IN THE HIGH COURT OF DELHI AT NEW DELHI
IA Nos.291/2005 and 8444/2005 in CS (OS) No. 41/2005
Date of Hearing: 08-03-2007
Date of Decision: 02-07-2007
Smt.Shumita Didi Sandhu …..Plaintiff
Through Mr. Rakesh Tikku with Mr.Brajesh Kumar Srivastava
Mr.Sanjay Singh Sandhu and Ors. …..Defendant
Through Mr.Chetan Sharma,
Senior Advocate with Mr.S.S. Jauhar for defendant No.1
Ms. Kamini Jaiswal for defendant Nos.2 and 3
CORAM :- THE HONORABLE MR.JUSTICE A.K.SIKRI
1.Whether Reporters of Local papers may be allowed to see the Judgment?
2.To be referred to the Reporter or not?
3.Whether the judgment should be reported in the Digest?
A.K. SIKRI, J.
The plaintiff is the wife of the defendant No.1 and daughter-in-law of defendant Nos.2 and 3. For some reasons her matrimonial alliance with the defendant No.1 has not been blissful. There are allegations of extra marital relations by the plaintiff against the defendant No.1 and vice versa.
Interestingly, both the spouses virtually accept the accusations levelled against each other, if not overtly, at least tacitly. At this stage, having regard to the nature of present proceedings, it would not be necessary to dig deep into these accusations. Suffice is to mention that though they have not put an end to this jural relationship, they have not been living as husband and wife for quite some time and there exists no bonding between the two. The suit filed by the plaintiff is for permanent injunction restraining the defendants from forcibly dispossessing her from suit property bearing No. 18-A, Ring Road, Lajpat Nagar-IV, New Delhi. Reason for impleading her in-laws in the present suit is that they are the owners of the aforesaid property (hereinafter referred to as the ‘suit property’).
2. The case of the plaintiff is that the suit property is her matrimonial home since 1994. She is currently residing on the first floor of the suit property and the defendants are living on the ground floor due to strained relations between them. It is alleged that the defendant No.1, who is the only son of the defendant Nos.2 and 3 has a history of alcohol and substance abuse since he was in school and throughout his life he has spent his considerable time in various rehabilitation centres in India and abroad. Despite these bad habits the plaintiff married him thinking that her life of devotion would help the defendant No.1 to overcome his habits. He is also convicted of murder (Section 302 IPC and Section 27 of the Arms Act). His appeal against the said conviction is pending in this Court. He is presently on bail. It is also the allegation of the plaintiff that the defendant No.1 has treated her with grave mental and physical cruelty. On a number of occasions he has physically assaulted the plaintiff. He is also engaged in a series of adulterous relationship with other women and commercial sex workers and details of some of these relationships are given in the plaint.
3. In so far as relief claimed in the present suit is concerned, it is predicated on the premise that after the marriage of the plaintiff with the defendant No.1, they lived on the ground floor of the suit property along with the defendant Nos.2 and 3. However, due to severe violence from the defendant No.1 and mental abuse from the defendant Nos.2 and 3, the plaintiff moved out to Defence Colony in May 1996. The defendant No.1 also joined her there. However, the defendant Nos.2 and 3 put pressure on them in March 1999 to return to the suit property and this is how she eventually came back and started residing with the defendants in the suit property. Once the plaintiff and the defendant No.1 moved back to the matrimonial home, the defendant Nos.2 and 3 again started instigating the defendant No.1 against the plaintiff in his acts of cruelty towards the plaintiff. In February 2004 the plaintiff came to know about the extra-marital relationship of the defendant No.1 with another woman called Chinu @ Bo @ Gauri @ Sonam Bhandari with whom the defendant No.1 had married on 6.9.1999. Marriage ceremony was performed at Birla Mandir on that date. She came to know of the said illegal marriage from the letters written by the defendant No.1 to the said woman. It is alleged that the defendant No.1 even confessed to having a second ceremony with Chinu at Har Ki Paudi, Hardwar in the first week of June 2004 When the plaintiff confronted the defendant No.1 about the said relationship, he abused and physically assaulted the plaintiff.
Because of the perpetrated acts of physical violence, fearing danger to her life and limb, the plaintiff was forced to leave the matrimonial home in February 2004 She struggled in isolation for a period of seven months and took help of an NGO named Jagori that works for women empowerment and rights. After attending counseling sessions and workshops conducted by the said NGO, the plaintiff gathered strength to return to her matrimonial home on 10.10.2004 by finally asserting her right to live in her matrimonial home. On the night of 13.10.2004 the defendant No.1 along with some hired goons and some of his friends tried to force his way into the first floor of the said house where the plaintiff started living, with the intention of throwing out the plaintiff on the streets. The plaintiff had to call the police for intervention but the Chowki In-charge of Amar Colony did not help. The plaintiff then called the NGO Jagori to ensure her safety apprehending that there may be attempts on the part of the defendants to throw her out of the suit property without due process of law. The plaintiff filed the present suit for permanent injunction containing the aforesaid prayer on 12.1.2005. It is also alleged that the defendants are trying to sell the suit property and for this purpose they have already taken possession of a house bearing No. 201, Jor Bagh, New Delhi, for their residence.
4. All the three defendants have filed separate written statements. The defendant No.1 has not denied the strained relations between him and the plaintiff but has blamed the plaintiff for the state of affairs. It is his allegation that since the inception of the marriage the plaintiff ill-treated him and his family members. He has also alleged that after the marriage the plaintiff revealed to the defendant No.1 that she had several illicit relationships prior to her marriage, which relationships she continued even after her marriage. She openly admitted her extra marital affair with one Akram Varraich, a Pakistani National and her strong love with him. In pursuit of her immoral love with Akram she made frequent trip to Lahore, Pakistan from time to time. Even while in India she kept contact with him through mobile, e-mail and internet chat. There are many other allegations which need not be traversed at this stage. For the purpose of present case what needs to be emphasised is that as per the defendant No.1, in the year 1996 the plaintiff and the defendant No.1 left the suit property and took a separate residential premises for living, i.e. C-461, Defence Colony, New Delhi, where they stayed till 1999. Thereafter, they shifted to Mumbai and stayed in rented accommodation at 41, Kesar Vila, Pali Hill, Bandra, Mumbai, for a period of one year. For last few years they started living in defendant No.1’s house in Dehradun. At times, they would come and live at first floor of the suit property with the permission of the defendant Nos.2 and 3 for brief period. As such the suit property had never been matrimonial home of the plaintiff which she falsely claims.
5. Defendant Nos.2 and 3 in their written statements have taken various preliminary objections to the maintainability of the suit. The prime contention remains the same as taken by the defendant No.1, namely, the suit property was never the matrimonial home of the plaintiff. It is alleged that since the suit property belongs to the defendant Nos. 2 and 3, the plaintiff has no right to term it as matrimonial house and claim right of residence in the suit property.
It is also alleged that the plaintiff and the defendant No.1 stayed in this property for a period of two years only after the marriage and in the year 1996 they moved out of this property by taking separate residential premises for their living at Defence Colony and thereafter in Mumbai and Dehradun respectively. It is further alleged that on account of illicit relationship between the plaintiff with various other persons the plaintiff abandoned the company of the defendant No.1 in August 2003 along with all personal belongings and luggage and shifted to the house of Nirupama Dutt in Gurgaon. From there she proceeded to her parental home, i.e. MIG Flat No.937, Sector 40A, Chandigarh. She left the defendant No.1 with an intention to never to come back and it is because of this reason that she took away all her personal belongings and articles comprising ‘Stri Dhan’ , clothes, jewellery etc. As such, the conjugal relationship between the plaintiff and the defendant No.1 was repudiated in August 2003. In mid September 2004, the defendant No.2 had advertised in a national daily inviting proposals for the sale of the suit property. Soon thereafter, on 10.10.2004 at 2:00 am in the dead of the night when the defendant No.1 was away to Chennai the plaintiff along with some unknown persons and with the help of the said miscreants made a forcible entry into the said property. At that time, two guests of the defendants were staying in the suit property. The plaintiff immediately called the police and with their help as well as with the help of eight other persons removed the guests forcibly and occupied the first floor of the premises by grabbing the said portion of the suit property through illegal means. She is now claiming even the second floor barsati as a matrimonial home. She has even inducted her parents on the first floor of the said house. By occupying the first floor of the suit property in this manner she cannot call the same as her matrimonial home and in any case, she has no right to stay in the suit property which does not belong to her husband, namely, the defendant No.1 but to the defendants No.2 and 3, who have neither any legal or moral obligation to allow the plaintiff to say in the suit property. The statements of the plaintiff, defendant No.1 and defendant No.2 were recorded by this Court on 19.1.2006.
6. Along with the suit, the plaintiff filed IA No. 291/2005 seeking ad interim ex parte injunction. Order dated 18.1.2005 was passed in this application directing maintenance of status quo in regard to the suit property.
Thereafter, the plaintiff also filed IA No.8444/2005 under Order 39 Rules 1 and 2 CPC claiming same relief alleging that notwithstanding the said status quo order the defendants were trying to dispossess her. Along with this application the plaintiff also filed IA No.8445/2005 under Order 39 Rule 2A CPC for initiating contempt proceedings against the defendants for violating the status quo orders.
7. Since the relief claimed in IA Nos.291/2005 and 8444/2005 is the same, both were taken up together for hearing and arguments heard in these applications. I may state at this stage itself that though the arguments were heard on an earlier occasion, matter was adjourned from time to time to enable the parties to arrive at amicable settlement. The learned counsel for the defendants had given a proposal for arranging alternate accommodation at some other place. However, the plaintiff refused to accept this offer.
8. I may also point out that during the pendency of these proceedings the defendant No.2 has died and his LRs have been brought on record, who have adopted the written statement filed by the defendant No.2.
9. 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. The plaintiff has also admitted that after her
marriage with the defendant No.1 on 5.11.1994 she stayed in the suit property
till the end of February 2004 on the ground floor of the suit property
whereafter she shifted to Defence Colony and remained there till March 1999.
She has, however, alleged that she along with her husband shifted back to the
first floor of the suit property in March 1999 and continued to live there till
2004 when she was forced to leave her matrimonial house. She accepts that she
re-entered the first floor of the premises on 9.10.2004 at 2:30 am, though she
alleges that she entered first floor of the property using her own keys with
great difficulty on 9.10.2004 at 2:30 am when she came back from the police
station. In her statement she has also accepted that she took a flat in Mumbai
during the period from December 1999 to November 2000 on lease in her name. 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?
10. Learned counsel for the plaintiff argued that the parties had started
staying in the suit property with the defendant No.1 even before her marriage
with him. She started living with the defendants in the said property 3-4 years
before the marriage and during this time she helped the defendant No.1 in
several ways, who was drug addict and involved in a murder case. In fact, she
pursued the said murder trial and was active in defending her husband in the
said case. She continued to live there even after the marriage till 1996 when
under certain circumstances, as explained in the plaint, she was forced to leave
the matrimonial house. The intention was not to desert the defendant No.1. It
was because of the reason that the defendant No.1 married Chinu and no wife
would tolerate another woman in her man’s life. If for this reason she left the
matrimonial home, it cannot be said that there was no ?abandonment of
matrimonial home?. Therefore, his plea was that since the suit property could
be treated as ‘matrimonial home’, she had a right to live in the suit property
even if it belongs to her in-laws. He referred to two judgments of this Court:
(i) Anu Seth and Ors. Vs. Rohit Narain Seth and Ors., 87 (2000) DLT 486 and (ii)
Taruna Batra Vs. S.R. Batra and Anr., 116 (2005) DLT 646. He also submitted
that it was not in dispute that as on the date of filing of the suit the
plaintiff was in possession of first floor and second floor of the suit property
and even if it was not the matrimonial home, she could not be thrown out without
due process of law. He referred to the statement of the defendant No.2 recorded
on 19.1.2006 wherein he had mentioned that he or the defendant No.3 had no
intention to throw the plaintiff out without due process of law. Therefore,
pleaded the learned counsel, the plaintiff was entitled to interim injunction
11. Learned counsel for the defendants, on the other hand, argued that it
was not in dispute that the plaintiff had moved out of the matrimonial house in
the year 1996 and stayed at various other places. They further pointed out that
even as per the plaintiff’s own admission, at least from the year 2003 she had
left the matrimonial house for good, whether the cause was the defendant No.1
living in adultery or the plaintiff’s own extra-marital relationship. It was
submitted that she grabbed the possession of the portion of the house at the
dead night of 10.10.2004 and the plaintiff had no right to take advantage of
occupying the suit property forcibly by illegal means as aforesaid. It was also
argued that the argument advanced now that she had never abandoned the
matrimonial house but was forced to leave the same was clearly an afterthought
plea as she never lodged any complaint to the effect that she was thrown out of
the house. She had also not filed any application under Section 18 of the
Adoption and Maintenance Act. Further her allegations in the complaint that she
was driven out of the matrimonial home were contrary to her statement recorded
under Order X CPC on 19.1.2006 where she does not whisper about any such
happening. It was argued that she had not approached the court with clean hands
and, therefore, she was not entitled to discretionary relief of injunction in
view of judgment of the Supreme Court in the case of Sopan Sukhdeo Sable and
others Vs. Assistant Charity Commissioner and others, (2004) 3 SCC 137. It was
further submitted that she could not claim right of residence as daughter-in-
law, against her father-in-law and mother-in-law, who were the owners of the
suit property as held by this Court in Sardar Sadhu Singh and others Vs.
Narinder Kaur, 60 (1995) DLT 628 and recent judgment of the Supreme Court in
the case of S.R. Batra and another Vs. Smt. Taruna Batra, 2006 (13) SCALE 652.
12. In Sardar Sadhu Singh (supra), a single Judge of this Court held that where daughter-in-law was allowed to stay in the house belonging to parents-in- law, such permissive user would not make it a case of lawful and subtle possession and the daughter-in-law could not claim her right to stay in the house belonging to the parents-in-law. Relevant portion of this judgment is reproduced below:-
8. Counsel for the petitioner rightly submitted that the respondent
having failed to show a legal right, her occupation of the property in suit, was
unlawful and there was no justification to grant her the reliefs sought. It
would be pertinent at this stage, to observe that though the petitioner No. I
may not have a legal duty, nevertheless he had a moral duty as head of a Hindu
family to provide maintenance and support to the respondent/daughter-in-law.
Reference may be made in this connection to the observations made in the
judgment of Mehmood, J. in Janki v. Nand Ram and Others, AIR 1889 (11) ILR (All)
194, wherein it was inter alia observed that by marriage a woman ceases to
belong to her parental family and becomes member of the husband’s family. The
head of a Hindu family is bound morally if not legally, to provide maintenance
and support for members of the family. These observations were made by the Court
while dealing with the claim for maintenance by Hindu widow on her brother-in-
law, in respect of self-acquired property of the father-in-law, that had fallen
in the hands of brother-in-law. The moral duty of the father-in-law was held to
be transposed as a legal duty in the hand of the brother-in-law. In the facts of
instant case since the petitioner No. 1 is the father-in-law and the property is
self-acquired one, it is at best only his moral duty.
9. Counsel for the respondent asserted that the respondent was admittedly
in possession of the part of the premises in suit and was residing there. It was
stated. that the respondent has no other residential place except the premises
in suit and the helpless woman is sought to be thrown on road without any
shelter. Further that the parents of the respondent had already expired.
Counsel relied on case reported at 43 (1991) DLT 570 Babu Lal v. D.D.A.;
1985 (9) DRJ 185 Smt. Shakuntla v. Sh. Hira Nand Sharma and Ors.; 57 (1995) DLT
534, Kamlesh Sharma v. Bhu Dev Gaur; AIR 1989 (SC) 2097 Krishna Rant Mahate v.
Shobha Venkat Rao. The above cases are cited in support of the plea that even a
trespasser was entitled to remain in possession, unless dispossessed or evicted
in accordance with law. Counsel submitted that when the possession of even a
trespasser is protected and he was not liable to be evicted except in due course
of law and was entitled to defend his possession even against the rightful
owner, the respondent’s case was on a far better footing. It was urged that
Appellate Court had granted the injunction in accordance with Law.
10. The respondent admittedly had not asserted any legal right or the
basis for her continued occupation of the premises in suit. In fact it is her
own case, that she had resided and was residing in the premises in suit by
virtue of her being the daughter-in-law of the petitioners. The possession which
a trespasser is entitled to defend against the rightful owner is settled
possession extending over sufficiently long period and acquiesced in by the true
owner. In Puran Singh v. State of Punjab, 1975 Supplementary SCR 299 the Supreme
Court observed that “there is no special charm or magic in the words “settled
possession’` nor it is a ritualistic formula which can be confined in a strait
jacket but it has been used to mean such clear and effective possession of a
person, even if he is a trespasser, who gets the right under the criminal law to
defend his property against even by the true owner. It would be reiterated that
the possession must be within the knowledge either express or implied, of the
owner or without any attempt at concealment and which contains an element of
animus possedendie. In the instant case, it would appear that the respondent had
not asserted any exclusive possession except in June 1994, when according to the
respondent, the petitioners threatened to dispossess her. It was then that the
suit for permanent injunction was filed. The respondent, therefore, did not have
a prima facie case and her occupation, it would appear may not fall within
settled possession. Assuming that the respondent’s occupation was settled
possession and a lawful one, even then I am of the view that on the facts of
this case the respondent is not entitled to the grant of equitable and
discretionary relief on account of the reasons and factors mentioned
13. Learned counsel for the plaintiff had submitted that the aforesaid
judgment would not be applicable in the instant case inasmuch as in the said
judgment the daughter-in-law had not asserted any legal right or basis for her
continued occupation of the premises. As per her own case, she was residing in
the suit premises by virtue of her being daughter-in-law whereas, in the
instant case, the plaintiff had specifically asserted that the suit property was
her matrimonial home. It was argued that it was the obligation of the husband
to provide matrimonial home to his wife and towards this end if the plaintiff
was provided portion in the suit property as a matrimonial home, she had a right
to stay in the said house even if it belongs to her in-laws as held by this
Court in Anu Seth (supra) and Taruna Batra (supra). In Anu Seth (supra) the
plaintiff was staying in the joint family property with her husband. However,
the husband had moved out of the said house on the basis of which it was pleaded
that she also had no right to stay in the said house. The question was answered
by saying that the husband could not defeat his wife’s right by moving out and
started living with his married sister. In Taruna Batra (supra), this court
noted that after the marriage the petitioner (wife) had started living in the
property, i.e. the house at Ashok Vihar, which belonged to her in-laws. Though
she was made to shift to her parent’s house because of deterioration in the
relation between the petitioner and her husband, the house in question
nevertheless remained the matrimonial home and she had a right to remain in that
matrimonial house. Following extract from this judgment needs to be noticed:-
12. We all know that the accepted practice in India is that immediately after
marriage, the bride resides with her husband usually in the parental home of the
husband and their place of residence then becomes their matrimonial home. Of
course, now there are may instances where the couple reside separately since the
joint family system is breaking up but, as in the present case, residence is
usually along with the parents of the husband. In either case, the place of
residence of the couple becomes their matrimonial home. A woman, therefore,
would have the right to remain in that matrimonial home as long as she is
married and if she is “obliged’` to leave that matrimonial home, I think she
would be entitled to obtain an injunction from an appropriate Court protecting
her right and preventing her from being thrown out.
13. Consequently, going by the generally accepted practice in most parts of
India, if not in the entire country, it can be said that the ground floor of
property bearing No. B-135, Ashok Vihar Phase-I, Delhi was the matrimonial home
of the Petitioner and her husband Amit Batra even though the entire property
belonged to the parents of Amit Batra. It can also be said that later on, the
Petitioner and her husband shifted their matrimonial home to the second floor of
the said property, with the knowledge and consent of the Respondents, the owners
14. There can be no doubt that there is a legal obligation on Amit Batra to
provide a residence to the Petitioner and their son. It is one thing for Amit
Batra and the Respondents to say that since Amit Batra is now staying in
Ghaziabad, that would be the matrimonial home and he is prepared to have the
Petitioner reside with him there. The fact of the matter is that Amit Batra
applied for a divorce from the Petitioner (although the divorce petition is now
said to have been dismissed in default). Consequently, it is extremely unnatural
to expect the Petitioner to treat Amit Batra’s Ghaziabad residence as her
matrimonial home. In other words, Amit Batra’s shifting from the second floor of
the said property to Ghaziabad would not ipso facto shift the Petitioner’s
matrimonial home to Ghaziabad.?
14. Argument of the respondents (in-laws) in that case that they were the owners of the house and had simply permitted the petitioner to reside on the second floor of the house, which would not give any right to continue in the house, was brushed aside in the following manner:-
17. It was contended by learned counsel for the Respondents that his clients,
who own the Ashok Vihar property, had only permitted the Petitioner to reside on
the second floor of the said property. This permissive user, according to him,
did not give her any right to continue to reside in that property and she had no
proprietary interest in the property. I am not impressed with this contention. I
have already held that the second floor of the said property was the matrimonial
home of the Petitioner and, therefore, she has a right to stay there as against
Amit Batra. As regards her proprietary interest, it cannot be forgotten that the
Respondents are not complete strangers, in which case the position may be
completely different – the Respondents are the parents of Amit Batra and the
parents in law of the Petitioner and I do not think the theory of permissive
user can be advantageously used by them in the Indian context particularly when
their son and the Petitioner actually lived together with them on the ground
floor and thereafter shifted to the second floor of the same property with their
full knowledge and consent, with a view to shift their matrimonial home from the
ground floor to the second floor.?
15. No doubt, this judgment in Taruna Batra (supra) would help the plaintiff if the suit property is treated as matrimonial home of the plaintiff.
However, we have now the authoritative pronouncement of the Supreme Court in the case of S.R. Batra Vs. Smt. Taruna Batra (supra) wherein the aforesaid judgment of the learned single Judge was taken in appeal before the Supreme Court and the Supreme Court reversed the aforesaid judgment and dismissed the injunction application of the daughter-in-law. In para 12 of the judgment the Court noted that the learned single Judge of this Court had held that the second floor of the property in question was matrimonial home of the daughter-in-law. In para 13 the Supreme court specifically observed that it was not agreeing with the view taken by the High Court. Following portion of the judgment of the Supreme Court would clear the air and help us in finding out as to what is the ratio of the said case:-
14. As held by this Court in B.R. Mehta v. Atma Devi and Ors. (1987) 4 SCC 183, whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India.
15. In the same decision it was observed “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.’`
16. In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the Court. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint.
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-
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.?
16. The Court gave additional grounds holding that the house in question cannot be said to be ‘shared household’ within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 and made following pertinent observations in the process:-
24. Learned Counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household
25. We cannot agree with this submission
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.
28. Learned Counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives.
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’.?
17. Learned counsel for the plaintiff, however, submitted that the Supreme Court did not go to the extent of holding that daughter-in-law had no right to stay in the house belonging to parents-in-law even if it was a matrimonial home.
His submission was that in the aforesaid judgment it was not decided as to whether the house in question was a matrimonial home and if it was so, whether daughter-in-law had right to stay in the said house or not. He pleaded that in the absence of authoritative pronouncement on this aspect by the Supreme Court, decision in the case of Taruna Batra (supra) should prevail. I am afraid and it is difficult to read the judgment of the Supreme Court in the manner learned counsel for the plaintiff wants me to read. Ratio of this case is clear,namely, the daughter-in-law has no legal right to stay in the house which belongs to her parents-in-law.
18. Legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parents-in-law in which husband has no right, title or interest and they had allowed their son along with daughter-in-law to stay in the said house, it would be a permissive possession by the daughter-in-law but would not give any right to her to stay in the said house. What would be the position if there is no dispute between the husband and wife but the parents of the husband do not want their son and son’s wife to stay in the said house for certain reasons. Obviously, their son, who is only a permissive licencee and staying in the house with his wife cannot claim legal right therein. If son cannot claim any such right against his parents to stay in a house which belongs to his parents, his wife obviously would also have no case to claim such a right. That is how I read the principle of law laid down by the Supreme Court in the aforesaid judgment. In the present case, even otherwise, there is a serious dispute as to whether the suit property can be termed as matrimonial house. In the plaint it is nowhere stated by the plaintiff that she was living in the suit property with the defendants even before their marriage. From the pleadings it prima facie appears that she lived in the suit property from the date of marriage till 1996 when she moved out to Defence Colony in May 1996 (para 5 of the plaint). She returned to the suit property in March 1999 and reading of the plaint gives an impression that she remained there till 2004 when she was forced to leave the house allegedly to avoid any harm to her life and limb. In her statement recorded on 19.1.2006 it is admitted by her that she took a flat in Mumabi during the period December 1999 till November 2000. The lease of the said flat was in her name and she stayed there for 3-4 months. Her husband also joined her. There is no complaint by her that she was forced to leave the matrimonial house in 2004 The plaintiff has also admitted that she re-entered the house on 10.10.2004 Though she states that she opened the first floor with her keys, it is strange that she had to come in the dead of night, i.e. at 2:30 am for re-entering the house as she had admitted the timings of her so-called entry. It prima facie lends some credence to the allegations of the defendants that she (plaintiff) forced her entry into the house of the defendant Nos.2 and 3 at odd hours.
19. In view of the above, in so far 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.
July 02, 2007 (A.K. SIKRI) HP. JUDGE