• Divorce

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.

Also i have a 2+ years daughter.

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.

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.

They loss the original suit case filled by themselves and the judge also stated that the wife will only stay with husband, wherever the husband's stays. but my wife wants to stay in my father's house.

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??

please advise usrgently.
Asked 10 months ago in Family Law from Noida, Uttar Pradesh
Religion: Hindu
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
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
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
Ajay Sethi
Advocate, Mumbai
23126 Answers
1215 Consultations
5.0 on 5.0
1) in case any notice is issued to your relatives they have to engage lawyer and appear in court and contest the case 
Ajay Sethi
Advocate, Mumbai
23126 Answers
1215 Consultations
5.0 on 5.0
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.
Ajay Sethi
Advocate, Mumbai
23126 Answers
1215 Consultations
5.0 on 5.0
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. 
  
Shivendra Pratap Singh
Advocate, Lucknow
2728 Answers
41 Consultations
4.9 on 5.0
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. 
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
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.
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
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

T Kalaiselvan
Advocate, Vellore
13943 Answers
127 Consultations
5.0 on 5.0
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.
T Kalaiselvan
Advocate, Vellore
13943 Answers
127 Consultations
5.0 on 5.0
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. 
T Kalaiselvan
Advocate, Vellore
13943 Answers
127 Consultations
5.0 on 5.0
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.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
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.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
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.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1/3 of your income if she is unable to maintain herself.
Nadeem Qureshi
Advocate, New Delhi
3522 Answers
129 Consultations
4.9 on 5.0
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.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0

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