Delhi District Court
Arti Kathuria vs Puneet Kathuria & Ors.] on 16 February, 2018
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02 : SOUTH EAST DISTRICT :
SAKET COURT : NEW DELHI
CNR No. DLSE010037382017
Criminal Appeal No. 212/2017
[In case CC No. 638026/16
PSC.R. Park
Under Section 12 PWDV Act
Arti Kathuria Vs Puneet Kathuria & Ors.]
1. S.S. Kathuria
S/o Late Sh. N.R. Kathuria,
R/o 323, Mandakini Enclave,
Alaknanda, New Delhi110019
2. Smt. Santosh Kathuria,
W/o Sh. S.S. Kathuria,
R/o 323, Mandakini Enclave,
Alaknanda, New Delhi110019
. . . . Appellants
Versus
1. Mrs. Arti Kathuria
D/o Mr. J.P. Makkar,
R/o J4/14, 3rd Floor,
Backside Khirki Extension,
Malviya Nagar, New Delhi.
Also at:
Flat No. C91, Saket Courts Residential Complex,
New Delhi110017
2. Sh. Puneet Kathuria
S/o Sh. S.S. Kathuria,
CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 1 of 21
R/o TC 23, Reliance Corporate Park,
ThaneBelapur Road,
Ghansoli, Navi Mumbai 400701.
. . . . Respondents
Date of Institution : 16.05.2017.
Date of Arguments : 17.01.2018.
Date of Judgment : 16.02.2018.
JUDGMENT
1. Present appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 ( hereinafter referred as DV Act) has been preferred by the appellants against the order dated 11.05.2017 passed by the Ld. Mahila Court01, South East on the application under Section 23 of the DV Act which was filed in petition under Section 12 of the DV Act.
2. Notice of the appeal was issued to the respondents. They appeared with their respective counsels and filed reply. The Trial Court Record was summoned and perused.
3. The respondent no.1 herein is aggrieved person who had filed petition under Section 12 of the DV Act seeking various relief including the residence order under Section 19 of the DV Act in following terms: • pass the protection order in view of the aggrieved person and prohibit the respondents from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household.
CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 2 of 21 • pass necessary order in view of the aggrieved person and restraining the respondents or any of their relatives from entering in portion of the shared household in which the aggrieved person resides along with her child.
• pass necessary order in view of the aggrieved person and restraining the respondents particularly the respondent no.2 and 3 from alienating or disposing off the shared household or encumbering the same.
• pass a necessary order in favour of the aggrieved person and directing the respondent no.1 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 required.
4. Respondent no. 1/ complainant has sought further relief in the main petition under Section 18, under Section 19 and under Section 22 of DV Act.
5. Appellant No. 1 and 2 herein are the father in law and mother in law of respondent no.1 and are arrayed as respondent no. 2 and 3 in the petition under Section 12 of the DV Act before the Ld. Trial Court. Respondent no.2 herein is the husband of the respondent no.1/complainant. The petition was filed before the Trial Court on 21.11.2016 and on 26.12.2016 notices were issued to respondent no.1 to 3 therein. The matter was taken on 10.03.2017. Respondent no. 2 and 3, who are appellant no.1 and 2 herein were duly served and they appeared through their counsel. Respondent no.1 in the present appeal who also happens to be respondent no. 1 in the petition before the Ld. CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 3 of 21 Trial Court however, was not served. The matter was posted for 20.07.2017 for the service of respondent no. 1 and for Written Statement and reply of Respondent no. 2 and 3. However, the complainant/respondent no. 1 approached the Hon'ble High Court which passed an order in Criminal M.C. No. 1663/2017 on 25.04.2017 directing the Trial Court to prepone the application for restoration of residence right and dispose off said application within fifteen days. On receipt of this order the Trial Court issued notice to the respondent no. 2 and 3 (appellant no. 1 and 2 herein) for disposal of the application for 02.05.2017. Thereafter the application under Section 23 r.w. Section 19 of the DV Act was kept for arguments on 11.05.2017 and it was disposed off on the same day. Pertinent to mention here that respondent no.1 i.e. husband remained absent on 11.05.2017 and the Trial Court Record would show that he was unserved by that time. On 11.05.2017 the Ld. Metropolitan Magistrate passed the impugned order. The operative part would read as under: " Thus without prejudice to the rights of both parties, the right of the residence of the complainant and her daughter is restored in the property bearing number 323, Mandakini Enclave, Alaknanda and concerned SHO is directed to assist the complainant and her daughter in this regard. Further, respondents no.2 and 3 are restrained from dispossessing or in any other manner disturbing the possession of the complainant in the property number 323, Mandakini Enclave, Alaknanda till further orders".
CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 4 of 21
6. Aggrieved by this order the appellants Sh. S.S. Kathuria and Smt. Santosh Kathuria preferred this appeal wherein the complainant Mrs. Arti Kathuria has been arrayed as respondent no.1 and her husband Sh. Puneet Kathuria i.e son of appellants has been arrayed as respondent no.2.
7. The main ground taken in the appeal to challenge the impugned order is that H.No. 323, Mandakini Enclave, Alaknanda, New Delhi 110019 is owned exclusively by appellant no.2 Mrs. Santosh Kathuria. The appellant no.1 Sh. S.S. Kathuria is the father in law of respondent no. 1 and is a retired government servant aged about 73 years having certain ailments. Appellant No.2 is mother in law aged about 68 years. It is stated that the house in question belongs to and owned by Smt. Santosh Kathuria. Respondent no. 2/Sh. Puneet Kathuria is residing in Mumbai being posted there since 2015. It is stated that the respondent no.1/complainant has not joined her husband in Mumbai. It is further stated in the appeal that the respondent no.1/complainant has stayed in upper portion of the premises only intermittently for a short period. She was permitted to use and occupy the portion of the house purely as a licensee of Mrs. Santosh Kathuria, who is her mother in law. It is further stated that respondent no.1/complainant has been living with her parents at Shivalik, New Delhi where she is living since before filing of the complaint under DV Act. She also lived with her parents at J4/14, 3rd Floor, Back side Khirki Extension, Malviya Nagar, New Delhi and also at C91, Saket Courts Residential Complex. The appellants have also alleged that respondent no.1/complainant who had filed a complaint before the Crime Against Women Cell (CAW) in CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 5 of 21 Sriniwaspuri got it transferred in September, 2016 declaring that she is residing at J4/14, 3rd Floor, Backside Khirki Extension, Malviya Nagar, New Delhi. It is further stated by the appellants that respondent no.1 /complainant had left the house of appellant no.2 and had stayed at J4/14, 3rd Floor, Backside Khirki Extension, Malviya Nagar, New Delhi. Even prior to that she was not residing with the appellants and in fact she resided at C91, Saket Courts Residential Complex. It is further case of the appellants that in November, 2016 the respondent no. 1/complainant was residing with her parents however, on 04.03.2017 she had barged into house of the appellants around 10 PM and tried to forcibly enter the house.
8. The grievance of the appellants is that on 11.05.2017 the Ld. Metropolitan Magistrate heard and decided the application under Section 23 r.w. Section 19 (a)(c)(d) of the DV Act in the absence of the written statement by the appellants and despite the fact that respondent no. 2/husband had not been served on the application. The appellants have thus challenged the impugned order on law as well as on the facts.
9. Firstly, it is stated that house is exclusively owned by respondent no.2 i.e. mother in law of respondent no. 1 and it is not a joint family property. Therefore, this premise does not fall in the definition of the "shared household" in terms of Section 2(s) of the DV Act. Since respondent no.1 has no right over the self acquired property of appellant no.2 against her wishes she cannot claim any right of living therein. Further, respondent no.1 after marriage has been staying with her husband i.e. respondent no.2 at different places including Chandigarh, United Kingdom, United States of America and New CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 6 of 21 Zealand. The visits of respondent no.1 with her husband to the house of the appellants were for short period. The appellants had also contended that respondent no.1 was offered house on rent by her husband in close proximity to the place where their child was studying. It is stated that the Trial Court has ignored the fact that respondent no.1 had herself declined to join her husband in Mumbai, where he was gainfully employed since 2015. The appellants had contended that relations between the appellants and respondent no.1 are strained. This fact is ignored by the Trial Court while passing the impugned order. It is stated that it will not be conducive to the mental and physical health of the appellants if they are forced to share the house with respondent no.1 with whom there are extremely strained relations.
10. Respondent no.1/complainant has filed reply to the appeal disputing all the contentions and the allegations made in the appeal. It is stated by respondent no.1 that the appeal is outcome of a collusion and connivance of respondent no.2 with the appellants. It is stated that the house in question is not in sole ownership of appellant no.2. The respondent no.2/husband has also made a substantial contribution towards the sale consideration of property bearing number 323, Mandakini Enclave, Alaknanda, New Delhi110019 and the house therefore is a joint family property having been purchased through joint pool of resources and funds. Respondent no.1 claims that despite ill treatment at the hands of the appellants she has been fulfilling her obligations as a daughter in law and as a wife however, the atrocities of the appellants and respondent no.2 have only multiplied. It is stated that respondent no.1 had to shift to her parental home on account of the CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 7 of 21 examination of her daughter and that was also a reason for getting her complaint transferred from CAW Cell, Sriniwaspuri to CAW, Cell, Saket. It is stated that she visited her parents only for a short period and parents house cannot be termed as her 'residence'. She has denied the allegations that on 04.03.2017 she has tried to make forcible entry into the house of the appellants. The version given by respondent no.1 is that she along with her daughter was restrained from entering her matrimonial house and therefore she had to make the police complaint regarding her illegal ousting from shared household. The main thrust of the reply filed by respondent no.1 is that the H.No. 323, Mandakini Enclave, Alaknanda, New Delhi110019 is a joint family property and she being the wife of respondent no. 2 (son of appellants) has a right, title and interest in the same therefore she being the wife also has a right to stay in the said house it being not only a 'share household' but a 'matrimonial home' as well. Respondent no.1 had filed certain documents like passport etc. bearing same address to support her contentions that she has been staying at this house.
11. The reply to appeal was filed by respondent no.2 as well in which respondent no.2 /husband has rather supported the case of the appellants and as such there is no objection to the grounds of challenge to the impugned order.
12. The issue involved in the present appeal is whether the respondent no.1/complainant can claim any 'right of residence' in the house of the appellants of which the appellant no.2 Mrs. Santosh Kathuria claims to be the owner.
13. I have heard the arguments from the counsel for appellants and CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 8 of 21 the Ld. Counsel for respondent no.1 as well as respondent no.2. I have perused the record as well.
14. The Ld. Counsel for appellants has taken the plea that the im pugned order is bad in law in view of the fact that the house in question is owned by appellant no.2 therefore the respondent no. 1 being the daughter in law cannot claim the 'right of residence' in the said house. It was argued that it is not a shared household of the respondent no.1. It was also argued by him that at the time when the petition under DV Act was filed in November, 2016 the respondent no.1 was not residing in the house, having left the house on her own will and started staying with her parents at different places in Malviya Nagar and Saket. Ld. Counsel for the appellants has based his arguments on law laid down in number of judgments. He relied upon the judgment in S.R. Batra Vs Taruna Batra (2007) DLT 1 (SC) wherein the Hon'ble Supreme Court held: "the wife is only entitled to claim a right to residence in a shared household and a 'shared household' would only mean house belonging to or taken on rent by the husband, or house which belongs to the joint family of which the husband is a member".
15. Further reliance is placed upon the judgment of Sushmita Didi Sandhu Vs Sanjay Singh Sandhu & Ors. 174 (2010) DLT 79 wherein the Division Bench of the Hon'ble Delhi High Court has observed that: "The right of residence, in our view, is not the same thing as a right to reside in a particular property which CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 9 of 21 the appellant refers to as her matrimonial home. The said Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a household. The Hon'ble High Court has further emphasized that right to residence does not mean the right to reside in a particular property though it may mean a right of reside in "commensurate property".
16. Reliance is also placed on the judgment titled Neetu Mittal Vs Kanta Mittal 2009 (1) CCC 301 (Del) wherein it was held that "shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member". In the judgment of Meenu Vs Barma Devi 217 (II) AD (Delhi) 729 the Hon'ble High Court relying on the judgment in Sudha Mishra Vs Surya Chandra Mishra 211 (2014) DLT 537 has held that "daughter in law has no right to reside in the property belonging to her mother in law as said property is not covered by the definition of shared household". In Sudha Mishra Vs Surya Chandra Mishra (Supra) it was observed by the Hon'ble Delhi High Court as under: "The legal position is well settled that the daughter in law has no right to reside in the property belonging to her mother in law as the said property is not covered by definition of shared household."
CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 10 of 21
17. Reliance was placed upon the judgment in Ekta Arora Vs Ajay Arora 2015 AIR (Del) 180 , Hashir Vs Shima 2016 AIR (KER) 2 and V.P. Anuradha Vs S.S. Sugantur @ Suganthi & Ors. 2015 Crl. L.J. 3478 in which the same view has been taken by different High Courts while dealing with the issue of 'shared household' and the right of a daughter in law to reside in the property owned by relative of husband.
18. The Ld. Counsel for respondent no. 1, however, has vehemently argued contesting the submission of the counsel for appellants and submitted that the case law on which reliance has been placed is not applicable to the facts and circumstances of the present case. She has placed a strong reliance on the judgment in Navneet Arora Vs Surender Kaur MANU/DE/2132/2014 and Preeti Satija vs Smt. Raj Kumari & Anr. MANU/DE/0167/2014. The Ld. Counsel for respondent no.1 has argued that judgment of S.R. Batra's case has been dealt in Navneet Arora's case. Judgment of Navneet Arora's only supplement S.R. Batra's case and simply define what is a joint family and therefore, facts being distinguishable from S.R. Batra's case the present case in any way will be covered by the ratio of judgment in Navneet Arora's case. She argued that in Navneet Arora's case the Hon'ble High court defined what is joint family as the aggrieved person was residing in the house with her husband, who was the member of the joint family prior to his death and even after his death, his wife continued to reside in the same house as Joint Family. It was argued that DV Act protect right of an aggrieved person in shared household which may belong to a joint family of which her CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 11 of 21 husband is a member and whether he has any right, title or interest in the shared household or not.
19. It is submitted by the Ld. Counsel that in S.R. Batra's case daughter in law had shifted to her parents home due to matrimonial dispute and she therefore was not in a possession of any portion of the property. Even otherwise in the said case aggrieved person with her husband was having separate kitchen therefore she was not residing with the parents in law as a joint family. Ld. Counsel has therefore argued that dictum in S.R. Batra's case is not applicable in the present case.
20. Relying on the Preeti Satija's case it was argued y the Ld. Counsel that Hon'ble Delhi High court has clarified the right of daughter in law i.e. aggrieved person to reside in matrimonial home. Ld. Counsel has also relied upon the judgment in Ishpal Kahai Vs Mrs. Ramanjeet Kahai W.P. No. 576/2011 decided on 23.03.2011 by the Bombay High Court. Then the Ld. Counsel for respondent no.1 placed reliance on Nidhi Kumar Gandhi Vs State Crl. M.C. No. 452/2008 decided on 16.01.2009. Further reliance is placed upon Roma Rajesh Tiwari Vs Rajesh Dinanath Tiwari W.P. No. 10696/2017(Bombay High Court) wherein the Hon'ble Court was of the view that question of title or proprietary right in the property is not at all of relevance, when the provisions of the D.V.Act especially Section 19 thereof, are to be considered. The court thus recognized the right of a wife to stay in matrimonial home.
21. The Ld. Counsel for appellants in rebuttal to the arguments of CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 12 of 21 the Ld. Counsel for respondents has placed reliance on the judgment in Neha Jain Vs Gunmala Devi Jain RSA No. 282/15 decided on 30.07.2015. It was argued by the Ld. Counsel that in this judgment Hon'ble Delhi High Court has duly considered the judgment in Navneet Arora's case and Preeti Satija's case on which reliance has been placed by the respondent no.1. He argued that Hon'ble Delhi High Court in Neha Jain's case had clearly held that judgment of Preeti Satija's case and Navneet Arora's case were fact based and they proceed on the fact situation. The Hon'ble Delhi High Court has placed more reliance on the judgment of Division Bench in Shumita Didi Sandhu Vs Sanjay Singh Sandhu (Supra) and a Single Bench judgment in Sudha Mishra's case and relying upon these two judgments Delhi High Court has opined that daughter in law has no right to continue to occupy the self acquired property of her parents in law against their wishes more so when her husband has no independent right therein nor is living there, as it is not a shared household within the meaning of Section 17(1) of the DV Act. Ld. Counsel has also relied upon the judgment in Vimlaben Ajitbhai Patel Vs Vatslaben Ashokbhai Patel 2008 (4) SCC 649 wherein the Hon'ble Supreme Court was of the view that liability with regard to maintenance of wife is upon the husband and only upon his death it becomes liability of the father in law.
22. The Ld. Trial Court in the impugned order has observed that the status of the property i.e. H.No. 323, Mandakini Enclave, Alaknanda, New Delhi110019 whether it is a 'shared household' or not is a matter CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 13 of 21 of trial and the court was unable to come to a conclusion that it was a 'shared household' at this stage. The Trial Court has also observed that the property in question is self acquired property but the Ld. Trial Court did not rely on the argument by the complainant/respondent no.1 that her husband/ respondent no. 2 had also made a contribution in the purchase of the said property. Observing that there was no pleading in the complaint to this effect nor any documents have been placed on record, therefore, it held that there was no merit in this arguments. The Ld. Trial Court has preceded on the ground that house in question is a "matrimonial house" of the complainant/respondent no.1 as after the marriage she was residing in this house in a joint family. So the impugned order is premised on the conclusion arrived at by the Ld. Trial court that the premise in question was a "matrimonial house" of the complainant/respondent no.1.
23. So far as question of matrimonial home is concerned, the Ld. Counsel for respondent no.1 has relied upon the judgment in Roma Rajesh Tiwari Vs Rajesh Dinanath Tiwari (Supra) (Mumbai High Court) to argue that right of a wife to stay in matrimonial home is recognized. This argument has force but the observation in this case that the house was a 'matrimonial home' was on the basis that the husband could not establish that he had shifted from the house in question.
24. Under the DV Act the expression 'matrimonial home' is not defined rather the Act used the expression 'shared household'. The 'shared household' as defined under Section 2(s) of the DV Act refers to property where the person aggrieved lives, or at any stage has lived CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 14 of 21 in domestic relationship either singly or alongwith the respondent and includes a property whether owned or tenanted by either of them in respect of which either of them or both jointly or singly have any right, title, interest or equity. It includes the property which may belong to the joint family of which respondent/husband is a member irrespective of whether the respondent or aggrieved person has any right, title or interest therein.
25. Coming back to the expression 'matrimonial home' in the case of Neetu Mittal Vs Kanta Mittal ( Supra) the Hon'ble court had observed that matrimonial home is not necessarily house of the parents of the husband. It was further observed therein that wife can assert a right, if any, against the property of her husband but she cannot thrust herself against the parents of her husband nor can claim a right to live in the house of parents of her husband against their consult and wishes. In S.R. Batra Vs Taruna Batra (Supra) it was observed that where the house belongs to parents in law in which the husband has no right, title or interest and parents in law had merely allowed their son along with daughter in law to stay in the said house it would amount to mere "permissive possession" on the part of daughter in law and would not given her any right to stay in the said house in as much as the same would not be her matrimonial home. Thus, the Hon'ble Supreme Court has categorically held that house in which the aggrieved person along with her husband has a permissive possession and in fact belong to parentsinlaw of the aggrieved person will not be her 'matrimonial home'. Therefore, the observation of the Ld. Trial Court in this regard that it is a matrimonial home of the complainant / respondent no.1 is CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 15 of 21 contrary to the observation of the Hon'ble Supreme Court in S.R. Batra Vs Taruna Batra (Supra) case.
26. The arguments by the Ld. Counsel for respondent no.1 was that the respondent has lived in the said house after the marriage with her in law and her husband. It was submitted that in similar situation Hon'ble Delhi High Court protected the right of aggrieved person in Navneet Arora's case (Supra) and therefore the aggrieved person's 'right to reside' in the suit property was protected. In Navneet Arora's case (Supra) the Hon'ble Delhi High Court has dealt with precedential value of the judgment in detail. The occasion to deal with this issue came before the Hon'ble High Court in Navneet Arora's case because of the judgment of Hon'ble Supreme Court in case S.R. Batra Vs Taruna Batra (Supra).
27. A reference was made to number of judgments and also observation of the Lord Denning which read: "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect".
28. A reference was also made in Bhavnagar University Vs Palitana Sugar Mills Pvt. Ltd. (2003) 2 SCC 111 wherein it was observed that little differences in facts or additional facts may make a lot of difference in the precedential value of a decision.
29. Now coming to Navneet Arora's case in that case the aggrieved person along with her husband was residing with her parents in laws jointly. They were having joint business. They were running a kitchen CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 16 of 21 out of the income of the joint business. So on the basis of these facts the court had concluded that the aggrieved person was living in joint family of which her husband was a member. Therefore, even after the death of the husband her right to reside in the said house was protected. The facts in the present case are significantly different. It is not in dispute that the house is presently in the name of appellant no.2 although, the respondent no.1 has taken a plea that her husband had contributed a substantial amount in purchase of the house. Her husband/respondent no.2 however, stated that house belongs to her mother. It is also stated in the present appeal that after the marriage respondent no.1 and respondent no.2 had lived together at different places, in India as well as abroad. The appellants have not denied that respondent no.1 and respondent no.2 have lived in the house in question as well. Another significant fact to be noted in this case is that the respondent no.2 i.e. husband of respondent no.1 is working in Mumbai since 2013. Respondent no. 2 had declined to join her husband in Mumbai on account of two reasons. First, that she was working and second that their daughter had got admission in good school in Delhi. So the factual situation in the present case is that husband is not residing in the house in question for the last four years. The wife/respondent no.1 has refused to join him in Mumbai. From the record it is revealed that respondent no.2/husband had also arranged an alternative accommodation for the respondent no.1 in Paryavaran Vihar in which she declined to shift. Respondent no.1 is residing with her parents at Malviya Nagar and Saket. There are documents on record which would suggest that she has been staying CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 17 of 21 with her parents. Though the reason for staying with her parents is the marital discord and acrimonious relations with her in laws. Respondent no.1 had placed number of documents on record before the Ld. Trial Court and it has been considered by the Ld. Trial Court as well to conclude that the respondent no.1/complainant was residing in the house in the status of joint family.
30. However, the attention of the court is drawn particularly to the fact that when the petition under Section 12 of the DV Act was filed on 21.11.2016, respondent no. 1 was not staying in the house in question and once the matter came to the court, the in laws of respondent no. 1 did not allow her entry in the house on 04.03.2016.
31. From these facts one can differentiate and distinguish the case of Navneet Arora's (Supra) from the present case. The judgment of the Hon'ble Supreme Court in S.R. Batra Vs Taruna Batra (Supra) case still hold the field that the house of parents in law is not the shared household. The Ld. Counsel for respondent no.1 has argued that in S.R. Batra Vs Taruna Batra (Supra) case the aggrieved person was not sharing the kitchen with her in laws. Therefore she was not in joint family status with them. But in the present case, the respondent no.1 along with her parents in law and her husband was sharing the same kitchen, therefore, it is the joint family status for the respondent no.1. The Ld. Counsel for appellant however has argued that no doubt respondent no.1 and respondent no.2 have stayed with the appellants but this can be termed as 'permissive possession' of the respondent. He referred to the judgment of Delhi High Court in Meenu Vs Barma CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 18 of 21 Devi (Supra) wherein it was observed that status of the daughter in law in self acquired property of her mother in law is that on a "gratuitous licensee". It was further observed that legal position is well settled that daughter in law has no right to reside in the property belonging to her mother in law as the said property is not covered by the definition of 'shared household'. This consistent view has been taken up by the Delhi High Court in earlier judgments of Neetu Mittal Vs Kanta Mittal (Supra) and Sudha Mishra Vs Surya Chandra Mishra (Supra) and also in Sushmita Didi Sandhu Vs Sanjay Singh Sandhu & Ors. (Supra) case.
32. So the position of law is that daughter in law cannot claim a right of residence in the house owned by the relatives of the husband as a matter of right. In case of Neha Jain Vs Gunmala Devi Jain (Supra) the Hon'ble High Court has considered the Navneet Arora's case well as Preeti Satija's case (Supra) and had observed that these cases were based on their own facts and again placed reliance on Sushmita Didi Sandhu Vs Sanjay Singh Sandhu & Ors.(Supra) and Sudha Mishra Vs Surya Chandra Mishra (Supra) cases. So in the light of various judicial pronouncements it can be stated that respondent no.1 herein cannot claim right of residence in the house in question because it is owned by her mother in law/appellant no.2. Her claim that her husband had invested in the purchase of the house needs to be established at the trial.
33. The question now arise is how the right of residence of respondent no.1 can be protected? There is no doubt with the CA No. 212/17 S.S. Kathuria & Anr. Vs Arti Kathuria & Anr. Page No. 19 of 21 proposition of law that it is a legal duty and moral obligation of the husband to maintain his wife which includes a right of residence as well. Respondent no.2 herein had moved an application stating that he had identified certain houses for taking on rent for the residence of respondent no.1 In reply to this application, respondent no.1 has stated that family of her husband has number of properties in the vicinity of Alaknanda and other parts of Delhi and they can allow her to use any of those properties for her residence. The counsel for appellant had, however, in response to this had argued that the respondent no.1 cannot claim a right to reside in 'particular property'. She can only seek a right to have commensurate alternative accommodation. He had referred to the case of Sushmita Didi Sandhu Vs Sanjay Singh Sandhu & Ors.(Supra) in support of his arguments. The appellants may be having number of houses in Delhi but legally the complainant/respondent no.1 cannot claim a right of residence in these houses. Nevertheless, she has to be provided a residence which will be a commensurate alternative accommodation.
34. In the given circumstances, I am of the view that any direction for providing residence in H. No. 323, Mandakini Enclave, Alaknanda, New Delhi110019 to the respondent no.1 will not be conducive to the physical and mental health not only of the respondent no.1 and her young daughter but also her parents in law, who are senior citizens. At present they have bitter and strained relations therefore, their staying together may aggravate the situation. Therefore, it is advisable that respondent no.1 is provided a commensurate alternative accommodation.
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35. The impugned order therefore is hereby set aside, however, it is directed that respondent no.2(husband) shall provide a commensurate alternative accommodation to the respondent no.1 (wife) preferably in the same locality of Alaknanda or otherwise in the locality of equivalent status. The option will be with the respondent no.1 to choose the house of her choice in the same locality as per her standard and requirement for which respondent no.2 shall be liable to pay rent or the respondent no.2 will identify a house for respondent no.1 subject to same being approved by respondent no.1 being suitable for her living. The choice made by respondent no.1 will be given preference. If respondent no.1 and 2 are unable to find out any commensurate alternative accommodation within the period of two months, then the respondent no.2 shall pay to respondent no.1 a sum of Rs. 35,000/ on account of residential accommodation for respondent no.1 and her child.
36. With these observations above, the present appeal stand disposed off. Trial Court Record along with copy of this order be sent back to the concerned Trial Court for compliance of the direction.
37. Appeal file be consigned to Record Room.
Announced in the open (AJAY KUMAR KUHAR)
court today i.e. 16.02.2018 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
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