N THE HIGH COURT OF JUDICATURE AT BOMBAY
APPEAL FROM ORDER NO. 866 OF 2007 IN S.C.SUIT NO. 3072 OF 2007
WITH CIVIL APPLICATION NO. 1194 OF 2007
Smtl Hemaxi Atul Joshi … Appellant
Smt. Muktaben Karsandas Joshi & Anr. Respondents
(Resp.No.1 – org.Plff
& Resp.No.2 – org.
Mr.Jaydev Trivedi, Advocate, for the appellant.
Mr.Nitin Vhatkar, Advocate, a/w G.S.Hiranandani,Advocate
for respondent No.1.
Mr. Prajit S.Manjarekar, Advocate, for respondent No.2.
DATE: 5th December,2007
( relevant extracts)
in the case of Neetu Mittal v. Kanta Mittal reported in 152 (2008) DLT 691 and the relevant Paras of the same are reproduced as under:-
"8. ... 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase "Matrimonial home" refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.
9. Once a person gains majority, he becomes independent and parents have no liability to maintain him. It is different thing that out of love and affection, the parents may continue to support him even when he becomes financially independent or continue to help him even after his marriage. This help and support of parents to the son is available only out of their love and affection and out of mutual trust and understanding. There is no legal liability on the parents to continue to support a dis-obedient son or a son which becomes liability on them or a son who dis-respects or dis- regards them or becomes a source of nuisance for them or trouble for them. The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.
27. In yet another case Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors. reported in 174 (2010) DLT 79 (DB), the Division Bench of this Court took a view that a property which neither belongs to husband nor is taken on rent by him, nor is a joint family property in which husband is a member, cannot be regarded as shared household and, therefore, the daughter-in-law has no right to claim right to stay in such a property, which belongs to either the father-in-law or mother-in-law. The Hon'ble Division Bench also held that the right of residence which a wife undoubtedly has does not mean right to reside in a particular property and it is only in that property in which the husband has a right, title or interest that wife can claim residence and that too if no other commensurate accommodation is provided by the husband. The following paragraphs from the said judgment are reproduced as under:-
"40. ...the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lump sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. 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.
41. In the light of the aforesaid principles, the appellant/plaintiff would certainly have a right of residence whether as a part of maintenance or as a separate right under the said Act. The right of residence, in our view, is not the same thing as a right to reside in a particular property which the appellant refers to as her 'matrimonial home'. The said Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a household."
28. I have also had occasion to deal with some-what similar situation in the case of Kavita Chaudhari v. Eveneet Singh and Anr., reported in 2012 (130) DRJ 83, wherein the civil suit was filed by the mother-in-law seeking a decree of mandatory and permanent injunction against her son and daughter- in-law and in violation of the interim order passed by the court, the daughter- in-law failed to hand over the possession of the suit premises to the mother- in-law, thereby necessitating the Decree Holder i.e mother-in-law to file an execution petition. Following the principles laid down by the Apex Court in the case of S.R. Batra(supra), it was held as under in the following paras:-
"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 both of them in which the husband has no right, title or interest, cannot be called a „share household?. The Hon'ble Division Bench in Sumita Didi (supra) also observed that the right of residence which a wife undoubtedly has does not mean her right to reside in a particular property although such a right in terms of Section 17 of The Protection of Women from Domestic Violence Act is a right to reside in a commensurate property.
17. At omega, this Court would like to observe that with a view to mitigate the oppression and inequality suffered by the fairer sex in this country from times immemorial; various woman friendly laws have been enacted so as to empower the women. It is a bitter truth that where on one hand these progressive laws have led to amelioration and advancement of the cause of the woman in this country, at the same time on the other hand these liberalized statutes have been flagrantly misused. The right of the woman to her matrimonial home is one such right which has been brought on the statute book to protect the woman from being left in lurch at the hands of the in-laws. However one cannot or may I say should not shy away from the hard hitting reality that it is not always the daughter in law who is berated but at times the in laws who are at the receiving end of the daughter in law's cantankerousness. It should not be for a moment consigned to oblivion that the parents in law have every right to live in peace in their own property and the right to property vested in them cannot be snatched away and used as a tool to harass them. In the facts of the case at hand, it is not in dispute before this Court that the said property bearing No. D-32, South Extension, New Delhi is the property owned by the mother-in-law which property was bequeathed in her favour by her father and therefore the said property cannot be treated as a joint family property. The daughter-in-law has no right to stay in the said property and with the exit of her husband from the same the judgment debtor has also lost the right to the said premises as well."
29. One can also not lose sight of the fact that none of the statutes which deal with the rights of a married woman in India, be it The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Adoption and Maintenance Act, 1956; The Protection Of Women From Domestic Violence Act, 2005 or The Code Criminal Procedure, 1973 confer any right of maintenance including residence for the married woman as against the parents of the husband. To illustrate, Sections 24 and 25 of The Hindu Marriage Act, 1955 provides for the wife's right to pendent lite maintenance and Permanent Alimony only against her husband. Section 17 (1) of Domestic Violence Act, 2005 gives protection to the wife where 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 within the meaning of Section 2(s) of the said Act. Section 18 of The Hindu Adoption and Maintenance Act, 1956 enumerates the right of a Hindu wife to be maintained by her husband during her life time. Section 125 of the Criminal Procedure Code, 1973 provides for monthly maintenance to wife, irrespective of her religion, if she has no source of income or means to maintain herself against her husband. The wife's right to maintenance which includes her residence in a commensurate property is, thus, only against the husband. Marriage is a social union of two persons called spouses that establishes rights and obligations between them. The concept of Matrimonial Home has evolved with the passage of time. The concept hails from the law of England under the Matrimonial Homes Act, 1967. There is no such absolute statute in India, like the British Matrimonial Homes Act, 1967, which clearly stipulates that the rights which may be available under marriage laws can only be as against the husband and not against the father-in-law or mother-in-law. However, it is quite discernible that the spouses in wedlock, are obliged to take care of each other and in case of any inter-se dispute; one can claim his right with respect to maintenance only against the other and not against the other family members. With the transient course it has been observed that with the advent of various women friendly laws, empowering the women with equal rights as that of a man/ husband, the remedy of women to ask for maintenance or to claim her right in the residence in a commensurate property is only restricted to her husband and not against her parents in law. A woman 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. This means that she can assert her rights, if any, only against the property of her husband and cannot claim a right to live in the house of her husband's parents without their wishes and caprice. Law permits a married woman to claim maintenance against her in-laws only in a situation covered under section 19 of The Hindu Adoption and Maintenance Act, 1956. i.e. after the death of the husband and that too when she is unable to maintain herself out of her own earnings etc. It would not be abominable to say that even the parents/ parents in law at the fag-end of their lives, deserve to live a blissful, happy and a peaceful life, away from any tautness or worries.
30. In the light of the aforesaid legal position the defendant No.1, being a daughter-in-law of the plaintiff, has no right as against the plaintiff i.e. her father-in-law, to occupy any portion of the subject property, which is his self- acquired property.
31. The next thing to be seen in the present case is whether grant of such an interim mandatory injunction in favour of the plaintiff is imperative to prevent any irreparable loss or serious injury to the plaintiff which normally could not be compensated in terms of money.
32. In the facts of the present case, the plaintiff is aged about 80 years and his wife is aged about 74 years and they are suffering from various old age and other ailments. It is also an admitted position that the defendant No.1 left the subject premises on 20.10.2010 but again entered the said premises later although her husband started residing in a rented accommodation. Without going into the veracity of the complaints and counter complaints filed by the plaintiff and the daughter-in-law, one thing clearly emerges that the relation between the parties are highly embittered and they are on a complete war path. In my view, in such a scenario, while also considering the effect that such environment would have on the minor children, it would be preposterous for both the parties to stay under the same roof. Consideration may also be given to the well-known fact that the civil litigation takes years to conclude and by not granting interim stay in favour of the aged parents-in-law for all these years until the date of final decision of the case, they would be unnecessarily compelled to spend far end of their lives in a formulated, non- consensual and woeful environment. The court can also not lose sight of the fact that the defendant no. 1 has already been offered by the defendant no. 2 to reside with him in his rented accommodation or in the alternate has also been offered a sum of Rs. 30,000 to reside in some other rented accommodation. The defendant no. 1, being herself not happy with the conduct of her in-laws and husband, can avail this facility and shift to another equally good accommodation for which her husband is ready to bear the monthly rental expenses. By such an arrangement, in my opinion, interest of both the parties would be secured at such an interim stage.
33. Counsel for the defendant also raised a plea that plaintiff has played serious fraud upon the Court by not disclosing about having a residential house at Calcutta. Counsel also placed reliance on documents placed on record which clearly prove that the residence of the plaintiff is at Calcutta. Counsel also submitted that the plaintiff by having his residential address at two places has violated the relevant provisions of Representation of Peoples Act, 1951. Undeniably, it would have been better, had the plaintiff disclosed about having his residence at the Calcutta property too, as for claiming equitable discretionary relief one must place all the material and relevant facts before the court. Nevertheless, it has not been denied by defendant No.1 that plaintiff has been residing in the property bearing number B-197, Greater Kailash, Part-I, New Delhi since 2010. The court is of the view that the right of plaintiff has to be considered vis-a-vis Delhi property and not Calcutta property. The mere fact that plaintiff has another property at Calcutta cannot deprive him from residing in his Delhi property and therefore non-disclosure of a residential property at Calcutta in the present suit cannot be taken as a suppression of a material fact so as to dis-entitle the plaintiff from the grant of discretionary relief. There is thus no merit in this plea raised by defendant No.1.
34. Counsel for defendant No.1 also argued that there is an apparent collusion between the plaintiff and defendant No. 2 to throw out defendant No.1 from the alleged matrimonial home. This argument of counsel for defendant No.1 is also devoid of any merit as the Court has to prima-facie consider the right of defendant No.1 to reside in the property owned by her father-in-law and as discussed above, defendant No.1 has no legitimate right to stay in the self-acquired property of her parents-in-law unless permitted by the parents- in-law themselves.
35. In the light of the above discussion, the balance of convenience strongly lies in favour of the plaintiff as against defendant No.1. The non- grant of the interim mandatory injunction will result in causing more prejudice to the rights of the plaintiff in comparison with the alleged rights of the defendant No.1 to stay in an accommodation which is neither a matrimonial home nor a shared household accommodation.
36. Interim mandatory injunction is therefore granted in favour of the petitioner and against the defendant no. 1. Defendant No.1 is accordingly directed to vacate the subject property bearing No. B-197, Greater Kailash, Part-I, New Delhi and hand over peaceful possession of the same to the plaintiff within a period of one month from the date of this order. It is further directed that concerned Court seized with the petition filed by defendant No.1 under Domestic Violence Act shall decide the interim application of defendant No.1 for the grant of maintenance, which will include her right to a residence in the commensurate property as per the financial status of defendant No.2, within a period of one month from the date of this order. Defendant No.1 in the meanwhile is also set at liberty to shift to the rented accommodation as offered by defendant No.2 for her exclusive residence along with her children or to accept an amount of Rs.30,000 towards the amount of rent, pending disposal of her maintenance application before the concerned Metropolitan Magistrate/ Mahila Court .
37. With the above directions the present application stands disposed of.
38. It is ordered accordingly.
KAILASH GAMBHIR 05 February, 2013