Vibhuti Wadhwa Sharma vs Krishna Sharma And Anr
2021 Latest Caselaw 1450 Del

$~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: 13.05.2021
                                         Pronounced on: 17.05.2021
+     CRL.M.C. 1327/2021 & CRL.M.A.7314/2021
      VIBHUTI WADHWA SHARMA                    .....Petitioner
                  Through: Mr. Jatan Singh, Mr. Saurav Joon
                           & Mr. Tushar Lamba, Advocates

                          Versus

      KRISHNA SHARMA AND ANR.                                .....Respondents
                  Through: Mr. Roopenshu                      Pratap Singh,
                           Advocate

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          JUDGMENT

1. Parties to the present petition are related to each other in a way that

petitioner is the daughter-in-law and respondents are her parents-in-law. The

matrimonial dispute between petitioner-wife, with son of respondents is the

foundation of dispute inter se parties. Multiple legal proceedings are said to

be pending between husband and wife but what has brought parties to this

Court is the Agreement to Sell dated 18.02.2021 entered between

respondent No.1- mother-in-law with third party qua property bearing Flat

No.33, Second Floor, SFS DDA Flats, Motia Khan, New Delhi, which is

purportedly in her name. According to petitioner the property in question is

a shared household property where she had lived with her husband and so,

she cannot be alienated from the said property.

2. In the aforesaid view of the matter, petitioner filed an application

under Section 19(1)(d) of the Protection of Women from Domestic Violence

Act, 2005 ("DV Act") and the learned Magistrate after issuance of notice,

vide order dated 15.03.2021 granted interim relief to petitioner restraining

the respondents from selling or alienating the property in question. The

learned Metropolitan Magistrate posted the matter for 27.07.2021 for

arguments on interim application as well as on application seeking restraint.

3. Aggrieved against the said interim order dated 15.03.2021 passed by

the learned Magistrate, respondents herein preferred a revision petition

before the Court of Sessions under Section 395/397 Cr.P.C., which was

converted into an appeal and vide judgment dated 03.05.2021 the said

appeal was allowed. This is how petitioner is before this Court seeking

setting aside of judgment dated 03.05.2021 passed by the learned Appellate

Court.

4. Since the subject matter of the present petition is Agreement to Sell

dated 18.02.2021 which has to be concluded or executed by 18.05.2021 and

also since time is the essence of any agreement, therefore, the present

petition has been heard on a short notice. Learned counsel for respondents

has chosen to argue the present petition without filing any reply and

therefore, with the consent of counsel for the parties, the present petition

was finally heard at length.

5. Mr. Jatan Singh, learned counsel for petitioner submitted that the

impugned judgment dated 03.05.2021 passed by the learned Appellate Court

shows utter non application of mind, as it has been passed without

considering the facts and circumstances of the case. Learned counsel

submitted that the learned Sessions Judge has failed to consider the

provisions of Section 2(a) and 2(s) of DV Act, 2005 and has also failed to

correctly interpret the law laid down the Hon'ble Supreme Court in Satish

Chandra Ahuja Vs. Sneha Ahuja 2021 (1) SCC 148, as the said decision

does not distinguish between permanent living or short duration living in the

shared household. Further submitted that the Appellate Court has not

considered said judgment in its correct perspective wherein definition of

shared household in Section 2(s) of DV Act has been rewritten by the

Hon'ble Supreme Court.

6. Learned counsel for petitioner further submitted that the Appellate

Court has wrongly held that since petitioner most of the time had stayed at

different workstations of her husband, however, lived in the property in

question on three occasions for a short duration with the respondents,

therefore, the said house cannot be said to be a shared household.

7. Lastly, learned counsel submitted that petitioner's complaint under

the DV Act, 2012 is pending consideration for the last 4½ years and by

permitting the respondents to execute the Agreement to Sell, great prejudice

has been caused to petitioner and her minor son. Thus, interest of justice

demands that the impugned judgment is liable to be set aside and

respondents be restrained from selling the property in question without

making any provision for alternative accommodation for the petitioner and

her son. A direction is also sought to the learned trial court to expeditiously

decide petitioner's application under Section 19 (1) (d) of DV Act.

8. On the other hand, Mr. Rupenshu Pratap Singh, learned counsel for

respondents submitted that the property in question is in the name of

mother-in-law and being the sole owner, she has a legal right to alienate or

sell the property as per her wish and so, the Agreement to Sell dated

18.02.2021 is a valid agreement and petitioner has no right to challenge it.

Learned counsel submitted that petitioner has no title or interest in the

property in question and the property is not a joint property. Moreover, since

the marriage of petitioner with the son of respondents, she has stayed with

him at the place of his posting and has visited them occasionally, so, the

house cannot be said to be a shared household. Further submitted that the

learned Appellate Court has rightly passed the impugned judgment while

discussing the various provisions of law and applying the law laid down by

the Hon'ble Supreme Court in Satish Chandra Ahuja (Supra), and so, the

present petition deserves to be dismissed. Lastly, learned counsel

emphasized that the Agreement to Sell has to be concluded by the first

respondent by 18.05.2021 and if it is not so done, it would cause huge loss

to her.

9. This Court heard the learned counsel for the parties, perused the

impugned judgment, provisions of DV Act as well as Hon'ble Supreme

Court's decision in Satish Chandra Ahuja (Supra) carefully.

10. On an application filed by the petitioner/complainant to restrain the

respondents/parents-in-law from selling or alienating the subject property,

notice was issued and a restrained order was passed on 15.03.2021 by the

learned Metropolitan Magistrate. However, since Agreement to Sell has to

be executed within a limited time frame, the aggrieved parents-in-law filed

an appeal against the restraint order, which was allowed by the learned

Appellate Court after giving due opportunity of being heard.

11. While passing the impugned judgment, the learned Appellate Court

has elaborately discussed the various provisions of law under the DV Act

with regard to shared house hold. While noting the provisions of Section 17

of the Statute, the learned Appellate Court observed as under:-

"The provision grants a right to the aggrieved person to reside in shared house-hold irrespective of her right, title or interest in the same. Sub-sec.-2 of the Sec.-17 of the Statute provides that the aggrieved person shall not be evicted or excluded from the shared house-hold save in accordance with procedure established by law. Exclusion, here, cannot be read to protect titular interests of aggrieved person."

12. Further, the learned Appellate Court has referred to Section 2(s) of the

Statute, which defines shared household and relied upon decision in Satish

Chandra Ahuja (Supra) where the rights of an aggrieved woman as

provided under Sections 17 & 19 of the Statute, came to be revisited by the

Hon'ble Supreme Court.

13. The said decision has been intricately discussed in the impugned

judgment dated 03.05.2021 passed by the learned Appellate Court. The

relevant paras relied upon are as under:-

"67. ................When we look into the different kinds of

orders or reliefs, which can be granted on an application filed by aggrieved person, all orders contemplate providing protection to the women in reference to the premises in which aggrieved person is or was in possession. Our above conclusion is further fortified by statutory scheme as delineated by Section 19 of the 2005 Act. In event, the definition of "shared household" as occurring in Section 2(s) is read to mean that all houses where the aggrieved person has lived in a domestic relationship along with the relatives of the husband shall become shared household, there will be number of shared household, which was never contemplated by the legislative scheme. The entire scheme of the Act is to provide immediate relief to the aggrieved person with respect to the shared household where the aggrieved person lives or has lived. As observed above, the use of the expression "at any stage has lived" was only with intent of not denying the protection to aggrieved person merely on the ground that aggrieved person is not living as on the date of the application or as on the date when the Magistrate concerned passes an order under Section 19. The apprehension expressed by this Court in para 26 in S.R. Batra v. Taruna Batra, thus, was not true apprehension and it is correct that in event such interpretation is accepted, it will lead to chaos and that was never the legislative intent. We, thus, are of the considered opinion that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent.

68. The words "lives or at any stage has lived in a domestic relationship" have to be given its normal and purposeful meaning. The living of woman in a household has to refer to a living which has some permanency. Mere

fleeting or casual living at different places shall not make a shared household. The intention of the parties and the nature of living including the nature of household have to be looked into to find out as to whether the parties intended to treat the premises as shared household or not. As noted above, the 2005 Act was enacted to give a higher right in favour of women. The 2005 Act has been enacted to provide for more effective protection of the rights of the women who are victims of violence of any kind occurring within the family. The Act has to be interpreted in a manner to effectuate the very purpose and object of the Act. Section 2(s) read with Sections 17 and 19 of the 2005 Act grants an entitlement in favour of the woman of the right of residence under the shared household irrespective of her having any legal interest in the same or not."

14. While relying upon the principles annunciated by the Hon'ble

Supreme Court in the aforesaid decision, the learned Appellate Court in the

impugned judgment observed that the daughter-in-law (petitioner herein)

was not residing at the house in question on the day of presentation of the

complaint nor any time soon before. Further observed that she was

occupying a staff quarter allotted to her husband and lived in the house in

question only for short duration and occasionally visited parents-in-law, to

say only thrice. The Appellate Court accordingly held that these short

durational visits or stay of daughter-in-law at the house of the parents-in-

law would not get the house a colour of being a shared house hold and

having hold so, the restraint order of the learned Metropolitan Magistrate

was set aside, it being without any finding as regards the nature of premises

being a shared house hold. Further held that the parents-in-law shall be well

within their rights to sell off the house in question.

15. The stand of petitioner is that the Appellate Court could not have

applied the law laid down by the Hon'ble Supreme Court in Satish Chandra

Ahuja (Supra) as the said judgment does not distinguish between permanent

living or short living. Reliance was placed upon extract of Para-67, which

reads as under:-

"67........................ We, thus, are of the considered opinion that shared household referred to in Section 2(s) is the shared household of aggrieved person where she was living at the time when application was filed or in the recent past had been excluded from the use or she is temporarily absent."

16. This Court is in agreement with the ratio of law laid down by the

Hon'ble Supreme Court in Satish Chandra Ahuja (Supra), however, the

facts of the present case are distinguishable on facts of the said case. In

Satish Chandra Ahuja (Supra) the daughter-in-law was residing on the first

floor of the subject property and had therefore claimed her right as shared

household but in the present case, the petitioner has actually never resided

with the parents-in-laws.

17. Pertinently, the marriage of petitioner with son of respondents was

solemnized on 12.12.2013, who is an officer in Indian Air Force. It is not

disputed by either side that after marriage, petitioner along with her husband

i.e. son of respondents, lived at the place of his postings. The fact remains

that petitioner never resided with parents-in-laws and always stayed at the

place of posting of her husband and visited them occasionally. However, it

cannot be lost sight of the fact that petitioner had been living with her

husband in 'official accommodation' at the place of his posting and she

cannot claim the said official accommodation as the shared household, but

the element of living in 'permanency' has also to be seen. In this regard, the

pertinent observations of The Hon'ble Supreme Court in Para-68 of decision

Satish Chandra Ahuja (Supra), have been rightly relied upon by the

Appellate Court in my considered opinion.

18. Further, multiple legal proceedings arising out of matrimonial discord

between petitioner and her husband as well as parents-in-law are said to be

pending. The intent and purpose of DV Act is to safeguard the interest of

distressed women. Petitioner in her complaint filed under the DV Act has

prayed for restraining the respondents from dispossessing her or in any

manner disturbing her possession from the subject property. Further, she has

also prayed for an alternative accommodation.

19. The provisions of Section 17 of the DV Act stipulates that every

woman in a domestic relationship shall have a right to reside in the shared

household whether or not she has any right, title or beneficial interest in the

same. However, in the present case admittedly petitioner has in fact neither

permanently nor for a longer period resided in the house of parents-in-laws

and so, it cannot be termed as 'shared household'. Thus, there is no question

of evicting or dispossessing her from there. However, to safe guard the

interest of petitioner the trial court, while deciding petitioner's petition

under the DV Act, may pass an order to provide with an alternative

accommodation to petitioner under Section 19 (1) (f) of the DV Act.

20. But the pertinent question which arises for consideration before this

Court is whether the old aged parents-in-laws, who at the fag-end of their

life, wish to sell off their property to relocate themselves in a better place of

their choice, be restrained to sell of the house or permitted to do it? In this

regard, the pertinent observations of the Hon'ble Supreme Court in Satish

Chandra Ahuja (Supra) are as under:-

"90. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section

19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of the 2005 Act or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by the High Court [Ambika Jain v. Ram Prakash Sharma, 2019 SCC OnLine Del 11886] in para 56 adequately balance the rights of both the parties."

21. Applying the afore-noted observations of the Hon'ble Supreme Court

to the case in hand, this Court finds that the impugned judgment dated

03.05.2021 suffers from no illegality or infirmity.

22. The present petition is accordingly dismissed while making it clear

that the observations made by this Court are in the peculiar facts of the

present case and shall not be treated as a precedent in any other case.

23. Pending application is disposed of being infructuous.

(SURESH KUMAR KAIT) JUDGE MAY 17, 2021 r