Lbn vs Vjk on 22 August, 2024

[Cites 21, Cited by 0]

Delhi High Court

Lbn vs Vjk on 22 August, 2024

1. By way of the present appeal under Section 19 of the Family Courts Act, 1984 (the FC Act) the appellant/husband assails the order dated 13.03.2024 passed by the Family Court, Saket, New Delhi (Family Court) in HMA No. 216/2023, a Divorce petition filed by him insofar as the application filed by him under Section 151 of the Code of Civil Procedure, Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 1 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 1908 (CPC) seeking directions to the respondent/wife to shift to an alternate accommodation being offered by him, has been dismissed.

2. It may be apposite to provide the necessary factual background leading to the dispute before this Court. On 12.02.2024, the appellant/husband filed an application under Section 151 of the CPC before the learned Family Court in the aforesaid Divorce petition, seeking directions to the respondent/wife to a shift to an alternate accommodation, which he was willing to provide and handover the vacant and peaceful possession of and to vacate the premises at B6/10, Third Floor, Safdarjung Enclave, New Delhi, (tenanted premises), which is currently being occupied by her.

3. The learned senior counsel for the appellant contend that the sole reason for filing the application was that the entire building i.e., B6/10, Safdarjung Enclave, New Delhi, is an extremely old building, which has been used as a commercial as well as a residential space over the years. Due to its extensive usage the building has been deteriorating and requires repairs, including re-tiling of the entire terrace on account of tile breakage and seepage and requires repair of seepage in the basement and ground floor as also electrical rewiring and repair of water and sewage lines. Due to the urgent nature of extensive repairs required, the tenanted premises have been rendered uninhabitable and extremely dangerous for residential use. The learned Family Court, has however, vide its impugned order dated 13.03.2024, dismissed the appellant's application by erroneously holding that he couldn't seek eviction of the respondent from the tenanted premises by way of an application under Section 151 of the CPC and his remedy, if Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 2 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 any, was to move an application under the provisions of Protection of Women from Domestic Violence Act, 2005 (DV Act), before the appropriate Court for providing an alternate accommodation to the respondent.

4. Learned senior counsel for the appellant submit that the learned Family Court failed to appreciate that since no order of residence had been passed under the DV Act, the appellant could not have approached the Court under the DV Act for any order pertaining to residence, which would necessarily include the prayer for providing an alternate residence to the respondent. They contend that in the impugned order, the learned Family Court has itself stated that while considering an application under Section 24 of the Hindu Marriage Act, 1955 (HMA), it may either protect the possession of the residence by the wife or even direct the husband to provide her with an alternate accommodation. In these circumstances, when the aspect of "residence" which is part and parcel of the aspect of "maintenance", as has been sought by the respondent in her application under Section 24 of the HMA, which is still pending adjudication before the learned Family Court, the appellant was justified in approaching the learned Family Court. They place reliance on the decision of the Apex Court in "Mangat Mal (dead) & Anr vs Smt. Punni Devi (dead) & Ors" AIR 1996 SC 172.

5. Learned senior counsel for the appellant further contend that the learned Family Court has also failed to consider that in the present case, it is not the DV Court but the learned Family Court itself which is seized of the respondent's application under Section 24 of the HMA, for grant of Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 3 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 maintenance including residence. The appropriate and, in fact, the only remedy of the appellant therefore was to approach the learned Family Court by way of an application under Section 151 of the CPC, which application has been erroneously held to be not maintainable.

6. Learned senior counsel for the appellant further submit that the learned Family Court has also failed to consider that the lease for the same tenanted premises had already expired way back in 2021 but the appellant is still not in a position to vacate or handover the possession thereof to the landlord as, it is the respondent who is in occupation thereof. However, despite the appellant not being in possession of the tenanted premises, he has been served with two notices dated 01.08.2023 and 27.01.2024 by the lessor to vacate the said premises. With an impending threat of an eviction suit qua the premises being filed against the appellant, the respondent's right to residence is likely to be affected.

7. Finally they submit that the application where the appellant is merely trying to provide the respondent with a habitable and safe alternate accommodation has been wrongly treated as an application for eviction. They, therefore, pray that the impugned order be set aside and the learned Family Court be directed to expeditiously decide the appellant's application on merits.

8. Per contra, learned counsel for the respondent supports the impugned order by contending that the learned Family Court has rightly held that the application under Section 151 of the CPC in the Divorce petition was not maintainable, as the relief being claimed by the appellant by way of the present application could only be sought under Section 19(1)(f) of the DV Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 4 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 Act, for which purpose the appellant must approach the concerned DV Court.

9. Learned counsel submits that once the respondent/wife has already filed a petition under Section 12 of the DV Act wherein she has moved an application seeking directions to the appellant to carry out urgent repair work in the tenanted premises, the appellant can file an appropriate application in those proceedings. He submits, alternatively, the appellant can seek this relief by way of his reply to the respondent's pending application under Section 24 of the HMA which like the Hindu Adoption and Maintenance Act, 1956 (HAMA) includes the right of 'residence' within the ambit of the claim. Therefore, by drawing analogy from the HAMA, he contends that the appellant can also move an independent application under Section 24 of the HMA Act, if he so deems fit.

10. Finally, he submits that as rightly held by the learned Family Court, the application moved by the appellant under Section 151 of the CPC was not maintainable. The provision of Section 151 of the CPC is meant to be used for exercise of the inherent jurisdiction by the Civil Courts, where there is no remedy available under the existing provisions of law. However, this inherent power cannot be exercised to override the applicable statutory provisions. In the present case, once the appellant has a specific remedy under Section 19 (1)(f) of the DV Act or in the alternative by way of an application under Section 24 of the HMA, the application under Section 151 CPC would not lie.

11. In support of the aforesaid plea, learned counsel for the respondent has relied on the following decisions:

Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 5 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29

i. Ram Chand and Sons Sugar Mills Private Ltd. Barabanki (U.P.) vs. Kanhayalal Bhargava and Others: 1966 SCC OnLine SC 215;

ii. Durgesh Sharma vs. Jayshree: (2008) 9 SCC 648; iii. My Palace Mutually Aided Co-operative Society vs. B. Mahesh & Ors.: Civil Appeal No.5784/2022 @ SLP(Civil) No.7015/2022.

12. Having considered the submissions of the learned counsel for the parties and perused the record, we may begin by referring to the impugned order, the relevant extract whereof reads as under:

"5. It is well-settled law that a wife can seek residential accommodation from her husband and if she is in possession of any such accommodation that belongs to the husband she can seek protection from the Court to save her residence. The wife can seek residential accommodation U/s 125 CrPC, Section 24 HMA and U/s 19 read with Section 26 of Protection of Women from Domestic Violence Act. The family court while considering any of her such petition may protect her possession in which she is residing or may direct the husband to provide her alternate accommodation. In such situations the wife is aggrieved party and she is entitled to file a petition. None of the above discussed provisions of law empower the husband to file an application before the family court seeking directions that the wife be directed to vacate the premises in which she is residing in the capacity of a wife of the respondent.

6. xxxxxx According to the petitioner the premises in which the respondent is residing was given to him for his residential use by his firm. The owner of the said premises is seeking return of its possession for his family and personal use. The owner of the premises has every right to get back the possession as per law whosoever in its possession. However, the petitioner cannot seek eviction of the respondent from the said premises from the Family Court U/s 151 CPC. Further, as the respondent is Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 6 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 seeking repairing of the premises to be done by the petitioner by filing the application under the provision of Protection of Women from Domestic Violence Act, therefore, the petitioner can take plea before the concerned Court to provide alternate accommodation to the respondent and same would be considered by the concerned Court as per law but the petitioner cannot be allowed to raise such plea before the family Court in a divorce petition filed by him."

13. From a perusal of the aforesaid extract of the impugned order, what emerges is that the learned Family Court while holding that the respondent/wife can seek residential accommodation under Section 125 of the Code of Criminal Procedure, 1973 (CrPC), Section 24 of the HMA as also under Sections 19 and 26 of the DV Act, observed that none of these provisions entitle the appellant/ husband to move an application before the learned Family Court to seek directions to the respondent/wife to vacate the premises in which she is residing. The learned Family Court had further observed that since the respondent/wife has moved an application before the DV Court seeking directions against the appellant to get the premises repaired, the appellant can take the plea of an alternate accommodation before the DV Court. Consequently, the learned Family Court has rejected the application filed by the appellant under Section 151 of the CPC being not maintainable.

14. Learned senior counsel for the appellant have vehemently urged that once, as per the learned Family Court itself, there is no specific provision under any of the statutes, the CrPC, the HMA, the FC Act or the DV Act entitling the husband to move an application to seek directions to the wife to shift to an alternate accommodation, the only remedy available to him was Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 7 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 to move an application under Section 151 of the CPC, before the appropriate Court. It is their contention that under Section 151 of the CPC, every civil Court is vested with the inherent powers to pass appropriate orders when the statute is silent on any aspect. They have therefore, urged that the learned Family Court has gravely erred in holding that such an application was not maintainable.

15. On the other hand, learned counsel for the respondent has urged that the learned Family Court was justified in holding that the inherent powers under Section 151 CPC could not be exercised in a case like the present where it was always open for the petitioner to approach the DV Court wherein the respondent has already moved an application under Section 12 of the DV Act seeking directions to the appellant to carry out repair of the tenanted premises. It has further been urged by the respondents that in the alternative, the appellant may raise his claim in its reply to the respondent's pending application under Section 24 of the HMA. The short issue therefore, before this Court is as to whether the appellant has any specific remedy under any of the statutes to seek the relief as sought for in the application which has been dismissed vide the impugned order.

16. Having given our thoughtful consideration to the stands taken by the parties, we are of the view that the respondent is trying to take contradictory stands in respect of the forum where the application would lie. On one hand, she has urged before us that the appellant should approach the DV Court as that is the only appropriate forum for seeking orders regarding shifting of the wife to an alternate accommodation. On the other hand, she has urged that this prayer could also be sought by the appellant in his reply to the Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 8 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 application under Section 24 of the HMA pending before the Family Court.

17. In order to appreciate the first plea of the respondent that the appellant has a remedy under the DV Act to seek the relief as sought for in the application, it would be apposite to note Sections 12(1) & (2) as also Section 19(1) of the DV Act, which read as under:-

"12. Application to Magistrate.--(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:

Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:

Provided that where a decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off.

.........

19. Residence orders.--(1) While disposing of an application under sub-section (1) of section12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--

Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 9 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29

(a) restraining the respondent 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;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate 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:

Provided that no order under clause (b) shall be passed against any person who is a woman."

18. From a perusal of the aforesaid provisions what emerges is that Section 12 gives the right to an aggrieved person to approach the DV Court for seeking reliefs under the FC Act, which reliefs may include a relief of issuance of an order of compensation or damages for the injuries caused by the acts of domestic violence. Since, Section 2(a) of the DV Act specifically provides that only a woman can be an aggrieved person, it is evident that the appellant/husband does not have a right under the DV Act to approach the DV Court for any orders. Having said so, we may note that even though the husband does not have a right to seek any relief under the DV Act, the DV Court can, in exercise of its power under Section 19(1)(f) of the DV Act, still issue appropriate orders to him or other respondents before it, to provide Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 10 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 alternate accommodation to the aggrieved person.

19. In the present case, it is an admitted position that no orders either restraining the appellant from dispossessing the respondent from the tenanted premises or for securing an alternate accommodation, have been passed by the DV Court. In such circumstances, we fail to appreciate that how the appellant could have moved the DV Court for any relief, much less to say the relief sought in the application. No doubt, if an order restraining the appellant for dispossessing the respondent has been passed by the DV Court, the appellant could, in those circumstances and only in those circumstances, have approached the DV Court for modification of the said order by offering an alternate accommodation. We, therefore, find no merit in the respondent's plea that the appellant should have approached the DV Court.

20. We may now turn to the respondent's second plea that the application under Section 151 of the CPC filed by the appellant was not maintainable and even if he wanted to seek directions against her for shifting to an alternate accommodation, the same could have been done only by way of his reply to the respondent's application under Section 24 of the HMA. Though this plea appears to be attractive on the first blush, on a closer scrutiny of the factual matrix, we are of the view that this plea of the respondent also needs to be rejected. The appellant has set out a case that the premises in which the respondent is residing is a tenanted premises which needs to be vacated at the earliest on account of its dilapidated condition as also the eviction notices being received by him from the lessor, therefore, he cannot be told that he must await the disposal of the respondent's pending application Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 11 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 under Section 24 of the HMA. In a situation like the present when the appellant requires urgent orders and there is no specific provision in the HMA for granting such relief to the appellant/husband, the only remedy available for him was to file an application under Section 151 of the CPC which the learned Family Court has rejected under the impugned order.

21. In our view, the learned Family Court appears to have overlooked the fact that Section 10(1) of the FC Act empowers a Family Court to exercise all powers vested in a Civil Court and provisions of the CPC have been specifically made applicable to the proceedings before the Family Court. In fact, it has been clearly provided that for the purposes of exercise of the provisions of the CPC, a Family Court shall be deemed to be a Civil Court. Further, even Section 7(1) of the FC Act provides that a Family Court can exercise the same jurisdiction as exercisable by any District Court or other sub-ordinate Civil Courts. In fact, the FC Act clearly sets out that the Family Court is free to evolve its procedure and will not be bound by the technicalities of the Indian Evidence Act or the CPC.

22. We have also considered the decisions in Ram Chand and Sons Sugar Mills Private Ltd. (supra), Durgesh Sharma (supra) and My Palace Mutually Aided Co-operative Society (supra) relied upon by the respondents wherein it has been held that the inherent powers of the Court under Section 151 of the CPC though undoubtedly wide, can be exercised only in the absence of statutory provisions dealing with the reliefs sought to be granted under Section 151 of the CPC; this inherent power cannot be exercised if the same is in conflict with any statutory provision. However, in view of our conclusion hereinabove, that there was neither any specific Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 12 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29 statutory provision under which the appellant could have sought the relief as prayed for in his application nor was the relief being sought by him in contravention of any statutory provision, the said decisions would not be applicable to the facts of the present case.

23. For the aforesaid reasons, we are of the view that the impugned order insofar as it rejects the appellant's application under Section 151 of the CPC is unsustainable. The same is, accordingly, set aside by directing the learned Family Court to decide the said application afresh after dealing with the merits of the reliefs sought by the appellant. Taking into account the urgency expressed by the appellant, we direct that the application be decided within a period of four weeks.

24. We, however, make it clear that we have not expressed any opinion on the merits of the appellant's claim in the application and therefore, it will be open for both sides to raise all contentions on merits as permissible in law.

(REKHA PALLI) JUDGE (SHALINDER KAUR) JUDGE AUGUST 22, 2024 fk/ab Signature Not Verified Digitally Signed MAT.APP.(F.C.) 90/2024 Page 13 of 13 By:SAURABH RAWAT Signing Date:23.08.2024 21:15:29

Unlock Advanced Research with PRISMAI

Delhi High Court