Delhi High Court
Pushpa vs Kanta Devi on 31 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 31st August, 2018.
+ RSA 124/2018
PUSHPA ..... Appellant
Through: Mr. Narendra Sharma and Mr.
Devender Kumar, Advs.
Versus
KANTA DEVI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.35585/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
RSA 124/2018 & CM No.35584/2018 (for stay)
3. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 4th July,
2018 in RCA No.140/2017 of the Court of District Judge, Shahdara] of
dismissal of the First Appeal under Section 96 of the CPC preferred by the
appellant/defendant against the judgment and decree [dated 27th May, 2017
in Suit No.9934/2016 of the Court of Additional Civil Judge, Shahdara]
allowing the suit filed by the respondent/plaintiff for mandatory injunction
directing the appellant/defendant to vacate the second floor of House No.B-
257/2, Gali No.7, Ashok Nagar, Delhi.
4. The respondent/plaintiff is the mother-in-law of the
appellant/defendant. It is not in dispute that the house aforesaid is in the
ownership of the respondent/plaintiff.
RSA 124/2018 Page 1 of 3
5. The counsel for the appellant/defendant has argued that the Courts
below have not considered that the appellant/defendant is residing in the
aforesaid house along with her husband. It is stated that the suit was filed,
claiming the appellant/defendant to be a licensee, when the
appellant/defendant is not a licensee and is residing in the house along with
her husband. It is yet further contended that the husband of the
appellant/defendant was not impleaded as a party to the suit.
6. It is not the case of the appellant/defendant that her husband, even if
residing in the house aforesaid, has any right to the house. Once that is so,
the house cannot qualify as the matrimonial home of the
appellant/defendant as daughter-in-law of the respondent/plaintiff, as per
the dicta of the Supreme Court in S.R. Batra Vs. Taruna Batra (2007) 3
SCC 169 and Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel
(2008) 4 SCC 649. A daughter-in-law has no right of residence against her
mother-in-law. Reference can also be made to Shumita Didi Sandhu Vs.
Sanjay Singh Sandhu (2010) 174 DLT 79 (DB), Sushma Sharma Vs.
Bimla Devi Sharma 2014 SCC OnLine Del 650, Sunita Gangwal Vs.
Chottey Lal 2018 SCC OnLine Del 6708 and Komal Vs. Panchi Devi 2018
SCC OnLine Del 7151.
7. The counsel for the appellant/defendant admits that there are
matrimonial proceedings between the appellant/defendant and her husband
and the appellant/defendant in the said proceedings, has filed an application
under Section 125 of the Code of Criminal Procedure, 1973.
8. It has been held in Amina Bharatram Vs. Sumant Bharatram (2018)
249 DLT 104, that residence is a facet of maintenance and the right of the
appellant/defendant, if any is to claim residence from her husband and/or to
RSA 124/2018 Page 2 of 3
in her claim of maintenance also claim monies for residence and a
daughter-in-law cannot force her mother-in-law to provide residence.
9. The only other argument urged is, that the respondent/plaintiff along
with the husband of the appellant/defendant is "playing a game on the
appellant/defendant".
10. Once the law is settled in this regard, the appeal does not raise any
substantial question of law, which is sine qua non for entertaining a Regular
Second Appeal.
11. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 31, 2018
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