* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:
10. 09.2013 Pronounced on:
19. 09.2013 + CS(OS) 505/2010 KAVITA CHAUDHRI Through ..... Plaintiff Mr. Ankur Mahindro and Mr.Ajay Mohan Gulati, Advocate versus EVENEET SINGH AND ANR ..... Defendants Through Ms. Shobhana Takiar and Ms.Indrani Ghosh, Advocate for D-1. Ms. Geeta Luthra, Senior Advocate with Mr. Angad Sandhu, Mr.Jatin Sehgal and Mr.Harish Malik Advocates for D-2. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.
1. The present Suit is filed for mandatory and permanent injunction. The plaintiff is stated to be an aged widow of 54 years suffering from various heart ailments. She is owner of property bearing not D-32, South Extension, Part-II, New Delhi-110049. It is stated that she is residing in the said suit premises since her childhood. Her father executed a Will dated 12.07.1981 through which the suit property was given to the plaintiff. This Court on 12.1.1984 granted probate of the aforesaid Will and hence the plaintiff became exclusive owner of the suit property. It is further stated in the plaint that defendant no.2 is the only son of the plaintiff. Defendant no.2 got married to defendant no.1 on 27.4.2009. Various allegations are made against defendant no.1. It is stated that on account of differences there was constant friction between the plaintiff and defendant no.1. Plaintiff requested the defendants to move out of the house. It is stated that in January, 2010 defendants moved out of the house and started living somewhere else. But immediately thereafter defendant no.1 forcibly entered into the house and started living there. Based on these facts, a decree of mandatory injunction is sought against defendant no.1 to vacate the suit property and a decree of permanent injunction is sought against defendant no.1 or assignees etc. from entering into the suit property.
2. Defendant no.2 has filed his written statement. Defendant no.2 in his written statement has supported the allegations of the plaintiff against defendant no.1. He has further stated that defendant no.2 in January 2010 moved to a rented accommodation in Defence Colony and on 9.4.2010 moved to another rented accommodation C-528, Second Floor, Defence Colony.
3. Defendant no.1 in the written statement has stated that the present suit is nothing but a cleverly designed legal proceeding to circumvent and get over the statutory rigour of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘ The Domestic Violence Act’) It is stated that the suit property is a shared household under Section 2 read with section 17 of the said Act. It is also stated that the suit is not maintainable as the plaintiff has no right, title or interest in the property in question. It is further stated that the father of the plaintiff was not the single surviving male member of the HUF. He was a member of the HUF with his wife, daughter and defendant no.2. Based on these averments, it is stated that the present Suit is liable to be dismissed.
4. On 12.3.2013 the matter came up before this Court for framing of issues. This Court rejected the contention of defendant no.2 that the subject property belongs to HUF. It was held that the property has been inherited by the plaintiff the mother in a Will of her father. Plaintiff was the only child of her father. It is further held that defendant no.2 cannot become a member of the HUF of his maternal grandfather inasmuch as conception of HUF under the ancient Hindu Law is patrilineal and not matrilineal. Relevant portion of the said order is reproduced as under:“ 15. The question which arises is whether an issue needs to be framed on the title of the plaintiff to the property; 16. Issues are to be framed only on material propositions of law and fact which require adjudication and not on pleas though contained in the pleadings which are contrary to the settled principles of law and/or which have no legal basis to stand on. It cannot be lost sight of that framing of unnecessary issue invites unnecessary evidence and arguments and which protracts the disposal of the suits.
17. The plea of the defendant no.2 of the subject property belonging to the HUF is misconceived. The plaintiff is the mother (and not the father) of the defendant no.2. The property has been inherited by the plaintiff under a Will of her father. Though the said Will is probated (which is a judgment in rem) but even if the Will were not to be there, the defendant no.1 also in her written statement has not pleaded that the father of the plaintiff left any other child; rather the defendant no.1 admits that the plaintiff, her father and her mother were the only members of the HUF and claims that the defendant no.2 also became a member of the HUF.
18. The defendant no.2 cannot become a member of the HUF of his maternal grandfather. The concept of HUF under the ancient Hindu Law is patrilineal and not matrilineal.”
Hence, on the said date, the Court framed the issues as follows:“(i). Whether the defendant no.1 is entitled to reside in the subject property for the reason of being married to the son of the plaintiff and for the reason of having resided in the said property after her marriage?. OPD-1 (ii). Relief.”
5. The Court further held that this issue is purely an issue of law and does not require recording of any evidence. Hence, the matter was listed for arguments on the said issue.
6. I have heard learned counsel for the parties on the said two issues.
7. Learned counsel appearing for the plaintiff has strenuously argued that in accordance with the settled legal position the daughter in-law would have no right to claim any right of residence in the suit property which is owned by her mother in-law. It is further stated that in view of the order of this Court dated 12.3.2013 title of the plaintiff to the suit property is not in dispute. Relying on judgment of this court in the case of Shumita Didi Sandhu versus Sanjay Singh Sandhu & Ors. 174(2010) DLT 79.Sunil Madan versus Rachna Madan in Crl.M.C.3071/2008, dated 2.6.2012, and; Barun Kumar Nahar versus Parul Nahar 2013 (199) DLT 1.it is stated that the suit in question is not a shared household within the meaning of The Domestic Violence Act and accordingly defendant no.1 would have no rights under Section 17 of the said Act.
8. Reliance is also placed on various judgments passed by this Court in the earlier proceeding. It is pointed out that defendant No.1 had also filed a suit being CS(OS)1307/2010 under Hindu Adoption and Maintenance Act, 1956 against plaintiff and defendant no.2 seeking maintenance and right of residence in the suit premises. On 20.12.2010 this Court disposed of IA 8479/2010 in CS(OS) 1307/2010 and IA No.3577/2010 which was filed in the present suit. This Court directed that defendant no.1 would be entitled to an amount of Rs.30,000/- per month towards rent for alternate accommodation and an amount of Rs.45,000/- per month for maintenance.
9. Reliance is also placed on order dated 29.4.2011 passed by this Court in an application under Section 151 CPC where the Court held that in terms of order dated 20.12.2010 in the event alternate accommodation is offered and is made available to defendant no.1 her right to continue in the suit premises would cease. It is further stated that the Division Bench also dismissed the appeal against the said order on 8.11.2011. An SLP was also dismissed by the Hon’ble Supreme Court on 16.12.2011. It is also pointed out that in an Execution Petition filed by the plaintiff, this Court on 25.4.2012 dismissed the objections of defendant no.1 to the said Execution Petition and issued Warrants of possession in favour of the plaintiff and against defendant no.1. Subsequently, in an Appeal filed before the Division Bench on 2.5.2012 the parties compromised the matter and defendant no.1 undertook to vacate the suit property by midnight of 15.6.2012. It is stated that pursuant to the said compromise the plaintiff has taken over possession of the suit property and to that extent nothing survives except that the defendant No.2 be restrained from creating any nuisance and obstructing in the possession of the plaintiff in the suit property. 10.Learned counsel for defendant No.1 has relied upon Vidyanidhi Dalmia versus Nilanjana Dalmia, 2008(102) DRJ 61.and Savita Bhanot versus Lt.Col.V.D.Bhanot, 168 (2010) DLT 6.in support of her case. 11.Learned counsel for defendant No.1 has strenuously urged that the present Suit is nothing but a conspiracy on the part of plaintiff and defendant No.2 to oust defendant No.1 from the suit property. It is submitted that the entire game plan is that once the present suit is decreed, defendant no.2 will come back into the suit property. Hence, counsel for defendant No.1 submits that this Court should not permit circumvention of the legal process in this manner. Learned counsel relies on the statement made by the plaintiff that her son is likely to come back to the suit premises after defendant no.1 is evicted and that the present suit should be dismissed being a gross abuse of the process of law. It is submitted that the suit property remains a shared household within the meaning of The Domestic Violence Act and the defendant No.1 has a right to reside in the same.
12. Learned senior counsel appearing for defendant No.2 has supported the submissions of the plaintiff and submits that the present suit is liable to be decreed.
13. In my view, keeping in mind the consent order passed by the Division Bench in EFA(OS) 15/2012 on 2.5.2012 nothing really survives as far as the defence of defendant No.1 is concerned. There are no basis or grounds for the defendant No.1 to resist a decree in the present Suit. The consent order dated 2.5.2012 in EFA(OS) 15/2012 reads as follows:“1. We are saved of the botheration of deciding the appeal on merits since it has been decided between the parties as under:(i) The appellant shall vacate by the midnight of 15th June, 2012, by removing an A.C, T.V, double-bed, wooden cupboard, side table and a dressing table from the room occupied by her at the ground floor of D-32, South Extension, Part-II, New Delhi, the property owned by her mother-in- law. (ii) Maintenance in sum of Rs.45,000/- per month fixed vide order dated December 20, 2010 in CS(OS) No.1307/2010 shall be paid by wire transfer to the account of the appellant, as is being done, till the order dated December 20, 2010 survives. (iii) 11 post dated cheques for the rent which appellant would have to pay have been received by the appellant, the last cheque is towards rent for the month of February 2013 and thereafter advance monthly cheques would be paid to the appellant in sum of Rs.30,000/- till order dated December 20, 2010 passed in CS(OS) No.1307/2010 survives. (iv) For the appellant for furnish the drawing-cum-dining room at whatever tenanted premises she obtains, the respondents shall pay Rs.50,000/- by cheque drawn in the name of the appellant simultaneous upon the appellant vacating as afore agreed on or before the midnight of June 15, 2012. (v) Impugned order shall not be executed till June 15, 2012, and needless to state if appellant vacates the premises, the question of the order being executed would not arise. (vi) Appellant shall file an undertaking in the suit by means of an affidavit agreeing to abide by the consent given that she would vacate the subject premises on or before the midnight of June 15, 2012.
2. The appeal stand disposed of binding the parties to the settlement agreement and suspending the operation of the impugned order dated April 25, 2012 till the midnight of June 15, 2012 and additionally observing that if appellant complies with the undertaking given by her to vacate the subject premises on or before the midnight of June 15, 2012, the order need not be executed as nothing would remain to be executed.
3. No order as to costs.”
14.In view of the said order, defendant No.1 was obliged to vacate the suit property by 15.6.2012. Admittedly, defendant No.1 has vacated the suit property. 15.A perusal of the consent order dated 2.5.2012 makes it quite clear that defendant No.1 had undertaken to vacate the suit property. The Court directed that the parties are bound by the settlement agreement. Any submission by defendant No.1 that she retains any right to reside in the suit property is entirely a futile argument and wholly contrary to the directions passed by this Court pursuant to the consent order dated 2.5.2012. Defendant No.1 is bound by the consent order and cannot No.attempt to backtrack on the basis of pleas sought to be raised. 16.The argument of learned counsel for defendant No.1 that in view of Section 17 read with section 2(s) of the Domestic Violence Act she continues to have a right to reside in the suit property is an argument in futility. The same is the position regarding the contention of defendant no.1 that the present Suit is an abuse of the process of Court. The contentions of defendant no.1 are indeed surprising. The said contentions fly in the face of the consent order passed by the Division Bench on 2.5.2012. Defendant no.1 is bound by the said directions of the consent order.
17. Even otherwise, I have examined the contentions of defendant no.1 regarding her alleged rights to stay in the suit property under section 2(s) and 17 of the Domestic Violence Act. In my view the said contentions are wholly without any merits whatsoever. A reading of Sections 2(s) and 17 of the Domestic Violence Act would show that the defendant No.1 can claim no rights in the suit property. Section 2(s) and 17 of the Domestic Violence Act reads as follows:2(s)”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.”
…… 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.The Hon’ble Supreme Court in the case of S.R.Batra and Anr. versus Taruna Batra, (2007) 3 SCC 16.while interpreting Section 17 of the Domestic Violence Act, the Court in para 29 held as follows:“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 not was it taken on rent by him not is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence, it cannot be called a “shared household.”
19.Reference may also be had to the judgment of this Court in the case of Sunil Madan vs Rachna madan (supra). Relevant portion of para 15 of the said judgment reads as follows:“In the case of Ajay Kumar Jain vs. Baljit Kaur Jain, 160 (2009) DLT 40.(DB), this court observed that a wife cannot have right to live in a particular property and the same cannot become a clog on the property denying the right of the husband to deal with the property when he is willing to provide an alternative matrimonial home to her. It was also held that she cannot insist on residing in the suit property alone when the husband had offered a suitable alternative arrangement for her.”
20.Reference may also be had to the judgment of this high court in the case of Barun Kumar Nahar vs. Parul Nahar (supra), where in para 29, the relevant portion reads as follows:
“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 inlaws 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.”
21.To the same effect are judgments of this Court in the case of Sardar Malkiat Singh v. Kanwaljeet Kaur (2010) 168 DLT 521.Neetu Mittal vs Kanta Mittal 2008 (106) DRJ 6223.Raj Kumari vs Preeti Satija and Anr (2012) 193 DLT 224.22.In Shumita Didi Sandhu versus Sanjay Singh Sandhu & Ors.(supra) the Division Bench of this Court interpreted section 17 of the Domestic Violence Act as follows:“40. ...... 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 not is taken on rent by him, not 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.”
23.The Division Bench also held that the right of residence which a wife undoubtedly has does not mean right to reside in a particular property. It may mean a right to reside in a commensurate property but it cannot translate into a right to reside in a particular property.
24. As far as the right of the defendant No.1 to reside in a commensurate property, this Court in its interim order dated 20.12.2010 has taken care of that aspect. The Court had directed that defendant No.2 would be entitled to a sum of Rs.30,000/- per month apart from maintenance amount as rent for alternate accommodation. This order has been upheld by the Division Bench and by the Hon’ble Supreme Court. Hence, the rights of the defendant No.1 for appropriate accommodation have been duly taken care of. In view of the same, in view of the legal position she cannot claim any right to continue to reside in the suit property. 25.The reliance of learned counsel for defendant No.1 on the judgments of this Court in the cases of Vidyanidhi Dalmia v. Nilanjana Dalmia (supra) and Savita Bhanot v. Lt. Col. V.D. BhaNo.(supra), is misplaced. None of the judgments support the contention of defendant No.1 about right under the Domestic Violence Act. The case of Vidyanidhi Dalmia vs. Nilanjana Dalmia (supra) dealt with an injunction application for stay which was declined on the ground that the injunction by a civil court would help to do an act what constitutes a marital offence under the Hindu Marriage Act. The stay would rob one spouse of the rights to move the Court under Section 9 of the Hindu Marriage Act and the Statutory remedy of restitution of conjugal rights would be extinguished. The said issue has no application to the fact of the present case. 26.Similarly, the case of Savita Bhanot v. Lt. Col. V.D. BhaNo.(supra) dealt with a case filed under the Domestic Violence Act and the Court came to the conclusion that the petition under the Domestic Violence was maintainable even if the Act of Domestic Violence have been committed prior to the coming into force of the Act. The said judgment has no application to the facts of the present case. 27.As defendant No.1 has no rights under the Domestic Violence Act, the submission of the learned counsel for the plaintiff that the suit is a gross abuse of the process of court is a submission without merit. 28.In view of the above, there is no merit in the contentions of defendant No.1. Defendant No.1 has no right to continue to reside in the suit property or to disturb the possession of the plaintiff CS(OS) 505/2010 property. Accordingly, a decree is passed in favour of plaintiff and against defendant No.1 restraining the defendant No.1, her agents, representatives etc from entering into premises D-32, South Extension Part-II, New Delhi. Plaintiff shall also be entitled to costs.
29. All pending applications also stand disposed off. JAYANT NATH, J SEPTEMBER 19 2013 n