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DVA, Maintenance of Wife and shared Household



STATE OF GUJARAT & 2….Respondent(s)

MR NASIR SAIYED, ADVOCATE for the Applicant(s) No. 1 – 2
MR AAMEER R KADRI, ADVOCATE for the Respondent(s) No. 2
MR PRATIK Y JASANI, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
MR JK SHAH, APP for the Respondent(s) No. 1

Date : 21/01/2016

RULE returnable forthwith. Mr.Shah, the learned APP waives service of notice of rule for and on behalf of the respondent no.1 – State of Gujarat. Mr.Jasani, the learned advocate waives service of notice of rule for and on behalf of the respondent no.2 – wife. None is present on behalf of the respondent no.3 – husband.

By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs :

“(a) Your Lordships may be pleased to issue appropriate writ, order or direction, quashing and setting aside the order dated 31.5.2014 passed in Criminal Appeal No.193 of 2013.

(b) During pendency of admission and final disposal of the present petition, Your Lordships may be pleased to stay implementation, operation and execution of order dated 31.5.2014 passed in Criminal Appeal No.193 of 2013.

(c) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.”

It appears from the materials on record that the applicant is the brother-in-law of the respondent no.2 and the applicant no.2 is the mother-in-law of the respondent no.2. The respondent no.3 is the husband of the respondent no.2. As such, the husband should have been one of the applicants. But, it appears that as the whereabouts are not known, therefore, he has been impleaded as one of the respondents.

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The respondent no.2 has initiated proceedings by way of a complaint under the provisions of the Protection of Women from Domestic Violence Act, 2005. On account of matrimonial dispute the wife left the matrimonial home and is residing at her parental home as on today. She prayed for maintenance.

It appears that the prayer for maintenance was declined by the learned Additional Chief Metropolitan Magistrate, Court No.12, Ahmedabad, vide order dated 24th June 2013. In such circumstances, the wife preferred the Criminal Appeal No.193 of 2013 before the City Sessions Court, Ahmedabad. The learned Additional Sessions Judge, Court No.18, City Sessions Court, Ahmedabad, vide order dated 31st May 2014, allowed the appeal and directed the applicants and the husband to pay Rs.9,000=00 per month towards the maintenance of the wife and the three minor children. Being dissatisfied with such order passed by the learned Sessions Judge, the applicants have come up with this application.

The short point for my consideration is, whether any liability could be fastened on the brother-in-law and mother-in- law so far as payment of maintenance under the provisions of the Act is concerned.

It goes without saying that the husband is liable to maintain the wife and also to pay the maintenance. I do not find any error or infirmity in the impugned order so far as the liability of the husband to make good the payment of maintenance is concerned. The issue as regards the liability of mother-in-law and brother-in-law (i.e. the husband’s brother) is no longer res integra.

At this juncture, it may be germane to refer to certain decisions of the Supreme Court. In the case of Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and others, (2008)4 SCC 649, the Supreme Court has, after referring to the provisions of Sections 3(b), 18 and 19 of the Hindu Adoptions and Maintenance Act, 1956, observed that maintenance of a married wife, during subsistence of marriage, is on the husband. It is a personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. The Court further observed that Sections 18 and 19 of the said Act prescribe the statutory liabilities in regard to maintenance of wife by her husband, and only on his death, upon the father-in-law. Mother-in-law, thus, cannot be fastened with any legal liability to maintain her daughter-in-law from her own property or otherwise.

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In the case of S.R. Batra and another v. Taruna Batra (Smt.), (2007)3 SCC 169, the Supreme Court has expressed the opinion that 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. In the facts of the said case, the Court observed that the house in question belonged to the mother-in-law of Smt.Taruna Batra and did not belong to her husband Amit Batra, hence Smt.Taruna Batra cannot claim any right to live in the said house. The Court was further of the view that the house in question could not be said to be a ‘shared household’ within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005. It was contended before the Supreme Court that a ‘shared household’ includes a household where the person aggrieved lives or has at any stage lived in a domestic relationship. The court did not agree with the said submission and was of the opinion that 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.

From the principles enunciated in the above referred decisions, it is apparent that any right which the wife has during the subsistence of her marriage and during the lifetime of her husband is against the husband and she has no right to claim any relief against the father-in-law or sister-in-law or any of the relatives of her husband inasmuch as the obligation to maintain her lies only on her husband.

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The complaint in question, therefore, appears to have been filed with the malafide intention to wreak vengeance for the purpose of settling personal scores and would fall within the ambit of Illustration (7) of the Illustrations delineated by the Supreme Court in the celebrated case of State of Haryana and others v. Bhajan Lal and others, AIR 1992 SC 604, viz. that the proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

For the aforesaid reasons, this application is allowed. The impugned order is hereby ordered to be quashed so far as the applicants are concerned.

It is clarified that it will be open for the respondent no.2 wife to proceed further against the husband, in accordance with law, so far as the husband’s liabilities are concerned under the provisions of the Act.

Rule made absolute. Direct service is permitted.

Mr.Jasani submits that during the pendency of this petition, there has been a fraudulent transfer of the house by the husband in favour of the applicant no.1 i.e. his own brother.

It could be a case of fraudulent transfer, and for that, it is always open for the wife to take appropriate proceedings in that regard.


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