Mr. Barun Kumar Nahar vs Parul Nahar & Anr.
2013 Latest Caselaw 530 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 2795/2011                     Judgment delivered on: 05.02.2013
MR. BARUN KUMAR NAHAR                                  ..... PLAINTIFF
              Through           Mr. Amit Sibal, with Ms. Prachi Vasisht, Adv.


                       versus


PARUL NAHAR & ANR.                                 ..... DEFENDANTS
              Through           Mr. Medhanshu Tripathi for D-1
                                Ms. Geeta Luthra, Sr. Adv. with
                                Mr. S.K. Arora, Mr. Atin Rastogi & Mr. Gautam
                                Bajaj for D-2
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
IA No. 17986/11 (O. 39 Rule 1 &2 of CPC)


1.

By this order I propose to decide the application moved by the

plaintiff under Order 39 Rules 1&2 read with Section 151 of CPC.

2. Before I deal with the rival contentions raised by the counsel for the

parties, it would be appropriate to give brief summary of the facts of the

present case. The plaintiff herein is a father-in-law of the defendant no.1 and

father of defendant no.2. The plaintiff has filed the present suit for

permanent and mandatory injunction. A decree of mandatory injunction has

been sought by the plaintiff to direct the defendant no.1 to vacate the

premises bearing No. B-197, Greater Kailash, Part-I, New Delhi, while a

decree of permanent injunction has been sought by the plaintiff so as to

restrain the defendant no.1, her parents, agents, representatives, assignees,

associates etc. from creating disturbance in the peaceful possession and

occupation of the plaintiff's self-acquired property bearing no. B-197,

Greater Kailash, Part-1, New Delhi. In prayer Para (b) instead of claiming

permanent injunction the plaintiff has wrongly claimed mandatory

injunction and such inadvertent mistake on the part of the plaintiff can be

ignored.

3. The main allegation of the plaintiff in the present suit is that he is the

sole and absolute owner of the property bearing no. B-197, Greater Kailash,

Part-1, New Delhi consisting of ground and first floor. It is also the case of

the plaintiff that the said property was purchased by him vide sale deed

dated 10.8.1971 through his own funds and since then the plaintiff and his

wife are residing in the same property. It is also the case of the plaintiff

that he and his wife aged around 80 years and 74 years respectively are

suffering from various old age ailments. It is also the case of the plaintiff

that the defendant no.1 is of a very violent nature and she has made the

life of the plaintiff and his wife a living hell. It is also the case of the

plaintiff that the defendant no.1 is having matrimonial discord with her

husband, defendant no.2, herein and the plaintiff and his wife are being

subjected to suffer at the hands of the defendant no.1 because of such

matrimonial dispute between the spouses. It is also the case of the plaintiff

that he and his wife are living on the ground floor premises and the

defendant no.2 being the son of the plaintiff was occupying the first

floor of the premises as a licensee. It is also the case of the plaintiff that

the defendant no.1 being the wife of defendant no.2 was also using the

first floor until the relations between the defendant no.1 and defendant

no.2 became edgy. It is also the case of the plaintiff that the defendant

no.1 was having extra marital affair with servant Shambhu and the

relationship between the defendant no.1 and defendant no.2 turned

embittered after the discovery of the said extra marital affair . It is also the

case of the plaintiff that the defendant no.1 left the house and she had

also executed an affidavit stating her separation from her husband, i.e.

defendant no. 2 herein. It is also the case of the plaintiff that the right of

the defendant no.1 to live as wife of defendant no.2 got terminated in

terms of the affidavit dated 18.10.2010. It is also the case of the plaintiff

that the temporary stay of the defendant no.1 as a guest on the first floor

of the premises since March 2011 does not give her any right to occupy

the said premises as her statutory right to occupy the premises was by

virtue of her being a wife of defendant no.2 with whom her relationship is

claimed to be terminated w.e.f. 18.10.2010. It is also the case of the

plaintiff that in the first week of August 2011, defendant no.1 had

assaulted and pushed the wife of the plaintiff after which she fell on the

floor and injured herself. It is also the case of the plaintiff that defendant

no.1 misbehaves, beats and abuses the domestic staff and because of such

demeanor by the defendant no.1, the domestic staff left the said premises

leaving the plaintiff and his wife with no option but to take care of the

entire household work themselves. It is also the case of the plaintiff that

the defendant no.1 and her father have continuously blackmailed the

plaintiff and his family members to give crores of rupees or else they would

implicate the plaintiff and his family members in false and frivolous

cases. It is also the case of the plaintiff that on 22.9.2011, the

defendant no.1 abused the plaintiff and as a result whereof the plaintiff

had to be rushed to the Doctor and he was strictly advised by the Doctor

to avoid any kind of stress and similarly on 28.9.2011 the defendant no.1

had abused the wife of the plaintiff with filthy language , consequently

she was rushed to the Doctor and the Doctor advised that the environment

of the plaintiff's wife should be changed. Similar incident as per the

plaintiff had also taken place on 31.10.2011. It is also the case of the

plaintiff that the wife of the plaintiff has been diagnosed to be suffering

from a serious heart problem and because of the extreme stress her sugar

level had also shot up to an alarming proportion. With these allegations, the

plaintiff prayed that the defendant no. 1 be directed to vacate the suit

property so that the plaintiff and his wife are able to lead the evenings of

their lives peacefully without any stress or trauma.

4. In the original suit the plaintiff did not seek the relief of mandatory

injunction so as to seek vacation of defendant No.1 from the subject premises.

But later on, the plaintiff incorporated the said relief of grant of mandatory

injunction through an amendment. Along with the amended suit the plaintiff

also filed a fresh application under Order39 Rule 1 & 2, CPC for the grant of

interim mandatory injunction to seek a direction to the defendant No.1 to

vacate the subject premises till the final disposal of the suit.

5. Defendant No.1, the daughter-in-law of the plaintiff has mainly

contested the said stay application while defendant No.2 who is the son of the

plaintiff has come in support of the said application.

6. Counsel for the plaintiff very strongly contended that the suit property

in question is a self-acquired property of the plaintiff who had purchased the

same by way of registered Sale Deed dated 10.8.1971 and therefore he is fully

entitled to peacefully reside in the said property along with his old wife

without any sort of interference or disturbance at the hands of defendant No.1.

Counsel also submitted that plaintiff and his wife are senior citizens aged

about 80 and 74 years respectively, suffering from various ailments and

because of continuous and unabated torture at the hands of defendant No.1,

the life of the petitioner and his wife has become miserable and they can

collapse at any time if defendant No.1 continues to reside in the said property.

Counsel further submitted that defendant No.2 has already shifted from the

said premises to reside in a rented accommodation and instead of shifting

with her husband, the defendant No.1 has continued residing at the suit

property and has been harassing the plaintiff and his wife by abusing and

humiliating them daily and also calling the police every now and then on false

pretexts so as to further embarrass them in the presence of their neighbors.

Counsel also submitted that due to the marital discord, defendant No.1 had

left the said premises permanently on 18.10.2010 and she had also signed an

affidavit dated 18.10.2010 to that effect but again she had illegally occupied

the guest room on the ground floor of the said premises. Counsel also

submitted that defendant No.1 had no legal right to stay in the said premises

and her occupation was permissive only when she was residing in the suit

property with her husband, defendant No.2 herein and once defendant No.2

has shifted to some other accommodation, the defendant No.1 cannot force

her to stay in the premises which is exclusively owned by the plaintiff. It was

also submitted that defendant No.2 had given many proposals to defendant

No.1 to reside with him at the rented accommodation or to reside in some

other alternative accommodation at par with the rented accommodation of

defendant No.2 or to accept an amount to the tune of Rs.30,000 towards the

monthly rent for an accommodation to be selected by her but none of these

offers have been accepted by defendant No.1. Counsel further submitted that

the legal position is now well settled that daughter-in-law has no legal right

whatsoever to reside in the property owned by her parents-in-law and parents-

in-law have no obligation to provide a residence to their daughter-in-law. In

support of his arguments counsel for the plaintiff has placed reliance on the

following judgments:-

1. S.R. Batra and Anr. v. Taruna Batra, (2007) 3 SCC

2. Kavita Chaudhari v. Eveneet Singh and Anr., 2012 (130) DRJ 83

3. Neetu Mittal v. Kanta Mittal, 152 (2008) DLT 691

4. Umesh Sharma v. State, 2010 (115) DRJ 88

5. Kulwant Singh v. Laljee Kent( DR.) and ors., 162 (2009) DLT 625

6. Shumita Didi Sandhu v. Sanjay SinghnSandhu and ors., 174 (2010) DLT 79 (DB)

7. Counsel for the plaintiff also submitted that defendant No.1 had earlier

obtained an ex-parte injunction from the court of Ld. MM, Saket in a petition

filed by her under the Domestic Violence Act by suppressing the fact of filing

of the present suit by the plaintiff. Counsel further informed this court that the

said ex-parte order dated 20.12.2011 already stands vacated vide order dated

11.1.2012.

8. Counsel further argued that there are no fetters on the powers of this

court to grant interim mandatory injunction in favour of the plaintiff and

against the defendant no. 1, keeping in view the facts of the present case

where the life of the plaintiff and his wife have become hell because of the

continuous nuisance, torture and harassment being caused by defendant No.1.

To support his arguments counsel for the plaintiff placed reliance on

judgments of the Hon'ble Apex court in the case of Sant Lal Jain. Vs. Avtar

Singh (1985) 2 SCC 332 and Dorab Cawashji Warden v. Coomi Sorab

Warden, (1990) 2 SCC 117.

9. On the other hand Counsel for the defendant No.1, strongly opposed

the grant of the said relief of mandatory injunction at the interim stage.

Counsel submitted that the relief of temporary injunction is a purely equitable

relief and the same cannot be granted to a person who has played fraud upon

the court by suppressing material and vital facts from the court. Counsel

submitted that the plaintiff is a permanent resident of Calcutta and came to

Delhi in the year 2010 in connivance and conspiracy with defendant No.2

with the sole objective to ouster the defendant No.1 from the suit property.

Inviting attention of this court to the documents like voter ID card, passport ,

certified copy of the application dated 23.4.2012 moved before the family

court of Saket, counsel submitted that these documents squarely goes on to

show that the plaintiff is a permanent resident of Calcutta and not of Delhi.

Counsel also submitted that the plaintiff has played serious fraud upon the

court by not disclosing this very fact thereby violating, Section 17 of the

Representation of People Act, 1951.

10. The next limb of argument taken by counsel for defendant No.1 was

that grant of interim mandatory injunction by this court in favour of the

plaintiff would amount to finally decreeing the present suit in favour of the

plaintiff and therefore the said relief at the interim stage is impermissible in

terms of the settled legal position.

11. The next argument advanced by counsel for defendant No.1 was that

the suit property is an ancestral property and being ancestral property it falls

in the category of 'shared household' in terms of Section 2(s) of the Domestic

Violence Act, 2005. Counsel also submitted that the children of the

defendants have every right to reside in the suit property under the Hindu

Mitakshara Law.

12. Counsel further argued that the allegations levelled by the plaintiff in

the present suit are infact reproduction of the allegations levelled by the

husband-defendant No.2 in other proceedings i.e. divorce case and a petition

filed by him under Guardianship and Wards Act.

13. Counsel also argued that the amended application under Order 39 Rule

1 & 2 CPC is not maintainable in the eyes of law as the amendment envisaged

under Order 6 Rule 17, CPC relates to the amendment of pleadings, which

includes the plaint and the written statement, and not the amendment of

applications under Order 39 Rule 1 and 2 filed by the parties.

14. Counsel further argued that the present suit is bad for non-joinder of

children of the defendants as the necessary parties, as the children of the

defendants who are also residing in the said property along with defendant

No.1, are the ones whose rights would be equally affected by the decision of

the court.

15. Counsel further argued that as per the settled principles for the grant of

interim injunction, the plaintiff is not entitled for the grant of any interim

relief of mandatory injunction.

16. In support of his arguments counsel for the defendant placed reliance

on the following judgments:-

1. S.P. Chengalvaraya Naidu (Dead) by L.R.s v. Jaggannath (Dead) by L.R.s and others, (1994) 1 SCC 1

2. Indore Development Authority v. Mangal Amusement Private Limited, (2010) 12 SCC 514

3. Bharat Sanchar Nigam Ltd. and others v. Prem Chand Premi and another, (2005) 13 SCC 505

4. Purshottam Vishandas Raheja and another v. Shrichand Vishandas Raheja, (2011) 6 SCC 73

5. Davender Lal Mehta v. Sh. Dharmender Mehta and Anr., AIR 2009 DELHI 189

6. Ramachandra Tanwar v. Ram Rakhmal Amichand and another, AIR 1971 RAJASTHAN 292

7. Nandan Pictures Ltd. v. Art Pictures Ltd. and others, 1956 CALCUTTA 428

8. B.P. Achala Anand v. S. Appi Reddy and another, (2005) 3 SCC 313

9. S. R. Batra and anr. v. Smt. Taruna Batra, 2006 (4) Crimes 433 (SC)

17. During the course of arguments counsel for defendant No.1 also gave a

proposal that defendant No.1 would shift along with her two minor children to

the first floor of the suit property so that the plaintiff and his wife and

defendant No.1 with her children can peacefully reside in separate portions of

the said property and there is no face-off between the plaintiff and defendant

No.1. Counsel also submitted that defendant No.1 is prepared to give an

undertaking not to enter in the ground floor of the premises occupied by the

plaintiff but will allow the plaintiff and his wife to enter the first floor so that

they can meet their grand children.

18. In his rejoinder arguments, counsel for the plaintiff stated that the

plaintiff has not played any kind of fraud upon the court by not disclosing

about his residential property in Calcutta. He stated that he has been residing

in the suit property since the year 1971and to support his stay in the Delhi

Property, the plaintiff has also placed on record various documents viz. voter

ID card and electricity bills etc. Counsel further submitted that in the given

facts of the present case this court has abundant power to grant the relief of

interim mandatory injunction. Counsel also submitted that the grant of interim

mandatory injunction cannot be confined only to restore the last uncontested

status quo of the property. counsel also argued that the proposal given by

defendant No.1 to permit her to reside on the first floor of the property is not a

workable solution as the two floors of the suit property are inextricably inter-

connected through a common entrance, internal staircase and the common

kitchen which is located at the ground floor and even with such an

arrangement the verbal and physical abuse and harassment at the hands of the

defendant no. 1 would still be persistent.

19. I have heard learned counsel for the parties at considerable length and

given my anxious consideration to the arguments advanced by them. I have

also carefully perused the material placed on record by them.

20. Through the present application the plaintiff by way of interim

mandatory injunction is seeking direction to the defendant no. 1 to vacate the

premises bearing number B-197, Greater Kailash, Part-I, New Delhi. Plaintiff

has claimed that he is residing in the said property along with his aged wife of

74 years. It is also the case of the plaintiff that he and his wife are suffering

from various ailments and in support thereof he has placed on record some

medical documents as well. The age of the plaintiff and his wife is not in

dispute and so far as the ownership of the property is concerned, the plaintiff

has placed on record the photocopy of the Sale Deed dated 10.8.1971 and

therefore the title of the plaintiff to the subject property also cannot be of any

dispute. It is also not in dispute that defendant No.2 who is the son of the

plaintiff has already walked out from the said accommodation to reside in a

rented accommodation while his wife, defendant No.1 along with two

children continued to live in the subject property. It is also a matter of record

that the plaintiff and defendant No.1 have been lodging several complaints to

the police against each other and the kind of allegations leveled by them

demonstrates the extent of hatred and venomous they have against each other.

21. Ld. counsel for defendant No.1 heavily placed reliance on the

preposition that grant of interim mandatory injunction in favour of the

plaintiff would result in granting final relief to the plaintiff and secondly

that the grant of interim mandatory injunction can be granted only to restore

the status quo ante. To support his argument counsel for defendant No.1

placed reliance on the case of Dorab Cawasji Warden v. Coomi Sorab

Warden & Ors. (supra). Counsel for the plaintiff also placed reliance on the

same case to counter the argument of counsel for defendant No. 1. The

Apex Court in this case observed that the relief of interlocutory and

mandatory injunction is generally granted 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. The following

paras from the said judgment would further amplify the legal position.

"15. In one of the earliest cases in Rasul Karim A Anr. v. Pirubhai AMrbhm, ILR 1914 38 Bom. 381, Beaman, J. was of the view that the court's in India have no power to issue a temporary injunction in a mandatory form but Shah, J. who constituted a Bench in that case did not agree with Beaman, J. in this view. However, in a later Division Bench judgment in Champsey Bhimji & Co. v. The Jamna Flour Mills Co. Ltd., two learned Judges of the Bombay High Court took a different view from Beaman, J. and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty v. F. Subramania Chetty , a Division Bench of the Madras High Court held that

court's in India have the power by virtue of Order 39 Rule 2 of the CPC to issue temporary injunction in a mandatory form and differed from Beaman's view accepting the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra). In Israil v. Shamser Rahman, it was held that the High Court was competent to issue an interim injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the Court had to determine was whether there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the Court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be maintained. While accepting that it is not possible to say that in no circumstances will the Courts in India have any jurisdiction to issue an ad interim injunction of a mandatory character, in Nandan Pictures Ltd. v. Art. Pictures Ltd. and Ors., AIR 1956 Cal 428, a Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things differing from the state which existed at the date when the suit was instituted.

16. The relief of interlocutory mandatory injunctions are 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 trail. 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 in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive or 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."

22. It would be seen from the aforesaid observation of the Apex Court in

the said case that the relief of interlocutory mandatory injunction is granted

generally to preserve or restore the status quo of the last contested status. The

expression 'generally' in the above observation gives a clear indication that

the grant of interim mandatory injunction does not only confine to restore the

status quo of the last contested status. The Apex Court in the said judgment

further observed that being essentially an equitable relief the grant or refusal

of an interlocutory mandatory injunction shall ultimately rest on the sound

judicial discretion of the Court to be exercised in the light of the facts and

circumstances of each case. The Court also observed that there may exist

exceptional circumstances for the grant or refusal of such injunction and it

would ultimately depend on the facts of each case for the Court to exercise

the equitable jurisdiction in favour of one party in preference to the other

party.

23. Testing the present case in the light of aforesaid discussion, the court is

of the view that the plaintiff has been able to establish a very strong prima-

facie case in his favour. The defendant No.1 being a daughter-in-law has no

right to reside in the subject property which belongs to her father-in-law as

the said property is not covered by the definition of 'shared household', the

same being neither a joint family property in which her husband is a member,

nor it belongs to the defendant no. 2 and is not even a rented

accommodation owned by the defendant No.2.

24. Referring to the decision of the Apex court in the case of S. R. Batra

and Anr. v. Taruna Batra, (2007) 3 SCC 169, which has extensively dealt

with the legal position regarding the right of a daughter-in-law in a shared

household under Section 17(1) of the DV Act, it was held as under:-

"16. There is no such law in India, like British Matrimonial Homes Act, 1967 and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.

29. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member...

30. No doubt, the definition of "shared household" in section 2(s) of the Act is not happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in the society."

25. In S.R. Batra case (supra), the property in question belonged to the

mother-in-law and there also the defence taken by the daughter-in-law was

that the said property was a joint family property and therefore she enjoyed a

protection under Section 17(1) of Domestic Violence Act, 2005. However, the

court took a view that daughter-in-law cannot claim any right in an

accommodation which belongs to mother-in-law or the father-in-law as such

an accommodation does not satisfy the test of share household

accommodation as envisaged under Section 2(s) of the Domestic Violence

Act, 2005.

26. The aforesaid view was reiterated by this court in the case of Neetu

Mittal v. Kanta Mittal reported in 152 (2008) DLT 691 and the relevant Paras

of the same are reproduced as under:-

"8. ... 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase "Matrimonial home" refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is self-acquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.

9. Once a person gains majority, he becomes independent and parents have no liability to maintain him. It is different thing that out of love and affection, the parents may continue to support him even when he becomes financially independent or continue to help him even after his marriage. This help and support of parents to the son is available only out of their love and affection

and out of mutual trust and understanding. There is no legal liability on the parents to continue to support a dis-obedient son or a son which becomes liability on them or a son who dis-respects or dis- regards them or becomes a source of nuisance for them or trouble for them. The parents can always forsake such a son and daughter-in-law and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes.

27. In yet another case Shumita Didi Sandhu v. Sanjay Singh Sandhu &

Ors. reported in 174 (2010) DLT 79 (DB), the Division Bench of this Court

took a view that a property which neither belongs to husband nor is taken on

rent by him, nor is a joint family property in which husband is a member,

cannot be regarded as shared household and, therefore, the daughter-in-law

has no right to claim right to stay in such a property, which belongs to either

the father-in-law or mother-in-law. The Hon'ble Division Bench also held

that the right of residence which a wife undoubtedly has does not mean right

to reside in a particular property and it is only in that property in which the

husband has a right, title or interest that wife can claim residence and that too

if no other commensurate accommodation is provided by the husband. The

following paragraphs from the said judgment are reproduced as under:-

"40. ...the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Furthermore, the provision for residence may be made either by giving a lump sum in money or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a "shared household" and such a household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a "shared household". Clearly, the property which exclusively belongs to the father-in-law or the mother-in-law or to them both, in which the husband has no right, title or interest, cannot be called a "shared household". The concept of matrimonial home, as would be applicable in England under the Matrimonial Homes Act, 1967, has no relevance in India.

41. In the light of the aforesaid principles, the appellant/plaintiff would certainly have a right of residence whether as a part of maintenance or as a separate right under the said Act. The right of residence, in our view, is not the same thing as a right to reside in a particular property which the appellant refers to as her 'matrimonial home'. The said Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a household."

28. I have also had occasion to deal with some-what similar situation in the

case of Kavita Chaudhari v. Eveneet Singh and Anr., reported in 2012 (130)

DRJ 83, wherein the civil suit was filed by the mother-in-law seeking a

decree of mandatory and permanent injunction against her son and daughter-

in-law and in violation of the interim order passed by the court, the daughter-

in-law failed to hand over the possession of the suit premises to the mother-

in-law, thereby necessitating the Decree Holder i.e mother-in-law to file an

execution petition. Following the principles laid down by the Apex Court in

the case of S.R. Batra(supra), it was held as under in the following paras:-

"The property which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a „shared household‟. Clearly, the property which exclusively belongs to the father-in-law or the mother-in-law or to both of them in which the

husband has no right, title or interest, cannot be called a „share household‟. The Hon'ble Division Bench in Sumita Didi (supra) also observed that the right of residence which a wife undoubtedly has does not mean her right to reside in a particular property although such a right in terms of Section 17 of The Protection of Women from Domestic Violence Act is a right to reside in a commensurate property.

17. At omega, this Court would like to observe that with a view to mitigate the oppression and inequality suffered by the fairer sex in this country from times immemorial; various woman friendly laws have been enacted so as to empower the women. It is a bitter truth that where on one hand these progressive laws have led to amelioration and advancement of the cause of the woman in this country, at the same time on the other hand these liberalized statutes have been flagrantly misused. The right of the woman to her matrimonial home is one such right which has been brought on the statute book to protect the woman from being left in lurch at the hands of the in-laws. However one cannot or may I say should not shy away from the hard hitting reality that it is not always the daughter in law who is berated but at times the in laws who are at the receiving end of the daughter in law's cantankerousness. It should not be for a moment consigned to oblivion that the parents in law have every right to live in peace in their own property and the right to property vested in them cannot be snatched away and used as a tool to harass them. In the facts of the case at hand, it is not in dispute before this Court that the said property bearing No. D-32, South Extension, New

Delhi is the property owned by the mother-in-law which property was bequeathed in her favour by her father and therefore the said property cannot be treated as a joint family property. The daughter-in-law has no right to stay in the said property and with the exit of her husband from the same the judgment debtor has also lost the right to the said premises as well."

29. One can also not lose sight of the fact that none of the statutes which

deal with the rights of a married woman in India, be it The Hindu Marriage

Act, 1955; The Hindu Succession Act, 1956; The Hindu Adoption and

Maintenance Act, 1956; The Protection Of Women From Domestic Violence

Act, 2005 or The Code Criminal Procedure, 1973 confer any right of

maintenance including residence for the married woman as against the

parents of the husband. To illustrate, Sections 24 and 25 of The Hindu

Marriage Act, 1955 provides for the wife's right to pendent lite maintenance

and Permanent Alimony only against her husband. Section 17 (1) of Domestic

Violence Act, 2005 gives protection to the wife where the wife is only

entitled to claim a right to residence in a shared household, and a shared

household would only mean the house belonging to or taken on rent by the

husband, or the house which belongs to the joint family of which the husband

is a member within the meaning of Section 2(s) of the said Act. Section 18 of

The Hindu Adoption and Maintenance Act, 1956 enumerates the right of a

Hindu wife to be maintained by her husband during her life time. Section 125

of the Criminal Procedure Code, 1973 provides for monthly maintenance to

wife, irrespective of her religion, if she has no source of income or means to

maintain herself against her husband. The wife's right to maintenance which

includes her residence in a commensurate property is, thus, only against the

husband. Marriage is a social union of two persons called spouses that

establishes rights and obligations between them. The concept of Matrimonial

Home has evolved with the passage of time. The concept hails from the law

of England under the Matrimonial Homes Act, 1967. There is no such

absolute statute in India, like the British Matrimonial Homes Act, 1967,

which clearly stipulates that the rights which may be available under marriage

laws can only be as against the husband and not against the father-in-law or

mother-in-law. However, it is quite discernible that the spouses in wedlock,

are obliged to take care of each other and in case of any inter-se dispute; one

can claim his right with respect to maintenance only against the other and not

against the other family members. With the transient course it has been

observed that with the advent of various women friendly laws, empowering

the women with equal rights as that of a man/ husband, the remedy of women

to ask for maintenance or to claim her right in the residence in a

commensurate property is only restricted to her husband and not against her

parents in law. A woman is only entitled to claim a right to residence in a

shared household, and a shared household would only mean the house

belonging to or taken on rent by the husband, or the house which belongs to

the joint family of which the husband is a member. This means that she can

assert her rights, if any, only against the property of her husband and cannot

claim a right to live in the house of her husband's parents without their wishes

and caprice. Law permits a married woman to claim maintenance against her

in-laws only in a situation covered under section 19 of The Hindu Adoption

and Maintenance Act, 1956. i.e. after the death of the husband and that too

when she is unable to maintain herself out of her own earnings etc. It would

not be abominable to say that even the parents/ parents in law at the fag-end

of their lives, deserve to live a blissful, happy and a peaceful life, away from

any tautness or worries.

30. In the light of the aforesaid legal position the defendant No.1, being a

daughter-in-law of the plaintiff, has no right as against the plaintiff i.e. her

father-in-law, to occupy any portion of the subject property, which is his self-

acquired property.

31. The next thing to be seen in the present case is whether grant of such an

interim mandatory injunction in favour of the plaintiff is imperative to prevent

any irreparable loss or serious injury to the plaintiff which normally could not

be compensated in terms of money.

32. In the facts of the present case, the plaintiff is aged about 80 years and

his wife is aged about 74 years and they are suffering from various old age

and other ailments. It is also an admitted position that the defendant No.1 left

the subject premises on 20.10.2010 but again entered the said premises later

although her husband started residing in a rented accommodation. Without

going into the veracity of the complaints and counter complaints filed by the

plaintiff and the daughter-in-law, one thing clearly emerges that the relation

between the parties are highly embittered and they are on a complete war

path. In my view, in such a scenario, while also considering the effect that

such environment would have on the minor children, it would be preposterous

for both the parties to stay under the same roof. Consideration may also be

given to the well-known fact that the civil litigation takes years to conclude

and by not granting interim stay in favour of the aged parents-in-law for all

these years until the date of final decision of the case, they would be

unnecessarily compelled to spend far end of their lives in a formulated, non-

consensual and woeful environment. The court can also not lose sight of the

fact that the defendant no. 1 has already been offered by the defendant

no. 2 to reside with him in his rented accommodation or in the alternate has

also been offered a sum of Rs. 30,000 to reside in some other rented

accommodation. The defendant no. 1, being herself not happy with the

conduct of her in-laws and husband, can avail this facility and shift to another

equally good accommodation for which her husband is ready to bear the

monthly rental expenses. By such an arrangement, in my opinion, interest of

both the parties would be secured at such an interim stage.

33. Counsel for the defendant also raised a plea that plaintiff has played

serious fraud upon the Court by not disclosing about having a residential

house at Calcutta. Counsel also placed reliance on documents placed on

record which clearly prove that the residence of the plaintiff is at Calcutta.

Counsel also submitted that the plaintiff by having his residential address at

two places has violated the relevant provisions of Representation of Peoples

Act, 1951. Undeniably, it would have been better, had the plaintiff disclosed

about having his residence at the Calcutta property too, as for claiming

equitable discretionary relief one must place all the material and relevant facts

before the court. Nevertheless, it has not been denied by defendant No.1 that

plaintiff has been residing in the property bearing number B-197, Greater

Kailash, Part-I, New Delhi since 2010. The court is of the view that the right

of plaintiff has to be considered vis-a-vis Delhi property and not Calcutta

property. The mere fact that plaintiff has another property at Calcutta cannot

deprive him from residing in his Delhi property and therefore non-disclosure

of a residential property at Calcutta in the present suit cannot be taken as a

suppression of a material fact so as to dis-entitle the plaintiff from the grant of

discretionary relief. There is thus no merit in this plea raised by defendant

No.1.

34. Counsel for defendant No.1 also argued that there is an apparent

collusion between the plaintiff and defendant No. 2 to throw out defendant

No.1 from the alleged matrimonial home. This argument of counsel for

defendant No.1 is also devoid of any merit as the Court has to prima-facie

consider the right of defendant No.1 to reside in the property owned by her

father-in-law and as discussed above, defendant No.1 has no legitimate right

to stay in the self-acquired property of her parents-in-law unless permitted by

the parents- in-law themselves.

35. In the light of the above discussion, the balance of convenience

strongly lies in favour of the plaintiff as against defendant No.1. The non-

grant of the interim mandatory injunction will result in causing more

prejudice to the rights of the plaintiff in comparison with the alleged rights of

the defendant No.1 to stay in an accommodation which is neither a

matrimonial home nor a shared household accommodation.

36. Interim mandatory injunction is therefore granted in favour of the

petitioner and against the defendant no. 1. Defendant No.1 is accordingly

directed to vacate the subject property bearing No. B-197, Greater Kailash,

Part-I, New Delhi and hand over peaceful possession of the same to the

plaintiff within a period of one month from the date of this order. It is further

directed that concerned Court seized with the petition filed by defendant No.1

under Domestic Violence Act shall decide the interim application of

defendant No.1 for the grant of maintenance, which will include her right to a

residence in the commensurate property as per the financial status of

defendant No.2, within a period of one month from the date of this order.

Defendant No.1 in the meanwhile is also set at liberty to shift to the rented

accommodation as offered by defendant No.2 for her exclusive residence

along with her children or to accept an amount of Rs.30,000 towards the

amount of rent, pending disposal of her maintenance application before the

concerned Metropolitan Magistrate/ Mahila Court .

37. With the above directions the present application stands disposed of.

38. It is ordered accordingly.

KAILASH GAMBHIR 05 February, 2013