Natasha Kohli vs Mon Mohan Kohli
2010 Latest Caselaw 4506 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.303-306/10 & CM Nos.8048/10, 16250/10

NATASHA KOHLI                     .....Appellant through
                                  Mr.N.K. Kaul, Sr. Adv. with
                                  Mr.Rajshekhar Rao, Ms.Anu
                                  Bagai & Mr.Bhuvan Mishra,
                                  Advs.

                  versus

MON MOHAN KOHLI                   .....Respondent through
                                  Ms.Geeta Luthra, Sr. Adv.
                                  with   Ms.Aanchal   Mullik,
                                  Mr.Ashish    Dholakia    &
                                  Mr.Abhimanyu      Mahajan,
                                  Advs.

%                      Date of Hearing : September 09, 2010

                       Date of Decision : September 24, 2010

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MS. JUSTICE MUKTA GUPTA
      1. Whether reporters of local papers may be
         allowed to see the Judgment?               No
      2. To be referred to the Reporter or not?     Yes
      3. Whether the Judgment should be reported
         in the Digest?                             Yes

VIKRAMAJIT SEN, J.

1. This Appeal assails the Order dated 21.4.2010 passed by

the learned Single Judge holding that the Plaintiff was not in

occupation of the entire house, that is, 15-A, Amrita Shergill

Marg, New Delhi; and that she was in occupation of only the

Guest House where she was living and sleeping since 2004. The

learned Single Judge has ordered that "till the rights of the

parties are determined after adjudication, it would be just and

appropriate that the plaintiff shall keep living in the guest

annexee and shall not interfere into the Main Building where

defendant and son of the parties is living except that she can go

to her son‟s bedroom and stay with him as per the wishes of her

son and son can also go to guest room annexee and stay with

the mother as and when he likes. Apart from that, plaintiff shall

not interfere into the possession of the defendant no.1 of the

main building. It is also ordered that defendant no.1, 2 and 3

shall not sell or part with possession of the suit property, that is,

15-A, Amrita Shergil Marg, New Delhi till disposal of the

present suit or till the rights of the parties are ascertained in the

execution filed by the plaintiff or unless the parties arrive at a

settlement". It will be immediately apparent that the Appellant

has not been allowed the use of even the Kitchen. Resultantly,

she would perforce have to purchase her food etc. from

elsewhere, that is, from outside of the matrimonial home.

2. The Plaintiff has filed a Suit for Permanent and Mandatory

Injunction in which her husband, Mr. Mon Mohan Kohli, is

Defendant No.1. The matrimonial home is 15-A, Amrita Shergil

Marg, New Delhi and is owned by Jey Key Private Limited,

Defendant No.2. Mr. Joginder Kohli, Defendant No.3, is

impleaded as a Director of that Company. S/Shri Mon Mohan

Kohli and Joginder Kohli have 600 shares each, out of a total

Paid Up and Subscribed Share Capital of 1200 shares. The suit

property is stated to comprise the entire 15-A, Amrita Shergil

Marg, New Delhi, ad measuring approximately 2227 square

meters; it includes the Main Bungalow as well as the Annexee.

The Plaint sets out that a Family Settlement has taken place

between Defendant No.1 and his family, all of whom were

residents of the undivided 15-A, Amrita Shergil Marg, New

Delhi. The said Memorandum recognizes joint ownership of the

Plaintiff and Defendant No.1 in 15-A, Amrita Shergil Marg, New

Delhi. In paragraph 20 of the Plaint, it has been asseverated

that Defendant No.1 had made attempts to throw the Plaintiff as

well as her son out of the suit property which avowedly is also

the matrimonial home of the Plaintiff. Paragraph 27 of the Plaint

contains the allegation that in the first week of May, 2006

Defendant No.1 stepped up his efforts to throw the Plaintiff and

her minor son out of the suit property so that he could be able to

sell the property by handing over vacant peaceful possession

thereof to the buyer. All that is required to be emphasized for

the present is that the Plaintiff‟s prayers pertained to the entire

suit property, that is, 15-A, Amrita Shergil Marg, New Delhi and

not just the Annexee. The primary prayer is for a permanent

injunction in respect of the peaceful possession and enjoyment

of the suit property by the Plaintiff.

3. The Site Plan, which is acceptable to both the warring

spouses, is at page 1026 of the Appeal File and makes the

following depiction:-

4. The portion shown as Study is the room which the Plaintiff

claims she was using as her makeshift Bedroom; except when

she allegedly took refuge, along with her son, in the Annexee.

Her husband, Defendant No.1 before us, asserts that the

Plaintiff had shifted to the Annexee and only during the

pendency of the case had laid a false claim of her sleeping in the

Study.

5. We shall abjure from narrating the allegations hurled at

each other by the Husband and the Wife.

6. On the first date of hearing, that is, 19.6.2006, the learned

Single Judge, who was then seised with the case restrained the

Defendants "from dispossessing the plaintiff from the property

bearing No. 15-A, Amrita Shergil Marg, New Delhi. The parties

shall also maintain status quo of the title and occupancy of the

property till the next date of hearing".

7. The next Order, dated 24.05.2007, passed by the same

learned Single Judge, clarifies that the Order dated 19.6.2006

did not permit any party to alter the status quo. We think it most

expedient to quote the Order thereafter:-

"It is further directed that within one week from today, the defendant shall make available/provide wardrobes and cupboards in the guest room in the suit property. The plaintiff shall remove her belongings from the bed room of the defendant and shall store all her belongings in the cupboards which shall be provided by the defendant within a period of one week thereafter. The defendant may restore the locks which were admittedly existing in the bed room and have admittedly been removed by the plaintiff during the pendency of the case. .... It is made clear that this is purely an interim arrangement in order to enable the parties to cohabit in the same house without any expression of any opinion on the merits of the case".

8. A Local Commissioner had also been appointed vide those

Orders and her Report has generated considerable amount of

arguments. Defendant No.1 relies on this Report where the

Local Commissioner had recorded that the Plaintiff had filled up

the stuff in the cupboards on the Mezzanine of the Bedroom

though the same was empty on the earlier occasion and that the

Plaintiff had locked up the entire portion and had kept her stuff

in her son‟s room. Reliance is also placed on the Orders passed

by the learned Single Judge dated 23.7.2007 wherein the

Plaintiff was directed to allow the Local Commissioner to

physically verify the submission of the Plaintiff that the

cupboards, of which keys are not handed over, contain the

goods of the Plaintiff. The Report filed pursuant to this Order

records the quarrel that took place between the Plaintiff and the

Local Commissioner during her proceedings. We do not propose

to dwell in detail on the Report since it principally recounts the

conduct of the parties, so far as making the keys to the

cupboards available. In paragraph 5 of the said Report, the

Local Commissioner has stated that she "went to guest room

where the plaintiff is residing". We mention this because the

Defendant No.1/Respondent No.1 endeavours to rely on it to

show the place where the Appellant was residing at that time. It

would be convenient to immediately mention the letter dated

13.10.2006 addressed by the Plaintiff to the SHO Tughlak Road

Police Station, New Delhi in which she has, inter alia, stated

thus - "I have been sleeping since 2004 (the house was under

renovation for 4 years before that and we had moved out in

1999 and then moved back in 2004) in the cottage in the back

garden where the staff quarters are. He locked up my sleeping

quarters. Despite several weeks of asking him to open it he

refused saying he wanted me out with my son as he was

interested in remarriage and or wanting his bisexual partners to

enjoy the house. When one day I saw the cottage open for a few

minutes for cleaning, I managed to slip the locks out and get the

cottage opened. I finally managed a good nites rest. I may

mention that every time he did something to harass me, I

reminded him of the interim injunction which he showed

contempt towards and scored and laughed and said money was

the absolute and final power which he had. ......" It would be

recalled that in the impugned Order the learned Single Judge

has laid stress on the Report to arrive at the conclusion that the

Plaintiff was not residing in the Main House but only in the

Guest Room.

9. The factual averments in the Plaint, which were relied

upon by the Plaintiff in his application for stay as well are

categorical in that "The Plaintiff was married to the Defendant

No.1 on 14.11.1994 at New Delhi as per Hindu rites and

ceremonies. After the marriage, the Plaintiff began to reside at

15, Amrita Shergill Marg, New Delhi. The said property was the

Matrimonial Home of the Plaintiff". We have perused the Reply

of the Defendant/Respondent to the interim application for stay

filed by the Plaintiff/Appellant and the application filed under

Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 for

vacation of ex parte ad interim stay granted on 19.6.2006 to

maintain status quo. The Respondent has not traversed this fact

or stated that the Plaintiff was not enjoying the entire suit

property as the matrimonial home and was residing only in the

Outhouse. The averment as regards an admission on the part of

the Plaintiff that she, at the time of filing of the Suit, was not

residing in the Main Building but was residing only in the

Annexee or the Outhouse was only raised subsequent to Local

Commissioner‟s Report and nowhere specifically pleaded.

10. So far as the Written Statement is concerned, it appears

to us that there is an admission in the Reply to paragraph 1 to

11 that the parties had commenced residing in the suit property

in March 2004. There is a bald assertion that the suit property

was not the matrimonial home of the Plaintiff. In paragraph 13

of the Written Statement, Defendant No.1 has asserted that -

"the plaintiff is occupying the suit premises only in a capacity as

wife of Defendant No.1. The tenancy rights always remain with

Defendant No.1 in his individual capacity. ...." In paragraph

20, Defendant No.1 has denied any attempt to throw the

Plaintiff and their minor son out of the suit property. Paragraph

33 contains a submission that the "plaintiff has been sleeping in

the outhouse of the suit property and not in the main building.

The Plaintiff has now removed the locks of the master bedroom

of the Defendant No.1 and taken away the keys of the outhouse

and of one servant‟s quarter". In the Replication (dated

20.12.2006), the Plaintiff has pleaded that - "the so-called

outhouse is more in the nature of a Guest Annexee. It is only

when the drunk and other violent behavior of the Defendant

No.1 goes out of hand that the plaintiff and her minor son

occasionally take refuge and sleep in the outhouse". In an

application dated 31.1.2007 filed by Defendant No.1, it has been

averred that his "anguish and distress is compounded by the

fact that he is forced to live in the same house (in which he has

exclusive tenancy rights) with the maker of these preposterous

allegations against him, i.e. the Plaintiff. .... Defendant No.1 is

particularly aggrieved by the fact that the Plaintiff has also

made false allegations in the replication that he is locking

certain portions of the house. The only portion which the

defendant No.1 locks in (sic.) his bedroom for safety and privacy

when he sleeps at night. ....." There are several statements

made by Defendant No.1 to the effect that it is difficult for him

to live with the plaintiff under one roof. It is also pleaded by him

that "it is not possible to identify discreet separate portions in

the suit property as it has only one kitchen, one drawing room,

one dining room, one main entrance etc. ..... The plaintiff is

only trying to make all sorts of claims without any basis

whatsoever only with a view to continue in the suit property". In

Reply to IA No.8088/2007 dated 14.8.2007, Defendant No.1 has,

inter alia, stated that "the plaintiff has removed the bed-cum-

sofa from the guest room and has kept the same in the study of

the main house, so that the study could be used as a bedroom".

11. The Orders passed by the learned Single Judge from time

to time, as well as the pleadings of the parties, must be kept in

perspective. We think that the so-called admissions contained in

the Plaintiff‟s Report to the SHO have been blown out of

reasonable proportions. All that she has brought to the notice of

that Official was that oftentimes she had to sleep in the Guest

Room/Outhouse/Annexee. However much we stretch this

statement we are unable to find in it an admission that she was

not living in the Main House. On the contrary, Respondent No.1

has pleaded that she had brought a sofa-cum-bed into the

"Study". There may be legitimate provocation for the Local

Commissioner to have developed an inimical attitude towards

the Plaintiff. A plain reading of the Report does not lead us to

the conclusion that the Plaintiff has ceased residing in the Main

House and/or that she had returned to the Main House after the

passing of any of the interim Orders in the Suit. It is not so

infrequent that one of the spouses abandons the matrimonial

bed. If this is for an extended period, it inevitably leads to the

breakdown of the matrimony. However, it would be out of

context to see into such action as an abandonment by the

withdrawing spouse from the matrimonial home itself. We have

already observed that there is only a bald denial by the husband

that the suit property, that is, 15-A, Amrita Shergill Marg, New

Delhi is not the matrimonial home. In the facts of the case,

prima facie, we cannot but conclude that the suit property is the

matrimonial home of the Plaintiff/Appellant. Accordingly, her

rights of residence therein must be respected not only because

of the statutory mandate of Section 17 of Protection of Women

from Domestic Violence Act, 2005 which acknowledges a

woman‟s right to reside in a shared household but also on the

principles of equity.

12. If we were to decide this legal nodus a priori, we would be

influenced, and not in a small manner only, by the wife‟s/

Plaintiff‟s rights of residence in the matrimonial home. Apart

from making adjustments so that the warring spouses may not

assault each other, we would protect occupation of both parties

by engineering a distance between them. We must also not lose

sight of the fact that prima facie the Plaintiff/Wife is a part

owner of the suit property which is also the matrimonial home.

However, Courts must abjure adopting a feudal and archaic

attitude by thinking that a wife can be relegated to Outhouse as

if it is a mere chattel. On the contrary, efforts must be made to

ensure that she can live a life of respect.

13. The Order of the learned Single Judge directing the

removal of the Plaintiff‟s belongings to the Outhouse/Guest

Room/Annexee does not lead to the conclusion that she was

compelled and confined to reside there. The grievance which

was ventilated before the Court was that she had locked-up her

husband/Defendant No.1‟s belongings which were in the Master

Bedroom; the cupboards/almirahs were u buts mezzanine. The

learned Single Judge merely endeavoured to obviate a quarrel

on this account by directing the Plaintiff to remove her

belongings from the Master Bedroom, especially in view of the

fact that she had herself pleaded that sometimes she had been

left with no other recourse than to sleep separately from

Defendant No.1.

14. We would be loathe to lose sight of the fact that the son of

the parties is not an adult and would require substantial

overseeing and care by his mother. In the course of hearings,

which spanned over a 1000 pages and have taken several hours

of arguments, it has become evident to us that the Plaintiff can

reside in the room styled as the „Study‟ which is what was

before disharmony erupted between the spouses. This room is

directly in front of the son‟s Bedroom. The Plaintiff has herself

contended that she will confine herself to the use of the small

„Powder Room‟ or toilet in front of the Study and contiguous to

her son‟s Bedroom.

15. It is important to maintain some semblance of peace in the

matrimonial home and/or suit property, and we think that this is

precisely what the learned Single Judge earlier seised of the

matter had endeavoured to achieve when she directed the

Plaintiff to remove her belongings from the cupboards in the

Main Bedroom. The Plaintiff is directed not to enter the Master

Bedroom. She may sleep in the Study. Owing to the fact that her

belongings are now stored in the Outhouse/Annexee/Guest

Room, where there is a larger bathroom/toilet, she shall have its

additional use. Accordingly, except for the Master Bedroom, the

Plaintiff shall be entitled to use the remaining portion of the

Main House, that is, the Kitchen, Dining Room/Sitting

Room/Drawing Room. We clarify that the Plaintiff shall have no

right of access to Master Bedroom or to the Mezzanine which is

part of the Master Bedroom from which she was ordered to

remove her belongings.

16. As has been pointed out by learned Single Judge in the

impugned Order, this is purely an Interim Arrangement which

will await the Final Judgment.

17. It will be worth of mention that no Order has been passed,

and none has been brought to our notice, whereby the Plaintiff

has been restrained from access to any part of the suit property,

except that of the Master Bedroom and the Mezzanine and

bathrooms contiguous thereto, earlier to the impugned Order.

18. Appeal is allowed accordingly and all pending applications

are disposed of.

19. Parties to bear their respective costs.

( VIKRAMAJIT SEN ) JUDGE

( MUKTA GUPTA ) JUDGE September 24, 2010 tp