Delhi High Court

Khushwant Kaur & Anr vs Gagandeep on 15 October, 2014

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                              Judgment reserved on : 09.10.2014.
                              Judgment delivered on : 15.10.2014
+        CRL.REV.P. 403/2013 & Crl. M.A.No.10713/2013

         KHUSHWANT KAUR & ANR.                   ..... Petitioners
                    Through  Petitioners with their counsel
                             Ms. Kajal Chandra, Adv.

                           versus

         GAGANDEEP                                ..... Respondent
                           Through     Respondent with her counsel
                                       Mr. Sumit K. Khatri, Adv.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This revision petition is directed against the impugned order

dated 30.05.2013 which has endorsed the findings returned by the

Magistrate wherein the respondent/complainant was permitted to keep

her istridhan articles in a portion of the house which was in her physical

possession.

2 Record discloses that the complainant Gagandeep was married to

Sarvjeet Singh (son of the petitioners) on 14.11.2010 at Delhi. They

stayed together at the residential address No 11/8, Ground Floor, Gali

No.142, Old Gobind Pura Extension, New Delhi from the time of their

marriage up to October, 2011. The contention of the petitioners is that

on 29.10.2011, they had disowned their son and a public notice to this

effect had also been given. On 01.11.2011, their son Sarvjeet Singh

along with the complainant shifted to a nearby rented accommodation.

On 02.11.2011, the complainant accompanied by the police forcibly

entered the house after breaking open the locks. The petitioners being

senior citizens are aggrieved by the acts of the complainant; submission

being that it is the obligation of their son i.e. the husband of the

complainant to look after his wife and the present property where the

complainant is forcibly residing being owned by petitioner No. 2

(Daljeet Singh), the complainant cannot forcibly continue to stay in the

said property. The petitioners to vent their grievance had also filed suit

for permanent and mandatory injunction i.e. CS (OS) No.248/2011 titled

„Daljeet Singh Vs. Gagandeep Sidhu and Another‟. This was on

26.11.2011. The complainant was also aggrieved. She filed a petition

under Section 12 of the Protection of Women from Domestic Violence

Act, 2005 against her husband and the present petitioners on 22.12.2011.

In this petition, she has prayed for continuation of residence in the

property which she alleges was in her physical occupation; she has also

prayed for other interim reliefs including the relief of maintenance. A

complaint under Sections 406/498-A/34 of the IPC was also filed by the

complainant in the CAW Cell, Nanak Pura pursuant to which FIR

no.122/2012 was registered.

3 On 27.01.2012, in the proceedings under the Protection of

Women from Domestic Violence Act, the learned Magistrate had noted

the contention of the complainant that she is in the family way; her relief

that she be not dispossessed from the shared household without

following the due process of law was accepted as both the petitioners

(then present) were agreeable to this proposition. The in-laws of the

complainant (petitioners No. 1 & 2) were accordingly restrained from

dispossessing the complainant from the aforenoted property without

following the due process of law. This order was passed admittedly with

the consent of the present petitioners as is evident from the order. On

10.05.2013, the learned Magistrate extended the order dated 27.01.2012

restraining the petitioners from dispossessing the complainant from the

property in question till further orders. The Court had noted that it is

only after the evidence that it could be decided whether it is a shared

household or not as admittedly after the marriage, the husband of the

complainant had taken the complainant to the aforesaid property. The

Court had also noted that the petitioners had filed a suit for possession

against the complainant which was pending which is CS (OS)

No.248/2011 (noted supra). The Magistrate vide order dated 10.05.2013

had accordingly permitted the complainant to keep her istridhan articles

(which had been returned to her in bail proceedings) in the property in

question.

4 This order was impugned before the Sessions Court. The Sessions

Court had noted the contentions and counter contentions raised by the

learned counsels for the parties as also the submission of the learned

counsel for the petitioners who had placed reliance upon a judgment of

the Apex Court reported as 136 (2007) DLT 1 (SC) S.R. Batra & Anr

Vs. Taruna Batra to substantiate the submission that where the property

was owned by the father-in-law of the victim, the victim had no right to

continue to reside in the said property. The Sessions Judge had also

noted the counter contention that a civil suit for permanent injunction

qua this issue had been filed by the father-in-law and which was pending

decision. The Court had also noted the concession granted by the

petitioners on 27.01.2012 that they would not dispossess the

complainant from the shared household without following the due

process of law which order stood reiterated on 10.05.2013. The Sessions

Judge in this factual background had held that since the suit for

possession is pending inter-se the parties and in case the petitioners

succeed in that suit, the respondent would be liable to remove all her

good but till then her possessory right in the portion of the property in

which she was living was maintained.

5 On behalf of the petitioners, arguments have been addressed in

detail. Learned counsel for the petitioners has vehemently relied upon

the proposition laid down by the Supreme Court in the judgment of S.R.

Batra (Supra). Reliance has also been placed upon the judgments

reported as 168 (2010) DLT 521 Sardar Malkiat Singh Vs. Kanwaljit

Kaur & Ors, 2008 (106) DRJ 623 Neetu Mittal Vs. Kanta Mittal &

Others, 202 (2013) DLT 548 Kavita Chaudhri Vs. Eveneet Singh and

Anr., 174 (2010) DLT 79 (DB) Sumita Didi Sandhu Vs. Sanjay Singh

Sandhu & Others, 2013 (135) DRJ 307 Barun Kumar Nahar Vs. Parul

Nahar & Anr and Savitri Devi Vs. Manjoj Kumar and Anr. CS(OS)

No.910/2011 decided on 18.09.2013 to canvas her proposition that

where the property is admittedly owned by the father-in-law and the son

has set up a separate residence (submission being that son had shifted

out of the matrimonial home on 01.11.2011 and a rent agreement to this

effect has also been placed on record), the daughter-in-law (the

complainant) has no vested right to continue to retain the property.

6 The counter submissions made by the learned counsel for the

respondent as also his reliance upon a Division Bench of this Court

reported as 207 (2014) DLT 78 (DB) Preeti Satija Vs. Raj Kumari and

Anr. have also been noted.

7 This Court is sitting as a revisional Court. Until and unless there

is a patent illegality or a perversity in the order which has been

impugned, this Court may not interfere. Admittedly CS (OS)

No.248/2011 titled „Daljeet Singh Vs. Gagandeep Sidhu and Another‟

for permanent/mandatory injunction and possession has been filed by

petitioner No. 2 (father-in-law) against his daughter-in-law (the

complainant). No interim relief has been granted to the petitioner in that

suit. That suit is pending trial.

8 The Supreme Court in S.R. Batra (supra) had noted that the Court

cannot interfere with the findings of fact under Articles 226 or 227 of

the Constitution; in that case a positive fact finding had been returned

that Taruna Batra was not residing in the premises in question. In the

instant case, the fact findings are otherwise. It has been admitted in all

the proceedings that the complainant was living in the suit property; she

had never left it; submission of the petitioners that an accommodation

had been taken by their son on rent on 01.11.2011 and the complainant

had also shifted to that residence is negatived by the communication

addressed by Sarvjeet Singh (son of the petitioners) to the SHO Police

Station Jagat Puri dated 02.11.2011 wherein he had informed him that

on 01.11.2011 he had taken on rent an accommodation and this

information about his having taken this accommodation had been given

on telephone to his wife; meaning thereby that the wife/complainant was

not privy to this agreement. The submission of the petitioners that the

complainant had broken open the locks on 02.11.2011 and had forcibly

re-entered the house is further negatived by the fact that there is no

police report or proceeding to that effect of 02.11.2011.

9 In the judgment of S.R. Batra (Supra), the Supreme Court had in

fact while interpreting Section 17 of the Domestic Violence Act noted as

under:-

"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. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence, it cannot be called a „shared household."

10 The finding of the Sessions Judge in the impugned order was as

follows:-

"Though shared house hold has been defined authoritatively, the facts of each case are to be considered on their own merit. The appellants in the present case admit that respondent has the possession of a specified portion of the house by virtue of statement given by appellant no.1 in the Court. She also admits that she has taken recourse to the law to get the respondent evicted from the said house. Ld. Trial Court has merely recognized this right of the respondent and has not declared any right in favour of the respondent. The order of Ld. Trial Court does not suggest that any finding regarding the house being a shared household has been given at this stage. However, since prima facie, the respondent showed to the court that she has legal possessory rights in the property, which was also admitted by the appellants, the Trial Court gave effect to this admitted right of the respondent, which order cannot be said erroneous in the eyes of law. Order of Ld. Trial Court does not say that the house is a shared household as defined under Section 2(s) of D.V.Act and therefore, she has granted permission to the respondent in the house. She, has merely given effect to the order of Ld. Civil Court, which has recognized

the right of the respondent in the property till her legal dispossession from the said house. Needless to say that since the Ld. Trial Court has not passed any residence order in favour of the respondent, the effect of the present order passed by the court shall be only for the time till respondent continues to be in the possession of the house and the moment appellant obtains a decree from the Civil Court, the impugned order shall cease to have effect and the respondent shall be liable to remove her articles from the house."

11 It is not as if the Sessions Judge has returned a finding that the

portion of the property in occupation of the complainant was a part of

the shared household. The matter was under trial. The Court had also

noted that a civil suit (CS (OS) 248/2011) qua this issue is pending. This

order in fact only recognized the right of the complainant to stay in the

property till her legal dispossession from the house which was the

subject matter of CS (OS) No.248/2011 is decided. This Court also

notes that Sarvjeet Singh, the husband of the complainant had also

appeared in the present proceedings. He submitted that the property

which he had earlier taken on lease on 01.11.2011 has since been

surrendered. He has now shifted to another accommodation vide a fresh

lease deed dated 24.02.2013 which has also been surrendered. He had