Monday, January 5, 2015

Women against in-laws, under the garb of Domestic Violence Act (DV Act)

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.
 

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