Judgment:
ORDER
Vikramajit Sen, J.
1. The Plaintiff (Wife) has pleaded that she is a Hindu and that the Defendant (Husband), had converted from Islam to Hinduism around the time of their marriage on 29.9.1993. There can be no controversy that a Hindu ceremony did take place, since the Plaintiff has filed photographs of the event with her Plaint. Predicated on this version of their marriage. The Plaintiff has invoked Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as 'H.A.& M. Act'), and has prayed for the allocation of property MA-1/4 - 3A, Garden Estate, Gurgaon, (hereinafter referred to for convenience as 'the matrimonial home'), as her exclusive separate residence. Consequential and ancillary injunctive reliefs have also been asked for by the Plaintiff. To the contrary, it is the Husband's case that the parties married each other on 26.8.93 in accordance with Muslim law after the Plaintiff embraced Islam. It is contended that the alleged marriage in the Arya Samaj Mandir on 29.9.93 is of no legal efficacy as neither of them were Hindus, and they had already been married under Islamic rites. It is thus submitted that the H.A. & M. Act would have no application to the parties. The property viz. HA-1/4-3A, Garden Estate, Gurgaon, Haryana, is exclusively owned and possessed by the Husband, although the wife also resides therein. It is contended that the Courts at Delhi have no territorial jurisdiction. This is the conspectus of the dispute, in precis.
2. At the first hearing I had been persuaded to restrain the Husband from visiting the matrimonial home accompanied by any other person. However, I had recognized his entitlement to reside in the premises provided he does not assault the Wife. These orders are sought to be recalled by the Defendant, and further varied by the Plaintiff to the effect of a total ban on the entry to the home of the Defendant.
3. The case was argued at length by the respective Counsel for the parties. Mr. Y.P. Narula, Learned Counsel for the Plaintiff had cited Dr. Abdur Rehman Undre v. Padma Abdur Rehman Undre 2 (1982) D.M.C. 156, where the Division Bench eruditely considered the complicated aspect of Private International Law concerning a marriage between members of different faiths solemnized in England, but sought to be dissolved in India. The Bench opined that a public declaration of the person ceasing to belong to one religion and accepting the other should be unequivocally available. Strict proof is required. It cannot be easily inferred, more so when the person concerned denies the factum of conversion. It must also be evident that there was a genuine change of faith. The Bench divided the house between the spouses. Predicated on this decision, it was contended by the Wife that there was not even a smattering of evidence and/or pleading to the effect that the Kalma or any other ceremony of like nature had been performed. The entire case of an Islamic marriage having been performed is straightaway demolished in the absence of any averment pertaining to performance of Kalma. Mr. Narula also relied on the decision of the Court of Appeal in Lee v. Lee 1952 (1) All ER 1299, where the legal propriety of the issuance of an order restraining the husband from entering into any contract for the sale of the residence until the wife and children were provided with suitable residential accommodation, was upheld. In Silverstone v. Silverstone 1953 (1) All ER 556 the Court issued an injunction to prevent the husband from occupying the home although it belonged to him so as to ensure that the wife would not be pressured into abandoning her petition by evicting her from the house. The Court of Appeal applied this decision in Jones v. Jones [1971] 2 ALL E.R. 737, where all three of the Learned Judges distinguished the opinion in Montgomery v. Montgomery [1964] 2 ALL E.R. 22, and restricted the operation of the latter to cases where no matrimonial proceedings were then pending; both spouses had been residing in the tenanted matrimonial home, separately for some time, when the injunction was prayed for by the wife and declined. Mr. Narula further contended that Section 18 of the H.A. & M. Act sufficiently protected the Wife's prayer for a separate residence in the backdrop of the alleged violence meted out to her by the Husband, and that Section 23 did not dilute this right in any proportion since it dealt only with the amount to be granted.
4. Mr. H.L. Tiku, Learned Counsel for the Defendant/Husband, strenuously submitted that a Muslim marriage, Nikah, was performed on 26.8.1993 and on a perusal of the Marriage Certificate, it will be quite evident that the Plaintiff had adopted the name Sabah. Hence the H.A.& M. Act would not apply to the parties. He disputed the territorial jurisdiction of the Court on the ground that the property in question was located in Gurgaon, Haryana. He asserted that the Defendant's mother and brother also resided with the parties and his obligations towards them should not be ignored. Furthermore, the Plaintiff was fully aware of the Agreement dated 24.5.2000 for the transfer of the Apartment. The receipt was in her handwriting, and was dated 13.5.2000. If the interim prayer is granted to Wife, the Husband would have to defend an action of the Buyers. The Husband had arranged for and was ready to provide another accommodation for the Wife, although this was smaller. Mr. Tiku's contention was that the Wife is duty bound to reside where the Husband had established his abode. It was contended that she was fully aware of this arrangement but has endeavored to jeopardise the sale and grab the property for herself alone.
5. The objection raised by the Defendant pertaining to the lack of territorial jurisdiction of this Court cannot be countenanced at this stage because of a catena of judgments on the point. This objection was struck down by P.K. Bahri J. in P.M. Bakshi vs. Shika Bakshi, 1998 (2) HLR 43. The Learned Judge opined that 'in view of the above discussion, I conclude that Delhi courts have jurisdiction to try the present suit inasmuch as a part of the cause of action has arisen within the territorial jurisdiction of Delhi courts as the marriage between the parties was, admittedly performed at Delhi. I find no merit in this revision petition, which I hereby dismiss with costs.' This conclusion was arrived at after drawing support from K. Vajravelu vs. Raj Lakshmi, : AIR1954Mad358 , Smt. Chandra Wati vs. Lala Suraj Narain, and Subhash Chandra Jain vs. Vidyut Jain : AIR1978All234 . To this list of precedents on this issue should be added to decision in Sushilabai Rohani vs. Rohani Prasad, 2 (1982) DMC 13. The contention of Mr. Narula that Delhi Courts have jurisdiction because the marriage of the parties was performed at Delhi, is thus firmly founded.
6. The fundamental question which calls to be answered in this lis is which of the personal laws should be invoked and applied byu the Court. The precursor for either of the marriage ceremonies is a conversion, or in the words of the Division Bench in Undre's case (supra) 'there should be a declaration of one's belief and the said declaration should be in such a way that it should be known to whom it may interest....Strict proof is required and it cannot be easily inferred. Moreso when a person converted (sic.) (allegedly converted) denies even the factum of conversion.' It is well established that conversion to Islam is completed with the recitation of the Kalma of Tawhid. However, in the Written Statement it has only been averred that 'the Plaintiff having renounced Hinduism and umbrazed (sic. embraced) Islam, and having got married to this Defendant under Muslim Law, never thereafter converted to be a Hindu.' The reference to the Plaintiff not having converted back to Hinduism is palpably made to discount the Hindu marriage ceremony which undoubtedly took place; it is at least an admission of the Defendant having ostensibly converted to Hinduism and having undergone a marriage in accordance with Hindu rites. The Plaintiff's conversion to Islam is categorically denied in the Replication, where it has been reiterated that the parties got married as per Hindu law. In response to the Plaintiff's averment that the 'Plaintiff and the Defendant got married to each other, on 29.9.1993 as per Hindu rites and ceremonies at Arya Samaj Mandir, Vasant Vihar, New Delhi', the Defendant has stated in the Written Statement that the 'alleged marriage propounded by the Plaintiff under the Arya Samaj Mandir on September 9, 1993, was Plaintiff's guileful move to ultimately enrich herself having regard to her background that she practiced in previous two marriages.' This is certainly an admission to the fact that a Hindu marriage ceremony was performed. Even de hors this admission, the Plaintiff has filed photographs of the conversion ceremony and also the certificates of the Arya Samaj Mandir witnessing both events. In respect of the conversion of the Defendant to Hinduism, the only defense is that it was not a genuine one. When contrasted with the Plaintiff's emphatic and categorical denial of her conversion to Islam, the difference in the pleadings is significant. Furthermore the original of the Certificate of Marriage relied on by the Defendant has not been filed even though its genuineness was hotly and vehemently disputed. The attestation has been done be a person named Mohd. Salim, whereas the alleged marriage/Nikah appears to have been performed by Qazi Mohd. Hussain if this Certificate is perused. In these circumstances this ceremony, if it took place, would necessarily have to be proved by the Husband in the Trial. I am unable to accept that it happened, at this stage. In the absence of any documentary proof of the Plaintiff's conversion, the marriage ceremony is of no efficacy. Furthermore as it is in Urdu, a language/script of which the Plaintiff is uncontrovertibly ignorant, the Defendant would have to prove that when the Plaintiff subscribed her signature thereto, as Kanchan or Kanchan Sabah, she did not do so thinking it to be the Husband's divorce certificate. In other words, it will have to be satisfactorily proved that the Plaintiff signed the paper with the knowledge that it was her marriage certificate.
7. Since the parties must be treated as Hindus, until proven to be contrary at the trial, and since it is evident from the pleadings and the photographs and the two certificates that they were married to each other in accordance with Hindu rites and ceremonies, the H.A. & M. Act would apply to the present dispute at least at the present stage of the case.
8. The relevant provisions of the H.A. & M. Act are reproduced for easy reference.
'3. In this Act, unless the context otherwise requires, --
(b) 'maintenance' includes -
(i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment;
18. Maintenance of wife --(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or willfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is nay other cause justifying living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.'
23. Amount of maintenance.--(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court shall have due regard to the considerations set out in sub-section (2), or sub-section (3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to-
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property, or from the claimant's own earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to-
(a) the net value of the estate of the deceased after providing for the payment of his debts;
(b) the provision, if any, made under a will of the deceased in respect of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source;
(f) the number of dependants entitled to maintenance under this Act.'
9. Although the present suit has been brought under Section 18 of H.A. & M. Act, the prayer is not for maintenance in a monetary quantification but significantly in specie instead. It is for a decree for maintenance allocating House No.MA-1/4, 3A, Garden Estate, Gurgaon to the Plaintiff for her exclusive separate residence. The relief has been valued at a notional sum of Rs.5,01,000/- and not in conformity with Section 7(ii) of the Court Fee Act which prescribes that in suits for maintenance and annuities or other sums payable periodically according to the value of the subject-matter of the suit, and such value shall be deemed to be ten times the amount claimed to be payable for one year. Remarkably, the plaint has not been valued even at the market value of the property. The obvious question is, thereforee, whether the law postulates the grant of the relief as prayed for in the plaint. In my view, the Court-Fees Act also contain a clue to the construction to be given to the words 'separate residence'.
10. Let me now consider the precedents relied upon by Mr. Narula, Learned Counsel fort the Plaintiff. None of the English decisions contemplated the relief as is cast in the present case. The prayers in those cases was injunctory in nature, in consonance with prayers (b) to (d) in this plaint. The earlier foreign decisions grappled with the vexed question of the deserted wife's equity (a phrase coined by the inimitable Lord Denning) at a time when statutory recognition of this right had already been given in India. Indian legislators and legal chauvinists may well take a bow. Even in the Undre's case (supra) a suit relating to the ownership of the flat ironically located in 'Paradise Apartments' had been filed by the wife, and the user of the flat was apportioned between the sparring spouses by the Division Bench of the Bombay High Court. With due apologies to Milton, it was a case of 'Paradise Lost' for the parties!.
11. The complexities of the claim compelled me to delve into the case-law myself. In Shanta Wadhwa v. Purshottam Mohandass Wadhwa, 1978 MLR 44, another Division Bench of the Bombay High Court interdicted the husband's entry to the matrimonial house. But it was a tenanted one standing in the name of the wife. The Bench was called upon to apply the Hindu Marriage Act. It observed, on passant, that the Court had power to grant an injunction under Section 18(1) and (2) of the H.A. & M. Act. Although the question that has arisen before me did not crop up before the Division Bench of the Mysore High Court in K. Siddegowda v. Parvathamma AIR 1965 Mys 299, its mentioning is necessary for the reason that while dealing with the question of divorce on the grounds of desertion the Court also referred to Section 18(2)(b) of H.A. & M. Act and applied the principle of constructive desertion or willful neglect since the wife had set up her separate residence. In my opinion, this is all that Section 18(2)(b) contemplates. The same reasoning/approach was adopted, albeit with a different result, in Balbir Singh v. Shanti Devi, 1970 1 Delhi 21. The verdict was reversed by the Division Bench in Smt. Shanti Devi v. Balbir Singh & Another : AIR1971Delhi294 , but the reference to Section 18 for giving flavour to the concept of desertion was maintained. To the same effect is the decision of the Division Bench in Laxmi Sahuani v. Maheswar Sahu, : AIR1985Ori11 . In Basudeb Dey Sarkar v. Smt. Chhaya Dey Sarkar, : (1991)1CALLT342(HC) , a Learned Single Judge opined that the wife had a right to reside in the room in her occupation despite her husband having transferred his joint ownership to his brother and co-owner. The Judge observed that the right of the wife continued till it is terminated in matrimonial proceedings; but this later observation may not be free from all doubts.
12. The H.A. & M. Act which amends and codifies the law relating to adoptions and maintenance among Hindus, firstly defines in Section 3(b) maintenance to include residence. Even if it had not been so done in the statute, it would not be sanguine to expect the Courts to include the expenses of residence when granting maintenance to the wife. It is as essential for a woman to have a roof over her head as well as over the Table on which she eats. If the husband fails to provide it, expenses for it would be kept in mind when maintenance is guantified. Thereafter Section 18 of H.S.& M. Act clarifies that the right would not be forfeited and that the quantification of maintenance under Section 3 read along with Section 23 would not be jeopardised even if the wife is living separately. This is because she may have been constrained and compelled to do so because of the several reasons adumbrated in Section 18(2). Infact, Section 23(c) strains to repeat that where the wife is living separately, the Court must return a favorable finding of her justifiably doing so. It would tear the fabric of the statute to hold that Courts are empowered to divide and apportion assets (whether these are joint or exclusively of the husband) while exercising maintenance jurisdiction. This would be possible in a civil action. if the claim is that the residence is a matrimonial asset and thereforee calls to be partitioned between the spouses. It would be incorrect to confuse the distinct rights of maintenance with that of joint rights in property. At the risk of traveling beyond the brief, Courts have recognized and implemented the claim of the 'non salaried' spouse to even an equal share in matrimonial assets keeping in perspective that but for this spouses role in the home-making, acquisition of these assets during the currency of the marriage would not have been possible. Such a division of properties would not wither forfeit or frustrate maintenance rights, but would modify and moderate them as envisaged in Section 23 of the H.A. & M. Act. In a suit for maintenance the Court can adjust the quantum of maintenance to cover the expenses/rentals of a separate residence, since this is permissible under Section 3 of the H.A. & M. Act, but annihilation of the husband's proprietary rights over immoveable property is impermissible under the law as I comprehend it ti presently exist. In saying this I must clarify that the immoveable property can be charged to ensure the defraying of the maintenance awarded by the Court. The creation of such a charge is well and enduringly established.
13. Having arrived at the conclusion that it would not be proper for the Court to allocate a separate residence to the Wife, being property exclusively owned by the Husband even prior to their marriage, the question that arises is whether the Plaint is to be rejected. When Section 3 of the H.A. & M. Act is reverted to, it becomes evident that one of the concomitants of maintenance is the residence of the wife. It is now firmly entrenched in our jurisprudence that the wife's rights of residence in the home which has been her abode prior to the eruption of matrimonial differences, should be preserved by prohibitive relief, if the circumstances dictate. thereforee I cannot be impervious to the Plaintiff's projected plight merely because the relief, as has been moulded in the plaint, may be obstructed by technical impediments. A holistic reading of pleadings has been repeatedly prescribed by the Apex Court.
14. A spouse is entitled to a lifestyle commensurate with the status of the parties. The surest indicator of the lifestyle is the matrimonial home which the parties have been living in. It is not the Husband's case that he has suffered such pecuniary losses as have necessitated the sale of their present abode and the shifting to a smaller apartment. The timing tends to tell the tale that their marital differences have motivated the Husband to sell his present property and thus compel the Wife to set up residence in a home which would be lower in status to that to which the spouses had been accustomed. Mr. Tiku, learned counsel for the Defendant, had contended that the Husband would be left high and dry inasmuch as he has entered into an Agreement to Sell the present apartment and would inevitably have to face legal action if the contract was not specifically performed. He has laid stress on the fact that the Wife had made out a Receipt in her own hand and, thereforee, was fully aware of this Agreement. It was his contention that it would be inequitable to place the Husband in a position where he would not be able to abide by the terms of the Agreement to Sell. Mr. Narula. learned counsel for the Plaintiff, on the other hand, had submitted that the date on the Receipt relied upon by the Husband is not correct and that it has been predated to 13.5.2000 although the Agreement is dated 24.5.2000. She had never consented to the sale transaction and it had in fact constrained her to file the present suit. Significantly, it has not even been pleaded in the Written Statement that the transaction had been entered into with the Wife's consent. The rival positions are yet to be established, and can be so done only after trial. It would have to be explained why the main Receipt, which is only of for lines, was penned by the Wife when it could easily have been written by the Husband who had necessarily to sign it. Did the Husband have a design in asking the Wife to pen the Receipt, and did this incident occur on 17-18th May, 2000, with the consequential sequel of the police complaint. In the view taken above I do not consider it appropriate to delve further into the rival contentions at this stage. The abode of the Wife should be protected. As and when the Husband can satisfy the Court that he has made alternate arrangements, fully corresponding to the status of the parties, this question can be considered afresh. I am of the firm view that the Wife should not be dislodged from her present residence.
15. I cannot, however, agree with the contention of Mr. Narula, learned counsel for the Plaintiff, that the circumstances of the case warrant that the Wife should be allowed exclusive user of the matrimonial home. From the sequence of events narrated in the plaint and the evidence in support thereof it is not possible for the Court to reach the extreme conclusion that the Husband is habitually violent towards the Wife. The plaint paints a sketchy picture inasmuch as after mentioning an assault on 10.1.1997, the next similar incident occurs on 18.5.2000. The accusation of the Wife being a lady of easy virtue may justify her from separating herself from the Husband, but can hardly lead to the conclusion that she is entitled to reside by herself in the home. It could be pleaded as a defense to a matrimonial grievance of her having 'deserted' the Husband by withdrawing from his company. Since the passing of the interim order almost a year has elapsed. No doubt it is stated by Mr. Tiku, learned counsel for the Defendant, that the Husband has not visited the matrimonial home for fear of being embroiled and implicated in a false criminal complaint of domestic violence. The Defendant is, however, the owner of the property and entitled to its user to the same extent as the Wife. The Written Statement does not prima facie establish that the Husband's mother and brother have been residing with the parties on a regular basis. When matrimonial disputes arise discomfort and dislodging invariably occurs. The rights of the Wife would have preeminence over occasional visits of the Husband's mother and brother. Furthermore, it is the Husband's case that his vocation requires him to shuttle between Mumbai, Delhi/Gurgaon, and Dehradun, whereas the Wife lives in the matrimonial home only. The balance of convenience is clearly in her favor. The interim order dated 26.5.2000 is, thereforee, confirmed.
16. I.A. 5923/2000 is, thereforee, allowed and the application bearing No. 6554/2000 filed by the Defendant under Order XXXIX Rule 4 is hereby dismissed.
17. As mentioned before I had expressed the opinion that the suit has not been correctly valued for the purposes of Court Fee. In the course of arguments Mr. Narula, learned counsel for the Plaintiff, had stated that the plaint would be amended so as to conform to Section 7 of the Court-Fees Act. He is directed to take necessary steps within four weeks failing which the interim order will stand vacated.