N.P. Gupta, J.
1. This appeal has been filed by the plaintiffs, against the order of the Family Court Jodhpur dt. 22.6.2007, dismissing the suit for injunction, under Order 7 Rule 11 C.P.C. The appellants are the wife, and daughter of the respondent.
2. The appeal was filed time barred. Then application under Section 5 was filed. Vide order dt. 25.2.2008 the delay was condoned. Then vide order dt. 11.3.2008 it was directed, that the appeal be heard even without calling for the record, as the Family Court has decided the question of jurisdiction, which is a pure question of law, and the matter was posted for final disposal at admission stage itself. Thereafter when the matter came up on 17.3.2008, one of the Hon'ble Members of the Bench, which passed the earlier order, made an exception in the matter, then the matter came up before another Bench on 26.3.2008, and It was found, that since the suit has been dismissed under Order 7 Rule 11, for want of jurisdiction, for deciding question of jurisdiction, reading of plaint is the first requirement, and therefore despite order dt. 11.3.2008 record was ordered to be requisitioned, which was accordingly received. Then, the matter was heard for final disposal on 23.7.2008, and arguments were concluded on 25.7.2008.
3. From the record it transpires, that on 7.6.2007 the plaintiff filed an application before the learned trial Court, that the case had been fixed for passing order tomorrow, and she has learnt, that the husband and father in law have approached the Presiding Officer, and therefore, the main case be transferred to another Court. Then, on 8.6.2007, the counsel for the plaintiff pleaded no instruction on that application, and therefore, the application was dismissed by passing a separate order, noticing, that the arguments on the preliminary objection were heard on 15.5.2007, and the case was fixed for orders on 29.5.2007, on which date the Presiding Officer was on leave, and therefore, the case was adjourned to 4.6.2007. Meanwhile on 2.6.2007, another application was filed on the side of the plaintiff, that the learned Counsel wants to argue the matter afresh. Thereupon the matter was heard afresh on 4.6.2007, and some case law was also cited, and the application clearly appears to have been filed only for obstructing the Court from passing the necessary orders. It is a different story, that a reply to this application was filed by the defendant, categorically denying the averments, and opposing the application. Be that as it may.
4. The necessary facts of the case for the present purpose are, that the plaintiff-appellants filed a suit on 1.5.2007 in the Family Court, Jodhpur for permanent injunction, purporting to be one under Section 7 of the Family Court Act. The allegations in the plaint are, that the parties were married on 17.12.1998, the plaintiff No. 2 was born out of the wedlock 7 years of age, and since the date of marriage the plaintiff is living with the husband, and in-laws. it is alleged, that her parents performed good marriage according to their capacity, and since then she is living in the in-laws' house being D-5, Shashtri Nagar, Jodhpur. It is alleged, that she has two sisters-in-law, who are married. With this background it is alleged, that since marriage the behaviour of the husband is not good, he lives luxurious life, does not care for her, and that her husband and father in law addresses her abusively only, and carry no responsibility. The husband never showered any affection, rather his behaviour has been cruel. Then, one of the sisters in law, being Priya, who lives outside, talks on telephone for long with the plaintiffs mother in law, and instigates her. It is also alleged, that she has to demand every small thing from her parents; and then one incident was also narrated, that the plaintiff No. 2 fell ill, and the husband declined to take her to Doctor. It is also alleged, that in the house she along with her husband lives in upper storey, and while on the ground floor her father in law and mother in law live. It is then alleged, that her husband and father in law wants to dispossess her of the house, and from time to time obstructs her from using the kitchen, bed room, sitting room etc., and ask her to quit the house, otherwise the belongings would be thrown away, and she would be killed. It is also alleged, that the husband proclaims to be intending to contact second marriage. With this sequence it is alleged, that on 30.4.2007, her husband and in-laws threatened to kill her, and forcibly wanted to dispossess her. Thereupon a first information report was lodged, and proceedings under Section 107 and 116(3) Cr.P.C. were initiated. It is alleged, that thus the house in which she is living is the 'matrimonial home', and being wife, she is entitled to live in the 'matrimonial home'. It is legal obligation on the part of the husband to provide residence, and the husband is bound to provide 'matrimonial home' to his wife. It is also alleged, that the wife has no other house to live, and under Hindu Laws she has right to live in the 'matrimonial home'. With these allegations, cause of action is said to have arisen, and the suit has been filed for permanent injunction, praying that the defendant be restrained not to dispossess the plaintiff from the house in which she is living along with daughter, her possession be maintained, she should be allowed to use all apartments in the house, and should not interfere in her exclusive possession, either himself, or through others, and that the defendant be restrained from alienating the house in any manner.
5. On service, the defendant filed an application, alleging that in view of the provisions of Section 7 of the Family Court Act, the present suit for injunction is not maintainable, and that, the plaintiff, on these very allegations, has already filed application before the Judicial Magistrate, therefore, she could not prosecute parallel remedies as well. With this, it was prayed, that either the suit be dismissed, or it be returned to the plaintiff.
6. Learned trial Court dismissed the suit under Order 7 Rule 11, as noticed above. After discussing the various case law cited at the bar, and finding, that the plaintiffs case is, that the house is a 'matrimonial home', while according to the defendant the house is of his father, and within the meaning of Explanation (c) to Section 7(1) of the Family Courts Act, the dispute is not alleged to be 'with respect to the property of the parties or of either of them', and therefore, the suit is not cognizable by this Court. It has also been found, that on the basis of alleging the house to be 'matrimonial home', she cannot maintain the present stilt before the Family Court. Then it has been noticed, that there is inconsistency in the pleading also, inasmuch as she claims to be in joint possession, while in the relief she claims a decree for protection of exclusive possession. Then, it has also been observed, that from the averments it transpires, that the claim is based on the protection of Women from Domestic Violence Act, apart from the fact, that she could take proceedings under Section 18 of the Hindu Adoptions and Maintenance Act. Thus, the sqit was dismissed.
7. We have heard learned Counsel for the parties, and have gone throujgh the various case law, cited on either side, as well as the record. At the outset learned Counsel for the appellant contended, that the plaintiffs' claim is not under Section 18 of the Hindu Adoptions and Maintenance Act, rather their claim is covered by Explanation (c) to Section 7(1).
8. It was contended by the learned Counsel for the appellant, assailing the impugned order on merits, that the order is bad on every count, inasmuch as learned trial Court has found the claim of the plaintiff to be contradictory, and did not find the Court to be having jurisdiction. As a matter of fact there is no contradiction, nor any inconsistency, or vagueness, as the pleadings are more than clear. So far as lack of jurisdiction is concerned, even in that event, the learned trial Court could not dismiss the suit, rather it was required to be returned for presentation before appropriate Court, in view of Order 7 Rule 10 C.P.C. then it was submitted, that since the questions considered by the learned trial Court are mixed questions of fact and law, and therefore, appropriate issue on that should have been framed, and thereafter the issues should have been decided as a preliminary issue during trial, instead of dismissing the suit at the threshold under Order 7 Rule 11, as the Order 7 Rule 11 is not attracted. Learned Counsel relied upon following judgments, to substantiate his contentions:
(1) Nagaraj and Anr. v. Ammayamma reported in 2002(1) CCC 110;
(2) Anand Govind Bhide v. Smt. Rohini Bhide reported in 1 (2001) DMC 646
9. Then, a Supreme Court judgment in K.A. Abdul Jaleel v. T.A. Shahida reported in 2003(2) HLR 295 : RLW 2003(3) SC 461. Then, another judgment of Hon'ble the Supreme in Mayar (H.K.) Ltd. and Ors. v. Owners & Parties, Vessel M.V. Fortune Express and Ors. reported in 2006(1) WLC 619. Learned Counsel also relied upon a judgment of Hon'ble the Supreme Court in Ramesh v. Bipin Vadilal Mehta reported in : AIR2006SC3672 , to contend, that even the question of limitation is a mixed question of law and fact, and suit could not be dismissed under Order 7 Rule 11 C.P.C.
10. In rejoinder also learned Counsel relied upon judgment of Hon'ble the Supreme Court in B.P. Achala Anand v. Sappi Reddy and Anr. reported in 2005 AIR SCW-934, and an unreported judgment of this Court, in Smt. Vijay Laxmi v. Judge, Family Court decided on 21.12.2006, being Civil Misc. Appeal No. 1978 of 2006, and another judgment in Smt. Mamta v. Hari Kishan reported in .
11. Learned Counsel for the respondent supported the impugned judgment, and submitted, that from the reading of the plaint it transpires, that it does not disclose any cause of action whatever, and submitted, that sine qua non of applicability of Explanation (c) is, that the dispute should be between the parties 'with respect to property of the parties or of either of them'. Learned Counsel submitted, that admittedly in the present case, the dispute of the property is neither alleged to be of the parties, nor the property is alleged to be of either of them, as admittedly house belongs to father of the defendant, and it is not the averment in the plaint, that the house is property of her husband either. So far explanation (d) is concerned, it of course does cover a suit for injunction, in the circumstances arising out of a marital relationship. But then, in view of the Explanation (d), it could be for injunction with respect to an order, or injunction, in circumstances arising out of marital relations. The two explanations cannot be substituted for each other, or intermingled, and they do not overlap either. Learned Counsel relied upon judgment of Hon'ble the Supreme Court, in S.R. Batra v. Smt. Taruna Batra reported in : (2007)3SCC169 .
12. Learned Counsel for the appellant, distinguishing this' judgment in S.R. Batra's case, submitted, that that was a case where the Hon'ble Supreme Court declined to grant relief therein because the plaintiff therein was not in possession of the property, while in the present case the appellant is in possession of the suit property, and therefore, that case does not help the respondent. It was also contended, that the judgment in S.R. Batra's case is a judgment rendered by a Bench comprised of two Hon'ble Judges, while the judgment in B.P. Achala Anand's case was decided by the Bench comprised of three Hon'ble Judges, and therefore, the law laid down therein is to be followed, and not the one laid down in S.R. Batra's case; more so as in S.R. Batra's case, the judgment in B.P. Achala Anand's case has not been considered.
13. Before proceeding further, we may observe here, that during course of arguments, learned Counsel for the respondent submitted, that since the house in question is house not belonging to husband, but belongs to his father, while if the wife claims any right of residence, even by way of maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, that right could be claimed only against the husband, and that, the husband is already paying a huge amount of maintenance, in the sum of Rs. 7,000/- per month to her, and over and above that also, if she wants, the husband is prepared to provide appropriate residence, commensurate to her status, and the status of the parties. To this learned Counsel for the appellant instantly declined, by submitting, that it is not the pleading, and this is not the stage for making the submission, as the wife is living in 'matrimonial home', and she is entitled to live in the 'matrimonial home' only, and for protection of that right, the present suit has been filed. Be that as it may.
14. To start with we may quote the relevant provisions of Section 7 of the Family Courts Act, 1984, being Section 7(1), and Explanation (c) and (d) appended thereto, which read as under:
7. Jurisdiction-(l) Subject to the other provisions of this Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends. Explanation.- The suits and proceedings referred to in this Sub-section are suits and proceedings of the following nature, namely-
(a)xxxx
(b)xxxx
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
15. Since Section 8 excludes jurisdiction of the other Civil Courts, in respect of any suit or proceeding of the nature referred to in the Explanation to Section 7(1), in cases where the Family Court has been established for any area; Therefore, if the matter falls in either of clauses, obviously the Family Court has jurisdiction to entertain the suit, and if it does not fall under either of the clauses, then on the face of it, may be, that the suit is required to be returned to be presented before proper Court, but at the same time, even before undertaking that exercise, it is required to be seen, as to whether the plaint, at all discloses any cause of action, cognizable by any other civil Court either, so as to avoid any futile exercise.
16. So far rights of the plaintiff under the Protection of Women from Domestic Violence Act is concerned, we are not called upon to adjudicate here, and embark upon her right under that Act, lest it may prejudice the proceedings, which are already pending before the competent Court, having been initiated under that Act.
17. In the above background if the provisions of Explanation (c) and (d) are read together, they, in our view, leave no manner of doubt, that Explanation (c) comprehends suit or proceeding between the parties to a marriage, with respect to the property of the parties, or of either of them. Thus, until and unless it is alleged, that the property, with respect to which suit has been filed, is of the parties, or of either of them, Explanation (c) would not apply. Then, so far as the Explanation (d) is concerned, it comprehends asuit or proceeding for an order or injunction in circumstances arising out of a marital relationship, in our view, there can be many types of dispute, may be regarding property, or regarding behaviour, or any type of injunction, but then, it is not to be with respect to the property.
18. Now, we proceed to examine various cases cited at the Bar. To start with; Nagraj's case is a Division Bench judgment, rendered by Karnataka High Court, where the respondent claimed to be the lawfully wedded wife of husband, Muniswamappa. The suit was filed against the husband, seeking to restrain him from interfering with the peaceful possession of the plaintiff, over the suit scheduled property. The suit was filed in the year 1983, and on commencement of the Family Court Act the suit was transferred to the Family Court. In that suit an additional issue was framed, about the suit being triable by the Family Court. On merits the allegations were, that the husband had married thrice, and plaintiff being second out of three, and since relations between the respondent and the third wife of husband did not remain cordial, the husband put the plaintiff respondent in possession of the suit schedule property, comprising a house with an open site, where she was living since 1965-66, and carrying on business in the open space attached to the house, by using the same as a fuel depot. A licence was also issued in her favour, for that purpose, by the Corporation, and that she was also tethering cattle on a part of the suit property, and eking out a living by vending milk. In the written statement running of fuel depot was denied. It was denied that the plaintiff was legally wedded wife, and was alleged to be kept mistress, and that she was allowed to occupy the property and carry on business as a concubine, but she is not entitled to any protection, when the husband is ready and willing to maintain her. During litigation the husband had died, and the appeal was filed by the wife, against his father. It is in these circumstances, that the Karnataka High Court found, that the suit filed by the plaintiff in the instant case, involve determination of the right of the plaintiff, qua the suit property, which, according to her, was owned by the husband, but assigned to her, exclusively for her use and occupation. Therefore, the suit did clearly fall under Explanation (c), on the date the same was instituted, and transferred to the Family Court. Thus, in our view, in view of the basic distinguishing fact, about the suit property in that case having been alleged to be belonging to the husband, which having not been so alleged to be belonging to husband in the present case, this judgment is of no assistance to the appellant.
19. Then, in Anand Govind Bhide's case, judgment is rendered by Division Bench of Bombay High Court, which again relates to different facts; inasmuch as in that case the plaintiff was married to the defendant on 18.12.1973. The couple resided together in the defendant's flat at Goregaon. the defendant was qualified Engineer, serving with the Reserve Bank of India, while the plaintiff was employed as a teacher in Pune. At the time of marriage the plaintiff was an issueless divorcee. Prior to this marriage the defendant had married one Subhada Datar, and was residing with her at Goregaon house. Subhada committed suicide. Then, in the year 1974 the plaintiff came to know of the availability of the suit flat, and she out of her own saving, and with the financial assistance of her parents, purchased the suit flat in the year 1974, and at that time the defendant had given some amount by way of loan, but the same had been fully repaid by her parents, and thus she claimed to be the owner in respect of the suit flat, and the share certificate in respect thereof stood in her name. Then, in August, 1974 the defendant was transferred to Delhi, and the plaintiff went to Delhi with him. The defendant's daughter, and his mother, continued to reside at Goregaon house. According to the plaintiff, possession of the suit flat was given to her on 15.4.1975, for which she had specially came to Bombay. Soon thereafter there was thread ceremony of defendant's nephew, and as a large number of guests were expected, the plaintiff permitted the defendant's mother to use the suit flat. After the ceremony was over, the couple went back to Delhi. In this background allegations were made about the conduct of husband that he being greedy/bereft of normalcy, feeling of attachment, love and affection, and looking upon her merely as an instrument for satisfaction of lust etc. In this sequence, when they returned from Delhi to Bombay, and started residing in the suit flat, on 18.11.1991, the defendant in a very threatening manner assaulted the plaintiff, 'and apprehending danger to her life, particularly in the background of the fact, that his first wife had committed suicide, she called her parents from Pune, with whom she went to Pune, and after she realised, that she was a burden on her parent's family, she decided to come down to Bombay, to secure some employment, and stay in the suit flat. In this sequence, she came to suit flat from Pune, and requested the defendant to lelve her alone in the suit flat, and shift to his Goregaon house, but the defendant refused to shift, rather threatened to teach her lesson. In our view, this sequence of facts is telling enough, to demonstrate, that the controversy was clearly covered by Explanation (c), and thus this judgment also does not help the appellant.
20. So far the judgment in K.A. Abdul Jaleefs case is concerned, in that case Hon'ble the Supreme Court was considering the question as to whether the Act would be applicable only during subsistence of the marriage, or otherwise, arid held, that dispute over the property, between the parties to a marriage, cannot be confined to the parties to a subsisting marriage. In that case the facts were, that the parties to the litigation were married on 3.1.1988, and a female child was born out of wedlock. After the birth of second child, owing to deterioration in the health of the respondent, the relationship of the parties became strained. According to the respondent, at the time of marriage a large amount in cash, as also gold ornaments were given, and from the cash amount the appellant purchased the property, described in Schedule A, on 1.2.1988, and the balance amount was kept by the appellant. The appellant allegedly sold the gold ornaments of the respondent, and out of the sale proceeds he purchased the property described in Schedule B. Then, in respect of properties, an agreement was executed by the parties, in terms whereof, it was agreed, that the properties purchased from the aforesaid amount will be transferred in the name of the respondent, by the appellant. In that background, the respondent was divorced on 1.11.1975. Then, in terms of the agreement dt. 17.9.1994, the plaintiff respondent filed a suit in the Family Court, where the agreement was disputed, alleging that the agreement was signed by him under threat and coercion. In our view, here it is not a question, as to whether the matrimonial tie between the parties subsists, or not, as undisputedly it subsists; then In the case before Hon'ble the Supreme Court, admittedly, the property belonged to either of the spouses. Obviously, therefore, the case was clearly covered by the Explanation (c) of Section 7(1). Thus, this case also is of no help to the appellant.
21. Now, we proceed to take up the judgment of Hon'ble the Supreme Court in Ramesh v. Bipin Vadilal Mehta's case, wherein the question of limitation was decided by the Court below, and Hon'ble the Supreme Court held, that that was a mixed question of law and fact, and could not have been decided without framing any issue. We need not detain ourself on that judgment, because from a reading of that judgment it is clear, that there were factual controversies involved, which effected the applicability of Section 17(1) and 18(1) of the Limitation Act, and was not a case, where the suit was ex-facie barred, so as to attract the provisions of Section 3 of the Limitation Act.
22. Then, we come to judgment of Hon'ble the Supreme Court in Mayar(H.K.) Ltd.'s case. That was a case, where the matter went before Hon'ble the Supreme Court, as the admiralty suit was filed by the appellant No. 1 in the High Court of Calcutta, in Admiralty jurisdiction, along with appellants Nos. 2 to 5, with whom a contract to sell the goods was entered into by appellant No. 1, against the defendant, and in that background, laying down the parameters of consideration under 0. 7 Rule 11, it was held, that the claim cannot be rejected on the face of allegations made by the defendant in his written statement, or in an application for rejection of the plaint, rather the Court has to read the entire plaint, as a whole, to find out, as to whether it discloses a cause of action, and if it does, then the plaint cannot be rejected by the Court, exercising the powers under Order 7 Rule 11. It has further been held, that essentially, whether the plaint discloses a cause of action is a question of fact, which has to be gathered on the basis of the averments made in the plaint in its entirety, taking those averments to be correct. Suffice it to say, that there is no dispute about this legal proposition, and we are proceeding to examine the case, precisely on these parameters only, i e without looking into the allegations made in the application for rejection of the plaint, and by reading the plaint as a whole, and also proceeding with the assumption, that the averments made in the plaint are entirely correct.
23. So far as Vijay Laxmi's case is concerned, in our view, that judgment has no bearing whatever on the controversy involved in the present case. As, in that case, by a joint application, decree for divorce was obtained. Then, after passing of that decree, an application was moved for making correction in the name of wife, which was dismissed by the Family Court, and the same was allowed by this Court.
24. So far as the judgment of this Court in Mamta's case is concerned; that has been cited for the purpose of contending, that strict principles and procedures of C.P.C, are not applicable. It would suffice to say, that the controversy involved in that case was, as to whether the Court fees of Rs. 15045/- was payable on the application for maintenance filed before the Family Court, or not, and in that process this Court held, that the petition in the Family Court are in the nature of petitions or applications, and the Court fees is payable under the Clause 11(k) of the Schedule II of the Rajasthan Court Fees and suit Valuation Act, and for that purpose observed in para-13, that the Act makes an attempt to simplify the rules of evidence and procedure, as to enable a Family Court to deal effectively. One of the objectives is to bring soccer to women and children, who have been abandoned by her husband and others. Then, Rule 7 was referred to, and it was held, that the framers of the rules have casually incorporated all sorts of alternatives, i.e. plaint or petition or application, and if it is plaint, and tried as a suit, purpose of Act shall be frustrated, and thus, it was found, that in case of fiscal Statute, the provision must be strictly interpreted, giving every benefit of doubt to the subject, and lightening as far as possible, the burden of Court fees on litigant. Where an adjudication falls within two provisions of Court fees Act, one of which is onerous for the litigant and other more liberal, the Court would apply that provision which is beneficial to the litigant. This judgment has no bearing on the controversy involved in the present case.
25. Then, we come to the judgment cited by the learned Counsel for the respondent, being S.R. Batra's case. In this case the wife had filed suit for mandatory injunction, and therein filed application for temporary injunction, and from that the controversy reached to Hon'ble the Supreme Court. The necessary facts in that case were, that Smt. Taruna Batra was married to one Amit Batra, and after marriage started living in the house of appellant No. 2 (Mother-in-law) in the second floor. It was not disputed, that the said house belonged to the appellant No. 2, and not to the husband, being Amit Batra. The husband filed a divorce petition against Taruna Batra, and it was alleged, that as a counter blast to the divorce petition, Smt. Taruna Batra filed an F.I.R. under Section 406/498A/506 and 34 of the I.P.C., and got her father in law, mother in law, her husband, and married sister in law, arrested by the police, and they remained in custody for three days, and then, admittedly the wife shifted to her parent's residence. Later on she tried to enter the house of the appellant No. 2, there she found the main entrance locked, and therefore, she filed a suit for mandatory injunction, to enable her to enter the house. The appellants alleged, that they have been terrorized by their daughter in law, and, for some time they had to stay in their office. It was stated, that the husband shifted to Ghaziabad, before the above litigation between the parties started. The learned trial Judge held, that wife is in possessing of the second floor of the property, and granted temporary injunction, restraining the appellants from interfering with the possession the wife. Against that order an appeal was filed, and the Appellate Court held, that the wife was not residing in the second, floor of the premises in question, and that her husband Amit Batra was not living in the suit property, and the matrimonial home could not be said to be a place where only wife was residing, and that wife had no right to the properties other than that of her husband. Thus, temporary injunction application was dismissed. Aggrieved of it, the wife filed a petition under Article 227 which was disposed of, and the order of the learned Single Judge was assailed before Hon'ble the Supreme Court. The High Court held, that the second floor of the property in question was the matrimonial home of the wife, and that, even if her husband Amit Batra had shifted to Ghaziabad, that would not make Ghaziabad the matrimonial home of Smt. Taruna. The learned Single Judge of the High Court further held, that mere change of the residence by the husband would not shift the matrimonial home, and thus the wife was held to be entitled to continue to reside in the second floor of the house in question. Hon'ble the Supreme Court held in para 12, that 'with respect, we are unable to agree with the view taken by the High Court'. Hon'ble the Supreme Court then referred to, and relied upon earlier judgment, in B.R. Mehta v. Atma Devi reported in : [1987]3SCR1184 wherein it was held, that whereas in England, the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India, and some observations have been made in that judgment about requirement of appropriate legislation in India, like the British Matrimonial Homes Act, 1967. Then, in para-16 and 17 it was held 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.
17. Here, the house in question belongs to the mother in law of Smt. Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt. Taruna Batra cannot claim any right to live in the said house.
26. Then, reliance was placed on the Protection of Women from Domestic Violence Act, 2005, which was also considered, and it was held, that the house in question cannot be said to be a 'shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005. Then, provisions of Section 17 and 19(1) of the Act were considered, and the contentions pressed into service were turned down, and regarding her right tor protection under Section 19(1)(f) and 17(1), It was held in paras25 and as under-
25. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared house-hold. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces,etc, If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaps and would be absurd.
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, The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household.
27.Of course, learned Counsel for the appellant had tried to distinguish this case by contending, that in that case the wife was not found to be in actual possession of the house, therefore, the claim was denied. But then, the facts involved in that case, narrated above, leave no manner of doubt, that Hon'ble the Supreme Court found the wife to be not entitled to claim any right against the properties of in-laws.
28. In the present case, even from the entire, closest, and intelligent, reading and re-reading of the plaint, on the parameters laid down by Hon'ble the Supreme Court, in Mayar (H.K.) Ltd.'s case, in our view, this Is not at all the averment of the plaintiff that the house wholly or any portion thereof belongs to husband. Though husband only has been impleaded as defendant, but the relief has indirectly and clandestinely been claimed against the in-laws as well, though purportedly of course, It has been claimed against the husband, but even without alleging him to be having any proprietary interest, or even tenanted Interest, In the property.
29. in our view, if the matter Is considered oh the parameters laid down in S.R. Batra's case, even on reading of the entire plaint, it does not disclose any cause of action, whatever, within the meaning of 0. 7 Rule 11 C.P.C. We are conscious of the fact, that the learned trial Court has found the suit to be lacking jurisdiction to be triable by the Family Court. In view of the discussion made above, it is clear, that of course the suit is hot cognisable by the Family Court, therefore, that conclusion also does hot require any interference. However, in view of the principles propounded in Mayar (H.K.) Ltd.'s case, it is more than clear, that taking of allegations made in the plaint, even on their face value, the suit averments do not give her any cause of action, of whatever nature, with respect to suit property.
30. We may repeat that learned Counsel for the appellant had clearly given out, that the plaintiff does not lay claim under Section 18 of the Hindu Adoptions and Maintenance Act, 1956,and the present stilt is not for enforcement of any such right. It is a different story, that If the plaintiff was to claim any right, comprehended by Section 18, learned Counsel for the respondent had given his offer, which was declined by the learned Counsel for the plaintiff appellant, and de-hors that, we have not been shown any legal authority, showing any legal right, to be available to plaintiff, with respect to suit property, on the allegations made in the plaint, so as to entitle them to claim any relief.
31. Now, we may take up the case in B,P. Achala Anand's case, cited by the learned Counsel for the appellant. Of course, B.P. Achala Anand's case has been considered by the Bench comprised of three Hon'ble Judges, and that, this judgment has also not been considered in S.R. Batra's case, and that is why the main question to be seen is, as to what is the bearing of that judgment on the controversy involved in the present case, the facts in that case were giving rise to unusual fact situation. The appellant in that case, Smt. Achala was the legally wedded wife of H.S. Anand. The relations got strained to the extent, that in the year 1983 the husband deserted his wife. The matrimonial home was a tenanted premises of the respondent No. l H.S. Anand. The husband left behind his wife with the children in the tenanted premises, and walked away to reside in a lodge. In the year 1991, proceedings for dissolution of marriage by decree of divorce were initiated between the estranged couple. On 3.12.1998 the marriage stood dissolved by a decree of divorce, based on mutual consent. The premises, where the wife was living, forming part of dispute, inasmuch the ground floor of the property was taken on rent by the husband. The tenanted premises were badly in need of repairs, and in April 1991, consequent upon a mutual agreement, arrived at between the landlord and the tenant, a major portion of the ground floor of the tenanted premises was handed over by the tenant to the landlord, for the purpose of carrying out repairs, and the tenant continued to retain and enjoy the verandah, one bedroom and an attached toilet. However, the repairs, as were agreed upon, were not carried out. Then, on 28.11.1991, the landlord served a notice upon the tenant H.S. Anand, and initiated proceedings for eviction from the suit premises, on various grounds, including default, bonafide necessity etc. The husband appeared and defended the suit. However, it appears that on account of strained relationship, he had discontinued his residence in the tenanted premises, and was not serious in contesting the suit, and consequently in the event of a decree for eviction being passed, the family members including the appellant Smt. Achala ran the risk of being thrown away from the tenanted premises. On these facts, the wife filed an application for her impleadment, which was rejected, and High Court allowed the revision, and permitted the wife to be brought On record, subject to her depositing a sum of Rs. 10,000/-, towards payment of arrears of rent. The trial proceeded, and ultimately the High Court found, that there is no relationship of landlord and tenant between the landlord and Smt Achate. The tenancy vested only in husband, who had given away the contest. This is how the matter went to Hon'ble Supreme Court. Hon'ble the Supreme Court has found in para-12 as under:
12. Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual context of the present case, we are confining ourselves to dealing with the personal law as applicable to hindus as the parties are so. A Hindu wife is entitled to be maintained by her husband; She is entitled to remain under his roof and protection. She is also Entitled to separate residence if by reason of the husband's conduct Or by his refusal to maintain her in his own place of residence or for other just Cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a will to defeat such a right. (See: MULLA, Principles of Hindu Law, Vol.1, 18th Ed. 2001, paras 554 and 555) The right has cbrne to be statutorily recognized with the enactment of the Hindu Adoptions and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in Clause (b) of Section 3 of the Hindu Adoptions and Maintenance Act, 1956 as to Include therein provision for residence amongst other things. For the purpose of maintenance the term 'wife' includes a divorced wife.
32. Again it would suffice to say, that within the parameters laid down by Hon'ble the Supreme Court, in S.R. Batra's case, the premises were of the husband, of course, as tenant, and then, Hon'ble the Supreme Court clearly rendered the judgment 'in the context of the present case'. Then, it was further held, that the Hindu wife is entitled to be maintained by her husband, and so as to remain under his roof, and protection, she is entitled to separate residence, if by reason of the husband's conduct, or by his refusal to maintain her, in his own place of residence, etc. Thus, this judgment is very much in line with the judgment in S.R. Batra's case, and does not take any contrary view, rather in a way, this judgment goes against the appellant, instead of supporting her. Admittedly the house in which the husband resides, belongs to father of the husband, and the appellant has not claimed any right of maintenance for herself, rather she is claiming to be living in the house of father in law, and by claiming injunction purportedly against the husband, is indirectly seeking injunction against inlaws, restraining them from dispossessing her, and from alienating the suit property, and does not purport to claim any right of maintenance.,,
33. Thus, considered from any stand point, in our view, apart from the fact, that the Family Court does not have jurisdiction to entertain the present suit, as the controversy is not covered by either of Explanation (c) ,or (d), appended to Section 7(1), even otherwise, the plaint does not disclose any cause of action, and for this additional reason, we upheld the order of dismissal under 0. 7 Rule 11 C.P.C.
34. The appeal is, therefore, dismissed.