Dear Querist

legally she is not entitle to get any right/share in your father's property by any means, even if you are not residing with your parents then she has no right to reside in their home.

your father may file a civil suit for injunction against her before civil court where the property is situated.

contact a lawyer and send a reply of that notice.

if she wants to fight the legal battle then she may file a criminal case u/s 498A/406 of ipc against you and your family members, she may file a domestic violence case, she may file a maintenance case.

it will be better to contact a lawyer personally or over the phone.

Feel free to Call

1) wife has no right to stay in property owned by father in law .number of judgments on said issue

2) she can only claim right to stay in her matrimonial home wherein she resided after marriage under provisions of DV act . She can claim alternative accommodation from husband

3) wife can file DV case against her husband and seek maintenance and other reliefs

4) she can also file 498 A case against you . In case she files 498A case obtain AB from sessions court

1) in case any notice is issued to your relatives they have to engage lawyer and appear in court and contest the case

IN THE HIGH COURT OF DELHI AT NEW DELHI

RFA 299/2014

SUDHA MISHRA ….. Appellant

Through: Ms. Rajesh Banati, Ms. Shagun Sharma and Ms. Babli Kala,

Advs. along with appellant in person.

versus

SURYA CHANDRA MISHRA ….. Respondent

Through: Mr. Prabhjit Jauhar and Ms. Anupama Kaul, Advs. along with

respondent in person.

CORAM:

HON’BLE MR. JUSTICE A.K. PATHAK

O R D E R

25.07.2014

Caveat 609/2014

Since caveator has appeared, caveat is discharged.

CM No. 11736/2014

Allowed, subject to all just exceptions.

Application is disposed of.

RFA 299/2014

1. Appellant-defendant has filed this appeal against the judgment and

decree dated 28th April, 2013 passed by the Additional District Judge,

Karkardooma Courts, Delhi whereby suit for mandatory injunction, filed by

the respondent-plaintiff against the appellant, has been decreed and

appellant has been directed to deliver the vacant and physical possession

of the portion in her possession in the property bearing no. C-1/9-A,

Yamuna Vihar, Delhi(for short hereinafter referred to as suit

property), within three months and further not to interfere in the

peaceful possession and enjoyment of suit property by the respondent.

2. Briefly stated, facts of the case are that respondent is father-in-

law of appellant. Respondent filed a suit for mandatory injunction

against the appellant to quit and deliver the vacant possession of the

suit property to respondents. It was further prayed that appellant be

restrained from creating obstruction in any manner to the rights of the

respondent in the suit property as also to pay mesne profits @ 1 lac per

month along with interest. Respondent alleged in the plaint that he was

absolute owner of the suit property which he had acquired vide lease deed

dated 27th May, 1982 executed by the Delhi Development Authority (DDA).

Later on, a conveyance deed dated 7th April, 1995 was executed by the

said authority in favour of the respondent. His son was married to

appellant at Kanpur, U.P. on 11th December, 1996. After the marriage

appellant was living in Kanpur, Lucknow, Allahabad, inasmuch as, her

children were also born in Lucknow and Kanpur. Since beginning,

appellant and her husband were having strained relationship. Appellant

filed a complaint under Section 498-A of the Indian Penal Code read with

Section 3 and 4 of the Dowry Prohibition Act against her husband wherein

she also named respondent. Relationship between the respondent and his

son also became strained. Respondent disowned his son in the year 2011

by issuing a public notice in the newspaper Rashtriya Sahara. The suit

property was self acquired property of respondent. Appellant asked the

respondent to relinquish the suit property in her favour. Threats were

also extended to the respondent, consequently, respondent filed a

complaint on 28th June, 2011 with the Police Station Bhajanpura and

Deputy Commissioner of Police (North East Delhi). On 11th July, 2011,

appellant came to the suit property and tried to occupy the same

forcibly. Police was called. However, appellant succeeded in occupying

one room, kitchen and bathroom at the ground floor of the suit property.

Respondent alleged that appellant had illegally trespassed abovementioned

portion. Accordingly, it was prayed that appellant be directed to vacate

the suit property and pay mesne profits.

3. In the written statement, appellant took certain preliminary

objections. She alleged that suit was not maintainable in view of the

alternate remedies available under the law to the respondent. She also

alleged that suit was without any cause of action. She was legally

wedded wife of son of the respondent and has a right to live therein.

Appellant further alleged that suit property was purchased out of the

joint family funds. Respondent and his son used to harass the appellant.

They demanded dowry. Appellant is living separately from her husband due

to matrimonial discord between them. She is living in the suit property right from the beginning. Divorce proceedings are pending between the

appellant and her husband. Appellant denied that she had forcibly

occupied the suit property. She also denied that she had been living at

Kanpur, Lucknow and Allahabad after her marriage. It was prayed that

suit be dismissed.

4. In the replication, respondent denied that the suit property was

purchased from the joint family funds. He reiterated that suit property

was his self acquired property. Other averments made in the plaint were

also reiterated.

5. On the pleadings of the parties following issues were framed by the

trial court on 8th February, 2012:

1. Whether the plaintiff is entitled to decree for mandatory and

permanent injunction as prayed for in respect of property bearing no. C-

1/9A, Yamuna Vihar, Delhi 93 OPP

2. Whether the plaintiff is entitled to damages/mesne profits at the

rate of rupees one lakh per month with effect from the date of filing of

the suit till date the defendant removes her articles from the suit

premises, alongwith interest at the rate of 18% per annum on the said

amount OPP

3. Whether the plaint is undervalued for the purpose of court fee and

pecuniary jurisdiction OPP

4. Whether the suit in its present form without praying for possession

of the suit premises is maintainable OPD

5. Relief.

6. Respondent examined himself as PW1. Appellant examined herself as

DW1. On the basis of evidence adduced by the parties trial court has

held that respondent had succeeded in proving that suit property was his

self acquired property. Reliance was placed on the perpetual lease deed

(Ex.PW1) executed by the DDA in favour of the respondent, conveyance deed

dated 6th April, 1995 (Ex. PW1/2) executed by the DDA, site plan (Ex.

PW1/3) prepared by the DDA, occupancy certificate (Ex.PW1/4) issued by

the DDA and MCD tax receipt dated 16th June, 2011 (Ex. PW1/5). Trial

court has further held that there was matrimonial acrimony between the

appellant and her husband. In his cross-examination, PW1 specifically

deposed that his son was residing at B-3/48A, Yamuna Vihar, Delhi which

was not the suit property. He further deposed that appellant used to

visit suit property intermittently till the year 2010. He categorically

denied the suggestion that suit property was the matrimonial home of

appellant. It also came on record in his cross-examination that his son

had purchased a property bearing no. GD-28, Kalkaji along with his

brother, namely, Satish Kumar. He also stated that appellant and her

husband had removed their goods on 4th May, 2011 and left the house of

respondent. Appellant had failed to lead any evidence to show that suit

property was purchased from joint family funds as no document in this

regard was produced and proved. Trial court has concluded that

documentary evidence produced by the parties clearly indicated that suit

property was self acquired property of respondent and was not the matrimonial home since appellant had herself admitted that she was living

alone and away from her husband.

7. By placing reliance on catena of judgments rendered by the Supreme

Court and this Court, trial court has concluded that suit property was

not a shared household, thus, appellant was not having any legal right

to continue to occupy the same against the wishes of respondent. She had

no legal right to occupy the property of her father-in-law without his

consent and against his wishes.

8. In S.R. Batra and Anr. vs. Taruna Batra (2007) SCC 169, Supreme Court

has held thus :-

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’.

No doubt, the definition of ‘shared household’ in Section2(s)of

the Act is not very happily worded, and appears to be the result of

clumsy drafting, but we have to give it an interpretation which is

sensible and which does not lead to chaos in society.

9. In Shumita Didi Sandhu vs. Sanjay Singh Sandhu and Ors. 174 (2010)

DLT 79 (DB), a Division Bench of this Court has held thus :-

Insofar as Section 17 of the said Act is concerned, a wife would only be

entitled to claim a right of residence in a ‘‘shared household’‘ and such a

household would only mean the house belonging to or taken on rent by the

husband, or the house which belongs to the joint family of which the

husband is a member. The property which neither belongs to the husband

nor is taken on rent by him, nor is it a joint family property in which

the husband is a member, cannot be regarded as a ‘‘shared household’‘.

Clearly, the property which exclusively belongs to the father-in-law or

the mother-in-law or to them both, in which the husband has no right,

title or interest, cannot be called a ‘‘shared household’‘. The concept of

matrimonial home, as would be applicable in England under the Matrimonial

Homes Act, 1967, has no relevance in India.

10. In Sardar Malkiat Singh vs. Kanwaljit Kaur and Ors. 168(2010) DLT

521, a Single Judge of this Court has held thus :-

While the legal position is clear that the husband has a legal and moral

obligation to provide residence to his wife, and if the house where the

wife lived on being wedded, belongs to her husband, it would certainly be

treated as a ‘‘shared household’‘ or a matrimonial home., there is no such

obligation on the father-in-law or the mother-in-law to provide residence

to the daughter-in-law. It is also clear that if the house in question belongs to the joint Hindu family, of which the husband is a member, even

that would be termed as a ‘‘matrimonial house’‘. In the instant case, no

such assertion has been made by the respondent No. 1 and as a matter of

fact, it is fairly conceded that the house stands in the name of the

appellant, her father-in-law. This would not, in my view, vest any right

in the respondent No. 1 to stay indefinitely in the said house by

claiming right of residence.

11. In Neetu Mittal vs. Kanta Mittal 2009 AIR (Del) 72, a Single Judge

of this Court has held thus :-

A woman can assert her rights, if any, against the property of her

husband, but she cannot thrust herself against the parents of her

husband, nor can claim a right to live in the house of parents of her

husband, against their consult and wishes.

12. In Barun Kumar Nahar vs. Parul Nahar 2013 (2) AD (Delhi) 517, a

Single Judge of this Court has held thus:

Testing the present case in the light of aforesaid discussion, the court

is of the view that the plaintiff has been able to establish a very

strong prima-facie case in his favour. The defendant No. 1 being a

daughter-in-law has no right to reside in the subject property which

belongs to her father-in-law as the said property is not covered by the

definition of ‘shared household’, the same being neither a joint family

property in which her husband is a member, nor it belongs to the

defendant No. 2 and is not even a rented accommodation owned by the

defendant No. 2.

13. The legal position which can be culled out from the above reports

is that daughter-in-law has no right to continue to occupy the self

acquired property of her parents-in-law against their wishes more so when

her husband has no independent right therein nor is living there, as it

is not a shared household within the meaning of Section 17(1) of The

Protection of Women from Domestic Violence Act, 2005. Wife is entitled

to claim a right in a shared household which means a house belonging to

or taken on rent by the husband or the house which belongs to joint

family of which husband is a member. Daughter-in-law cannot assert her

rights, if any, in the property of her parents-in-law wherein her husband

has no right, title or interest. She cannot continue to live in such a

house of her parents-in-law against their consent and wishes. In my

view, even an adult son or daughter has no legal right to occupy the self

acquired property of the parents; against their consent and wishes. A

son or daughter if permitted to live in the house occupies the same as a

gratuitous licensee and if such license is revoked, he has to vacate the

said property.

14. In this case, overwhelming evidence was produced before the trial

court by the respondent that he was the owner of the suit property which

was his self acquired property. No evidence has come on record to

suggest that the said property was purchased from the joint family funds and the husband of appellant had any share therein, during the life of

his father. It has also come on record that husband of appellant is not

residing in the suit property along with the appellant. In her affidavit

by way of evidence, appellant has deposed that she is residing separately

from her husband in one room at the ground floor. No cogent evidence was

produced before the trial court nor any such finding has been returned by

the trial court that husband of appellant is living in the suit property.

Since suit property is self acquired property of the respondent,

appellant has no right to continue to occupy the same against the wishes

of respondent.

15. Learned counsel for the appellant has placed reliance on the

judgment dated 15th January, 2014 passed in RFA (OS) 24/2012 titled Smt.

Preeti Satija vs. Smt. Raj Kumari and Anr. but I find the same to be in the

context of different facts. In the said case, disputed questions of

facts were raised. However, judgment was passed on admissions, under

Order 12 Rule 6 CPC. A Division Bench of this court held that no clear

admission was there, thus, the judgment could not have been passed.

Interim order was granted and the suit was directed to be proceeded

further. This judgment was also relied before the trial court and was

considered and trial court has concluded in view of the conflicting

judgments, ruling of S.R. Batra (Supra) cannot be ignored. Furthermore,

in Preeti Satija (Supra) matter was remitted back to the learned Single

Judge for trial. The view taken by the trial court in this regard cannot

be found faulted in view of Supreme Court judgment in S.R.Batra (supra)

followed by a Division Bench of this Court in Shumita Didi Sandhu

(supra).

16. For the foregoing reasons, I do not find any illegality or

perversity in the impugned judgment and decree. Accordingly, appeal is

dismissed. Miscellaneous application is disposed of as infructuous.

A.K. PATHAK, J.

first you should file a petition before high court for speedy trial of case. High court passes direction that petition will be decided with a stipulated time without giving unnecessary adjournments to the parties.

there is no fixed % for maintenance it is based un facts and circumstances of each case. maintenance is decided on the income, liabilities and expenses of husband.

1. Filing of divorce by you does not preclude her from availing her substantive legal remedies. So in short she can file 498A and other cases against you at anytime as long as she remains your wife. If she files criminal cases then immediately seek anticipatory bail to preempt your arrest.

2. Your wife is entitled to residence in the property of her husband and not father-in-law.

3. She has no share in the self acquired or ancestral property of her father or in-laws.

4. If her father is a sr.lawyer then you also engage a seasoned lawyer for your defence.

You can contest her claim to maintenance if you can prove that she is self-sufficient or left her matrimonial home without being a victim of any act of cruelty.

I have filed a divorce case as my wife is not staying with me from last 16 months

please advise if she can take any legal action before the pressence of the 2nd date of divorce in court like moving onto the women cell unnecessarily, or putting any other false case as she didn't appear for the 1st date of hearing.

This is an advantageous situation to you. If she lodges a criminal complaint you can strongly defend yourself based on the pending divorce case.

Actually my father in law is a sr. criminal lawyer and know's all triks to harass me and my family.

Please advise do we have to worry for any thing till my divorce 2nd date of hearing is on 14-3-2016.

Dont worry, you may proceed as per the merits in your side.

they have also filed an original suit case to come back to my home, but now my parents don't want her to be back and now i am staying in a separate 1 room set in some other area.

She cannot enter into you parents house, they can obtain stay against her.

The main problem is my wife and my inlaws are after my father's self acquired property.

Can my wife in any way or legal case can get my father property share??

No, she cannot claim any share in your father's property or even in your own property

also yesterday my wife has send a legal notice of MM rohini court delhi to my elder married sister and as advised by our lawyer she has not refused for that notice.

on the envelope it stated dat it is for the matter between my wife and me and others

now what we exactly have to do

Nothing. You can challenge the same on the basis of the nature of case.

BUT WHAT SHE CAN TAKE FROM US AS I AM ONLY EARNING 25000 PER MONTH , WHAT % I WILL BE ORDERED TO PAY TO HER

You do not disclose your income before court.

You may challenge her to prove your salary income. Generally the quantum of maintenance shall 1/3rd of proved income of the respondent. but the same has to be confirmed through local sources.

Hello,

1) Your wife can not claim any right in your father's self acquired property.That is why she suffered a set back in the RCR petition she has filed and the judge has remarked that she has to live with her husband. If your parents disallow you too do not have any right to live in the house.

2) Therefore apparently your wife can not file any cases making any claim on the property of your father. Have no worry because your father in law is lawyer. Law is is meant to have recourse to all regardless of who one is.

Hello,

1) You need to find the content of the notice. Find if it is a summons from the court. It is possible that as a counter blast to your petition she has filed either a DV case or a Dowry Harassment case and implicated your family members.

2) You need to take immediate steps to reply to the notice/summons as the case may be.

Hello,

1) As far as the maintenance is concerned you are liable to pay maintenance to your minor child . If your wife is not earning you will also be ordered to pay maintenance for her.

2) You can take your defences if she is deliberately not taking up a job despite being qualified. Up to 1/3rd of your salary can be ordered in maintenance to wife and for the child too the calculation shall be similar.

3) Once the application is filed by her your lawyer will take necessary steps to deal with it.

1/3 of your income if she is unable to maintain herself.

1. Your wife can file any case against you but her case will be weak for not filing the case before and filing it after receiving the notice for the divorce case filed by you,

2. Make sure that she has received the notice for your said divorce case,

3. Your wife can claim to stay with you at your one room accommodation but not at your father's house,

4. She has no right, claim or interest in your father's properties.