* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 8th November, 2011
+ FAO (OS) 71-72/2011
EVENEET SINGH ...Appellant
Through: Mr.Y.P.Narula, Senior Advocate with
Ms.Shobhana Takiar and
Mr.Aniruddha Choudhury,
Advocates
versus
PRASHANT CHAUDHARI & ANR. ...Respondents
Through: Ms.Geeta Luthra, Senior Advocate
with Mr.Jatin Sehgal and Mr.Harish
Malik, Advocates for R-1
Mr.Ravi Gupta, Senior Advocate
with Mr.Ankur Mahindro, Advocate
for R-2
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE S.P.GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The issue at hand is settled by a decision of a
Division Bench of this Court in FAO(OS) No.341/2007 Shumita
FAO (OS) 71-72/2011 Page 1 of 8
Didi Sandhu vs. Sanjay Singh Sandhu & Ors. In paragraphs 48
and 49 the Division Bench held as under:-
“48. The learned counsel for the appellant had also
referred to Single Bench decisions of the Kerala High
Court and the Madras High Court in the cases of
S.Prabhakaran (supra) and P.Babu Venkatesh
Kandayammal and Padmavathi (supra) to indicate
instances of cases where the Supreme Court decision
in S.R.Batra (supra) was distinguished. Those
decisions are Single Bench decisions and that too of
other high courts and are, therefore, of no
precedential values insofar as this Bench is
concerned. We feel that in view of the prima facie
finding that the property in question does not belong
to the appellant‟s/plaintiff‟s husband nor does he
have any share or interest in the same, there is no
question of the said property being regarded as a
“shared household” in terms of Section 2(s) of the
said Act. We also find that the expression
“matrimonial home” is not at all defined in the said
Act and the concept of the matrimonial homes as
prevailing in England by virtue of the Matrimonial
Homes Act, 1967 cannot be applied in India as
pointed out in S.R.Batra (supra) and B.R.Mehta
(supra). There is no doubt that the appellant/plaintiff
has a right of a residence whether as an independent
right or as a right encapsulated in the right to
maintenance under the personal law applicable to
her. But that right of residence does not translate
into a right to reside in a particular house. More so,
because her husband does not have any right, title or
interest in the said house. As noted by the Supreme
Court in the case of Komalam Amma (supra) as well
as in Mangat Mal (supra), the right of residence or
provision for residence may be made by either giving
a lumpsum in money or property in lieu thereof. In
the present case, we have noted earlier in this
FAO (OS) 71-72/2011 Page 2 of 8
judgment that the learned Single Judge had recorded
that alternative premises had been offered to the
appellant/plaintiff, but she refused to accept the
same and insisted on retaining the second floor of
the property in question claiming it to be her
„matrimonial home‟.
49. We must emphasize once again that the right
of residence which a wife undoubtedly has does not
mean the right to reside in a particular property. It
may, of course, mean the right to reside in a
commensurate property. But it can certainly not
translate into a right to reside in a particular
property. In order to illustrate this proposition, we
may take an example of a house being allotted to a
high functionary, say a Minister in the Central
Cabinet and who resides in the same house along
with his wife, son and daughter-in-law. It is obvious
that since the daughter-in-law and son reside in the
said house, which otherwise is a government
accommodation allotted to the father-in-law, the
same could be regarded as the house where the son
and daughter-in-law live in matrimony. Can the
daughter-in-law claim that she has a right to live in
that particular property irrespective of the fact that
the father-in-law subsequently is no longer a Minister
and the property reverts entirely to the Government?
Certainly not. It is only in that property in which the
husband has a right, title or interest that the wife can
claim residence and that too, if no commensurate
alternative is provided by the husband.”
2. Vide impugned order dated 20.12.2010, the learned
Single Judge has held that the appellant would have no right to
enforce a claim for residence in the ground floor of building
bearing Municipal No.D-32, South Extension Part-II, half-share
FAO (OS) 71-72/2011 Page 3 of 8
whereof was inherited by appellant‟s mother-in-law through her
mother, a fact which is undisputed; and yet in spite thereof we
find appellant claiming the subject property to be ancestral
property in the hands of her mother-in-law and through her
husband having an alleged right therein, and hence a claim set
up that being the wife the appellant would have a right of
residence in the house belonging to her husband. Said claim
on the plea afore-noted cannot be sustained and we reject the
same outright.
3. Whether appellant can claim a right on the ground
that the premises in question is a shared household because
after marriage she and her husband set up their matrimonial
home in the house is the question which we need to decide.
4. Section 2(s) of The Protection of Women from
Domestic Violence Act 2005, (herein after referred to as „the
Act‟) defines „shared household‟ as under:-
“2(s) „shared household‟ means a household
where the person aggrieved lives or at any stage has
lived in a domestic relationship either singly or along
with the respondent and includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either
the aggrieved person or the respondent or both
jointly or singly have any right, title, interest or
equity and includes such a household which may
belong to the joint family of which the respondent is
a member, irrespective of whether the respondent or
the aggrieved person has any right, title or interest in
the shared household.”
FAO (OS) 71-72/2011 Page 4 of 8
5. It is not in dispute that after marriage, appellant and
her husband set up their matrimonial home in the house in
question, but after a few months the husband and wife fell
apart and the husband took on rent the barsati floor, consisting
of a drawing room, a bed room, kitchen and an attached toilet
with an open terrace abutting on the second floor of House
No.C-528 Defence Colony, New Delhi at a rent of `30,000/- per
month.
6. Alleging the same to be a ruse and a game-plan to
make the appellant shift to the said house and thereafter
abandon her requiring rent to be paid or face eviction
therefrom and additionally on the ground that the appellant
has a right to be protected in the shared household and has a
right to restrain her mother-in-law and her husband to
dispossess her from the shared residence, claim was raised in
CS(OS) No.1307/2010 which appears to be a counterblast to
CS(OS) No.505/2010 whereunder appellant‟s mother-in-law
claimed a right to possess the entire premises. The appellant
has lost before the learned Single Judge.
7. It is no doubt true that the appellant has a right
under clause (a) of sub-section 1 of Section 19 of the Act, but
clause (f) thereof cannot be lost sight of, and indeed the
learned Single Judge has relied thereon. The learned Single
Judge has also relied upon Section 26 of the Act, holding said
provision to be a concurrent jurisdiction. It has been directed
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that monthly rent @`30,000/- should be paid to the appellant
towards alternative accommodation and `45,000/- per month
towards maintenance. The appellant has thus come under a
legal obligation to vacate the shared household.
8. The respondents have unequivocally stated that
they shall comply with the obligation placed upon their
shoulders by the learned Single Judge, but the appellant
continues to urge that her right to continue to live in the shared
household is indefeasible.
9. Upon the presumption that the ground floor of
House No.D-32 South Extension Part-II, New Delhi is the shared
residence of the appellant, notwithstanding the same being the
absolute property of appellant‟s mother-in-law, we concur with
the view taken by the learned Single Judge inasmuch as vide
clause (f) of sub-section 1 of Section 19 of the Act, in lieu of the
shared accommodation, a Court can direct the opposite party
to secure same level of alternative accommodation for the
aggrieved person as enjoyed by her in the shared household or
to pay rent for the same, if the circumstances so require.
Further, vide Section 26 of the Act, reliefs available under
Sections 18 to 22 may be granted by any Civil Court.
10. We have already noted herein above the view taken
by a co-ordinate Division Bench of this Court in FAO(OS)
No.341/2007 and thus we need not pen a lengthy judgment
since we have not been persuaded to take a different view. As
a matter of fact, we see hardly any scope to urge to the
FAO (OS) 71-72/2011 Page 6 of 8
contrary in the teeth of the language of clause (f) of sub-
section 1 of Section 19 of the Act.
11. The only limiting words in the said clause, if at all,
would be „if the circumstances so require‟.
12. Thus, at best it can be urged that while deciding an
issue pertaining to a wife‟s claim for residence in the shared
household the discussion must start with a presumption in
favour of the wife that law leans in her favour to continue to
reside in the shared household and only upon adequate
circumstances being manifestly and objectively disclosed by
the opposite party, could an order contemplated by clause (f)
of sub-section 1 of Section 10 of the Act be passed.
13. In the instant case the circumstance to take
recourse to clause (f) of sub-section 1 of Section 19 of the Act
would be the extreme ill health of the mother-in-law of the
appellant; medical documents pertaining to whom would show
that she suffers from „tachycardia‟ with heart muscles
functioning at about 20%. The constant strife with the newly
married daughter-in-law in her house would certainly have an
adverse effect on the mother-in-law. Besides, the husband of
the appellant is currently in Hyderabad and not at Delhi.
14. It is apparent that clause (f) of sub-section 1 of
Section 19 of the Act is intended to strike a balance between
the rights of a daughter-in-law and her in-laws, if a claim to a
shared residence by the daughter-in-law pertains to a building
FAO (OS) 71-72/2011 Page 7 of 8
in which the matrimonial home was set up belongs to her
mother-in-law or father-in-law.
15. Taking on record the undertaking by the
respondents i.e. the husband and the mother-in-law of the
appellant, both being jointly and severally liable to pay monthly
rent @`30,000/- to the appellant and additionally to pay
maintenance @ `45,000/- per month, the appeal is dismissed
but without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(S.P. GARG)
JUDGE
November 08, 2011
dk
FAO (OS) 71-72/2011 Page 8 of 8