HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 123/2018
IA No. 01/2018
Date of Order: 4th of October, 2018.
Mohammad Yousuf Dharma Ors.
Vs.
Meema Ors.
Coram:
Hon’ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr Ishtiyaq Ahmad Khan, Advocate.
For the Respondent(s): Mr Kaiser Ali, Advocate.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. In this petition, filed under Section 561-A of Code of Criminal Procedure
(Cr. P.C.), the petitioners crave the indulgence of this Court in quashing the
impugned orders passed by the Court of learned Judge Small Causes, Srinagar
and the order passed by the Court of learned Second Additional Sessions Judge,
Srinagar, on the dates 27th of September, 2017 and 31st of March, 2018,
respectively.
02. The factual matrix of the petition of the petitioners is that the petitioner
No.1 and the respondent No.1 after tying the marital knot, in the year 2012,
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were blessed with a son and a daughter, i.e. respondent Nos. 2 and 3 herein. The
respondent No.1, right from the inception of the marriage, dismayed the
petitioners by indulging in marital violence and persistently sought separation of
petitioner No.1 from his mother, i.e. petitioner No.2. The spouses, i.e. the
petitioner No.1 and the respondent No.1, right from the day of marriage lived
separately in a rented house at Sumerbugh, Pantha Chowk. The respondent No.1
always contested the provisional visits of the petitioner No.1 to her rented place
and, eventually, the petitioner No.1, acceding to the pressures and persuasions
of the respondent No.1, discontinued and annulled all his connections with his
mother, i.e. the petitioner No.2. However, the respondent No.1 continued to
subject the petitioner No.1 to domestic violence and marital cruelty, despite the
fact that the two children were sharing the household with the spouses. The
petitioner No.1 employed all humanly possible modes and methods to seek a
transformation in the behavior of the respondent No.1, but all his efforts of
reconciliation failed to improve the conduct of the respondent No.1. The
misconduct of the respondent No.1 brought an acrimony to the relationship
which eventually reached to a point of no return and the result was formal
annulment of the marital tie. Post-marriage, the petitioner No.1 and respondent
never lived together with the petitioner Nos. 2 to 4, therefore, they cannot be
construed as members of the “Shared Household”. The respondent No.1, post
annulment of the marital tie, in absence of any merit and support of law,
approached the Court of learned Sub-Registrar, Srinagar, for the grant of
maintenance which petition was provisionally allowed, despite the response of
the petitioner. The respondents were granted Rs.8,000/- per month as interim
maintenance by the Court, which was not in accordance with the salary
certificate of the petitioner, who is a private cab driver by profession earning Rs.
CRMC No. 123/2018 Page 2 of 12
8,000/- per month. The respondent No.1, besides initiating legal proceedings
against the petitioner No.1 in the Court of law, chose to compound the agonies
of the petitioners by filing a vexatious and meritless complaint with the
Women’s Police Station, Rambagh, which culminated into filing of a
chargesheet. The respondent No.1, as a consequence of her malicious design to
settle her personal scores with the petitioner No.1, filed yet another complaint
under the provisions of the Domestic Violence Act which was transferred to the
Court of learned Judge Small Causes, Srinagar. The petitioner No.1 caused his
appearance before the said Court and responded to the complaint filed by the
respondent No.1, but the response of the petitioner No.1 did not find any favour
with the Court and in terms of order dated 27th of September, 2017, the learned
trial Court directed the respondent No.1/ petitioner No.1 herein to provide,
temporarily, one room, kitchen and bathroom in the house named ‘Yousuf
Guest House’, owned by his parents, and to pay rent for one room, kitchen and
bathroom to his parents. Feeling aggrieved of the said judgment, the petitioners
preferred an appeal against the same and highlighted all the disabilities, defects
and irregularities of the order before the Appellate Court, but the Appellate
Court, too, in terms of order dated 31st of March, 2018, did not accord any
consideration to the legal submissions of the petitioners and modified the order
of the Court below by providing proper accommodation consisting of at least
two rooms in the said household, i.e. commercial guest house belonging to the
parents of the petitioner No.1.
03. The petitioners have challenged the defensibility of the impugned orders,
on the grounds, inter alia, that they are susceptible and apparently suffer from
manifest error of law, as a corollary to which, they are liable to be quashed,
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firstly, for the reason that the complainant has not, in her complaint, asked for
the shared accommodation and, secondly, the respondent No.1 in her complaint
has not made mention of any commercial guest house being used by her as a
“Shared Household”. The Courts below seem to have carved out a case for the
complainant, on their own, and the defective complaint of the complainant has
been modified and corrected by them in order to facilitate the prayers in her
favour which actually were not prayed by her in her complaint. It is also
contended that the Courts below have not taken cognizance of the facts stated
by the complainant, mischievously, by referring the petitioner No.1 as a dead
person and by making untrue statements which shakes the credibility of the
complaint filed under the provisions of the Domestic Violence Act. It is also
stated that ‘Yousuf Guest House’ belongs to the mother of the petitioner No.1
which fact is substantiated by the sale deed and the revenue record placed on the
records of the Courts below. Sympathy and sentiments appear to be writ large in
the impugned orders which, as is well known, should not allow the Court to
have any effect in its decision-making process. Sympathy or sentiment can be
invoked only in favour of a person who is entitled thereto.
04. Heard and considered.
05. Annexure P3, attached to the petition, is the order impugned passed by
the Court of learned Judge Small Causes, Srinagar and the operative portion of
it is reproduced hereinbelow, verbatim et literatim:
“Thus, keeping in view the facts and circumstances of the case and
very object of the Domestic Violence Act, I deem it proper to direct the
respondent No.1 to provide temporarily one room, kitchen and bathroom
in the house named Yousuf Guest House, the same is owned by the father
and mother of the respondent. The respondent No.1 is directed to pay rent
for one room, kitchen and bathroom to his parents.”
CRMC No. 123/2018 Page 4 of 12
06. Annexure P5 is the order of the Court of the learned 2nd Additional
Sessions Judge, Srinagar, passed in an appeal filed against the order dated 27 th
of September, 2017, of the Court of learned Judge Small Causes, Srinagar, in
the complaint titled ‘Meema Ors. v. Mohammad Yousuf Dharma Ors’.
The Appellate Court, by holding that there is no manifest, factual or legal
disability in the order impugned which warrants the interference of this Court,
dismissed the appeal filed by the petitioners, the relevant extracts of which are
reproduced hereinbelow, word for word and letter for letter:
“23. Fact remains that the complaint is filed by appellant’s wife,
under D. V. Act. She has engaged a counsel for projecting her grievance
before the court. Complaint is presumed to have been drafted by the
counsel engaged. Would it mean, she should suffer an irreparable loss on
account of the folly of the counsel in casually revealing some facts in the
complaint. The answer to it is negative. A lady, wailing for justice and
protection who is wife of the appellant and mother of his two kids, left in
lurch has not to suffer simply on account of the fact that her counsel has
drafted her complaint in a casual way. Remember, it is a court of justice
also where the Judge has not simply to go by the letter of law, but the
spirit and mandate of the law which is sacrosanct to be followed to do
justice in its true sense.
24. Therefore, for meeting the ends of justice, such argument does
not and has to be put at rest. Appellant has admitted a valid marriage with
complainant and have to kids, out of this wedlock, and therefore she
cannot be deprived of interim relief merely on account of error committed
by her counsel with regard to revealing any fact in the complaint. What is
held by Hon’ble S. C. in case titled Rafiq Another Vs. Munshi Lal and
Another, Date of decision 16/04/1981 on the issue buttresses my opinion.”
07. The sum and substance of the impugned orders is that the respondent
No.1/ petitioner No.1 herein shall temporarily provide one shared room, kitchen
and bathroom in the house named “Yousuf Guest House”, owned by his father
and mother and he shall pay rent for the same to his parents. The question for
consideration is whether such a direction can be countenanced under law. The
learned trial Court has specifically mentioned in his order that the Guest House
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in which a room, a kitchen and a bathroom has to be provided to the respondent
herein this petition belongs to the parents of the petitioner No.1 in this petition.
The term “Shared Household” has been defined under Section 2(s) of the
Domestic Violence Act, which, for the convenience of ready reference, is
reproduced below:
“Shared Household means a household where the person aggrieved
lives or at any stage has lived in a domestic relationship either singly or
alongwith 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.”
08. In the case of ‘S. R. Batra Anr. V. Smt. Taruna Batra’, reported in
‘AIR 2007 Supreme Court 1118’, the Apex Court of the country has
elaborately and extensively dealt with the issue raised herein this petition, and
has laid down as under:
“16. 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.
……….
28. 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. ……
29. No doubt, the definition of shared household in Secvtion 2(s0
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.”
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09. Dealing with an almost similar question, a learned single Judge of the
High Court of Delhi, in the case of ‘Ekta Arora v. Ajay Arora Anr.’, bearing
CRLMC No. 3497/2008, held as under:
“15. In S.R. Batra’s 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.
16. The aforesaid view was reiterated by this Court in the case of
Neetu Mittal Vs. Kanta Mittal reported in 152 (2008) DLT 691, wherein
held 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 disrespects or disregards them or becomes a source of nuisanceCRMC No. 123/2018 Page 7 of 12
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.”
17. In the case of Shumita Didi Sandhu Vs. 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. In the light of the aforesaid principles, the
appellant/plaintiff would certainly have a right of residence whether as aCRMC No. 123/2018 Page 8 of 12
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.”
18. In the case bearing CS(OS) No.2995/2011, titled as Mr. Barun
Kumar Nahar Vs. Parul Nahar Ors., decided on 05.02.2013, the
Coordinate Bench of this Court held as under:-
“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 entitledCRMC No. 123/2018 Page 9 of 12
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.”
19. Coming back to the case in hand, undisputedly, initially
petitioner was living with respondents at aforesaid property. Thereafter,
respondent No.1 and petitioner started living in a rented accommodation.
Moreover, the property in question neither belongs to the respondent
No.2, nor taken on rent and it was not a joint family property of which
respondent No.1 was a member.
20. Bare reading of the “Will” transpires that after death of
husband of respondent No.2, said property will be vested in respondent
No.2. Perusal of the same reveals that it is nowhere stated that respondent
No.2 has limited right only to live therein. Moreover, it is nowhere stated
in the „Will‟ that the respondent No.2 would not dispose of the property.
Therefore, during her lifetime, she is absolute owner of the property in
question. However, if she dies intestate, certainly it will devolve upon
respondent No.1, husband of petitioner herein. Moreover, it is specifically
mentioned in the „Will‟ that neither of daughters of late Sh. Rajinder
Paul Arora shall be entitled to receive any of his assets after his death.
21. Considering the facts noted above, it is clear that during the
lifetime of respondent No.2, she is the absolute owner of the property in
question and till then, said property cannot be held as a „shared
household”.
10. Taking a cue from the law laid down above, the property which neither
belongs to the husband nor is taken on rent by him nor is it the joint family
property, in which the husband is a member, can, by no stretch of imagination
fall within the definition of “Shared Household”. The Guest House, herein this
case, exclusively belongs to the parents of the petitioner and will not, therefore,
CRMC No. 123/2018 Page 10 of 12
fall within the ambit and scope of “Shared Household” or tenanted premises or
a joint family property. The concept of joint family property is not found
anywhere in the Muslim Personal Law. The parents of the petitioner being the
absolute owners of the Guest House as long as they live and breathe.
11. Curiously, the law laid down by the Apex Court of the country in S. R.
Batra’s case (Supra) was referred before the learned Appellate Court, but he
has brushed aside the same by stating that the said judgment and other judicial
dictums are not to be followed blindly as every case has its own facts and
circumstances and have to be applied accordingly. Adherence to such an
approach, without looking into the contents of the judicial dictum and without
even conveying as to what is their scope and application cannot be accepted,
endorsed and sanctioned under law. The learned Judge seems to have been
swayed by sentiments and sentiments do not have any role to play in the
dispensation of the justice. Since the Guest House in question neither belongs to
the petitioner No.1 nor has he taken it on rent nor is it his joint family property,
therefore, any direction that he shall take the Guest House on rent without
seeking the consent of the owners, on the face of it, is unwarranted and
untenable. If the aforesaid situation is accepted, then it will mean that wherever
the husband and wife lived together in the past that property will tantamount to
mean a “Shared Household”. It is quite possible that the husband and wife may
have lived together at a dozen of places, e.g. with the husband’s father,
husband’s parental grandparents, his maternal parents, uncles, aunts, brothers,
sisters, nephews, nieces, etc. If the interpretation canvassed by the Courts below
is accepted, all these houses of the husband’s relative will be “Shared
Households” and the wife can well insist in living in all these houses of her
CRMC No. 123/2018 Page 11 of 12
husband’s relatives merely because she had stayed with her husband for some
time in those houses in the past. Such a view, if accepted, would lead to chaos
and would be absurd. It is well settled that any interpretation which leads to
absurdity should not be accepted.
12. In view of what has been stated hereinabove, the petitioner No.1 has no
right in the property in question during the lifetime of his parents. He can claim
a right on this property only after their death, provided his parents do not part
with the same in favour of any other person by any mode of transfer. It being so,
I am of the considered opinion that the orders impugned herein this petition
suffer from illegality and perversity and, therefore, these need to be set aside, as
a corollary to which, the same are set aside.
13. CRMC disposed of as above, alongwith all connected MP(s).
14. Registry to send down the record(s), alongwith a copy of this order.
(M. K. Hanjura)
Judge
SRINAGAR
October 4th, 2018
“TAHIR”
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