“40. …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 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. 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.”

28. I have also had occasion to deal with some-what similar situation in the case of Kavita Chaudhari v. Eveneet Singh and Anr., reported in 2012 (130) DRJ 83, wherein the civil suit was filed by the mother-in-law seeking a decree of mandatory and permanent injunction against her son and daughter- in-law and in violation of the interim order passed by the court, the daughter- in-law failed to hand over the possession of the suit premises to the mother- in-law, thereby necessitating the Decree Holder i.e mother-in-law to file an execution petition. Following the principles laid down by the Apex Court in the case of S.R. Batra(supra), it was held as under in the following paras:-

“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 both of them in which the husband has no
right, title or interest, cannot be called a „share household?. The
Hon’ble Division Bench in Sumita Didi (supra) also observed that the
right of residence which a wife undoubtedly has does not mean her
right to reside in a particular property although such a right in
terms of Section 17 of The Protection of Women from Domestic Violence
Act is a right to reside in a commensurate property.

17. At omega, this Court would like to observe that with a view
to mitigate the oppression and inequality suffered by the fairer sex
in this country from times immemorial; various woman friendly laws
have been enacted so as to empower the women. It is a bitter truth
that where on one hand these progressive laws have led to
amelioration and advancement of the cause of the woman in this
country, at the same time on the other hand these liberalized
statutes have been flagrantly misused. The right of the woman to her
matrimonial home is one such right which has been brought on the
statute book to protect the woman from being left in lurch at the
hands of the in-laws. However one cannot or may I say should not shy
away from the hard hitting reality that it is not always the daughter
in law who is berated but at times the in laws who are at the
receiving end of the daughter in law’s cantankerousness. It should
not be for a moment consigned to oblivion that the parents in law
have every right to live in peace in their own property and the right
to property vested in them cannot be snatched away and used as a tool
to harass them. In the facts of the case at hand, it is not in
dispute before this Court that the said property bearing No. D-32,
South Extension, New Delhi is the property owned by the mother-in-law
which property was bequeathed in her favour by her father and
therefore the said property cannot be treated as a joint family
property. The daughter-in-law has no right to stay in the said
property and with the exit of her husband from the same the judgment
debtor has also lost the right to the said premises as well.”

29. One can also not lose sight of the fact that none of the statutes which deal with the rights of a married woman in India, be it The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Adoption and Maintenance Act, 1956; The Protection Of Women From Domestic Violence Act, 2005 or The Code Criminal Procedure, 1973 confer any right of maintenance including residence for the married woman as against the parents of the husband. To illustrate, Sections 24 and 25 of The Hindu Marriage Act, 1955 provides for the wife’s right to pendent lite maintenance and Permanent Alimony only against her husband. Section 17 (1) of Domestic Violence Act, 2005 gives protection to the wife where 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 within the meaning of Section 2(s) of the said Act. Section 18 of The Hindu Adoption and Maintenance Act, 1956 enumerates the right of a Hindu wife to be maintained by her husband during her life time. Section 125 of the Criminal Procedure Code, 1973 provides for monthly maintenance to wife, irrespective of her religion, if she has no source of income or means to maintain herself against her husband. The wife’s right to maintenance which includes her residence in a commensurate property is, thus, only against the husband. Marriage is a social union of two persons called spouses that establishes rights and obligations between them. The concept of Matrimonial Home has evolved with the passage of time. The concept hails from the law of England under the Matrimonial Homes Act, 1967. There is no such absolute statute in India, like the British Matrimonial Homes Act, 1967, which clearly stipulates that the rights which may be available under marriage laws can only be as against the husband and not against the father-in-law or mother-in-law. However, it is quite discernible that the spouses in wedlock, are obliged to take care of each other and in case of any inter-se dispute; one can claim his right with respect to maintenance only against the other and not against the other family members. With the transient course it has been observed that with the advent of various women friendly laws, empowering the women with equal rights as that of a man/ husband, the remedy of women to ask for maintenance or to claim her right in the residence in a commensurate property is only restricted to her husband and not against her parents in law. A woman 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. This means that she can assert her rights, if any, only against the property of her husband and cannot claim a right to live in the house of her husband’s parents without their wishes and caprice. Law permits a married woman to claim maintenance against her in-laws only in a situation covered under section 19 of The Hindu Adoption and Maintenance Act, 1956. i.e. after the death of the husband and that too when she is unable to maintain herself out of her own earnings etc. It would not be abominable to say that even the parents/ parents in law at the fag-end of their lives, deserve to live a blissful, happy and a peaceful life, away from any tautness or worries.

30. In the light of the aforesaid legal position the defendant No.1, being a daughter-in-law of the plaintiff, has no right as against the plaintiff i.e. her father-in-law, to occupy any portion of the subject property, which is his self- acquired property.

31. The next thing to be seen in the present case is whether grant of such an interim mandatory injunction in favour of the plaintiff is imperative to prevent any irreparable loss or serious injury to the plaintiff which normally could not be compensated in terms of money.

32. In the facts of the present case, the plaintiff is aged about 80 years and his wife is aged about 74 years and they are suffering from various old age and other ailments. It is also an admitted position that the defendant No.1 left the subject premises on 20.10.2010 but again entered the said premises later although her husband started residing in a rented accommodation. Without going into the veracity of the complaints and counter complaints filed by the plaintiff and the daughter-in-law, one thing clearly emerges that the relation between the parties are highly embittered and they are on a complete war path. In my view, in such a scenario, while also considering the effect that such environment would have on the minor children, it would be preposterous for both the parties to stay under the same roof. Consideration may also be given to the well-known fact that the civil litigation takes years to conclude and by not granting interim stay in favour of the aged parents-in-law for all these years until the date of final decision of the case, they would be unnecessarily compelled to spend far end of their lives in a formulated, non- consensual and woeful environment. The court can also not lose sight of the fact that the defendant no. 1 has already been offered by the defendant no. 2 to reside with him in his rented accommodation or in the alternate has also been offered a sum of Rs. 30,000 to reside in some other rented accommodation. The defendant no. 1, being herself not happy with the conduct of her in-laws and husband, can avail this facility and shift to another equally good accommodation for which her husband is ready to bear the monthly rental expenses. By such an arrangement, in my opinion, interest of both the parties would be secured at such an interim stage.

33. Counsel for the defendant also raised a plea that plaintiff has played serious fraud upon the Court by not disclosing about having a residential house at Calcutta. Counsel also placed reliance on documents placed on record which clearly prove that the residence of the plaintiff is at Calcutta. Counsel also submitted that the plaintiff by having his residential address at two places has violated the relevant provisions of Representation of Peoples Act, 1951. Undeniably, it would have been better, had the plaintiff disclosed about having his residence at the Calcutta property too, as for claiming equitable discretionary relief one must place all the material and relevant facts before the court. Nevertheless, it has not been denied by defendant No.1 that plaintiff has been residing in the property bearing number B-197, Greater Kailash, Part-I, New Delhi since 2010. The court is of the view that the right of plaintiff has to be considered vis-a-vis Delhi property and not Calcutta property. The mere fact that plaintiff has another property at Calcutta cannot deprive him from residing in his Delhi property and therefore non-disclosure of a residential property at Calcutta in the present suit cannot be taken as a suppression of a material fact so as to dis-entitle the plaintiff from the grant of discretionary relief. There is thus no merit in this plea raised by defendant No.1.

34. Counsel for defendant No.1 also argued that there is an apparent collusion between the plaintiff and defendant No. 2 to throw out defendant No.1 from the alleged matrimonial home. This argument of counsel for defendant No.1 is also devoid of any merit as the Court has to prima-facie consider the right of defendant No.1 to reside in the property owned by her father-in-law and as discussed above, defendant No.1 has no legitimate right to stay in the self-acquired property of her parents-in-law unless permitted by the parents- in-law themselves.

35. In the light of the above discussion, the balance of convenience strongly lies in favour of the plaintiff as against defendant No.1. The non- grant of the interim mandatory injunction will result in causing more prejudice to the rights of the plaintiff in comparison with the alleged rights of the defendant No.1 to stay in an accommodation which is neither a matrimonial home nor a shared household accommodation.

36. Interim mandatory injunction is therefore granted in favour of the petitioner and against the defendant no. 1. Defendant No.1 is accordingly directed to vacate the subject property bearing No. B-197, Greater Kailash, Part-I, New Delhi and hand over peaceful possession of the same to the plaintiff within a period of one month from the date of this order. It is further directed that concerned Court seized with the petition filed by defendant No.1 under Domestic Violence Act shall decide the interim application of defendant No.1 for the grant of maintenance, which will include her right to a residence in the commensurate property as per the financial status of defendant No.2, within a period of one month from the date of this order. Defendant No.1 in the meanwhile is also set at liberty to shift to the rented accommodation as offered by defendant No.2 for her exclusive residence along with her children or to accept an amount of Rs.30,000 towards the amount of rent, pending disposal of her maintenance application before the concerned Metropolitan Magistrate/ Mahila Court .

37. With the above directions the present application stands disposed of.

38. It is ordered accordingly.

KAILASH GAMBHIR

05 February, 2013

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