CRR No.2937 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.2937 of 2010 (O&M) Date of Decision :
12. 09.2013 Jagdev Singh ........Petitioner Versus Paramjit Kaur and others ...... Respondents CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH 1 Whether Reporters of local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the Digest?. Present:- Mr. Sanjeev Gupta, Advocate for the petitioner. Ms. Puja Chopra, Advocate for the respondents. R.P. NAGRATH, J.Respondent No.1 is the wife of respondent No.2 and respondent No.3 is their daughter. It was not disputed that respondent No.3 was married during the proceedings and therefore, claim for residence in the shared household and for grant of maintenance for this respondent no more survived.
2. Petitioner is the father of respondent No.2. Marriage of respondents No.1 and 2 was solemnized on 19.10.1986. An application was filed before Judicial Magistrate, Patiala on 31.07.2008, under Section 12 of Protection of Women from Domestic Violence Act, 2005 (for short 'the Act'). The learned Magistrate allowed the application on 07.01.2009 restraining the husband and her father-in-law (petitioner herein) from dispossessing her from 'shared household' except in due course of law and from committing Jitender Kumar 2013.09.13 17:39 I attest to the accuracy and integrity of this document Chandigarh CRR No.2937 of 2010 (O&M) -2- any Domestic Violence. No interim order for granting maintenance was, however, passed.
3. Respondents No.1 and 3 felt aggrieved and filed revision before Sessions Court against the petitioner and respondent No.2. It was found that respondent No.1 has no independent source of income and should have been granted maintenance allowance also. The Additional Sessions Judge allowed the revision on 22.09.2010 awarding maintenance for respondent No.1 @ ` 1500/- per month to be effective from the date of application.
4. The Magistrate's order protecting possession of respondent No.1 in the house was not challenged by petitioner by filing appeal. The instant revision is confined to the award of maintenance qua the petitioner only and with regard to protection order it was contended that petitioner is adopting appropriate recourse to initiate proceedings before civil Court.
5. I have heard learned counsel for the parties. Learned counsel for petitioner vehemently contended that so long as the husband is alive and it is not proved that the house in question is the joint family property or ancestral house, no liability towards maintenance allowance can be fixed on the father-in-law.
6. The law on the subject is quite well settled and supports the petitioner's contention.
7. In S.R. Batra and another v. Smt. Taruna Batra, 2007 (3) SCC 169.Hon'ble Supreme Court held that 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 Jitender Kumar 2013.09.13 17:39 I attest to the accuracy and integrity of this document Chandigarh CRR No.2937 of 2010 (O&M) -3- against the husband and not against the father-in-law.
8. In Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai Patel and others 2008 (3) SCC 649.the Apex Court held as under:- “ xx xx xx xx xx 21. 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 had died. Such an obligation can also be met from the properties of which the husband is a co-sharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the mother-in-law can neither be a subject mater of attachment not during the life time of the husband, his personal liability to maintain his wife can be directed to be enforced against such property.”
22. Wholly un-contentious issues have been raised before us on behalf of Sonalben (wife). It is well settled that apparent state of affairs of state shall be taken a real state of affairs. It is not for an owner of the property to establish that it is his self-acquired property and the onus would be on the one, who pleads contra. Sonalben might be entitled to maintenance from her husband. An order of maintenance might have been passed but in view of the settled legal position, the decree, if any, must be executed against her husband and only his properties could be attached therefor but not of her mother-in-law.
23. xx xx xx xx xx 24. Section 4 (Hindu Adoptions and Maintenance Jitender Kumar 2013.09.13 17:39 I attest to the accuracy and integrity of this document Chandigarh CRR No.2937 of 2010 (O&M) -4- Act) provides for a not obstante clause. In terms of the said provision itself any obligation on the part of in-laws in terms of any text, rule or interpretation of Hindu Law or any custom or usage as part of law before the commencement of the Act, are no longer valid. In view of the not obstante clause contained in Section 4, the provisions of the Act alone are applicable. Sections 18 and 19 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. 25&26 xx xx xx xx 27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.”
9. I am of the view that if the parents of the husband may allow him to live with them so long as their relations with the son 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 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 Jitender Kumar 2013.09.13 17:39 I attest to the accuracy and integrity of this document Chandigarh CRR No.2937 of 2010 (O&M) -5- and he can live in that house only at the mercy of his parents upto the time the parents allow. It is further to be found that a woman has her rights of maintenance against her husband or son/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, not can claim a right to live in the house of parents of her husband, against their consult and wishes.
10. It may also be stated for academic purposes that against the order passed by the Magistrate whether interim or otherwise appeal can lie to the Sessions Court under Section 29 of the Act. But this matter has not been agitated by the petitioner in his grounds of revision. Anyhow, the legality of the order passed by the Court of Additional Sessions Judge whether in revision or appeal has not to be determined in the light of the principles of law applicable to this case. The Revisional Court did not distinguish liability of the husband to pay the amount but it has passed the order fixing maintenance from the date of filing of the application. The petitioner who was respondent No.2 before the Magistrate had filed a separate reply (Annexure P-2) to contest the petition. He alleged that the property over which house is built, was purchased by him on 24.06.1970.
11. Learned counsel for respondent No.1 referred to various provisions of the Act in support of contention that statute has conferred distinct rights on women to claim maintenance. Learned counsel refers to Section 2(a) of the Act, which defines “aggrieved person”., Section 2(f) of the Act says as under:- 2(f) “domestic relationship”. means a relationship Jitender Kumar 2013.09.13 17:39 I attest to the accuracy and integrity of this document Chandigarh CRR No.2937 of 2010 (O&M) -6- between two persons who live or have, at any point of time, lived together in shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
12. Section 2(q), explains the term “respondent”., as meaning any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act. Proviso to this Section further says that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.
13. Emphasis by learned counsel is also laid upon Section 35 of the Act, which says that the provisions of this Act shall be in addition to, and not in derogation of the provisions of any law, for the time being in force.
14. It is, therefore, contended that whosoever is the male head of family is liable to honour the relief granted by the Magistrate in terms of the wide scope of various provisions of the Act. I am not able to agree with the above contention because of the interpretation to the provisions of the Act especially definition of the term “shared household”. in Section 2(s) of the Act, which says as under:- 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 along with the respondent and includes such a household whether owned or tenanted Jitender Kumar 2013.09.13 17:39 I attest to the accuracy and integrity of this document Chandigarh CRR No.2937 of 2010 (O&M) -7- 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.
15. The Hon'ble Supreme Court is S.R. Batra's case (supra) clearly held that no doubt definition of 'shared household' is Section 2 (s) of the Act is not very happily worded and appears to be the result of clumsy drafting but we have given it an interpretation which is sensible and which does not lead to chaos in society.
16. In view of the above discussion, the petition is allowed and impugned order dated 22.09.2010 is modified to the extent that award of maintenance @ 1500/- per month from the date of application would be enforceable against respondent No.2-husband at the first instance and in case respondent No.1 is able to prove by adducing evidence/documents that it was a joint Hindu family property or ancestral property in which husband-respondent No.2 had right, respondent No.1 would be able to enforce liability to pay arrears of maintenance even against the petitioner. The revision is allowed in the terms indicated above. (R.P. NAGRATH ) JUDGE September 12, 2013 jk Jitender Kumar 2013.09.13 17:39 I attest to the accuracy and integrity of this document Chandigarh