CASE NO.: Appeal (civil) 4250 of 2000 PETITIONER: B.P. ACHALA ANAND RESPONDENT: S. APPI REDDY & ANR. DATE OF JUDGMENT: 11/02/2005 BENCH: CJI,G.P. Mathur & P.K. Balasubramanyan JUDGMENT:
J U D G M E N T
R.C. Lahoti, CJI
Unusual fact situation posing issues for resolution is an
opportunity for innovation. Law, as administered by Courts,
transforms into justice. “The definition of justice mentioned in
Justinian’s Corpus Juris Civilis (adopted from the Roman jurist
Ulpian) states ‘Justice is constant and perpetual will to render to
everyone that to which he is entitled.’ Similarly, Cicero described
justice as ‘the disposition of the human mind to render everyone
his due’.” The law does not remain static. It does not operate
in a vacuum. As social norms and values change, laws too have
to be re-interpreted, and recast. Law is really a dynamic
instrument fashioned by society for the purposes of achieving
harmonious adjustment, human relations by elimination of social
tensions and conflicts. Lord Denning once said: “Law does not
standstill; it moves continuously. Once this is recognized, then
the task of a judge is put on a higher plain. He must consciously
seek to mould the law so as to serve the needs of the time.”
The facts which are either not disputed, or, are, at this
stage, beyond the pale of controversy, may briefly be noticed.
The appellant Smt. B.P. Achala Anand (hereinafter ‘Smt. Achala’
for short) was the legally wedded wife of H.S. Anand-respondent
No. 2. Their relationship got estranged so much so that in the
year 1983 H.S. Anand deserted his wife Smt. Achala. The
matrimonial home was a tenanted premises owned by
respondent No.1. H.S. Anand left behind his wife with the
children in the tenanted premises and walked away to reside in a
lodge. In the year 1991, proceedings for dissolution of marriage
by decree of divorce seem to have been initiated between the
estranged couple. On 3/12/1998 the marriage stood dissolved
by a decree of divorce based on mutual consent. That was an
unhappy ending so far as the matrimonial relationship is
concerned. However, what transpired between the couple has
given a complex turn to an otherwise simple landlord-tenant
litigation which we are called upon to deal with in this appeal.
The premises forming part of dispute in the present
litigation is situated on the ground floor of a property bearing
No. 522, Upper Palace Orchards, Bangalore. H.S. Anand had
taken the ground floor of the building on tenancy from the
landlord-respondent No.1. The rent of the premises was fixed at
Rs. 300/- which was later on revised and enhanced to Rs. 600/-
and then to Rs. 700/- (the rate which the Trial Court has found
proved on evidence). The ground floor premises consisted of
one verandah, one hall, two bedrooms with attached toilet,
kitchen, bathroom, another toilet and corridor with overhead
water supply and other incidental facilities. The tenant H.S.
Anand resided in the premises with his family members including
his wife Smt. Achala.
The tenanted premises were badly in need of repairs and
in April 1991, consequent upon a mutual agreement arrived at
between the landlord and the tenant, a major portion of the
ground floor-tenanted – premises was handed over by the tenant
to the landlord for the purpose of carrying out repairs and the
tenant continued to retain and enjoy the verandah, one bedroom
and an attached toilet. However, the repairs, as were agreed
upon, were not carried out.
On 28/11/1991, the landlord served a notice upon the
tenant H.S. Anand and initiated proceedings for eviction from the
suit premises on the grounds available under Clauses (a) and (h)
of sub-section (1) of Section 21 of the Karnataka Rent Control,
Act, 1961 (hereinafter “the Act” for short). The tenant was
alleged to be in arrears of rent and was, therefore, called upon
to clear the same within a period of two months from the date of
the service of the notice in this regard. It was also alleged that
the landlord and his wife were old-aged couple and now-a-days
residing in some adjoining premises not their own and needed
bona fide the ground floor premises for their own occupation.
The tenant-H.S. Anand appeared in the Court of Small Causes
and defended the suit. However, it seems that on account of
strained relationship between him and his wife and, further as he
had discontinued his residence in the tenanted premises, he was
not serious in contesting the suit and consequently, in the event
of a decree for eviction being passed, the family members
including the appellant-Smt. Achala, the deserted wife, ran the
risk of being thrown away from the tenanted premises which
happened to be the matrimonial home. Briefly stating these
facts, the appellant moved an application under Order I Rule 10
of the Code of Civil Procedure (for short “the Code”) seeking her
own impleadment in the eviction proceedings so as to defend
against the eviction. The trial court, by order dated 30.01.1993,
rejected the application.
The appellant preferred a revision petition in the High
Court. Obvious as it is, the revision petition preferred by the
appellant was contested by the landlord-respondent No. 1
submitting that it being a landlord-tenant dispute, the appellant-
wife had no right to be joined as a party to the proceedings and
further that the rent being substantially in arrears, the case for
eviction was already made out and impleadment of the appellant
would only prolong the proceedings. The High Court vide its
order dated 02/12/1993 (Civil Revision Petition No. 1309/1993)
noted the submission of the parties and passed an order which
can be termed an equitable one. Legality or otherwise of the
contentions raised by the parties in the High Court was left
open, the revision petition was allowed and the trial court’s order
dated 30/01/1993 was set aside. The appellant was permitted
to be brought on record as defendant No. 2 in the original case
subject to her depositing a sum of Rs. 10,000/- towards
payment of arrears of rent. The High Court did not express any
opinion as to the status of the appellant as tenant or otherwise
which issue was left open to be decided by the trial court. The
fact remains that the appellant did deposit an amount of Rs.
10,000/- towards the arrears of rent claimed by the landlord and
it appears that the amount has been withdrawn by the landlord
without prejudice to his rights. The appellant has, thereafter,
contested the suit.
The trial court disposed of the suit on 04/12/1998. The
trial court held that H.S. Anand-respondent No. 2 was the
tenant. A case for eviction under Section 21(1)(a) of the Act
was not made out in the opinion of the trial court. However, a
case for partial eviction under Section 21(1)(h) was made out.
The trial court directed partial eviction of the two defendants
(i.e. H.S. Anand and his wife Smt. Achala) from that portion of
the premises over which the tenant had surrendered possession
to the landlord and allowed the tenant to continue in the front
portion, namely, bedroom, hall, verandah, toilet etc. as to which
accommodation the eviction petition was directed to be
dismissed.
Feeling aggrieved, the landlord preferred a revision
petition in the High Court which has been disposed of by the
judgment impugned herein. It will be useful to notice in brief
the findings arrived at by the High Court which are as follows.
According to the High Court ___ “There is no relationship of
landlord and tenant between the landlord and Smt. Achala. The
tenancy vested only in H.S. Anand who had given away the
contest. He was served with a prior notice of demand. The rent
was Rs. 700/- per month. The provisions of Section 21(2) of the
Act were not complied with and therefore, the question of
extending protection under Section 21(2) did not arise and the
tenant was liable to be evicted under Section 21(1)(a).” So far
as the ground for eviction under Section 21(1)(h) is concerned,
the High Court has not discussed the evidence in very many
details but seems to have been persuaded to hold against the
landlord on the ground that the first and second floor of the
premises fell vacant but were not occupied by the landlord and
were rather let out which is a pointer to the lack of bona fides.
Even the back portion of the ground floor premises which was
got vacated from the tenant was not put to any use for satisfying
the alleged need of the landlord. The High Court set aside the
order of partial eviction under Section 21(1)(h) and instead
directed the tenant to be evicted under Section 21(1)(a) of the
Act. It may be noted that neither the tenant H.S. Anand nor
Smt. Achala, the wife had challenged the order for partial
eviction passed by the trial court and it became final.
Smt. Achala has, feeling aggrieved by the judgment of the
High Court, preferred this appeal by special leave. The tenant
H. S. Anand has not filed any appeal.
The Karanataka Rent Control Act, 1961 has been enacted
to provide for the control of rents and evictions and for the
leasing of buildings amongst other things. It is not necessary to
extract and reproduce in extenso the relevant provisions of the
Act. For our purpose, it would suffice to notice that vide clause
(a) of sub-section (1) of Section 21 of the Act, the tenant’s
failure to pay or tender the whole of the arrears of the rent
legally recoverable from him within two months of the date of
service of notice of demand on him in this regard provides a
ground for eviction. In spite of a ground for eviction having
been made out within the meaning of the said provision entitling
the landlord to initiate proceedings for eviction of the tenant, no
order for the recovery of possession of any premises on that
ground shall be made if the tenant deposits or pays to the
landlord rent during the pendency of proceedings in the manner
prescribed by Section 29 of the Act and satisfies the Court that
there was a sufficient cause for the default to pay or tender the
rent within the period referred to in Section 21(1)(a) and further
pays to the landlord or deposits in the Court such further amount
as may be determined and fixed by the Court within the meaning
of clause (iii) of sub-section (2) of Section 21 of the Act.
Under Section 30 of the Act once the interest of the tenant
in any premises has been determined and order for recovery of
possession has been made by the Court the same is binding on
all persons who may be in occupation of the premises and
vacant possession of the premises has to be given to the
landlord by evicting the tenant and all persons in occupation of
the premises excepting those who have any independent title to
such premises. The term ‘family’ has been defined in clause (ff)
of Section 3 of the Act as ___ “‘family’ in relation to a person
means the wife or husband of such person and his or her
dependent children”. Once the premises are taken on lease by
any individual as tenant he is entitled to exercise all such rights
and is subject to all such obligations qua the landlord as are
referable to a lessee under the law. Yet, the tenant in whose
name the tenancy has been created is not the only one who is
entitled to live in the residential premises; he has a right to live
therein with his family wherein is included the spouse. In any
litigation, based on landlord-tenant relationship, when the tenant
enters upon defence, he does so not only for himself but also for
protecting the interest of his family as its members do live and
are entitled to live with him, because in the event of an order for
eviction being made it is not only the tenant but also his family
members who shall be liable to be evicted from the tenancy
premises along with him.
Having said so generally, we may now deal with the right
of a wife to reside in the matrimonial home under personal laws.
In the factual context of the present case, we are confining
ourselves to dealing with the personal law as applicable to
Hindus as the parties are so. A Hindu wife is entitled to be
maintained by her husband. She is entitled to remain under his
roof and protection. She is also entitled to separate residence if
by reason of the husband’s conduct or by his refusal to maintain
her in his own place of residence or for other just cause she is
compelled to live apart from him. Right to residence is a part and
parcel of wife’s right to maintenance. The right to maintenance
cannot be defeated by the husband executing a will to defeat
such a right. (See: MULLA, Principles of Hindu Law, Vol. I, 18th
Ed. 2001, paras 554 and 555) The right has come to be
statutorily recognized with the enactment of the Hindu Adoption
and Maintenance Act, 1956. Section 18 of the Act provides for
maintenance of wife. Maintenance has been so defined in clause
(b) of Section 3 of the Hindu Adoption and Maintenance Act,
1956 as to include therein provision for residence amongst other
things. For the purpose of maintenance the term ‘wife’ includes a
divorced wife.
The position of law which emerges on a conjoint reading of
the Rent Control Legislation and Personal Laws providing for
right to maintenance ___ which will include the right to residence
of a wife, including a deserted or divorced wife, may be
examined. The Rent Control Law makes provision for protection
of the tenant not only for his own benefit but also for the benefit
of all those residing or entitled to reside with him or for whose
residence he must provide for. A decree or order for eviction
would deprive not only the tenant of such protection but
members of his family (including the spouse) will also suffer
eviction. So long as the tenant defends himself, the interest of
his family members merges with that of the tenant and they too
are protected. The tenant cannot, by collusion or by deliberate
prejudicial act, give up the protection of law to the detriment of
his family members. So long as a decree for eviction has not
been passed the members of the family are entitled to come to
the court and seek leave to defend and thereby contest the
proceedings and such leave may be granted by the court if the
court is satisfied that the tenant was not defending ___ by
collusion, connivance or neglect ___ or was acting to the
detriment of such persons. Such a situation would be rare and
the court shall always be on its guard in entertaining any such
prayer. But the existence of such a right flows from what has
been stated hereinabove and must be recognized. Persons
residing with the tenant as members of his family would
obviously be aware of the litigation and, therefore, it will be for
them to act diligently and approach the court promptly and in
any case before the decree of eviction is passed as delay defeats
equity. Such a prayer or any dispute sought to be raised post-
decree by a member of family of the tenant may not be
entertained by the court.
Any precedent, much less of a binding authority, from any
Court in India and dealing with a situation as we are called upon
to deal with is not available. At least, none has been brought to
our notice. However, English decisions can be found. Lord
Denning states in The Due Process of Law (London,
Butterworths, 1980, at page 212) ___ “A wife is no longer her
husband’s chattel. She is beginning to be regarded by the laws
as a partner in all affairs which are their common concern. Thus
the husband can no longer turn her out of the matrimonial
home. She has as much right as he to stay there even though
the house does stand in his name. . . . . . . . Moreover it has
been held that the wife’s right is effective, not only as against
her husband but also as against the landlord. Thus where a
husband who was statutory tenant of the matrimonial home,
deserted his wife and left the house, it was held that the landlord
could not turn her out so long as she paid the rent and
performed the conditions of the tenancy.”
In Old Gate Estates, Ltd. v. Alexander and Anr.,
[1949] 2 All England Law Reports 822, a statutory tenant living
with his wife in a flat which constituted the matrimonial home
left the premises following a quarrel with his wife, and purported
to surrender them to the landlords by agreement. His wife
remained in occupation with the use of his furniture. On the
wife’s refusing to quit the premises, the husband gave her
written notice revoking any authority which she might have from
him to occupy the flat. In proceedings by the landlords against
the tenant and his wife for possession, the court held that the
tenant had not given up possession, as he remained in
occupation through his wife and furniture, and, accordingly, his
statutory tenancy had not been terminated. The statement of
law as made by Denning, L.J. is instructive. He said ___ “If a
statutory tenant goes out of occupation, leaving lodgers or sub-
tenants or no one in the house, he ceases to be entitled to the
protection of the Rent Restrictions Acts, but he does not, in my
opinion, lose the protection if he goes out leaving his wife and
furniture there. The reason is because the wife has a very
special position in the matrimonial home. She is not the sub-
tenant or licensee of the husband. It is his duty to provide a
roof over her head. He is not entitled to tell her to go without
seeing that she has a proper place to go to. He is not entitled to
turn her out without an order of the court : see Hutchinson v.
Hutchinson, [1947] 2 All E.R. 792. Even if she stays there
against his will, she is lawfully there, and, so long as she is
lawfully there, the house remains within the Rent Acts and the
landlord can only obtain possession if the conditions laid down by
the Acts are satisfied.”
Their Lordships referred to and applied the dictum of Lord
Greene, M.R., in Brown v. Draper, [1944] 1 All E.R. 246, where
the facts were somewhat similar. A husband was the tenant of a
house on a weekly tenancy. As in this case, he left the house in
a dispute with his wife, and his wife and child remained in
occupation of the house with the use of his furniture and he
continued to pay rent. He received notice to quit from the
landlord and he then stopped paying the rent, but he did not
revoke his leave to the wife to reside in the house nor did he
remove his furniture. Later, the landlord brought proceedings
against the wife for trespass and at the hearing, the husband,
who was not made a party to the proceedings, gave evidence
that he had no interest in the house. It was held by the Court of
Appeal that the husband was still in possession of the house, and
the only way he could be deprived of the protection of the Rent
Acts was by his going out of possession or having an order for
recovery of possession made against him.
Applying the law propounded in Brown v. Draper (supra)
and in Old Gate Estates Ltd. v. Alexander and Anr. (supra),
the Court of Appeal held in Middleton v. Baldock, [1950] 1 All
England Law Reports 708, that where a husband had deserted
his wife and the wife remained in the matrimonial home, she was
lawfully there and the husband remained in occupation through
her; possession of a dwelling-house to which the Rent
Restrictions Acts applied could only be ordered on one of the
grounds specified in the Acts, and a tenant could not by
agreement waive the statutory protection afforded by the Acts;
and, therefore, the orders for possession were wrongly made.
The deserted woman’s equity (as it was called) was
considered by House of Lords in the National Provincial Bank
Ltd. v. Ainsworth [1965] AC 1175. The House of Lords held
that the rights of a deserted wife were their personal rights and
as such that they could not be treated as in any sense
constituting a clog on the property of the husband so as to run
with the land as in the case of reality; and that, accordingly, a
deserted wife could not resist a claim from a genuine purchaser
of the matrimonial home from her husband whether the
purchase took place after or before desertion. Lord Hodson
stated: “The duration of the right if it were held to affect the
land would be uncertain. It would not survive divorce nor would
it necessarily survive a judicial separation by order of the court
which puts an end to the duty of cohabitation on both sides.” He
concluded:- “Having done the best I can to analyze the nature
of the right which the wife has against her husband which is
fundamentally the right relied on by the respondent, I conclude
that it does not operate as a clog on the land which protects her
by operating as a mere equity against anyone but a purchaser
for value without notice”. Lord Upjohn stated:- “The cases that
I have already cited show that, provided the wife’s marital rights
are adequately safeguarded in some such way, the court would
not normally refuse to evict a wife if the husband wants to deal
with his property. Or he may return and resume cohabitation
when the domestic forum resumes exclusive jurisdiction. Or the
wife may change her position. She may commit a matrimonial
offence which may lead the court to refuse her the right to
continue under her husband’s roof; she may obtain (as in this
case) a decree of judicial separation which at all events brings
the husband’s desertion to an end [Harriman v. Harriman
(1909 P 123)]. Such a decree must necessarily be an important
though not conclusive factor, if the husband is seeking to turn
his wife out of occupation. Finally, any right on the part of the
deserted wife to remain in occupation, terminates when the
marriage terminates.” (emphasis supplied).
His Lordship in conclusion stated:-
“My Lords, when differing as I do with regret
from so eminent a judge as the Master of the Rolls I
think it is important to see how this problem has
been dealt with in other comparable jurisdictions.
In several States of Australia there has been a
refusal to recognize that the deserted wife has any
equity available against third parties. In Brennan
vs. Thomas (1953 V.L.R. 111) Sholl J. sitting in the
Supreme Court of Victoria after an exhaustive review
of the authorities, including Bendall Vs. McWhirter
( 1952(2) Q.B. 466) then recently decided in the
Court of Appeal, refused to recognize any right on
the part of the wife available against purchasers for
value.
In Public Trustee vs. Kirkham ( 1956 V.L.R.
64) sitting in the same court Herring C.J. criticized
the doctrine.
In Maio vs. Piro (1956 S.A.S.R. 233)
Ligertwood J. sitting in the Supreme Court of South
Australia followed Sholl J. in preference to the
English decisions.
Finally, in Dickson vs. McWhinnie [(1958) 58
S.R. (N.S.W.) 179], the Full Court of New South
Wales refused to follow Bendall vs. McWhirter
(supra) save in relation to bankruptcy. I derive
much comfort from such a strong body of opinion in
favour of the view I have expressed.”
In Robson v. Headland, [1948] 64 TLR 596, it was
held that “after the date of the divorce the former wife of the
defendant was a stranger to him and was not in occupation of
the flat as his representative and that as he had abandoned
possession himself, the Rent Restriction Acts did not apply.”
In Waughn v. Waughn [1953] 1 QB 762, a wife
continued to reside in the matrimonial home even after she
obtained a decree of divorce against her husband. After some
time the husband brought proceedings for possession. The
divorced wife resisted claiming that she had an irrevocable
licence during her lifetime. It was held by the Court of Appeal
(Evershed M.R. Denning and Romer. L.J.J.) that after they had
ceased to be husband and wife, the wife could not justify her
claim unless she could set up a contract. As it was, the
statement originally made to her could after the divorce, amount
to no more than she, as ex wife, was entitled to remain in
occupation as a bare licensee and the licence was, therefore,
revocable. Lord Denning stated:
“The wife ought to have protected her position
by applying for maintenance in the divorce
proceedings before decree absolute and should have
come to an arrangement with her husband whereby
he agreed not to turn her out except by an order of
the court, she agreeing to accept a reduced sum for
maintenance as long as she lived there.”
This indicates that the right of residence is a part of the
right to maintenance and in which case in the absence of an
order by the matrimonial court in the proceedings for divorce,
she would not be able to set up a claim in respect of the house
even as against her husband, leave alone the landlord of her
husband.
It is of interest to note that the above decision of the
House of Lords led to the enactment of the Matrimonial Homes
Act, 1983. The preamble of the Act says “an Act to consolidate
certain enactments relating to the rights of a husband or wife to
occupy a dwelling house that has been a matrimonial home”. So
long as one spouse has right to occupation, either of the spouses
may apply to the court for an order requiring either spouse to
permit the exercise by the other of that right. This is one of the
several rights expressly provided for.
It has been held in India that right to maintenance arises
out of the status as a wife and not by way of a contract or
otherwise. In Sri Raja Bommadevara Raja Lakshmi Devi
Amma Garu v. Sri Raja B. Naganna Naidu Bahadur
Zamindar Garu and another, AIR 1925 Madras 757, Specncer,
Officiating CJ, stated:
“The obligation of a husband to maintain his
wife is described, as one arising out of the status of
marriage. It is a liability created by the Hindu Law
in respect of the jural relations of the Hindu family.
When there is no contract between the parties to a
marriage, as among Hindus, a suit for maintenance
is not a suit based upon contract, but it is a suit
arising out of a civil relation resembling that of a
contract, which is specially provided for in Article 128
of the Limitation Act”. (Head Note)
In Unnamalai Ammal v. F.W. Wilson and others, AIR
1927 Madras 1187, it was stated that the maintenance of a wife
by a husband is a personal obligation upon him arising from the
existence of the relations. In P. Suriyanarayana Rao Naidu
v. P. Balasubramania Mudali & ors., ILR 43 Madras 635, it
was held that an auction purchaser of an ancestral house sold in
execution of a money decree passed on a personal debt of the
mother who inherited the property as heir to her son, is not
entitled to oust the unmarried sisters of the latter, who reside in
the house. The Bombay High Court in Bai Appibai v. Khimji
Cooverji, AIR 1936 Bombay 138, held that under the Hindu
Law, the right of a wife to maintenance is a matter of personal
obligation on the husband. It rests on the relations arising from
the marriage and is not dependent on or qualified by a reference
to the possession of any property by the husband. In Ganga
Bai v. Janki Bai, ILR 45 Bombay 337, it was held:-
“Under Hindu Law, a widow cannot assert her
right of residence in a house which has been sold by
her husband during his life time, unless a charge is
created in her favour prior to the sale. The right
which a Hindu wife has during her husband’s life
time is a matter of personal obligation arising from
the very existence of the relation and quite
independent of the possession by the husband of any
property, ancestral or self acquired.” (Head Note)
Dr. Abdur Rahim Undre v. Smt. Padma Abdur Rahim
Undre, AIR 1982 Bombay 341, is a Division Bench decision of
the Bombay High Court, dealing with right to residence of a wife
in the matrimonial home. The marriage between the parties was
subsisting in law but had broken down beyond repairs. The
husband filed a suit inter alia for injunction, restraining the wife
from entering the matrimonial house. The Court held that an
injunction subject to certain terms and conditions could be
granted. The parties, on account of seriously estranged
relationship between them could not be forced to live together.
The flat was big enough to allow the parties to live there
separately. The Court earmarked separate portions for the
husband and the wife to live separately and restrained the wife
from entering the portion in occupation of the husband, who was
an eminent surgeon, so that he could have a peace of mind to
enable him to discharge his duties as a surgeon more efficiently.
In addition, the husband was directed to pay a certain amount of
money by way of maintenance to the wife.
A Single Bench decision of the Andhra Pradesh High Court
in M/s. Bharat Heavy Plates and Vessles Ltd., AIR 1985
Andhra Pradesh 207, is more near to the facts of the case at
hand. The husband was an employee in a company. He was
allotted a company quarter in which he lived with his wife. The
quarter was the matrimonial home. However, differences
developed between the husband and wife, leading to their
estrangement and finally the wife went to the Court, charging
her husband with neglect to maintain her and her three minor
children. The husband left the company quarter and it was
occupied only by his wife and minor children. The husband also
wrote to the company, terminating the lease which was in his
favour. The hovering prospects of eviction led the wife to the
Court for protection, seeking an injunction restraining the
company from evicting the wife and her three minor children.
The High Court upheld the order impugned before it, whereby
the company was restrained from evicting the wife and her
minor children. For forming this opinion, the Court took into
consideration the facts that the quarter was meant to be used by
the employee and the husband was under an obligation to
provide shelter to the wife and children. The husband and the
company had both recognized the quarter to be the matrimonial
home wherein the wife too was residing. The amount of rent
was directed to be deducted from the salary of the husband.
This Court in Kirtikant D. Vadodaria v. State of Gujarat
and another, (1996) 4 SCC 479, has held: “According to the
law of land with regard to maintenance there is an obligation on
the husband to maintain his wife which does not arise by reason
of any contract – expressed or implied – but out of jural
relationship of husband and wife consequent to the performance
of marriage. .. The obligation to maintain them is personal,
legal and absolute in character and arises from the very
existence of the relationship between the parties.”
Section 18 of the Hindu Adoption and Maintenance Act
confers a right on a wife to be maintained by her husband during
her life time. According to Mulla, the right of a wife for
maintenance is an incident of the status or estate of matrimony
and a Hindu is under a legal obligation to maintain his wife.
(See : Mulla, ibid, pp 454-455)
The Hindu Marriage Act provides for divorce. Section 15
indicates when divorced persons may marry again. Section 25
enables the court to pass an order for providing alimony and
maintenance in favour of the divorced wife. Section 27 enables
the court to make provisions in the decree in respect of a
property that may belong to the wife or to both. On the status
of wife being terminated by a decree for divorce under the Hindu
Marriage Act, the rights of the divorced wife seem to be cribbed,
confined and cabined by the provisions of the Hindu Marriage Act
and to the rights available under Sections 25 and 27 of the Act.
In V.B. Jaganathan v. A.R.Srividhya, 1997 (2) MLJ
366, the Madras High Court has held that a court can pass an
appropriate order under Section 27 of the Hindu Marriage Act
even when one of the parties to a marriage claims the property
as belonging to him exclusively thereby indicating that it might
have been possible to make a provision regarding the tenanted
premises, in the proceedings under the Hindu Marriage Act. How
far that order would be binding on a landlord who is not a party
is another question, but it would certainly give her a right to
defend the proceedings for eviction.
Incidentally, we may refer to Karam Singh Sobti & Anr.
v. Sri Pratap Chand & Anr., AIR 1964 SC 1305, though not
directly in point. Proceedings for eviction were initiated by the
landlord against the tenant and sub-tenant unlawfully inducted
by the tenant in the premises. The tenant suffered a decree for
eviction and decided not to file an appeal. This Court upheld the
right of sub-tenant to file an appeal in his own right against the
decree so as to protect himself even though thereby the tenant
would also be freed from the decree.
In our opinion, a deserted wife who has been or is entitled
to be in occupation of the matrimonial home is entitled to
contest the suit for eviction filed against her husband in his
capacity as tenant subject to satisfying two conditions : first,
that the tenant has given up the contest or is not interested in
contesting the suit and such giving up by the tenant-husband
shall prejudice the deserted wife who is residing in the premises;
and secondly, the scope and ambit of the contest or defence by
the wife would not be on a footing higher or larger than that of
the tenant himself. In other words, such a wife would be
entitled to raise all such pleas and claim trial thereon, as would
have been available to the tenant himself and no more. So long
as, by availing the benefit of the provisions of the Transfer of
Property Act and Rent Control Legislation, the tenant would have
been entitled to stay in the tenancy premises, the wife too can
continue to stay exercising her right to residence as a part of
right to maintenance subject to compliance with all such
obligations including the payment of rent to which the tenant is
subject. This right comes to an end with the wife losing her
status as wife consequent upon decree of divorce and the right
to occupy the house as part of right to maintenance coming to
an end.
We are also of the opinion that a deserted wife in
occupation of the tenanted premises cannot be placed in a
position worse than that of a sub-tenant contesting a claim for
eviction on the ground of subletting. Having been deserted by
the tenant-husband, she cannot be deprived of the roof over her
head where the tenant has conveniently left her to face the peril
of eviction attributable to default or neglect of himself. We are
inclined to hold and we do so that a deserted wife continuing
in occupation of the premises obtained on lease by her husband,
and which was their matrimonial home, occupies a position akin
to that of an heir of the tenant-husband if the right to residence
of such wife has not come to an end. The tenant having lost
interest in protecting his tenancy rights as available to him under
the law, the same right would devolve upon and inhere in the
wife so long as she continues in occupation of the premises. Her
rights and obligations shall not be higher or larger than those of
the tenant himself. A suitable amendment in the legislation is
called for to that effect. And, so long as that is not done, we,
responding to the demands of social and gender justice, need to
mould the relief and do complete justice by exercising our
jurisdiction under Article 142 of the Constitution. We hasten to
add that the purpose of our holding as above is to give the wife’s
right to residence a meaningful efficacy as dictated by the needs
of the times; we do not intend nor do we propose the landlord’s
right to eviction against his tenant to be subordinated to wife’s
right to residence enforceable against her husband. Let both the
rights co-exist so long as they can.
We have dealt with all the abovesaid aspects of the law as
it was urged on behalf of the landlord __ respondent No. 1 that
Smt. Achala, the appellant has no right to contest or defend
herself in these proceedings nor a right to file and prosecute this
appeal as there is no privity of contract between the appellant
and landlord and the appellant is neither a tenant nor so
recognized ever by the respondent No. 1 __ landlord. We cannot
agree. We feel that the appellant was rightly ___ in the facts and
circumstances of the case ___ permitted by the High Court to be
joined as a party to the proceedings. She was also rightly
allowed to contest the suit and deposit the rent in the court for
payment to landlord for and on behalf of the tenant-husband.
So far as a deserted wife, whose status as wife has not
come to an end by a decree of divorce or by decree for
annulment of marriage, is concerned, we have made the position
of law clear as above. However, the case of a divorced wife
stands on a little different footing. Divorce is termination of
matrimonial relationship and brings to an end the status of wife
as such. Whether or not she has the right of residence in the
matrimonial home, would depend on the terms and conditions in
which the decree of divorce has been granted and provision for
maintenance (including residence) has been made. In the event
of the provision for residence of a divorced wife having been
made by the husband in the matrimonial home situated in the
tenanted premises, such divorced wife too would be entitled to
defend, in the eviction proceedings, the tenancy rights and rights
of occupation thereunder in the same manner in which the
husband-tenant could have done and certainly not higher or
larger than that. She would be liable to be evicted in the same
manner in which her husband as tenant would have been liable
to be evicted.
In the present case, it is admitted by the appellant that on
3.12.1998, that is, during the pendency of these proceedings
and while the matter was pending in the High Court a decree for
dissolution of marriage by divorce based on mutual consent has
been passed. The terms and conditions of such settlement have
not been brought on record by the appellant which she ought to
have done. It is not the case of Smt. Achala, the appellant that
she is entitled to continue her residence in the tenanted
premises by virtue of an obligation incurred by her husband to
provide residence for her as a part of maintenance. She cannot,
therefore, be allowed to prosecute the appeal and defend her
right against the claim for eviction made by the landlord.
The appeal is, therefore, held liable to be dismissed and is
dismissed accordingly. However, in the facts and circumstances
of the case, the appellant is allowed time till 31.12.2005 for
vacating the suit premises, subject to the following conditions:-
(i) that the appellant shall clear all the arrears of rent
(calculated upto the date of deposit) at the rate of
Rs.700/- per month, on or before 31st March, 2005,
by depositing the same in the executing court;
(ii) with effect from 1st April, 2005 the appellant shall
continue to deposit rent calculated at the rate of
Rs.700/- per month on or before 15th day of each
month for payment to landlord;
(iii) on or before 31st December, 2005, the appellant
shall hand over vacant and peaceful possession over
the suit premises to the landlord and shall not
in-between part with possession to anyone else or
create third party interest;
(iv) that an undertaking on affidavit, incorporating the
above said terms, shall be filed in the executing
court on or before 31.3.2005.
No order as to the costs.