Delhi High Court
Smt. Taruna Batra W/O Shri Amit Batra D/O ... vs S.R. Batra S/O Shri G.D. Batra And Smt. ... on 17 January, 2005
Equivalent citations: AIR2005DELHI270, 116(2005)DLT646, I(2005)DMC282, 2005(79)DRJ717, AIR 2005 DELHI 270, (2005) 2 CIVILCOURTC 692, (2005) 1 DMC 282, (2005) 79 DRJ 717, (2005) 1 HINDULR 502, (2006) 1 MARRILJ 197, (2005) 116 DLT 646
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The controversy that I am called upon to decide in the present case under Article 227 of the Constitution essentially relates to the situs of the matrimonial home of the Petitioner, who is the daughter in law of the Respondents.
2. The Petitioner was married to Amit Batra on 14th April 2000. They have a male child born on 27th November 2001. Soon after their marriage, as per the prevailing practice, the Petitioner shifted into the home of Amit Batra and the Respondents, that is, in the ground floor of property No. B-135, Ashok Vihar, Phase I, Delhi. The entire property belongs to the Respondents but all of them lived together on the ground floor.
3. It seems that sometime in early 2002, relations between the parties deteriorated. According to the Petitioner, the Respondents treated her cruelly, and so the Petitioner and Amit Batra later shifted to the second floor of the said property, which became their matrimonial home. However, it appears that their shifting to the second floor of the said property did not improve relations between the Petitioner and the Respondents. On the contrary, relations deteriorated to such an extent that the Petitioner registered an FIR against the Respondents, Amit Batra and other family members under the provisions of Sections 406/498A/506 and 34 of the IPC. On the basis of her complaint, the Respondents, their son in law and Amit Batra were arrested in January 2003.
4. According to the Petitioner, these events made it even more difficult for her to stay in the matrimonial home, and so she shifted to her parents' residence. Later, when she tried to enter the matrimonial home, she found that the main entrance was locked and so she was unable to enter her matrimonial home. This led the Petitioner to file Suit No. 87 of 2003 for a mandatory injunction directing the Respondents (and their son in law and her husband Amit Batra) to open the main entrance to enable her to reside in the matrimonial home, that is, the second floor of property bearing No. B-135, Ashok Vihar, Phase I, Delhi and for a permanent injunction restraining the Respondents from breaking open the locks of her matrimonial home and removing her goods there from.
5. The suit was contested by the Respondents, who also applied for a mandatory direction to the Petitioner to hand over possession of the second floor of the Ashok Vihar property.
6. The Respondents alleged before the Trial Judge, as also before me, that from sometime in September, 2002 the Petitioner was not residing in the second floor property. On the contrary, during the pendency of the suit, the Petitioner trespassed upon the property and on an inspection of the second floor, it was noted on 23rd February, 2003 that only one blanket belonging to the Petitioner was found therein. It was further contended by the Respondents that their son Amit Batra had purchased some property in Ghaziabad and had shifted there. It was consequently contended that that was now the matrimonial home of the Petitioner. It was submitted that, in law, the user of the second floor of the property by the Petitioner was merely permissive, in as much as the entire property was owned by the Respondents and the Petitioner really had no right to reside in their property, except with their permission.
7. On these broad facts, the learned Trial Judge decided on 4th March, 2003 both the applications for ad interim injunction filed by the parties. He held that the Petitioner was 'admittedly' in possession of the second floor of the said property and that it would be in the fitness of things if both the parties did not interfere in each others possession and each others right to have access to the common passage.
8. Feeling aggrieved by the decision of the learned Trial Judge, the Respondents appealed to the Senior Civil Judge who, by his order dated 17th September, 2004 held that the Petitioner was not residing in the second floor premises since her goods (other than one blanket) were not there and the premises had no electricity and water. Furthermore, it was held that since the Petitioner's husband was not living in the property, but elsewhere, the matrimonial home could not be where only the wife (Petitioner) was residing. It was also held that the Petitioner had no right over property belonging to persons other than her husband and, therefore, the application for an ad interim injunction filed by the Petitioner deserved dismissal. It was, however, directed that the Petitioner may visit the property "once or twice in a month along with local Police to see that the locks in the suit premises are intact or not." The parties were also directed to maintain status quo.
9. Both the parties are aggrieved by the order of the learned Senior Civil Judge and have, therefore, filed respective petitions under Article 227 of the Constitution. The issues in the petitions being the same, they were heard together on 25th November, 2004 and are being disposed of by a common decision. Both learned counsels reiterated their submissions made before the learned Trial Judge and the learned Senior Civil Judge.
10. I proceed on the basis that the Petitioner is presently not residing in the second floor of property bearing No. B-135, Ashok Vihar, Phase I, Delhi. This is because, to my mind, whether she is presently residing there or not is inconsequential for deciding if her matrimonial home is on the second floor of that property. Moreover, her actual possession or at least her constructive possession of the second floor of the property is not seriously doubted. I also proceed on the basis that the Petitioner's husband is now residing at a place other than the second floor property. The question still remains whether, notwithstanding these assumptions, the second floor of the property is the Petitioner's matrimonial home or not. If the answer is in the affirmative, then she has a right to reside there (subject to the objections of the Respondents) otherwise not.
11. I am of the view that in the context of Indian society, a pragmatic view has to be taken while attempting to understand what is meant by the matrimonial home of a married couple, because there is no statute in this respect unlike in England where the Matrimonial Homes Act, 1983 would govern the situation. It appears that in England, an innocent spouse who is in occupation of the matrimonial home as a joint owner has a right not to be evicted from there except by an order of a Court and if that spouse is not in occupation, he or she has a right to obtain a Court order to enter and occupy such a matrimonial home. A spouse who has no proprietary interest in the matrimonial home but is in occupation thereof has a right to remain in occupation of the matrimonial home as against the spouse who has left that matrimonial home. In this regard, it may be mentioned that in B.R. Mehta v. Atma Devi & Ors, the Supreme Court made a reference to the Matrimonial Homes Act, 1967 in England and the rights of occupation of a spouse and observed:
"But such rights are not granted in India though it may be that with change of situation and complex problems arising it is high time to give the wife or the spouse a right of occupation in a truly matrimonial home, in case of marriage breaking up or in case of strained relationship between the husband and the wife."
12. We all know that the accepted practice in India is that immediately after marriage, the bride resides with her husband usually in the parental home of the husband and their place of residence then becomes their matrimonial home. Of course, now there are may instances where the couple reside separately since the joint family system is breaking up but, as in the present case, residence is usually along with the parents of the husband. In either case, the place of residence of the couple becomes their matrimonial home. A woman, therefore, would have the right to remain in that matrimonial home as long as she is married and if she is "obliged" to leave that matrimonial home, I think she would be entitled to obtain an injunction from an appropriate Court protecting her right and preventing her from being thrown out.
13. Consequently, going by the generally accepted practice in most parts of India, if not in the entire country, it can be said that the ground floor of property bearing No. B-135, Ashok Vihar Phase-I, Delhi was the matrimonial home of the Petitioner and her husband Amit Batra even though the entire property belonged to the parents of Amit Batra. It can also be said that later on, the Petitioner and her husband shifted their matrimonial home to the second floor of the said property, with the knowledge and consent of the Respondents, the owners thereof.
14. There can be no doubt that there is a legal obligation on Amit Batra to provide a residence to the Petitioner and their son. It is one thing for Amit Batra and the Respondents to say that since Amit Batra is now staying in Ghaziabad, that would be the matrimonial home and he is prepared to have the Petitioner reside with him there. The fact of the matter is that Amit Batra applied for a divorce from the Petitioner (although the divorce petition is now said to have been dismissed in default). Consequently, it is extremely unnatural to expect the Petitioner to treat Amit Batra's Ghaziabad residence as her matrimonial home. In other words, Amit Batra's shifting from the second floor of the said property to Ghaziabad would not ipso facto shift the Petitioner's matrimonial home to Ghaziabad.
15. Reference may usefully be made to Anu Seth and Ors. v. Rohit Narain Seth and Ors., which clearly holds that there is a legal obligation on the husband to provide a residence for his wife and that the wife also needs access to her matrimonial home. It has further been held that the mere fact that the husband shifts out of the matrimonial home to set up a home somewhere else does not, in all cases, mean that his new place of residence becomes the matrimonial home. This is precisely what has happened in the present case, namely, that Amit Batra shifted out of the second floor of the said property to set up what he and his parents call a new matrimonial home in Ghaziabad. The motive for setting up a new matrimonial home in Ghaziabad may or may not be suspect (as contended by learned counsel for the Petitioner) - I am not concerned with that. But, given the antecedent facts that I have already adverted to including the fact that Amit Batra had actually filed a petition seeking to divorce the Petitioner (since dismissed in default), it cannot reasonably be held that the Ghaziabad residence of Amit Batra is now the matrimonial home of the Petitioner and her husband.
16. In view of the factual context given above, it can safely be said that the second floor of the Ashok Vihar property continues to be the Petitioner's matrimonial home being the place where she and Amit Batra last resided together as husband and wife and where they voluntarily shifted from the ground floor. A mere change of residence by Amit Batra, for whatever reason, would not shift the matrimonial home away from Ashok Vihar, more particularly on the facts of the present case when Amit Batra had applied for a divorce from the Petitioner.
17. It was contended by learned counsel for the Respondents that his clients, who own the Ashok Vihar property, had only permitted the Petitioner to reside on the second floor of the said property. This permissive user, according to him, did not give her any right to continue to reside in that property and she had no proprietary interest in the property. I am not impressed with this contention. I have already held that the second floor of the said property was the matrimonial home of the Petitioner and, therefore, she has a right to stay there as against Amit Batra. As regards her proprietary interest, it cannot be forgotten that the Respondents are not complete strangers, in which case the position may be completely different - the Respondents are the parents of Amit Batra and the parents in law of the Petitioner and I do not think the theory of permissive user can be advantageously used by them in the Indian context particularly when their son and the Petitioner actually lived together with them on the ground floor and thereafter shifted to the second floor of the same property with their full knowledge and consent, with a view to shift their matrimonial home from the ground floor to the second floor.
18. Under the circumstances, I am of the view that the learned Trial Judge was quite right in concluding, though for different reasons, that the Petitioner is entitled to continue to reside in the second floor of property bearing No.B-135, Ashok Vihar, Phase-I, Delhi. Consequently, the impugned order dated 17th September, 2004 passed by the learned Senior Civil Judge is set aside and it is held that the Petitioner is entitled to continue to reside with her son on the second floor of B-135, Ashok Vihar, Phase-I, Delhi, which is her matrimonial home and that the Respondents or anyone claiming under them cannot deny her access to her matrimonial home or interfere in her possession thereof.
19. The writ petition is, therefore, allowed. The Petitioner will be entitled to litigation expenses of Rs. 5,000/- which should be paid by the Respondents within a period of six weeks from today, and in any case before 4th March, 2005.