{"id":8462,"date":"2005-02-11T00:00:00","date_gmt":"2005-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-p-achala-anand-vs-s-appi-reddy-anr-on-11-february-2005"},"modified":"2018-07-05T21:11:28","modified_gmt":"2018-07-05T15:41:28","slug":"b-p-achala-anand-vs-s-appi-reddy-anr-on-11-february-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-p-achala-anand-vs-s-appi-reddy-anr-on-11-february-2005","title":{"rendered":"B.P. Achala Anand vs S. Appi Reddy & Anr on 11 February, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
B.P. Achala Anand vs S. Appi Reddy & Anr on 11 February, 2005<\/div>\n
Author: R Lahoti<\/div>\n
Bench: Cji, G.P. Mathur, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  4250 of 2000\n\nPETITIONER:\nB.P. ACHALA ANAND\t\t\t\t   \n\nRESPONDENT:\nS. APPI REDDY & ANR.\t\t\t           \n\nDATE OF JUDGMENT: 11\/02\/2005\n\nBENCH:\nCJI,G.P. Mathur & P.K. Balasubramanyan\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
R.C. Lahoti, CJI<\/p>\n
Unusual fact situation posing issues for resolution is an
\nopportunity for innovation.  Law, as administered by Courts,
\ntransforms into justice.  “The definition of justice mentioned in
\nJustinian’s Corpus Juris Civilis (adopted from the Roman jurist
\nUlpian) states ‘Justice is constant and perpetual will to render to
\neveryone that to which he is entitled.’ Similarly, Cicero described
\njustice as ‘the disposition of the human mind to render everyone
\nhis due’.”   The law does not remain static.  It does not operate
\nin a vacuum.  As social norms and values change, laws too have
\nto be re-interpreted, and recast.  Law is really a dynamic
\ninstrument fashioned by society for the purposes of achieving
\nharmonious adjustment, human relations by elimination of social
\ntensions and conflicts.  Lord Denning once said:   “Law does not
\nstandstill; it moves continuously.  Once this is recognized, then
\nthe task of a judge is put on a higher plain.  He must consciously
\nseek to mould the law so as to serve the needs of the time.”\n<\/p>\n
\tThe facts which are either not disputed, or, are, at this
\nstage, beyond the pale of controversy, may briefly be noticed.
\nThe appellant Smt. B.P. Achala Anand (hereinafter ‘Smt. Achala’
\nfor short) was the legally wedded wife of H.S. Anand-respondent
\nNo. 2.  Their relationship got estranged so much so that in the
\nyear 1983 H.S. Anand deserted his wife Smt. Achala.  The
\nmatrimonial home was a tenanted premises owned by
\nrespondent No.1. H.S. Anand left behind his wife with the
\nchildren in the tenanted premises and walked away to reside in a
\nlodge.  In the year 1991, proceedings for dissolution of marriage
\nby decree of divorce seem to have been initiated between the
\nestranged couple.  On 3\/12\/1998 the marriage stood dissolved
\nby a decree of divorce based on mutual consent.  That was an
\nunhappy ending so far as the matrimonial relationship is
\nconcerned.  However, what transpired between the couple has
\ngiven a complex turn to an otherwise simple landlord-tenant
\nlitigation which we are called upon to deal with in this appeal.\n<\/p>\n
\tThe premises forming part of dispute in the present
\nlitigation is situated on the ground floor of a property bearing
\nNo. 522, Upper Palace Orchards, Bangalore.  H.S. Anand had
\ntaken  the ground floor of the building on tenancy from the
\nlandlord-respondent No.1.  The rent of the premises was fixed at
\nRs. 300\/- which was later on revised and enhanced to Rs. 600\/-
\nand then to Rs. 700\/- (the rate which the Trial Court has found
\nproved on evidence).  The ground floor premises consisted of
\none verandah, one hall, two bedrooms with attached toilet,
\nkitchen, bathroom, another toilet and corridor with overhead
\nwater supply and other incidental facilities.  The tenant H.S.
\nAnand resided in the premises with his family members including
\nhis wife Smt. Achala.\n<\/p>\n
\tThe tenanted premises were badly in need of repairs and
\nin April 1991, consequent upon a mutual agreement arrived at
\nbetween the landlord and the tenant, a major portion of the
\nground floor-tenanted – premises was handed over by the tenant
\nto the landlord for the purpose of carrying out repairs and the
\ntenant continued to retain and enjoy the verandah, one bedroom
\nand an attached toilet.  However, the repairs, as were agreed
\nupon, were not carried out.\n<\/p>\n
\tOn 28\/11\/1991, the landlord served a notice upon the
\ntenant H.S. Anand and initiated proceedings for eviction from the
\nsuit premises on the grounds available under Clauses (a) and (h)
\nof sub-section (1) of Section 21 of the Karnataka Rent Control,
\nAct, 1961 (hereinafter “the Act” for short).  The tenant was
\nalleged to be in arrears of rent and was, therefore, called upon
\nto clear the same within a period of two months from the date of
\nthe service of the notice in this regard.  It was also alleged that
\nthe landlord and his wife were old-aged couple and now-a-days
\nresiding in some adjoining premises not their own and needed
\nbona fide the ground floor premises for their own occupation.
\nThe tenant-H.S. Anand appeared in the Court of Small Causes
\nand defended the suit.  However, it seems that on account of
\nstrained relationship between him and his wife and, further as he
\nhad discontinued his residence in the tenanted premises, he was
\nnot serious in contesting the suit and consequently, in the event
\nof a decree for eviction being passed, the family members
\nincluding the appellant-Smt. Achala, the deserted wife, ran the
\nrisk of being thrown away from the tenanted premises which
\nhappened to be the matrimonial home.  Briefly stating these
\nfacts, the appellant moved an application under Order I Rule 10
\nof the Code of Civil Procedure (for short “the Code”)  seeking her
\nown impleadment in the eviction proceedings so as to defend
\nagainst the eviction.  The trial court, by order dated 30.01.1993,
\nrejected the application.\n<\/p>\n
  The appellant preferred a revision petition in the High
\nCourt.  Obvious as it is, the revision petition preferred by the
\nappellant was contested by the landlord-respondent No. 1
\nsubmitting that it being a landlord-tenant dispute, the appellant-
\nwife had no right to be joined as a party to the proceedings and
\nfurther that the rent being substantially in arrears, the case for
\neviction was already made out and impleadment of the appellant
\nwould only prolong the proceedings.  The High Court vide its
\norder dated 02\/12\/1993 (Civil Revision Petition No. 1309\/1993)
\nnoted the submission of the parties and passed an order which
\ncan be termed  an equitable one.  Legality or otherwise of the
\ncontentions raised by the parties in the High Court  was left
\nopen, the revision petition was allowed and the trial court’s order
\ndated 30\/01\/1993 was set aside.  The appellant was permitted
\nto be brought on record as defendant No. 2 in the original case
\nsubject to her depositing a sum of Rs. 10,000\/- towards
\npayment of arrears of rent.  The High Court did not express any
\nopinion as to the status of the appellant as tenant or otherwise
\nwhich issue was left open to be decided by the trial court.  The
\nfact remains that the appellant did deposit an amount of Rs.
\n10,000\/- towards the arrears of rent claimed by the landlord and
\nit appears that the amount has been withdrawn by the landlord
\nwithout prejudice to his rights.  The appellant has, thereafter,
\ncontested the suit.\n<\/p>\n
\tThe trial court disposed of the suit on 04\/12\/1998.  The
\ntrial court held that H.S. Anand-respondent No. 2 was the
\ntenant.  A case for eviction under Section 21(1)(a) of the Act
\nwas not made out in the opinion of the trial court.  However, a
\ncase for partial eviction under Section 21(1)(h) was made out.
\nThe trial court directed partial eviction of the two defendants
\n(i.e. H.S. Anand and his wife Smt. Achala) from that portion of
\nthe premises over which the tenant had surrendered possession
\nto the landlord and allowed the tenant to continue in the front
\nportion, namely, bedroom, hall, verandah, toilet etc. as to which
\naccommodation the eviction petition was directed to be
\ndismissed.\n<\/p>\n
 \tFeeling aggrieved, the landlord preferred a revision
\npetition in the High Court which has been disposed of by the
\njudgment impugned herein.  It will be useful to notice in brief
\nthe findings arrived at by the High Court which are as follows.
\nAccording to the High Court ___ “There is no relationship of
\nlandlord and tenant between the landlord and Smt. Achala.  The
\ntenancy vested only in H.S. Anand who had given away the
\ncontest.  He was served with a prior notice of demand.  The rent
\nwas Rs. 700\/- per month.  The provisions of Section 21(2) of the
\nAct were not complied with and therefore, the question of
\nextending protection under Section 21(2) did not arise and the
\ntenant was liable to be evicted under Section 21(1)(a).”  So far
\nas the ground for eviction under Section 21(1)(h) is concerned,
\nthe High Court has not discussed the evidence in very many
\ndetails but seems to have been persuaded to hold against the
\nlandlord on the ground that the first and second floor of the
\npremises fell vacant but were not occupied by the landlord and
\nwere rather let out which is a pointer to the lack of bona fides.
\nEven the back portion of the ground floor premises which was
\ngot vacated from the tenant was not put to any use for satisfying
\nthe alleged need of the landlord.   The High Court set aside the
\norder of partial eviction under Section 21(1)(h) and instead
\ndirected the tenant to be evicted under Section 21(1)(a) of the
\nAct.  It may be noted that neither the tenant H.S. Anand nor
\nSmt. Achala, the wife had challenged the order for partial
\neviction passed by the trial court and it became final.
\n\tSmt. Achala has, feeling aggrieved by the judgment of the
\nHigh Court, preferred this appeal by special leave. The tenant
\nH. S. Anand has not filed any appeal.\n<\/p>\n
\tThe Karanataka Rent Control Act, 1961 has been enacted
\nto provide for the control of rents and evictions and for the
\nleasing of buildings amongst other things.  It is not necessary to
\nextract and reproduce in extenso the relevant provisions of the
\nAct.  For our purpose, it would suffice to notice that vide clause\n<\/p>\n
(a) of sub-section (1) of Section 21 of the Act, the tenant’s
\nfailure to pay or tender the whole of the arrears of the rent
\nlegally recoverable from him within two months of the date of
\nservice of notice of demand on him in this regard provides a
\nground for eviction.  In spite of a ground for eviction having
\nbeen made out within the meaning of the said provision entitling
\nthe landlord to initiate proceedings for eviction of the tenant, no
\norder for the recovery of possession of any premises on that
\nground shall be made if the tenant deposits or pays to the
\nlandlord rent during the pendency of proceedings in the manner
\nprescribed by Section 29 of the Act and satisfies the Court that
\nthere was a sufficient cause for the default to pay or tender the
\nrent within the period referred to in Section 21(1)(a) and further
\npays to the landlord or deposits in the Court such further amount
\nas may be determined and fixed by the Court within the meaning
\nof clause (iii) of sub-section (2) of Section 21 of the Act.\n<\/p>\n
\tUnder Section 30 of the Act once the interest of the tenant
\nin any premises has been determined and order for recovery of
\npossession has been made by the Court the same is binding on
\nall persons who may be in occupation of the premises and
\nvacant possession of the premises has to be given to the
\nlandlord by evicting the tenant and all persons in occupation of
\nthe premises excepting those who have any independent title to
\nsuch premises.  The term ‘family’ has been defined in clause (ff)
\nof Section 3 of the Act as ___ “‘family’ in relation to a person
\nmeans the wife or husband of such person and his or her
\ndependent children”.  Once the premises are taken on lease by
\nany individual as tenant he is entitled to exercise all such rights
\nand is subject to all such obligations qua the landlord as are
\nreferable to a lessee under the law.   Yet, the tenant in whose
\nname the tenancy has been created is not the only one who is
\nentitled to live in the residential premises; he has a right to live
\ntherein with his family wherein is included the spouse.  In any
\nlitigation, based on landlord-tenant relationship, when the tenant
\nenters upon defence, he does so not only for himself but also for
\nprotecting the interest of his family as its members do live and
\nare entitled to live with him, because in the event of an order for
\neviction being made it is not only the tenant but also his family
\nmembers who shall be liable to be evicted from the tenancy
\npremises along with him.\n<\/p>\n
Having said so generally, we may now deal with the right
\nof a wife to reside in the matrimonial home under personal laws.
\nIn the factual context of the present case, we are confining
\nourselves to dealing with the personal law as applicable to
\nHindus as the parties are so.  A Hindu wife is entitled to be
\nmaintained by her husband.  She is entitled to remain under his
\nroof and protection.  She is also entitled to separate residence if
\nby reason of the husband’s conduct or by his refusal to maintain
\nher in his own place of residence or for other just cause she is
\ncompelled to live apart from him. Right to residence is a part and
\nparcel of wife’s right to maintenance. The right to maintenance
\ncannot be defeated by the husband executing a will to defeat
\nsuch a right. (See: MULLA, Principles of Hindu Law, Vol. I, 18th
\nEd. 2001, paras 554 and 555) The right has come to be
\nstatutorily recognized with the enactment of the Hindu Adoption
\nand Maintenance Act, 1956.  Section 18 of the Act provides for
\nmaintenance of wife.  Maintenance has been so defined in clause\n<\/p>\n
(b) of Section 3 of the Hindu Adoption and Maintenance Act,
\n1956 as to include therein provision for residence amongst other
\nthings. For the purpose of maintenance the term ‘wife’ includes a
\ndivorced wife.\n<\/p>\n
\tThe position of law which emerges on a conjoint reading of
\nthe Rent Control Legislation and Personal Laws providing for
\nright to maintenance ___ which will include the right to residence
\nof a wife, including a deserted or divorced wife, may be
\nexamined.  The Rent Control Law makes provision for  protection
\nof the tenant not only for his own benefit but also for the benefit
\nof all those residing or entitled to reside with him or for whose
\nresidence he must provide for. A decree or order for eviction
\nwould deprive not only the tenant of such protection but
\nmembers of his family (including the spouse) will also suffer
\neviction.  So long as the tenant defends himself, the interest of
\nhis family members merges with that of the tenant and they too
\nare protected. The tenant cannot, by collusion or by deliberate
\nprejudicial act, give up the protection of law to the detriment of
\nhis family members. So long as a decree for eviction has not
\nbeen passed the members of the family are entitled to come to
\nthe court and seek leave to defend and thereby contest the
\nproceedings and such leave may be granted by the court if the
\ncourt is satisfied that the tenant was not defending ___ by
\ncollusion, connivance or neglect ___ or was acting to the
\ndetriment of such persons.  Such a situation would be rare and
\nthe court shall always be on its guard in entertaining any such
\nprayer.  But the existence of such a right flows from what has
\nbeen stated hereinabove and must be recognized.  Persons
\nresiding with the tenant as members of his family would
\nobviously be aware of the litigation and, therefore, it will be for
\nthem to act diligently and approach the court promptly and in
\nany case before the decree of eviction is passed as delay defeats
\nequity.  Such a prayer or any dispute sought to be raised post-
\ndecree by a member of family of the tenant may not be
\nentertained by the court.\n<\/p>\n
 \tAny precedent, much less of a binding authority, from any
\nCourt in India and dealing with a situation as we are called upon
\nto deal with is not available.  At least, none has been brought to
\nour notice.   However, English decisions can be found.  Lord
\nDenning states in The Due Process of Law (London,
\nButterworths, 1980, at page 212)  ___ “A wife is no longer her
\nhusband’s chattel.  She is beginning to be regarded by the laws
\nas a partner in all affairs which are their common concern.  Thus
\nthe husband can no longer turn her out of the matrimonial
\nhome.  She has as much right as he to stay there even though
\nthe house does stand in his name. . . . . . . . Moreover it has
\nbeen held that the wife’s right is effective, not only as against
\nher husband but also as against the landlord.  Thus where a
\nhusband who was statutory tenant of the matrimonial home,
\ndeserted his wife and left the house, it was held that the landlord
\ncould not turn her out so long as she paid the rent and
\nperformed the conditions of the tenancy.”\n<\/p>\n
\tIn Old Gate Estates, Ltd.  v.  Alexander and Anr.,
\n[1949] 2 All England Law Reports 822, a statutory tenant living
\nwith his wife in a flat which constituted the matrimonial home
\nleft the premises following a quarrel with his wife, and purported
\nto surrender them to the landlords by agreement.  His wife
\nremained in occupation with the use of his furniture.  On the
\nwife’s refusing to quit the premises, the husband gave her
\nwritten notice revoking any authority which she might have from
\nhim to occupy the flat.  In proceedings by the landlords against
\nthe tenant and his wife for possession, the court held that the
\ntenant had not given up possession, as he remained in
\noccupation through his wife and furniture, and, accordingly, his
\nstatutory tenancy had not been terminated.  The statement of
\nlaw as made by Denning, L.J. is instructive.  He said ___ “If a
\nstatutory tenant goes out of occupation, leaving lodgers or sub-
\ntenants or no one in the house, he ceases to be entitled to the
\nprotection of the Rent Restrictions Acts, but he does not, in my
\nopinion, lose the protection if he goes out leaving his wife and
\nfurniture there.  The reason is because the wife has a very
\nspecial position in the matrimonial home.  She is not the sub-
\ntenant or licensee of the husband.  It is his duty to provide a
\nroof over her head.  He is not entitled to tell her to go without
\nseeing that she has a proper place to go to.  He is not entitled to
\nturn her out without an order of the court : see Hutchinson v.
\nHutchinson, [1947] 2 All E.R. 792.  Even if she stays there
\nagainst his will, she is lawfully there, and, so long as she is
\nlawfully there, the house remains within the Rent Acts and the
\nlandlord can only obtain possession if the conditions laid down by
\nthe Acts are satisfied.”\n<\/p>\n
\tTheir Lordships referred to and applied the dictum of Lord
\nGreene, M.R., in Brown v. Draper, [1944] 1 All E.R. 246, where
\nthe facts were somewhat similar.  A husband was the tenant of a
\nhouse on a weekly tenancy.  As in this case, he left the house in
\na dispute with his wife, and his wife and child remained in
\noccupation of the house with the use of his furniture and he
\ncontinued to pay rent.  He received notice to quit from the
\nlandlord and he then stopped paying the rent, but he did not
\nrevoke his leave to the wife to reside in the house nor did he
\nremove his furniture.  Later, the landlord brought proceedings
\nagainst the wife for trespass and at the hearing, the husband,
\nwho was not made a party to the proceedings, gave evidence
\nthat he had no interest in the house.  It was held by the Court of
\nAppeal that the husband was still in possession of the house, and
\nthe only way he could be deprived of the protection of the Rent
\nActs was by his going out of possession or having an order for
\nrecovery of possession made against him.\n<\/p>\n
\tApplying the law propounded in Brown v. Draper (supra)
\nand in Old Gate Estates Ltd. v. Alexander and Anr. (supra),
\nthe Court of Appeal held in Middleton v. Baldock, [1950] 1 All
\nEngland Law Reports 708, that where a husband had deserted
\nhis wife and the wife remained in the matrimonial home, she was
\nlawfully there and the husband remained in occupation through
\nher; possession of a dwelling-house to which the Rent
\nRestrictions Acts applied could only be ordered on one of the
\ngrounds specified in the Acts, and a tenant could not by
\nagreement waive the statutory protection afforded by the Acts;
\nand, therefore, the orders for possession were wrongly made.\n<\/p>\n
The deserted woman’s equity (as it was called) was
\nconsidered by House of Lords in the National Provincial Bank
\nLtd. v. Ainsworth [1965] AC 1175. The House of Lords held
\nthat the rights of a deserted wife were their personal rights and
\nas such that they could not be treated as in any sense
\nconstituting a clog on the property of the husband so as to run
\nwith the land as in the case of reality; and that, accordingly, a
\ndeserted wife could not resist a claim from a genuine purchaser
\nof the matrimonial home from her husband whether the
\npurchase took place after or before desertion. Lord Hodson
\nstated:  “The duration of the right if it were held to affect the
\nland would be uncertain.  It would not survive divorce nor would
\nit necessarily survive a judicial separation by order of the court
\nwhich puts an end to the duty of cohabitation on both sides.”  He
\nconcluded:-  “Having done the best I can to analyze the nature
\nof the right which the wife has against her husband which is
\nfundamentally the right relied on by the respondent, I conclude
\nthat it does not operate as a clog on the land which protects her
\nby operating as a mere equity against anyone but a purchaser
\nfor value without notice”.  Lord Upjohn stated:-  “The cases that
\nI have already cited show that, provided the wife’s marital rights
\nare adequately safeguarded in some such way, the court would
\nnot normally refuse to evict a wife if the husband wants to deal
\nwith his property. Or he may return and resume cohabitation
\nwhen the domestic forum resumes exclusive jurisdiction.  Or the
\nwife may change her position.   She may commit a matrimonial
\noffence which may lead the court to refuse her the right to
\ncontinue under her husband’s roof; she may obtain (as in this
\ncase) a decree of judicial separation which at all events brings
\nthe husband’s desertion to an end [Harriman v. Harriman
\n(1909 P 123)].  Such a decree must necessarily be an important
\nthough not conclusive factor, if the husband is seeking to turn
\nhis wife out of occupation.   Finally, any right on the part of the
\ndeserted wife to remain in occupation, terminates when the
\nmarriage terminates.” (emphasis supplied).
\nHis Lordship in conclusion stated:-\n<\/p>\n
“My Lords, when differing as I do with regret
\nfrom so eminent a judge as the Master of the Rolls I
\nthink it is important to see how this problem has
\nbeen dealt with in other comparable jurisdictions.\n<\/p>\n
In several States of Australia there has been a
\nrefusal to recognize that the deserted wife has any
\nequity available against third parties.  In Brennan
\nvs. Thomas (1953 V.L.R. 111)  Sholl J. sitting in the
\nSupreme Court of Victoria after an exhaustive review
\nof the authorities, including Bendall Vs. McWhirter
\n( 1952(2) Q.B.  466) then recently decided in the
\nCourt of Appeal, refused to recognize any right on
\nthe part of the wife available against purchasers for
\nvalue.\n<\/p>\n
In Public Trustee vs. Kirkham ( 1956 V.L.R.\n<\/p>\n
64) sitting in the same court Herring C.J. criticized
\nthe doctrine.\n<\/p>\n
In Maio vs. Piro (1956 S.A.S.R. 233)
\nLigertwood J. sitting in the Supreme Court of South
\nAustralia followed Sholl J. in preference to the
\nEnglish decisions.\n<\/p>\n
Finally, in Dickson vs. McWhinnie [(1958) 58
\nS.R. (N.S.W.) 179], the Full Court of New South
\nWales refused to follow Bendall vs. McWhirter
\n(supra)  save in relation to bankruptcy.   I derive
\nmuch comfort from such a strong body of opinion in
\nfavour of the view I have expressed.”\n<\/p>\n
\tIn Robson v. Headland, [1948] 64 TLR 596, it was
\nheld that “after the date of the divorce the former wife of the
\ndefendant was a stranger to him and was not in occupation of
\nthe flat as his representative and that as he had abandoned
\npossession himself, the Rent Restriction Acts did not apply.”\n<\/p>\n
\tIn Waughn v. Waughn [1953] 1 QB 762, a wife
\ncontinued to reside in the matrimonial home even after she
\nobtained a decree of divorce against her husband.   After some
\ntime the husband brought  proceedings for possession.   The
\ndivorced wife resisted claiming that she had an irrevocable
\nlicence during her lifetime.  It was held by the Court of Appeal
\n(Evershed M.R. Denning and  Romer. L.J.J.) that after they had
\nceased to be husband and wife, the wife could not justify her
\nclaim unless she could set up a contract.  As it was, the
\nstatement originally made to her could after the divorce, amount
\nto no more than she, as ex wife, was entitled to remain in
\noccupation as a bare licensee and the licence was, therefore,
\nrevocable.  Lord Denning stated:\n<\/p>\n
“The wife ought to have protected her position
\nby applying for maintenance in the divorce
\nproceedings before decree absolute and should have
\ncome to an arrangement with her husband whereby
\nhe agreed not to turn her out except by an order of
\nthe court, she agreeing to accept a reduced sum for
\nmaintenance as long as she lived there.”\n<\/p>\n
\tThis indicates that the right of residence is a part of  the
\nright to maintenance and in which case in the absence of an
\norder by the matrimonial court in the proceedings for divorce,
\nshe would not be able to set up a claim in respect of the house
\neven as against her husband, leave alone the landlord of her
\nhusband.\n<\/p>\n
It is of interest to note that the above decision of the
\nHouse of Lords led to the enactment of the Matrimonial Homes
\nAct, 1983.  The preamble of the Act says “an Act to consolidate
\ncertain enactments relating to the rights of a husband or wife to
\noccupy a dwelling house that has been a matrimonial home”.  So
\nlong as one spouse has right to occupation, either of the spouses
\nmay apply to the court for an order requiring either spouse to
\npermit the exercise by the other of that right.  This is one of the
\nseveral rights expressly provided for.\n<\/p>\n
It has been  held in India that right to maintenance arises
\nout of the status as a wife and not by way of a contract or
\notherwise.  In Sri Raja Bommadevara Raja Lakshmi Devi
\nAmma Garu v. Sri Raja B. Naganna Naidu Bahadur
\nZamindar Garu and another, AIR 1925 Madras 757, Specncer,
\nOfficiating CJ, stated:\n<\/p>\n
“The obligation of a husband to maintain his
\nwife is described, as one arising out of the status of
\nmarriage.   It is a liability created by the Hindu Law
\nin respect of the jural relations of the Hindu family.
\nWhen there is no contract between the parties to a
\nmarriage, as among Hindus, a suit for maintenance
\nis not a suit based upon contract, but it is a suit
\narising out of a civil relation resembling that of a
\ncontract, which is specially provided for in Article 128
\nof the Limitation Act”. (Head Note)<\/p>\n
In Unnamalai Ammal  v. F.W. Wilson and others, AIR
\n1927 Madras 1187, it was stated that the maintenance of a wife
\nby a husband is a personal obligation upon him arising from the
\nexistence of the relations.  In P. Suriyanarayana Rao Naidu
\nv. P. Balasubramania Mudali & ors.,  ILR 43 Madras 635, it
\nwas held that an auction purchaser of an ancestral house sold in
\nexecution of a money decree passed on a personal debt of the
\nmother who inherited the property as heir to her son, is not
\nentitled to oust the unmarried sisters of the latter, who reside in
\nthe house.   The Bombay High Court in Bai Appibai  v. Khimji
\nCooverji, AIR 1936  Bombay 138, held that under the Hindu
\nLaw, the right of a wife to maintenance is a matter of personal
\nobligation on the husband.  It rests on the relations arising from
\nthe marriage and is not dependent on or qualified by a reference
\nto the possession of any property by the husband.    In Ganga
\nBai v. Janki Bai, ILR 45 Bombay 337, it was held:-\n<\/p>\n
“Under Hindu Law, a widow cannot assert her
\nright of residence in a house which has been sold by
\nher husband during his life time, unless a charge is
\ncreated in her favour prior to the sale.   The right
\nwhich a Hindu wife has during her husband’s life
\ntime is a matter of personal obligation arising from
\nthe very existence of the relation and quite
\nindependent of the possession by the husband of any
\nproperty, ancestral or self acquired.” (Head Note)<\/p>\n
\tDr. Abdur Rahim Undre v. Smt. Padma Abdur Rahim
\nUndre, AIR 1982 Bombay 341, is a Division Bench decision of
\nthe Bombay High Court, dealing with right to residence of a wife
\nin the matrimonial home.  The marriage between the parties was
\nsubsisting in law but had broken down beyond repairs. The
\nhusband filed a suit inter alia for injunction, restraining the wife
\nfrom entering the matrimonial house.  The Court held that an
\ninjunction subject to certain terms and conditions could be
\ngranted. The parties, on account of seriously estranged
\nrelationship between them could not be forced to live together.
\nThe flat was big enough to allow the parties to live there
\nseparately.  The Court earmarked separate portions for the
\nhusband and the wife to live separately and restrained the wife
\nfrom entering the portion in occupation of the husband, who was
\nan eminent surgeon, so that he could have a peace of mind to
\nenable him to discharge his duties as a surgeon more efficiently.
\nIn addition, the husband was directed to pay a certain amount of
\nmoney by way of maintenance to the wife.\n<\/p>\n
\tA Single Bench decision of the Andhra Pradesh High Court
\nin  M\/s. Bharat Heavy Plates and Vessles Ltd., AIR 1985
\nAndhra Pradesh 207, is more near to the facts of the case at
\nhand.  The husband was an employee in a company.  He was
\nallotted a company quarter in which he lived with his wife.  The
\nquarter was the matrimonial home. However, differences
\ndeveloped between the husband and wife, leading to their
\nestrangement and finally the wife went to the Court,  charging
\nher husband with neglect to maintain her and her three minor
\nchildren.  The husband left the company quarter and it was
\noccupied only by his wife and minor children.  The husband also
\nwrote to the company, terminating the lease which was in his
\nfavour.  The hovering prospects of eviction led the wife to the
\nCourt for protection, seeking an injunction restraining the
\ncompany from evicting the wife and her three minor children.
\nThe High Court upheld the order impugned before it, whereby
\nthe company was restrained from evicting the wife and her
\nminor children.  For forming this opinion, the Court took into
\nconsideration the facts that the quarter was meant to be used by
\nthe employee and the husband was under an obligation to
\nprovide shelter to the wife and children.  The husband and the
\ncompany had both recognized the quarter to be the matrimonial
\nhome wherein the wife too was residing.  The amount of rent
\nwas directed to be deducted from the salary of the husband.\n<\/p>\n
This Court in Kirtikant D. Vadodaria v. State of Gujarat
\nand<\/a> another, (1996) 4 SCC 479, has held:  “According to the
\nlaw of land with regard to maintenance there is an obligation on
\nthe husband to maintain his wife which does not arise by reason
\nof any contract – expressed or implied – but out of jural
\nrelationship of husband and wife consequent to the performance
\nof marriage.   .. The obligation to maintain them is personal,
\nlegal and absolute in character and arises from the very
\nexistence of the relationship between the parties.”\n<\/p>\n
Section 18 of the Hindu Adoption and Maintenance Act
\nconfers a right on a wife to be maintained by her husband during
\nher life time. According to Mulla, the right of a wife for
\nmaintenance is an incident of the status or estate of matrimony
\nand a Hindu is under a legal obligation to maintain his wife.
\n(See : Mulla, ibid, pp 454-455)<\/p>\n
The Hindu Marriage Act provides for divorce. Section 15
\nindicates when divorced persons may marry again. Section 25
\nenables the court to pass an order for providing alimony and
\nmaintenance in favour of the divorced wife.   Section 27 enables
\nthe court to make provisions in the decree in respect of a
\nproperty that may belong to the wife or to both.   On the status
\nof wife being terminated by a decree for divorce under the Hindu
\nMarriage Act, the rights of the divorced wife seem to be cribbed,
\nconfined and cabined by the provisions of the Hindu Marriage Act
\nand to the rights available under Sections 25 and 27 of the Act.
\nIn V.B. Jaganathan  v. A.R.Srividhya, 1997 (2) MLJ
\n366, the Madras High Court has held that a court can pass an
\nappropriate order under Section 27 of the Hindu Marriage Act
\neven when one of the parties to a marriage claims the property
\nas belonging to him exclusively thereby indicating that it might
\nhave been possible to make a provision regarding the tenanted
\npremises, in the proceedings under the Hindu Marriage Act.  How
\nfar that order would be binding on a landlord who is not a party
\nis another question, but it would certainly give her a right to
\ndefend the proceedings for eviction.\n<\/p>\n
 \tIncidentally, we may refer to Karam Singh Sobti & Anr.
\nv. Sri Pratap Chand & Anr., AIR<\/a> 1964 SC 1305, though not
\ndirectly in point.  Proceedings for eviction were initiated by the
\nlandlord against the tenant and sub-tenant unlawfully inducted
\nby the tenant in the premises.  The tenant suffered a decree for
\neviction and decided not to file an appeal.  This Court upheld the
\nright of sub-tenant to file an appeal in his own right against the
\ndecree so as to protect himself even though thereby the tenant
\nwould also be freed from the decree.\n<\/p>\n
\tIn our opinion, a deserted wife who has been or is entitled
\nto be in occupation of the matrimonial home is entitled to
\ncontest the suit for eviction filed against her husband in his
\ncapacity as tenant subject to satisfying two conditions : first,
\nthat the tenant has given up the contest or is not interested in
\ncontesting the suit and such giving up by the tenant-husband
\nshall prejudice the deserted wife who is residing in the premises;
\nand secondly, the scope and ambit of the contest or defence by
\nthe wife would not be on a footing higher or larger than that of
\nthe tenant himself.  In other words, such a wife would be
\nentitled to raise all such pleas and claim trial thereon, as would
\nhave been available to the tenant himself and no more.  So long
\nas, by availing the benefit of the provisions of the Transfer of
\nProperty Act and Rent Control Legislation, the tenant would have
\nbeen entitled to stay in the tenancy premises, the wife too can
\ncontinue to stay exercising her right to residence as a part of
\nright to maintenance subject to compliance with all such
\nobligations including the payment of rent to which the tenant is
\nsubject. This right comes to an end with the wife losing her
\nstatus as wife consequent upon decree of divorce and the right
\nto occupy the house as part of right to maintenance coming to
\nan end.\n<\/p>\n
\tWe are also of the opinion that a deserted wife in
\noccupation of the tenanted premises cannot be placed in a
\nposition worse than that of a sub-tenant contesting a claim for
\neviction on the ground of subletting. Having been deserted by
\nthe tenant-husband, she cannot be deprived of the roof over her
\nhead where the tenant has conveniently left her to face the peril
\nof eviction attributable to default or neglect of himself.  We are
\ninclined to hold  and we do so  that a deserted wife continuing
\nin occupation of the premises obtained on lease by her husband,
\nand which was their matrimonial home, occupies a position akin
\nto that of an heir of the tenant-husband if the right to residence
\nof such wife has not come to an end. The tenant having lost
\ninterest in protecting his tenancy rights as available to him under
\nthe law, the same right would devolve upon and inhere in the
\nwife so long as she continues in occupation of the premises. Her
\nrights and obligations shall not be higher or larger than those of
\nthe tenant himself.  A suitable amendment in the legislation is
\ncalled for to that effect.  And, so long as that is not done, we,
\nresponding to the demands of social and gender justice, need to
\nmould the relief and do complete justice by exercising our
\njurisdiction under Article 142 of the Constitution.  We hasten to
\nadd that the purpose of our holding as above is to give the wife’s
\nright to residence a meaningful efficacy as dictated by the needs
\nof the times; we do not  intend nor do we propose the landlord’s
\nright to eviction against his tenant to be subordinated to wife’s
\nright to residence enforceable against her husband.  Let both the
\nrights co-exist so long as they can.\n<\/p>\n
\tWe have dealt with all the abovesaid aspects of the law as
\nit was urged on behalf of the landlord __ respondent No. 1 that
\nSmt. Achala, the appellant has no right to contest or defend
\nherself in these proceedings nor a right to file and prosecute this
\nappeal as there is no privity of  contract between the appellant
\nand landlord and the appellant is neither a tenant nor so
\nrecognized ever by the respondent No. 1 __ landlord.  We cannot
\nagree.  We feel that the appellant was rightly ___ in the facts and
\ncircumstances of the case ___ permitted by the High Court to be
\njoined as a party to the proceedings.  She was also rightly
\nallowed to contest the suit and deposit the rent in the court for
\npayment to landlord for and on behalf of the tenant-husband.\n<\/p>\n
\tSo far as a deserted wife, whose status as wife has not
\ncome to an end by a decree of divorce or by decree for
\nannulment of marriage, is concerned, we have made the position
\nof law clear as above.  However, the case of a divorced wife
\nstands on a little different footing.  Divorce is termination of
\nmatrimonial relationship and brings to an end the status of wife
\nas such.  Whether or not she has the right of residence in the
\nmatrimonial home, would depend on the terms and conditions in
\nwhich the decree of divorce has been granted and provision for
\nmaintenance (including residence) has been made.  In the event
\nof the provision for residence of a divorced wife having been
\nmade by the husband in the matrimonial home situated in the
\ntenanted premises, such divorced wife too would be entitled to
\ndefend, in the eviction proceedings, the tenancy rights and rights
\nof occupation thereunder in the same manner in which the
\nhusband-tenant could have done and certainly not higher or
\nlarger than that.  She would be liable to be evicted in the same
\nmanner in which her husband as tenant would have been liable
\nto be evicted.\n<\/p>\n
\tIn the present case, it is admitted by the appellant that on
\n3.12.1998, that is, during the pendency of these proceedings
\nand while the matter was pending in the High Court a decree for
\ndissolution of marriage by divorce based on mutual consent has
\nbeen passed.  The terms and conditions of such settlement have
\nnot been brought on record by the appellant which she ought to
\nhave done.   It is not the case of Smt. Achala, the appellant that
\nshe is entitled to continue her residence in the tenanted
\npremises by virtue of an obligation incurred by her husband to
\nprovide residence for her as a part of maintenance.  She cannot,
\ntherefore, be allowed to prosecute the appeal and defend her
\nright against the claim for eviction made by the landlord.\n<\/p>\n
\tThe appeal is, therefore, held liable to be dismissed and is
\ndismissed accordingly.  However, in the facts and circumstances
\nof the case, the appellant is allowed time till 31.12.2005 for
\nvacating the suit premises, subject to the following conditions:-\n<\/p>\n
(i)\tthat the appellant shall clear all the arrears of rent
\n(calculated upto the date of deposit) at the rate of
\nRs.700\/- per month, on or before 31st March,  2005,
\nby depositing the same in the executing court;\n<\/p>\n
(ii)\twith effect from 1st April, 2005 the appellant shall
\ncontinue to deposit rent calculated at the rate of
\nRs.700\/- per month on or before 15th day of each
\nmonth for payment to landlord;\n<\/p>\n
(iii)\ton or before 31st December, 2005, the appellant
\nshall hand over vacant and peaceful possession over
\nthe  suit  premises  to  the  landlord  and shall not
\nin-between part with possession to anyone else or
\ncreate third party interest;\n<\/p>\n
(iv)\tthat an undertaking on affidavit, incorporating the
\nabove said terms, shall be filed in the executing
\ncourt on or before 31.3.2005.\n<\/p>\n
No order as to the costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India B.P. Achala Anand vs S. Appi Reddy & Anr on 11 February, 2005 Author: R Lahoti Bench: Cji, G.P. Mathur, P.K. Balasubramanyan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-8462","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nB.P. Achala Anand vs S. Appi Reddy & Anr on 11 February, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/b-p-achala-anand-vs-s-appi-reddy-anr-on-11-february-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"B.P. Achala Anand vs S. 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