Bombay High Court
Mrs. Sarika W/O. Mahendra Sureka vs Mr. Mahendra S/O. Rajkumar Sureka ... on 19 September, 2016
Bench: Dr. Shalini Phansalkar-Joshi
RJ-AO_910_OF_2014.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.910 OF 2014
WITH
CIVIL APPLICATION NO.1095 OF 2014
IN
APPEAL FROM ORDER NO.910 OF 2014.
Mrs. Sarika Mahendra Sureka ]
age: adult, Indian inhabitant
ig ] Appellant
residing at A/5 Model Town Co-op. Hsg. Soc. ] Original
Gulmohar Cross Road No.7, ] defendant
J.V.P.D. Scheme, Mumbai 400 049 ] No.1.
V/s.
1. Mr. Mahendra s/o Rajkumar Sureka ] Respondent No.1
residing at: A/5, Model Town Co.op Hsg. Soc. ] Original
Gulmohar Cross Road No.7, J.V.P.D. Scheme ] Defendant No.1.
Mumbai 400 049 ]
] Respondent No.2
2. Mrs. Kusumlata w/o Rajkumar Sureka, ] Original
residing at: A/5, Model Town Co.op Hsg. Soc. ] plaintiff.
Gulmohar Cross Road No.7, J.V.P.D. Scheme ]
Mumbai 400 049 ]
Ms. Jai Kanade, I/by Sumit S. Kothari, for the
Appellant.
Mr. Hemant Mehta, i/by Mehta & Co. for the
Respondent No.2.
Mr. Ajit Kocharekar, for respondent No.1.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
CLOSED FOR ORDER ON : 29TH AUGUST, 2016.
PRONOUNCED ON : 19th SEPTEMBER, 2016
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RJ-AO_910_OF_2014.doc
JUDGMENT :
1. This appeal takes an exception to the order dated
19.07.2014, passed by City Civil Court, Dindoshi, Mumbai, in Notice of
Motion No.1959 of 2011, filed in S. C. Suit No.1560 of 2011. The said
Notice of Motion was preferred by respondent No.2, seeking relief of
interim injunction restraining appellant and respondent No.1 herein
from entering upon and remaining in the suit premises, situate at A/5,
Model Town Co-op Hsg. Soc. Gulmohar Cross Road No.7, J.V.P.D.
Scheme, Mumbai and/or not to disturb her peaceful use and
occupation of the suit premises in any manner whatsoever.
2. Brief facts of the appeal can be stated as under:-
The appellant is the daughter-in-law of respondent No.2
and wife of respondent No.1. The marriage of appellant with
respondent No.1 took place on 22.5.1991 and since then appellant is
continuously residing alongwith respondent Nos. 1 and 2, with other
family members, in the suit flat being her matrimonial home. The
appellant is also having one major son, born within the wedlock, who is
21 years of age and his name is Abhishek.
3. It is the case of appellant that her father-in-law Rajkumar
Sureka was having joint ancestral property at 96/A, Darya Mahal, 80
Nepean Sea Road, Mumbai, where he was residing alongwith the
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family members till the year 1985. On 8.12.1985, said property was
sold by Rajkumar Sureka and from the sale proceeds of the said
property, suit flat was purchased in the name of respondent No.2.
4. It is further case of appellant that on account of marital
discord between respondent No.1 and her, , respondent No.1 had filed
divorce petition No. A.1270 of 2011, against her on various grounds, in
May, 2011. In the said petition, respondent No.1 had moved an
application for interim injunction restraining her from entering
matrimonial home till disposal of the divorce petition. In that application,
respondent No.1 had categorically averred that the matrimonial home
was his premises. As respondent Nos. 1 and 2 and other family
members were trying to oust the appellant from her matrimonial home
by adopting various devious methods, appellant was constrained to file
Interim application bearing No.23 of 2011, in the said divorce petition
for restraining respondent No.1 from dispossessing her from the
matrimonial home. The Family Court vide its order dated 04.07.2011,
was pleased to allow the appellant's application for interim injunction,
thereby restraining respondent No.1, her husband, from ousting her
from the possession of the suit flat without following due process of
law. As despite the said order, respondent No.1 and his family
members were obstructing appellant's entry to the suit flat, the
appellant filed Interim Application No.47 of 2012 in the said Divorce
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Petition, seeking one set of keys of the suit flat. Respondent No.2,
intervened in the said application on the ground that she is the sole
owner of the suit flat. The Family Court, by its order dated 18.10.2012,
rejected the contention of respondent No.2 herein, and allowed
appellant's application directing respondent No.1 to provide a set of
keys of the suit flat to her.
5. It is the contention of the appellant that as respondent
No.1 failed to get any favourable orders from the Family Court,
conversely as the Family Court passed order in favour of appellant,
respondent No.1 colluded with his mother, respondent No.2 and taking
advantage of the fact that the agreement of sale of the suit flat stands
in the name of respondent No.2 alone, the present suit bearing
No.1560 of 2011 was filed by respondent No.2 against appellant,
impleading therein respondent No.1, seeking relief of permanent
injunction to restrain appellant and respondent No.1 from entering in or
remaining in possession of suit flat.
6. In this suit, respondent No.2 filed Notice of Motion
No.1959 of 2011, seeking relief of interim mandatory injunction
restraining appellant from entering or remaining in the suit flat during
pendency of the suit. The appellant herein resisted the said Notice of
Motion, vide her affidavit-in-reply, contending inter alia that the suit was
collusive and filed with malafide intention of dispossessing the
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appellant from her matrimonial home, by abusing process of law. It was
specifically pleaded therein that the matrimonial home, although
standing in the name of respondent No.2 alone, it being purchased out
of the sale proceeds of the ancestral joint family property, the appellant
and respondent No.1, both are having equal right to remain in
possession of the said flat.
7. In the said Notice of Motion, respondent No.1 did not file
any reply, for opposing grant of interim relief.
8. In the said suit, appellant filed Notice of Motion No.2088
of 2011, raising preliminary issue as to jurisdiction of the Court under
Section 9-A of the Code of Civil Procedure contending inter alia that,
from the averments made by respondent No.2, herself, appellant
appeared to be in possession of the suit flat as gratuitous licencee and
therefore, only the Court of Small Causes at Mumbai can have
jurisdiction to adjudicate the subject matter of the suit. Respondent
No.2 opposed the said Notice of Motion and ultimately the said Notice
of Motion came to be dismissed by the trial Court, which order was
upheld by this Court also.
9. In the backdrop of these facts, the present Notice of
Motion came to be allowed by the trial Court, vide its impugned order
dated 19.7.2014, thereby restraining the appellant from entering or
remaining in the suit premises. According to learned counsel for
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appellant, the trial Court failed to take note of the fact that the present
suit is filed by respondent No.2, in collusion with respondent No.1. It is
urged that respondent No.1 failed to get any relief from the Family
Court. Conversely the Family Court was in fact pleased to pass the
order protecting appellant's right of residence in the matrimonial home.
Hence respondent No.1, in connivance with his mother, has
succeeded in filing the present suit in which he has impleaded himself
as party defendant. According to learned counsel for the appellant, the
suit and the Notice of Motion filed therein, is clearly an attempt to
circumvent the order passed by the Family Court, in favour of the
appellant and thereby evicting the appellant from matrimonial home in
which she was admittedly residing continuously since the date of her
marriage in the year 1991.
10. It is urged that prima facie also, respondent No.2 has not
made out a case that she is the sole owner of the suit premises. It is
urged that respondent No.2 has no independent source of income to
purchase the suit flat. The suit flat was purchased from the sale
proceeds of the ancestral property, in which respondent No.1 was
having share and therefore, appellant is having every right to reside
therein.
11. It is urged that the appellant has no alternate
accommodation. Although on paper, respondent No.1 has stated that
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he has acquired some premises on leave and licence at Goregaon, in
reality it is not true. Respondent No.1 continues to reside in the suit
premises. Even summons of the suit and the notice was received by
respondent No.1 on the address of suit premises. According to learned
counsel for the appellant, the trial Court has failed to consider these
aspects and especially the appellant's right of residence in her
matrimonial home, which is recognized under the Protection of Women
from Domestic Violence Act, 2005 (hereinafter referred to as, "D.V.
Act"). As a result, the impugned order of the trial Court has resulted into
miscarriage and failure of justice to the appellant. It is further urged by
learned counsel for appellant that at the interim stage itself, the trial
Court has granted relief of mandatory injunction without respondent
No.2 making out any prima facie case, much less strong prima facie
case and therefore on this count also, the impugned order passed by
the trial Court needs to be quashed and set aside.
12. Per contra, learned counsel for respondent No.2 has
strongly supported the impugned order of the trial Court, by submitting
that the suit premises are exclusively owned by respondent No.2 and
stands in her name. Respondent No.2 has right to decide whether
appellant, who is her daughter-in-law, can reside in the said house or
not. By placing reliance on the judgment of Apex Court, in the case of
S.R. Batra and another -vs- Taruna Batra (Smt)1, and various other
1 (2007) 3 SCC 169
RJ-AO_910_OF_2014.doc
judgments like judgment of this Court in Conrad Dias of Bombay -vs-
Joseph Dias of Bombay,2, it is submitted by learned counsel for
respondent No.2 that the appellant has no independent right to reside
in the suit premises, as suit premises is exclusively owned by
respondent No.2. The said premises cannot be called as "shared
household", entitling the appellant to reside therein. It is urged that the
conduct of the appellant is causing tremendous mental harassment
and torture to respondent No.2, who is already suffering from various
ailments like high blood pressure and diabetes. Therefore, the trial
Court was fully justified in granting relief of interim injunction, as sought
by respondent No.2, restraining appellant from entering into or
remaining in possession of the suit premises. According to learned
counsel for respondent No.2, once the trial Court has exercised its
discretion in granting equitable relief of interim injunction, no
interference is warranted in the same, within the limited scope of
jurisdiction of this Court.
13. Learned counsel for respondent No.1, has also supported
the impugned order of the trial Court, by submitting that the suit
premises can ever be called as "matrimonial home" or "shared
household" of appellant, but said premises is exclusively owned and
stands in the name of respondent No.2. Hence respondent No.1
himself is also residing in the separate premises at Goregaon which
2 AIR 1995 Bom.210
RJ-AO_910_OF_2014.doc
he has taken on leave and license. In such situation, the appellant
cannot insist to remain in possession of the suit premises. Learned
counsel for respondent No.1 has further submitted that respondent
No.1 has offered to take alternate premises on leave and licence basis
and is still ready and willing to take such alternate premises for
residence of the appellant. The appellant is not ready for the same.
Therefore, the appellant cannot insist on remaining in occupation of the
suit premises, especially when her conduct is a cause of nuisance,
annoyance and mental torture to his mother-respondent No.2. Learned
counsel for respondent No.1 has, thus, fully supported the case of
respondent No.2 and prayed for dismissal of this appeal.
14. Having heard learned counsel for appellant and
respondents at some length and after going through the impugned
order, passed by the trial Court, it has to be stated that some facts in
this case are undisputed. Those facts are to the effect that the
marriage of appellant and respondent No.1 has taken place in the year
1991. Since the date of their marriage, they are residing jointly
alongwith respondent No.2 and other family members, in the suit
premises as members of joint family. Appellant's occupation, in the suit
premises, is thus, that of family member of respondent No.2, being wife
of respondent No.1. Till today, the said possession or occupation is not
at all disturbed. When there was some apprehension of disturbance to
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the said possession, the Family Court has vide its order dated
04.07.2011 protected the possession of appellant in the suit premises.
As a result of it, respondent Nos. 1 and 2 were restrained from ousting
her from possession of the suit premises or from disturbing her
occupation therein. Thus, appellant is in occupation of the suit
premises as her matrimonial home since last more than 25 years as
on today. She is also having one major son born within the wedlock
with respondent No.1, who is also residing therein.
15. It is also undisputed that on account of marital discord
between appellant and respondent No.1, respondent No.1 has
approached the Family Court, in the year 2011 for seeking a decree of
divorce. The said petition No.A.1270 of 2011 is pending in the Family
Court. Thus, marriage of appellant and respondent No.1 is still
subsisting and yet not dissolved. As stated above, in the said petition,
appellant had got the order of protecting her possession in the suit
premises thereby restraining respondents from causing obstruction to
her possession.
16. It is also a matter of record that in this suit, which is filed by
respondent No.1 in the trial Court, appellant raised plea of being in
possession of the suit premises as gratuitous licencee. Said plea came
to be rejected by the trial Court and said order was confirmed by this
Court also. Hence her contention to that effect having attained finality,
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in this proceeding her right to occupy the suit premises has to be
considered independently dehors to her plea of being gratuitous
licencee.
17. It is also common ground between the parties that only
after the Family Court passed the order protecting possession of the
appellant in the suit premises despite intervention and resistance by
respondent No.2, respondent No.2 has filed this suit seeking relief of
injunction restraining appellant from remaining in the suit premises. It is
also common ground between the parties that only subsequent thereto,
respondent No.1 husband of appellant has obtained some alternate
premises at 39/B, Vallabh Apartment, Sejal Park, New Link Road,
Goregaon (W), Mumbai -14. According to respondent No.1, he has
shifted his residence there whereas according to appellant, respondent
No.1 still continues to remain in suit premises, but only to deny her
right of residence in the suit premises, respondent No.1 has created
the documents to show that he has acquired some alternate premises.
18. It is also a matter of record that at the time of hearing of
this appeal, a suggestion was made by this Court to know whether
respondent No.1 can make provision for alternate accommodation to
the appellant and accordingly respondent Nos. 1 and 2, by their letter
dated 10th August, 2016 have listed about 6 premises wherein it was
suggested that alternate arrangement can be made for the appellant.
RJ-AO_910_OF_2014.doc
After taking inspection of these premises, which are situated in the
area of Goregaon and Andheri, the appellant has conveyed her
disapproval for those premises. As a result thereto, as possibility of
having overall amicable settlement between the parties failed to
achieve results, the matter has to be proceeded for final hearing.
19. The first and foremost submission advanced by learned
counsel for appellant is that, by the impugned order, the trial Court has
decreed the suit, at the interim stage itself. It is submitted that the relief
which respondent No.2 is claiming in the suit before the trial Court is
only of permanent injunction, restraining the appellant from remaining
or entering upon the suit premises. By granting the impugned order of
interim mandatory injunction, the trial Court has restrained the
appellant at the interim stage itself from entering or remaining in
possession of the suit premises. The submission of learned counsel for
appellant is that as per settled position of law, the order of interim
mandatory injunction can be granted in very rare cases, that too only
when strong prima facie case is made out and further only to restore
status-quo ante, and not to oust someone from settled possession
20. In support of her submission, learned counsel for
appellant has relied upon the landmark decision of Apex Court, in
Dorab Cawasji Warden -vs- Coomi Sorab Warden and others3. In
this decision, after taking review of its earlier decisions, the Apex Court
3 (1990) 2 SCC 117
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was pleased to lay down certain guidelines in the matter of grant of
interim mandatory injunction, in paragraph Nos.16 and 17 of its
judgment as under:-
"16. The relief of interlocutory mandatory injunction is thus
granted generally to preserve or restore the status quo of the last
non-contested status which preceded the pending controversy
until the final hearing when full relief may be granted or to compel
the undoing of those acts that have been illegally done or the
restoration of that which was wrongfully taken from the party
complaining. But since the granting of such an injunction to a
party who fails or would fail to establish his right at the trial may
cause great injustice or irreparable harm to the party against
whom it was granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause great
injustice or irreparable harm, courts have evolved certain
guidelines. Generally stated these guidelines are:
1. The plaintiff has a strong case for trial. That is, it shall
be of a higher standard than a prima facie case that
is normally required for a prohibitory injunction.
2. It is necessary to prevent irreparable or serious injury
which normally cannot be compensated in terms of
money.
3. The balance of convenience is in favour of the one
seeking such relief.
17. Being essentially an equitable relief the grant or refusal
of an interlocutory mandatory injunction shall ultimately rest
in the sound judicial discretion of the court to be exercised
RJ-AO_910_OF_2014.doc
in the light of the facts and circumstances in each case.
Though the above guidelines are neither exhaustive nor
complete or absolute rules, and there may be exceptional
circumstances needing action, applying them as
prerequisite for the grant or refusal of such injunctions
would be a sound exercise of a judicial discretion".
21. Learned counsel for respondent No.2 has, however, relied
upon the decision of Barun Kumar Nahar -vs- Parul Nahar and anr 4,
to counter the argument that at the interim stage, mandatory injunction
cannot be granted to oust a person in possession of the suit property.
In this authority, it was held that expression "generally" in the
observations made in the case of Dorab Cawasji Warden (supra),
gives clear indication that this is not a water tight decision that in no
case such relief of interim mandatory injunction can be granted. Delhi
High Court in case of Barun Kumar Nahar (supra), in paragraph
No.32 has observed thus :-
"Considering well known fact that civil litigation takes
years to conclude and by not granting interim stay in
favour of 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".
22. In the light of these facts, grant of interim mandatory
4 2013 (135) DRJ 307
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injunction ousting daughter-in-law from the possession of the premises
was held to be justified, especially considering that husband has
already offered to the wife to reside with him in a rented
accommodation or in the alternative he has also offered a sum of
Rs.30,000/- to the wife to reside in some other rented accommodation.
23. As said by the Apex Court itself, though the guidelines laid
down by it in Dorab Cawasji Warden (supra) are essentially general in
nature, they make the legal position clear that such relief of interim
mandatory injunction is not to be granted as a matter of routine, but
only in exceptional circumstances, needing the action like, when it is
necessary to preserve or restore status-quo of the last non-contested
status, which preceded the pending controversy or to compel the
undoing of those acts that have been illegally done or restoration of
that, which was wrongfully taken from the party complaining. Other
undisputed legal position which emerges from this decision is that
plaintiff seeking such interim mandatory injunction, has to make out a
strong case for trial and strong case means it has to be of a higher
standard than mere prima facie case which is normally required for the
grant of interim prohibitory injunction.
24. On the touchstone of this legal position laid down in this
decision by the Apex Court, one has to consider whether the
impugned order of interim mandatory injunction passed by the trial
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Court satisfy these conditions.
25. Here in the case, admittedly appellant is continuously in
possession of the suit premises since the time of her marriage in the
year 1991, which possession is protected by the order of Family Court
also. The impugned order of interim mandatory injunction is disturbing
the said possession, as it has effect of ousting her from the suit
premises and therefore, impugned order is not in the nature of
preserving or restoring status quo ante or to compel undoing of any
act, done illegally, but it has the opposite effect of disturbing the settled
possession of appellant in her matrimonial home, which possession
was protected by the judicial order of the Family Court. Therefore, the
impugned order, as passed by the trial Court is not satisfying the first
condition laid down in the above said decision of Dorab Cawasji
Warden (supra). Conversely it is against the express terms of legal
position laid down therein.
26. Second test for consideration is, whether respondent No.2
has made out such a strong prima facie case, that at the interim stage
itself, the trial Court thought it fit to disturb settled possession of
appellant in the suit premises? For this purpose it has to be seen
whether the case of respondent No.2, which is accepted by the trial
Court, that of she being the exclusive and sole owner of the suit
premises and hence the appellant cannot reside in the suit premises
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without the consent of respondent No.2, can be prima facie upheld.
The trial Court has accepted the contention of respondent No.2 that
she is the exclusive owner on the basis of share certificate of the suit
premises, standing in her name and ascertaining the fact that
agreement to sale which was yet to be registered, is also executed in
her name. Hence the trial Court held that apparently prima facie
respondent No.2 is the exclusive owner of the suit premises. While
doing so, the trial Court has not considered the fact that the appellant
has challenged this claim of respondent No.2 to be exclusive owner of
the suit premises by contending inter alia that respondent No.2 has
admittedly no independent source of income and the suit property was
purchased from the sale proceeds of joint family property. This
contention raised by the appellant is yet to be decided. It is not
seriously disputed that the husband of respondent No.2 Rajkumar
Sureka, who was the father-in-law of the appellant was initially residing
jointly with respondents and other family members in the premises
situate at 96/A, Darya Mahal, 80 Nepean Sea Road, Mumbai, which
was the ancestral property. As per case of appellant, the said property
was sold and from sale proceeds thereof, suit premises were
purchased. It is undisputed that respondent No.2 has no independent
source of income. Hence it follows that at this prima facie stage, it was
incumbent on the respondent No.2 to show from where she raised
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funds for purchasing the suit premises, if not from the sale proceeds of
the ancestral joint family property at Nepean Sea Road. Respondent
No.2 has, however, not discharged this initial burden.
27. Learned counsel for respondent No.2, has however, by
relying upon the decision in case of Vimlaben Ajitbhai Patel -vs-
Ajitbhai Revandas Patel and anr 5, submitted that it is not for owner
of the property to establish that it is self acquired property and onus
would be on the one who pleads contrary. In this context, it is urged
that if appellant wants to challenge the title of respondent No.2, over
the suit property, the burden was on the appellant to establish contrary.
However, appellant has not done so. Mere averment that suit premises
were purchased out of sale proceeds of the ancestral property is not
sufficient, unless documentary evidence to that effect is produced. It is
urged that as appellant has not produced any such documentary
evidence, this Court has to proceed on the prevailing state of affairs
that respondent No.2 is the owner of the property, as the agreement of
sale and share certificate of the Co-operative Housing Society stand in
her name.
28. As to the reliance placed on this authority of Vimlaben
Ajitbhai Patel (supra), said case pertains to recovery of arrears of
maintenance in which property standing in the name of mother-in-law,
came to be attached and in the light of the same, it was observed that
5 (2008) 4 SCC 649
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the decree holder, daughter-in-law, has not produced any evidence
contrary to prove that the property was not owned by the mother-in-law.
This observation was also made in the light of the fact that obligation to
pay maintenance to married wife during subsistence of marriage is on
the husband and it being his personal obligation, such obligation
cannot be met from the properties of the mother-in-law.
29.
Learned counsel for respondent No.2 has then placed
reliance on the judgment of Delhi High Court in case of Shumita Didi
Sandhu -vs- Sanjay Singh Sandhu and ors6, wherein it was
observed by Delhi High Court that when alternate premises has been
offered to the wife, but she refuses to accept the same and insists on
retaining premises where her parents-in-law reside, claiming it to be
her matrimonial home, she cannot do so, because the right of
residence which a wife undoubtedly has, does not mean the right to
reside in a particular property only. It was held that right of residence
which a wife undoubtedly has, mean the right to reside in
commensurate property, but it can certainly not translate into a right to
reside in a particular property.
30. It is urged by learned counsel for appellant that in this case
when offer was made to the appellant of selecting the premises from
several premises in the locality, which offer she is not ready to accept,
6 (2010) 174 DLT 79
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even she is not ready to reside in the premises, which are taken on
leave and licence by her husband -respondent No.1, she cannot have
any right to insist on residing in the suit premises only on the ground
that it being her matrimonial home, especially when the evidence on
record shows that the suit premises belong to her mother-in-law and
her husband has no right therein. It is also in the backdrop of the fact
that conduct of appellant is causing mental torture and harassment to
respondent No.2.
31. Further, learned counsel for respondent has placed
reliance on the decision of this Court in Conrad Dias (supra) wherein
relief of interim mandatory injunction, ousting married son from the
premises owned by his father, was upheld by this Court, considering
the fact that owner of the premises i.e. father has right to decide who
will stay with him and no one can stay in his premises without his
consent, even if he is son or other family member.
32. Learned counsel for respondent No.2 has then mainly
placed reliance on the landmark decision of Apex Court in S. R. Batra
(supra); wherein Apex Court has categorically held that "the house
which is owned and exclusively belongs to mother-in-law of a woman,
wherein she had lived with her husband, only for some time in the past
after their marriage cannot be considered as, "shared household"
within the meaning of section 2(s) of D.V. Act and hence wife is not
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entitled to claim her right to live therein under Section 17 of the D.V.
Act. It was held that in order to claim such right, property should belong
to her husband or it should have been taken on rent by her husband or
it should have been a joint family property in which her husband was a
member. But wife cannot claim any right of residence in the property
exclusively belonging to her mother-in-law. At the most she can seek
direction against her husband for providing alternate accommodation to
her, but not against her husband's relatives.
33. As a matter of fact, this very decision of S.R. Batra, has
paved the way for the above referred decision of Supreme Court,
namely i) Vimlaben Patel -vs- Vatsalaben Patel, and of Delhi High
Court in ii) Barun Nahar -vs-Parul Nahar, and iii) Shumita Sandhu -vs-
Sanjay Sandhu. Therefore, the crux of controversy in this case revolves
around the decision of the Apex Court in the case of S.R. Batra
(supra), which in some decisions of this Court and other High Courts, is
followed fully, thereby upholding relief of interim mandatory injunction,
directing ousting of daughter-in-law from the premises owned by the
mother-in-law; whereas in some decisions, which are relied upon by
learned counsel for appellant, it is distinguished on facts. Those
decisions are of Delhi High Court, in Mrs. Preeti Satija -vs- Mrs. Raj
Kumari & anr,7 and Navnath Arora -vs- Surendar Kaur8.
7 2014 (1) Crimes 571
8 2014 (213) DLT 611
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34. To understand and appreciate the legal position as laid
down in the decision of S.R. Batra (Supra), one has to understand the
facts of the said case. In that case, respondent Taruna started living
with her husband Amit at the second floor of the premises belonging to
her mother-in-law; whereas the in-laws resided separately on the
ground floor of the said property. Thus, it is apparent that Taruna or her
husband were not living as a members of the "joint family" with her in-
laws to attract the legal concept of "shared household". Most
importantly, in the said case, it was not disputed that the said house
belonged to the mother-in-law of Taruna and not to Taruna's husband
Amit. Amit has filed Divorce Petition against Taruna. As a counter
blast thereto, Taruna had filed F.I.R. under Sections 406, 498A, 506
read with Section 34 of the Indian Penal Code; and her father-in-law,
mother-in-law, husband and married sister-in-law were arrested by the
police. They were granted bail only after three days. It was also
admitted therein that Taruna had already shifted to her parent's
residence because of dispute with her husband. Only after lodging of
the complaint and arrest of her in-laws, when she tried to forcibly enter
into the house of appellant-mother-in-law, Taruna filed suit for
mandatory injunction to enable her to enter in the house of her mother-
in-law. Even before any order could be passed in the said suit, Taruna
alongwith her parents forcibly broke open the lock of the house of
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appellant and started staying there. There was also allegation that
appellant and other family members had been terrorized by the
daughter-in-law and for some time they had to stay in their office. It was
also undisputed that Taruna's husband Amit had shifted to his own flat
in Mohannagar, Ghaziabad, even before the litigation between the
parties had started.
35. It is in these facts and circumstances of the said case, the
trial Court granted relief of interim injunction restraining the appellant
from interfering with the possession of Taruna. Against the said order,
appeal was preferred by appellant; wherein it was held that as neither
Taruna nor her husband were residing in the suit premises, which
belong to the appellant mother-in-law, Taruna had no right to reside in
the said house and accordingly, her application for interim injunction
came to be dismissed. Aggrieved by the said said order, Taruna filed
Writ Petition under Article 227 of the Constitution of of India, which
came to be allowed by Single Judge of Delhi High Court, holding that
the property in question was matrimonial home of Taruna and mere
change of residence of Taruna's husband would not restrain Taruna
from residing in matrimonial home. Accordingly it was held that Taruna
was entitled to reside in the suit premises and her application for
interim injunction was allowed.
36. It was this order of the Single Judge of Delhi High Court
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which was challenged before the Hon'ble Supreme Court in this
decision, by contending inter alia that the concept of matrimonial home
which is recognized under British Law, is alien to the Indian Laws.
Moreover, in the instant case, house does not belong to the husband of
Taruna, but it was the absolute property of her mother-in-law and in
such situation when it was also not a joint family property, Taruna
cannot claim any right of residence therein. The Hon'ble Supreme
Court after making reference to the provisions of section 2(s) of D.V.
Act, relating to definition of "shared household" and provisions of
Sections 17 and 19 of the said Act, pertaining to the wife's right of
residence in the shared household, rejected the contention raised by
Taruna's counsel that the definition of "shared household" includes
"household" where person aggrieved lives or at any stage had lived in
domestic relationship. It was observed by Hon'ble Supreme Court in
paragraph No.26 and 27 of this judgment that:-
"26. 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 household. 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
grandparents, 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 all these houses of her
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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 chaos and would be absurd.
27. It is well settled that any interpretation which leads to
absurdity should not be accepted".
37. The Hon'ble Apex Court, in this decision was further
pleased to reject Taruna's claim of alternate accommodation, under
Section 19(1)(f) of the D.V. Act, by opining that such claim can be made
only against husband and not against in-laws or the relatives. As
regards section 17(1) of the D.V. Act, the Hon'ble Supreme Court was
pleased to opine that the wife is only entitled to claim a right of
residence in a "shared household" and shared household would only
mean the house belonging to or taken on rent by the husband or house
which belongs to the joint family, of which the husband is a member.
38. Thus, from the perusal of the facts of that case, it is
apparent that, in the said case admittedly the property in question
neither belonged to husband's parents nor it was taken on rent nor it
was alleged to be joint family property of her husband. Conversely, it
was admitted as a factual position that it was the exclusive property of
appellant mother-in-law. Moreover, in that case Taruna and her
husband were living separately on second floor having separate
kitchen and household as such whereas in-laws resided separately on
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the ground floor. Hence apparently they were not residing together as
members in the joint family in a "shared household". In addition to
that in that case Taruna and her husband had stayed in that house only
for some period and not continuously, since time of marriage till filing of
suit, most importantly Taruna has already left that house and shifted to
her parent's house because of dispute with her husband. Only after
lodging complaint, she has made forcible entry therein. Hence in view
of all these facts Apex Court vide it's order of interim mandatory
injunction restored status quo ante by calling upon her to vacate the flat
thereby rejecting her claim to remain in possession of the flat where
she obtained forcible entry and which admittedly belonged to her
mother-in-law. In the light of these admitted facts, it was held that it
cannot be called as "shared household". While doing so, Apex Court
was, also pleased to observe that the definition of "shared
household" under Section 2(s) of the D.V. Act, is not very happily
worded and appears to be result of clumsy drafting, but the Court has
to give an interpretation which is sensible and which does not lead to
chaos in society.
39. In the case of Vimlaben Patel (supra), judgment in case of
S. R. Batra (supra) was followed and the claim of maintenance of the
deserted wife against the property of her mother-in-law was rejected. In
the case of Barun Kumar Nahar (supra), as stated above, the
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daughter-in-law's claim to reside in the property owned by her father-in-
law, when admittedly her husband was residing separately in rented
premises, was rejected by the Delhi High Court, again following
judgment in the case of S.R. Batra (supra). In the case Shumita Didi
Sandhu (supra) also, Delhi High Court followed the judgment in case of
S.R. Batra (supra) and allowed the claim for interim injunction in favour
of in-laws restraining wife from entering into the suit premises.
40.
Learned counsel for respondent No.2 has also relied on
the unreported judgment of this Court in Bharati Rajesh Bhave -vs-
Vijay Shankar Bhave and ors, dated 3rd December, 2015, in Appeal
From Order (ST) No.31217 of 2015, wherein also by placing reliance
on the judgment of S.R. Batra (supra), this Court has confirmed the
interim mandatory injunction order passed by the trial Court, directing
daughter-in-law to quit from the suit flat alongwith son and her
belongings and dismissed the appeal on the ground that flat was
admittedly belonging to the mother-in-law -respondent No.2 exclusively.
However, as pointed out by learned counsel for appellant, the Hon'ble
Supreme Court has stayed the impugned order in Special Leave
Petition preferred by the daughter-in-law.
41. In the case of Mrs. Preeti Satija (supra) and in case of
Barun Kumar Nahar (supra), two Division Benches of Delhi High Court
have, however, distinguished the judgment of Hon'ble Supreme Court,
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in S.R. Batra (supra) and rejected the relief of interim mandatory
injunction, as claimed by the mother-in-law for ousting the daughter-in-
law from the possession of the suit premises. In both these judgments,
Delhi High Court has dealt with all the relevant provisions of D.V. Act
and found that under the provisions of the D. V. Act, especially section
19(1) of the Act, daughter-in-law is entitled to such protection, even if
the house may or may not belong to her husband and it may
exclusively belong to mother-in-law.
42. Now in order to effectively answer the controversy raised in
this appeal, in the light of conflicting decisions of the various High
Courts and in the light of decision of Apex Court in case of S.R. Batra
(supra), it would be necessary to refer to the various provisions of D.V.
Act, especially the object and reasons for which the said Act was
brought on statute book. It is significant to note that the statement of
object and reasons of the said Act, expresses concern about the
phenomenon of domestic violence for being widely prevalent but has
remained largely invisible in the public domain. The Statement then
refers to the various Declarations like Vienna Accord of 1994, and
Beijing Declaration and the Platform for Action (1995) which have
acknowledged this fact. The Statement of Objects and Reasons, then
also places reliance on the United Nations Committee on Convention
of Elimination of all Forms of Discrimination Against Women (CEDAW)
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particularly its General Recommendation No.XII (1989). Having regard
to the fact that India is signatory to the convention, it was observed
that it becomes duty of the Government to protect women against
violence of any kind especially that occurring within the Family. It was
observed that, presently where woman is subjected to cruelty by her
husband or his relatives, it is an offence under Section 498-A of the
Indian Penal Code. The Civil Law, however, does not address this
phenomenon in its entirety. Hence keeping in view the rights
guaranteed under Article 14, 15, and 21 of the Constitution of India and
in order to provide for a remedy under the Civil law, for the protection
of women from being victims of domestic violence and to prevent the
occurrence of domestic violence in the society, the Act was enacted to
provide her various reliefs.
43. In order to achieve these objects and the reasons, the Act
provides for the comprehensive definitions of the "Domestic Violence",
"shared household", "Respondent" and "the aggrieved person" etc. in
Section 2 of the Act. The definitions, which are relevant for the purpose
of deciding this appeal can be reproduced as under :
"2(a) "aggrieved person" means any woman who is, or has been,
in a domestic relationship with the respondent and who alleges to
have been subjected to any act of domestic violence by the
respondent;
"2(f) "domestic relationship" means a relationship between
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two persons who live or have, at any point of time, lived
together in a shared household, when they are related by
consanguinity, marriage, or through a relationship in the nature
of marriage, adoption or are family members living together as
a joint family".
"2(q) "respondent" means any adult male person who is, or
has been, in a domestic relationship with the aggrieved person
and against whom the aggrieved person has sought any relief
under this Act:
Provided that an aggrieved wife or female living in a
relationship in the nature of a marriage may also file a
complaint against a relative of the husband or the male
partner".
"2(s) "shared household" means a household where the person
aggrieved lives or at any stage has lived in a domestic relationship
either singly or alongwith the respondent and includes such a
household, whether owned or tenanted, either jointly by the
aggrieved person and the respondent, or owned or tenanted by
either of them in respect of of which either the aggrieved person or
the respondent or both jointly or singly have any right, title, interest,
or equity and includes such a household which may belong to the
joint family of which the respondent is a member, irrespective of
whether the respondent or the aggrieved person has any right, title
or interest in the shared household".
44. Section 17 of the D.V. Act, secures right of
"aggrieved woman" to reside in a shared household as
under:-
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"S.17 Right to reside in a shared household:-
(1) Notwithstanding anything contained in any other law
for the time being in force, every woman in a domestic
relationship shall have the right to reside in the shared
household, whether or not she has any right, title or
beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded
from the shared household or any part of it by the
respondent save in accordance with the procedure
established by law".
45. Section 18 of the Act deals with "Protection Orders" which
the Magistrate may, after giving an opportunity of hearing to the
aggrieved person, and the respondent, pass from time to time. in
favour of the aggrieved person thereby prohibiting respondent from
committing act of domestic violence, as laid down in the said Section.
46. Section 19 of the D.V. Act, which is more relevant for the
purpose of this appeal, deals with the "Residence Orders" which the
Magistrate may pass, while disposing of an application under Sub
section (1) of section 12 of the Act.
"19. Residence Orders - (1) While disposing of an application under
sub section (1) of section 12, the Magistrate may, on being satisfied
that domestic violence has taken place, pass a residence order;
(a) restraining the respondent from dispossessing or in any other
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manner disturbing the possession of the aggrieved person from the
shared household, whether or not the respondent has a legal or
equitable interest in the shared household.
(b) directing the respondent to remove himself from the shared
household;
(c) restraining the respondent or any of his relatives from entering
any portion of the shared household in which the aggrieved person
resides;
(d) restraining the respondent from alienating or disposing off the
(e)
shared household or encumbering the same;
restraining the respondent from renouncing his rights in the
shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her in the
shared household or to pay rent for the same, if the circumstances so
require;
Provided that no order under clause (b) shall be passed against
any person who is a woman".
47. If all these provisions are read conjointly, then they make it
clear that they aim to protect aggrieved person like appellant, from
being evicted from matrimonial home or driven out of the matrimonial
home.
48. Thus the perusal of the Objects and Reasons of the Act
and its various provisions makes it clear that the Legislature has taken
the cognizance of the fact that women suffer immense hardship when
they are driven out of their marital home. In most cases they suffer pain
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and humiliation mutely for the fear of being rendered homeless. Thus,
her crucial entitlement to remain in the house and not to be
dispossessed from her marital home was sought to be recognized and
given legal statutory right by making definitions of "shared
household" and "domestic relationship" quite comprehensive. The
Act has, thus, given statutory recognition to the salutary protection
granted to aggrieved woman by the Judge made laws, like decision of
the Apex Court, in case of B.P. Achala Anand -vs- S. Appi Reddy and
anr9 wherein Supreme Court recognized the right of wife to reside in
her matrimonial home and laid a principle hitherto unknown in law that
deserted wife would be entitled to remain in possession of the
matrimonial home and to contest suit for eviction against her husband.
In the said decision, cognizance was taken of the Matrimonial Homes
Act, 1967 enacted in England to secure the rights of married woman.
Even the deserted wife's equity to reside in the matrimonial home and
not to be dispossessed automatically from the same which was laid
down by Lord Denning was also recognized. Thus, D.V. Act is enacted
with a very laudable object of providing full protection to a deserted
married woman in respect of her residence in the matrimonial home
and not to be dispossessed or driven out therefrom.
49. It also need not be stated that Domestic Violence Act
is Secular Legislation, akin to Section 125 of the Code of Criminal
9 2005 3 SCC 313
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Procedure. It was enacted to provide more effective protection to
the rights of women, irrespective of their religion, caste or creed
which rights are guaranteed under the Constitution and to those
women who are victims of violence of any kind occurring within the
family. The introduction of remedy of right to residence in
matrimonial home, protection against eviction therefrom, granted
by this Act, is to say the least, revolutionary and path breaking
step taken to further Objects of the Act. Hence as observed by
Delhi High Court, in case of Preeti Satija (supra),
"Any attempt at restricting of the scope of remedy would
reduce the effectiveness of the Act itself. Therefore, it
would be contrary to the scheme and objects of the Act to
restrict its application to only such cases, where the
husband owns some property or has a share in it".
50. It was further held in this authority that in the light of
provisions of Section 19(1) of the said Act;
"as the mother-in-law can also be respondent in the
proceedings under the Domestic Act, and remedies available
under the said Act would necessarily need to be enforced
against the mother-in-law also"
51. In this case, Delhi High Court has elaborately dealt with
the Objects and Reasons of the Act, in the light of definitions and also
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in the light of its decision in case of Eveneet Singh v. Prashant
Choudhary10 and was pleased to observe as follows :
"It is thus apparent that Parliamentary intention was to secure
the rights of aggrieved persons in the shared household, which
could be tenanted by the Respondent (including relative of the
husband) or in respect of which the Respondent had jointly or
singly any right, title, interest or "equity". For instance, a widow
living with mother-in-law, in premises owned by the latter, falls
within a "domestic relationship", even if the mother-in-law does
not have any right, title or interest, but is a tenant, or entitled to
"equity" in those premises, the same would be a "shared
household". In such circumstances, the widowed daughter-in-
law, can well claim protection from dispossession,
notwithstanding that her husband never had any ownership
rights, in the premises, because she lived in it; if the mother-in-
law, is a tenant, then, on the ground that she is tenant, or
someone having equity. It may, however, be noticed here that
Section 19, while referring to a "Respondent" lays down a
limited exception under the provision to 19(1)(b), exempting
women from being directed to remove themselves from the
shared household. However, no such exception has been
carved out for the other reliefs under Section 19, especially in
respect of protection orders. Clearly, if the legislature had
wanted to create another exception in favour of women, it
would have done so. The omission here, seems deliberate and
in consonance with the rest of the scheme of the Act. Another
instance of a domestic relationship may be an orphaned sister,
or widowed mother, living in her brother's or son's house; it falls
within the definition of domestic relationship, (which is one
10 177 (2011) DLT 124
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where the parties are related by consanguinity, or marriage)
constitutes a shared household, as the brother is clearly a
Respondent. In such a case too, if the widowed mother or
sister is threatened with dispossession, they can secure reliefs
under the Act, notwithstanding exclusive ownership of the
property, by the son or brother. Thus, excluding the right of
residence against properties where the husband has no right,
share, interest or title, would severely curtail the extent of the
usefulness of the right to residence".
52.
This legal recognition of aggrieved person's right of
residence against mother-in-law is noted by our own High Court in
Archana Hemant Naik -vs- Urmilaben Naik11 in the following terms:-
"If a wife or a woman to whom the proviso is applicable is
compelled to seek residence order in respect of a shared
household only as against the male relatives or her
husband or male partner, as the case may be, the order
under Section 19 of the said Act will be completely
ineffective in as much as the female relatives of the
husband or the male partner occupying the shared
household will continue to disturb possession of such wife
or such female of the shared household, or may continue
to prevent entry of such aggrieved wife or female to the
share household"
53. Division bench of Delhi High Court, has in the the case of
Preeti Satija (supra) dealt with concept of joint family and came to
11 2010 Cri L.J. 751
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conclusion that when the Act refers to the joint family property, it would
not be proper to import notions of Hindu Undivided Family under the
said provision, as it would unwittingly give greater benefits to one
section of the community, which was never the intention of the
Parliament, as no concept of joint family similar to that of Hindu
Undivided Family can be found in Muslim Law, Christian Law or any
other personal Law. In paragraph Nos. 14, 15 & 16, it was held that :-
"14. The danger of accepting a restricted interpretation of joint
family by equating it to a HUF would result in discrimination,
because women living in a shared household belonging to HUFs
(and therefore Hindus) would have more security, by reason of their
professing the Hindu faith than others who are not Hindus. Also,
even among Hindus, women who are married into or live in HUFs,
as compared with those living with husbands, whose parents own
the property - on an application of Batra - would have the
protection of the Act; the latter would not have any protection. It is
precisely to avoid this anomaly that Parliament clarified that
irrespective of title of the "Respondent" to the "shared household" a
protection order can be made under Section 19(1) (a).
15. The definition of "shared household" emphasizes the factum of
a domestic relationship and no investigation into the ownership of
the said household is necessary, as per the definition. Even if an
inquiry is made into the aspect of ownership of the household, the
definition casts a wide enough net. It is couched in inclusive terms
and is not in any way, exhaustive. (S. Prabhakaran v. State of
Kerala, 2009 (2) RCR 883). It states that, .....includes such a
household whether owned or tenanted either jointly by the
aggrieved person and the Respondent or owned or tenanted by
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either of them in respect of which either the aggrieved person or the
Respondent or both jointly or singly have any right, title, interest or
equity and includes such a household which may belong to the joint
family of which the Respondent is a member, irrespective of
whether the Respondent or the aggrieved person has any right, title
or interest in the shared household"
16. It would not be out of place to notice here that the use of the
term, "Respondent" is unqualified in the definition nor is there any
qualification to it under Sections, 12, 17 or 19. Therefore, there is
no reason to conclude that the definition does not extend to a
house which is owned by a mother-in-law or any other female
relative, since they are encompassed under the definition of
"Respondent" under Section 2(a)".
(emphasis supplied)
54. While doing so, Delhi High Court, in this decision also
referred to a decision of the Apex Court in case of Sandhya Manoj
Wankhade -vs- Manoj Bhimrao Wankhade12 ; wherein it was held
that
"13.It is true that the expression "female" has not been used in
the proviso to section 2(q) also, but, on the other hand, if the
Legislature intended to exclude females from the ambit of the
complaint, which can be filed by an aggrieved wife, females
would have been specifically excluded, instead of it being
provided in the proviso that a complaint could also be filed
against a relative of the husband or the male partner. No
restrictive meaning has been given to the expression "relative",
nor has the said expression been specifically defined in the
12 (2011) 2 SCR 261
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Domestic Violence Act, 2005, to make it specific to males only".
14. In such circumstances, it is clear that the legislature never
intended to exclude female relatives of the husband or male
partner from the ambit of a complaint that can be made under
the provisions of the Domestic Violence Act, 2005."
55. In this authority, Delhi High Court also distinguished not
only it's own decision in case of Shumita Didi Sandhu (supra), but also
decision of the Supreme Court in case of Vimlaben Ajitbhai Patel
(supra) and having regard to the intention of the Legislature, observed
as follows :
"20. Crucially, Parliament's intention by the 2005 Act was to
secure the rights of aggrieved persons in the shared household,
which could be tenanted by the Respondent (including relative
of the husband) or in respect of which the Respondent had
jointly or singly any right, title, interest, or "equity". For instance,
a widow (or as in this case, a daughter in law, estranged from
her husband) living with a mother-in-law, in premises owned by
the latter, falls within a "domestic relationship". The obligation
not to disturb the right to residence in the shared household
would continue even if the mother-in-law does not have any
right, title or interest, but is a tenant, or entitled to "equity" (such
as an equitable right to possession) in those premises. This is
because the premises would be a "shared household". The
daughter-in-law, in these circumstances is entitled to protection
from dispossession, though her husband never had any
ownership rights in the premises. The right is not dependent on
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title, but the mere factum of residence. Thus, even if the mother-
in-law is a tenant, then, on that ground, or someone having
equity, she can be injuncted from dispossessing the daughter in
law. In case the mother in law is the owner, the obligation to
allow the daughter in law to live in the shared household, as
long as the matrimonial relationship between her and the
husband subsists, continues. The only exception is the proviso
to 19(1)(b), which exempts women from being directed to
remove themselves from the shared household. No such
exception has been carved out for the other reliefs under
Section 19,
especially in respect of protection orders. Had the
Parliament intended to create another exception in favor of
women, it would have done so. This omission was deliberate
and in consonance with the rest of the scheme of the Act. There
can be other cases of domestic relationships such as an
orphaned sister, or widowed mother, living in her brother's or
son's house. Both are covered by the definition of domestic
relationship, as the brother is clearly a Respondent. In such a
case too, if the widowed mother or sister is threatened with
dispossession, they can secure reliefs under the Act,
notwithstanding exclusive ownership of the property by the son
or brother. Thus, excluding the right of residence against
properties where the husband has no right, share, interest or
title, would severely curtail the extent of the usefulness of the
right to residence.
21. The other aspect, which this Court wishes to highlight, is that
the 2005 Act applies to all communities, and was enacted "to
provide more effective protection of the rights of women
guaranteed under the Constitution who are victims of violence of
any kind occurring within the family". The right to residence and
creation of mechanism to enforce is a ground breaking
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measure, which Courts should be alive to. Restricting the scope
of the remedies, including in respect of the right to reside in
shared household, would undermine the purpose of this
enactment. It is, therefore, contrary to the scheme and the
objects of the Act, as also the unambiguous text of Section 2(s),
to restrict the application of the 2005 Act to only such cases
where the husband alone owns some property or has a share in
it. Crucially, the mother-in-law (or a father-in-law, or for that
matter, "a relative of the husband") can also be a Respondent in
the proceedings under the 2005 Act and remedies available
under the same Act would necessarily need to be enforced
against them.
(emphasis supplied)
56. Division bench of Delhi High Court, in the case of Mrs.
Preeti Satija ((supra) further took note of current scenario; as under;-
"The facts of this case contain the classic elements of a
husband seeking to evade his responsibilities upon marital
discord breaking out. He allegedly disappeared and was
"disowned" by his mother. The appellant's mother-in-law then
instituted the suit, to dispossess the daughter-in-law and her
grand children, claiming that she no longer has any
relationship with her son or her daughter-in-law. She based
her claim to ownership of the suit property on a will. The
daughter in law has not admitted the will. Nor it has been
proved in probate proceeding. Often, sons move out, or
transfer properties or ownership rights, or shares in
immovable properties, at the hint of trouble or discord with
their wives, in favour of their relatives. Likewise, the parents
of the husband often in such cases "disown" them after the
son moves out from the common or "joint" premises owned
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by either or both his parents, when there is outbreak of
marital discord. Courts have to be cautious in their approach,
while entertaining and short circuiting suits for possession,
which are in effect directed against the plaintiffs' daughter-in
law, or else the right of residence in shared households would
be a mere chimera, a teasing illusion which the law grandly
promises, but is seldom, if ever, able to enforce. In fact, the
strategy of "disowning" sons, through public notices or
advertisement, is not to be taken lightly. For example, even if
a son is disowned by either parent, the death of that parent
would, if intestate, still lead to devolution of property upon
that son. Indeed, a mere proclamation does not have a
dispositive legal effect, breaking all legally relevant familial
ties. Thus, absent a deed of relinquishment or other formal
deed of partition of the family or separation between the
members, the Court must be cautious in denying statutory
rights to wives, as against members of the husband's family,
on the basis of such tentative facts. To the contrary, if the
Court is to place reliance on such acts, benefits enacted by
the 2005 Act in favour of the wife would be bypassed on
account of alleged, and possibly fleeting, discords between
the husband and his family. Indeed, such an approach is
neither legally tenable, nor viable given the scheme of the
Act".
57. Thus, Division Bench of Delhi High Court, in this case was
pleased to set aside judgment and order of the learned Single Judge,
directing appellant daughter-in-law to vacate the premises on the count
that the premises were owned by the mother-in-law.
58. In the case of Navneet Arora (supra), Division Bench of
Delhi High Court, being faced again with similar fact situation wherein
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mother-in-law has sought ouster of daughter-in-law from the
matrimonial home on the count that matrimonial home belongs to her
exclusively, again took review of the relevant provisions of the
Domestic Violence Act, particularly definition of "shared household"
and that of "domestic relationship" and in the light of section 19(1)
of the Act., came to the conclusion that the daughter-in-law is entitled
to protection of her right of residence even against mother-in-law,
irrespective of the fact that the premises stand in the name of mother-
in-law. In this case also, the dictum laid down by the Apex Court in the
case of S.R. Batra (supra), was distinguished on facts as well as law.
It was held that the right of widowed daughter-in-law to residence in
the suit property cannot be denied as issue of title had no bearing so
far as her right of residence in the shared household is concerned.
59. Thus, having considered the decisions, taking the view of
protecting the right of the married woman in the shared household,
irrespective of the fact that shared household is owned by the mother-
in-law and those decisions which took contrary view and in the light of
decision in S.R. Batra (supra), now this Court has to decide in the
facts of the present case, which view becomes more applicable. It is
needless to state that what is binding law in the earlier decision is only
ratio decidendi and not the conclusion arrived at any previous decision.
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As held by the Apex Court in case of S.P. Gupta -vs- President of
India13,
"case is thus, only an authority on what it actually decides and
not what may come to follow logically from it, hence it is stated
that judgment of Courts are not to be construed as statute".
The following observations made by Supreme Court in
Mumbai Kamgar Sabha -vs- Abdulbhai Faizullabhai14 may be useful
in this respect:
"It is trite, going by Anglophonic principles, that a ruling of a
superior court is binding law. It is not of scriptural sanctity but
is of ratio-wise luminousity within the edifice of facts where
the judicial lamp plays the legal flame. Beyond those walls
and de hors the milieu, we cannot impart eternal vernal value
to the decision, exalting the doctrine of precedents into a
prison-house of bigotry, regardless of varying circumstances
and myriad developments. Realism dictates that judgment
has to be read, subject to the facts directly presented for
consideration and not affecting those matters which may lurk
in the record. Whatever be the position, superior court's
casual observations must be judiciously read by courts of co-
ordinate jurisdiction."
60. This position has been made further clear by the Hon'ble
Supreme Court in a decision its CIT -vs- Sun Engineering Works
Pvt.Ltd15
13 1982 SCC 149
14 (1976) 3 SCC 832
15 (1992) 198 ITR 297
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"It is neither desirable nor permissible to pick out a
word or a sentence from the judgment of this Court,
divorced from the context of the question under
consideration and treat it to be the complete 'law'
declared by this Court. The judgment must be read as
a whole and the observations from the judgment have
to be considered in the light of the questions which
were before this Court. A decision of this Court takes
its colour from the questions involved in the case in
which it is rendered and, while applying the decision to
a later case, the courts must carefully try to ascertain
the true principle laid down by the decision of this
Court and not to pick out words or sentences from the
judgment, divorced from the context of the questions
under consideration by this Court, to support their
reasonings".
(emphasis supplied)
61. In the above decision, the Supreme Court, also quoted
with approval the following note of caution given by it earlier in Madhav
Rao Jivaji Rao Scindia Bahadur -vs- Union of India16 that,
"It is not proper to regard a word, a clause or a sentence
occurring in a judgment of the Supreme Court, divorced
from its context, as containing a full exposition of the law
on a question when the question did not even fall to be
answered in that judgment".
16 (1971) 1 SCC 85
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62. In the light of this legal position, if one considers the
observations made by the Apex Court, in the case of S.R. Batra
(supra), it is clear that the said judgment must be read as applicable to
the particular facts of that case, which are already discussed above.
Those observations cannot be made applicable in each and every
case, irrespective of the differences in the facts. For example in the
case of S.R. Batra (supra), daughter-in-law Taruna had shifted to the
house of her parents because of dispute with her husband. Thereafter
she obtained forcible entry in the said house by breaking open the
locks. As against it, in this case, appellant has since the date of her
marriage in 1991, till today is residing in the house of respondent No.2
mother-in-law. She has never left that house nor shifted anywhere. Her
entry therein is also legal. Her possession is also continuous fr more
than 25 years. Her residence therein when threatened, was secured by
the order of Family Court restraining both respondents from
dispossessing her from the said premises and further directing
respondents to hand over one set of key of the house to her. Most
importantly in the case of S. R. Batra (supra), there was no evidence to
show that since date of her marriage, she had continuously resided in
the shared household with her mother-in-law. Conversely the evidence
showed that only for some period she had stayed there, that too on the
second floor of the property in question and not jointly with her mother-
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in-law. In view thereof the observations came to be made in paragraph
No.24 as stated above that "shared household" cannot include
"household" where person aggrieved lived or at any stage had lived.
The argument advanced in that case, was that as Taruna had lived in
that property in the past, hence the said property is her shared
household. While rejecting such submission, it was held that if the
aforesaid submission is accepted, it will mean that wherever husband
and wife may have lived together in the past, that property can become
shared household and wife may insist in living in all those houses of
her husband's relatives merely because she has stayed with her
husband for some time in those houses in the past and such a view
would then lead to chaos and would be absurd.
63. As against it, in the present case, it is undisputed position
that since the date of her marriage in the year 1991, appellant has
resided jointly with respondents in the shared household for this
continuous period of more than 25 years. It is also not the case that in
the said house, she was residing separately, as in the case of S. R.
Batra (supra), where Taruna was residing with her husband on second
floor of the house; whereas in-laws were residing on the ground floor.
In the present case as the appellant, as on today also, is residing jointly
alongwith respondent No.1 in the said house, using common kitchen
and enjoying common facilities. Hence unlike in the case of S.R.Batra
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(supra) the suit flat is "shared household" of appellant within the
definition of Section 2(s) of the Act. Therefore, she becomes entitled for
protection of her residence in the shared household. To dispossess her
therefrom would be against the very scheme, object and purport of the
D. V. Act. It would be as good as playing in the hands of her husband,
who has put forth his mother to evict appellant when his own efforts to
do so failed.
64.
The most important distinguishing factor with the facts of
S.R. Batra (supra), is that in the said case mother-in-law was
admittedly and indisputably the owner of the suit premises. Though it is
apart that the concept of ownership of title practically has nothing to do
when one considers the definition of "shared household", in the case
of S.R. Batra (supra), it was not at all disputed by the daughter-in-law
that the suit house belongs exclusively to the mother-in-law as she has
taken loan for acquiring the said house. No plea was raised by Taruna
that it is a joint family property. As against it, in the instant case,
appellant has unequivocally denied the fact that the suit premises
belong exclusively to her mother-in-law. Conversely, she has
specifically pleaded that the suit premises were purchased out of sale
proceeds of the ancestral joint family property at Darya Mahal, Napean
Sea Road, Mumbai. It may be true that at this interim stage she has not
been able to produce any documentary evidence on record to that
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effect, but then she may be able to produce such evidence at the time
of trial. It is pertinent to note that respondent No.2 has not disputed the
fact that she has no source of income. In her affidavit in rejoinder also,
she has not disclosed the resources from which she purchased the suit
flat. Moreover, unlike in the above said decision of Delhi High Court, in
Preeti Satija (supra), respondent No.2 mother-in-law has not yet
disowned her son, respondent No.1. Though it is contended that he is
residing separately at some
ig other place, appellant has seriously
challenged the said contention and it is stated that it is merely a ruse to
deprive the appellant from her right of residence in the suit premises.
Thus, the relationship between Respondent No. 1 & 2 still remains and
secondly the property will ultimately revert to respondent No.1, in case
of death of respondent No.2, there being no deed of relinquishment or
other deed of partition or separation between respondent Nos. 1 & 2.
Hence on the mere showing that as respondent No.2 has started
residing separately, calling upon appellant also to leave the suit
premises is, as good as denying the statutory right of residence to the
appellant. On the face of such tentative facts, it would be making the
right of appellant illusory, which right, law has granted to her. It is
common knowledge that once there is marital discord, then the parents
disowning the son or the son leaving the house of parents and residing
separately from the parents or the usual tactics adopted in such cases
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and therefore, Court has to be cautious while denying rights of the
appellant.
65. In the facts of the present case, even after filing of Divorce
petition, respondent No.1 was very much residing in the suit premises
alongwith his parents and the appellant. However, as his attempt to
oust the appellant from suit premises could not succeed, on account of
the order passed by the Family Court, protecting her possession
therein, it is clear prima facie at this stage that, now by joining hands
with respondent No.2, the present suit is filed for eviction of the
appellant from the suit premises, on the pretext that Respondent No.2
is following due process of law to do so. It is significant to note that
respondent No.2 also could not succeed to intervene in the divorce
petition in the Family Court, to deny appellant's right to remain in
possession of the suit premises. Therefore, here at this interim stage at
least it appears that respondent Nos. 1 and 2 are acting in collusion by
joining hands so as to deprive the appellant from her right of remaining
in residence of the suit premises. Thus, in the facts of the present case,
the law laid down by the Apex Court, in the case of S.R. Batra(supra)
being in the particular facts of that case, can be clearly distinguished.
66. In addition to and apart from it, as held by the Apex Court,
in the case Sandhya Wankhede (supra) and by Delhi High Court, in
above referred decisions of Navneet Arora and Mrs. Preeti Satija, the
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broad and inclusive definitions of the term, "respondent" as given in
section 2(q) and that of "shared household" in section 2(s) of the D.
V. Act leave no manner of doubt that the term, "respondent" not only
includes adult male person, like husband but also female family
member. Section 19(1) of the D.V. Act, which deals with "Residence
Order", therefore, leaves no manner of doubt that such right of
residence can be enforced even in respect of the house which is
owned by the mother-in-law or any other family relatives, since they are
also covered in the definition of "respondent". There is no qualification
to the word "respondent" as used in sections 12, 17 and 19 of the Act
to restrict the said definition of "respondent" or even to restrict the right
of the married woman to reside in the shared household on the ground
that the property does not belong to joint family. To import the concept
of "HUF" in the definition of "shared household" is as good as
rejection of the protection given to a deserted woman by the statutory
law, especially when the statutory law does not even contemplate that
the Court should enquire into the title of "shared household", in
which right of residence is claimed. The very definition of "shared
household" makes it abundantly clear. It only contemplates that
aggrieved woman was residing in the said household as member of the
family, irrespective of the fact whether such household belongs to the
joint family or whether she herself or respondent No.1 have any right,
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title or interest in the said household, whether it was owned or
tenanted. This position is expressly made clear by our own High Court
in the decision of Ishpal Singh Kahai -vs- Ramanjeet Kahai, 17,
wherein while dealing with the case under the provisions of D.V. Act,
this Court was pleased to observe that "it is not material to consider in
whose name matrimonial home stands". In this decision also, this
Court extensively discussed legislature history and noticed that prior
to Domestic Violence Act, the title of parties was often considered in
grant or refusal of relief of injunction. Hence the Domestic Violence Act
came to be enacted essentially to grant statutory protection to victims
of violence in the domestic sector, who had no proprietary rights owing
to which Civil Law protection could not be availed by them. This Court
also took into consideration in the said decision various provisions of
the Act including section 2(s), 17 and Section 19(1)(a) to conclude that
"there was no place for proprietary rights in the scheme of Domestic
Violence Act as it was an extension of the deeper and profounder
principle of women's right as concomitant of human rights".
(emphasis supplied)
67. Thus, when the very object of enactment of D.V. Act is to
protect the right of married woman in the "shared household"
irrespective of to whom such house belongs and when the very
17 (2011) DMC 250
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concept of her right of residence being linked to title or ownership of
the house being alien and kept away from the scheme of the Act, as
due to the very absence of right, title or interest in the matrimonial
home, she was thrown out therefrom, to import again the very same
concept of title and ownership is defeating the very object of the Act,
setting at naught the legislative efforts and most importantly depriving
the woman of her human rights, which are given statutory recognition
under D.V. Act.
68. Thus, in my considered opinion, looking at it from any
angle and from each and every perspective, in the facts of the present
case, the conclusion is inevitable that, at this prima facie stage when
the appellant, is undisputably in settled possession of the suit
premises, which are her shared household, for a period of more than
25 years, to dispossess her or to oust her from the suit premises, that
too by way of interim mandatory injunction, thereby decreeing the suit
in its entirety at this interim stage itself, when the right and title of
respondent No.2 mother-in-law as exclusive owner of the suit property
is in dispute, when marital discord between appellant and respondent
No.1 is yet pending adjudication in Divorce Petition before the Family
Court and thereby defeating the interim protection granted to the
appellant by the Family Court by detailed order, cannot be justified. In
any way, definitely, prima facie case lies in favour of the appellant to
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protect her possession at the interim stage. The balance of
convenience also lies in her favour and she will suffer irreparable loss
and hardship if she is ousted from the possession, especially when the
dispute is yet subjudice and the questions of facts are not yet decided
finally.
69. As a result, the impugned order of granting interim
mandatory as passed by the trial Court, cannot be sustained and
needs interference, so as to set aside the same.
70. As to the offer of alternate premises given by the
respondent No.1 to the appellant, appellant is still at liberty to consider
the said offer. Respondent No.1 may also give offer of some more
premises in addition to the premises, already offered. Parties may, for
the sake of mutual piece and harmony, consider said proposal.
Appellant may also, if she finds alternate premises to be suitable,
consider shifting to those premises. Those doors are yet always open
to both the parties. However, till such amicable solution is found out, it
would not be just and legal in the light of the Objects, Reasons,
Purpose and Provisions of Domestic Violence Act, to oust the appellant
from possession of the suit premises.
71. As an upshot of above discussion, the appeal is allowed.
The impugned order of interim mandatory injunction as passed by the
trial Court of directing appellant to quit from the possession of suit
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premises, is hereby quashed and set aside. Accordingly Notice of
Motion filed by Respondent No.2 before the trial Court stands
dismissed.
72. In the circumstances of the case, parties to bear their own
costs.
73. In view of disposal of appeal itself, Civil Application does
not survive and the same stands disposed of accordingly.
74.
At this stage, learned counsel for respondent No.2
requests the Court to expedite the hearing of the suit pending before
the Trial Court. Learned counsel for the appellant and respondent No.1
have no objection to do so. In view thereof, the Trial Court is directed
to decide the suit as expeditiously as possible preferably within one
year from today.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
