Delhi District Court
Madhu Singh vs Jai Singh on 30 April, 2010
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE (CENTRAL12), DELHI.
Civil Suit No.: 247/04
Unique case ID No. 02401C6057472004
Madhu Singh
W/o Jai Singh,
R/o A/242,
Vikaspuri,
New Delhi.
........Plaintiff
Versus
Jai Singh
S/o Ajit Singh
R/o A/242,
Vikaspuri,
New Delhi.
AND
Ajit Singh
S/o Late Shri Singh Ram
R/o A/242,
Vikaspuri,
New Delhi.
.........Defendants
Date of institution of the suit : 20.08.2004
Reserved for judgment on : 27.04.2010
Date of pronouncement of judgment : 30.04.2010
JUDGMENT
1 This is a suit filed under Section 18 of The Hindu Adoptions and Maintenance Act, 1956. Briefly stated the facts of the case are:
(a) Plaintiff got married to defendant no. 1 according to Hindu Civil Suit no. 247/2004 Page 1 of 36 rites and ceremonies at Delhi on 30.11.1983. A daughter and son were born in 1986 and 1988 respectively.
(b) First floor of the house no. A/242. Vikaspuri, New Delhi (herein after suit property) where the parties reside, is absolutely owned by defendant no. 1. This house was sold to him in the year 1997 by virtue of a sale deed for an amount of Rs. One lac only, by defendant no. 2 who is father of defendant no. 1.
Defendant no. 2 in collusion with defendant no. 1 had entered into this fraudulent sale.
(c) Right from the beginning the plaintiff had to face hostility in the matrimonial home as parties had a love marriage and the same was not acceptable to her inlaws. Parents of the plaintiff resided in Jodhpur and had to come all the way to Delhi and made arrangements for the wedding as per the wishes of the defendant family. Despite the best efforts of the plaintiff and her family, inlaws of the plaintiff were extremely cold and distant and did not welcome the plaintiff into the family.
(d) After the wedding the plaintiff and defendant no. 1 resided at A/242, Ground Floor, Vikaspuri, Delhi as the same was matrimonial home of the plaintiff and was owned by defendant no. 2. Defendant no. 1 did not have a steady job and was changing his job frequently. Financial instability and uncertainty due to defendant no. 1's working pattern forced the plaintiff to look up for a job. In July 1984, the plaintiff succeeded in getting appointment as a teacher in St. Francis Desales, school, Vikaspuri, New Delhi and was drawing a salary of Rs.1400/ per Civil Suit no. 247/2004 Page 2 of 36 month.
(e) In or about 1985, plaintiff and defendant no. 1 driven out of the matrimonial home by her inlaws and had to take a rented accommodation at Janakpuri. Parties were forced to live in a garage kind of an accommodation and faced a lot of problems.
(f) Thereafter, defendant no. 1 took up a job with Bretheren Corporation somewhere in mid 1986 at Rs.1000/ per month. He continued in the same job for about three years. In 1989 defendant no. 1 took another job and was without work for a period of six months during which plaintiff had to take care all the responsibilities of the household. Defendant no. 1 extremely irresponsible and did not provide any financial help and was entirely dependent on the plaintiff. During entire period starting from July 1984, plaintiff catered to the financial as well as other responsibilities of the household. Plaintiff had supported defendant no. 1 and took care of the children single handedly as income of defendant no. 1 was highly inadequate to take care of even the basic necessities of life. Defendant no. 1 took up different jobs between 1991 to 1996 and was again without job for a substantial period of time. Financial instability and uncertainty due to defendant no. 1's working pattern caused immense emotional stress on the plaintiff. In 1991, parties were forced to return to the matrimonial home and stay with defendant no. 1's parents as he was unable to provide substantially for himself and the plaintiff. Once again plaintiff was faced with a lot of hostility and animosity from her inlaws who Civil Suit no. 247/2004 Page 3 of 36 had not accepted her willingly till date. Plaintiff had to suffer the same for the sake of her children and defendant no. 1.
(g) In 1992 defendant no. 1 took a loan in the name of defendant no. 2. He started construction at the first floor of the house at A242, Vikaspuri, New Delhi. Loan amount was paid back from the joint account held by the plaintiff and defendant no. 1.
(h) Defendant no. 1 and plaintiff shifted to the first floor in October, 92 and the house was entirely furnished by the parties. Plaintiff made substantial contributions and bought all the household goods with her separate earnings. Plaintiff made more contribution in setting up her matrimonial home.
(i) In 1998, defendant no. 1 started his own Consultancy in partnership at Bhikaji Cama Place, New Delhi. Partnership could not work due to the lack of interest by defendant no. 1 in his work and as a result, defendant no. 1 had to start his own concern in the year, 2001. Again, plaintiff had to take care of all the household as well as financial responsibilities as defendant no. 1 was making minor contributions not adequate to cater the needs of the growing children.
(j) In November 2001 to the horror and shock of the plaintiff, defendant no. 1 was involved in an extramarital affair with a colleague. Discovery of such an affair caused immense pain and anger to the plaintiff. She caught defendant no. 1 and the woman concerned red handed in Army Mess. Despite such a discovery the plaintiff tried to sort out things for the sake of her Civil Suit no. 247/2004 Page 4 of 36 children and in an effort to save her marriage. She also took a loan in her name to enable defendant no. 1 to take up a new office space. She had pledged a part of her salary to Citibank. Defendant no. 1 had turned extremely violent and defensive when he faced with the truth and discovery of his ongoing affair with his colleague. Defendant no. 1 refused to sever ties with the woman concerned despite several requests by the plaintiff. Plaintiff was subjected to constant harassment by the woman concerned who made constant and repetitive phone calls to the plaintiff giving out the details of the on going affair between her and defendant no. 1. Defendant no. 1 was physically violent and abusive on a number of occasions. Such aggressive and violent outbursts had a negative impact on the children of the plaintiff and has caused immense cruelty to the plaintiff as well as to her children.
(k) In these circumstances, plaintiff was forced to seek help form her family including her sister and her father. She called her father about three times for help to resolve the matter. Despite efforts on the part of the plaintiff, neither defendant no. 1 nor his family were willing to put an end to the abuse and harassment. The vicious atmosphere created by defendant no. 1 and his family had an adverse effect on the plaintiff and in turn had caused both physical and emotional distress to the father of the plaintiff.
(l) On 21.07.04, defendant no. 1 turned extremely abusive and aggressive towards the plaintiff and her sister who was Civil Suit no. 247/2004 Page 5 of 36 visiting from Amritsar and wanted to help to resolve the matter between the parties. Instead of appreciating the help, defendant no. 1 and his family verbally abused the plaintiff and her sister and asked her to leave the house. Plaintiff's sister was not allowed to enter in the house. Due to the circumstances and in view of defendant no. 1's extremely abusive behavior, the plaintiff and her family were forced to call the police. However, police did not take any action. A notice was issued to defendant no. 1 on 30.07.04 asking him to stop harassment to the plaintiff and to stop asking her to leave the matrimonial home. Defendant no.1 received the notice and as a retaliatory measure turned physically violent towards the plaintiff.
(m) On 02.08.04, defendant no. 1 as another retaliatory measure threatened that he would transfer his house, First Floor at A/242, Vikaspuri in his father's name. He went to the extent and asked the plaintiff to pay rent for staying in the matrimonial home. On 02.08.04, defendant no. 1 carried out the above threats and entered into a fictitious "sale deed" in respect of the suit property in favour of defendant no. 2. This family arrangement has been entered into to carry out the threats given by defendant no. 1 to further intimidate the plaintiff and to wrongly extract money form her. It is stated that this property continues to be matrimonial home of the plaintiff. It is further stated that income of defendant no.1 is approximately Rs. 50,000/ p.m. He has neglected and failed to maintain his wife and children. Defendant no. 1 has no other liability as his father Civil Suit no. 247/2004 Page 6 of 36 gets a very good pension of Rs.8,000/ to maintain himself and his wife. Defendants no. 1 and 2 are duty bound and owes a responsibility to provide residence to the plaintiff;
(n) It is prayed by the plaintiff inter alia to allow her right to reside in her matrimonial home along with other relief. 2 Written statement is filed by defendant no. 1 wherein it is stated that the suit property was sold on 02.08.04 through registered sale deed and stamp papers for the sale deed were purchased on 30.07.04. It is further stated that defendant no. 1 is a man of means and was working in dignified manner and he was earning handsome amount, even prior to meeting the plaintiff and thereafter till date. It is further stated that salary of defendant no. 1 is more than sufficient to lead a decent life. In these circumstances, it was not at all required for the plaintiff to look after any job. It is further stated that the plaintiff did not want to remain at house after marriage and therefore, in order to pass her time she joined very small job comparative to the status and job of the defendant on a meager salary of Rs.1400/. It is further stated that plaintiff could not adjust with the parents of defendant no. 1 and for this reason defendant shifted in a rented accommodation at A2 Block of Janak Puri. Thereafter, they shifted to A1/355, Janak Puri, New Delhi. It is further stated that plaintiff was not able to look after the children and carry on with her job and she did not want to leave the job. In these circumstances, defendant after being insisted by the plaintiff time and again, approached his parents through relatives. However again plaintiff could not adjust with the parents of defendant no. 1. Father of defendant no. 1 also gave a loan to defendant no. 1 in cash and sometimes through cheques also.
Defendant no. 1 became the member of Diesel Shed Group Housing Civil Suit no. 247/2004 Page 7 of 36 Society where he got a plot no. 26, in Sector 10, Dwarka. He has further stated that he had bought an office space in Bhikaji Cama Palace and took a loan of Rs. 3 lacs from Citibank in the name of the plaintiff on 16.11.01. Defendant no. 1 deposited repayment of seven installments. It is further stated that he also got cancelled membership in the housing society, took back the entire amount of Rs.4,60,000/ and had paid all the installments to the bank on 26.03.02. He has further stated that he admitted his son in prestigious school St. John and Bansal Classes at Kota where he spent Rs. One lac. He used to take family twice in a year for a holiday trip besides taking the family on weekend. Plaintiff had also gone to Goa for attending a social function by AIR. He has also got luxurious items for modern home such as A/C and other electrical and electronic gadgets etc. Defendant no. 1 deposited Rs. 4 lacs in PPF account of the plaintiff and also various other investments in her name. Rest of the contents of the plaint are also denied by defendant no. 1 in his written statement.
3 Replication filed by the plaintiff wherein she controverted the contentions raised by the defendant in the written statement. She reiterated and affirmed the contents of the plaint.
4 Initially this suit was filed in August, 04. Thereafter an application under Order 6 Rule 17 was moved by the plaintiff on 14.09.04. The said application was allowed on 03.05.05. Amended plaint and amended written statement was also filed.
5 Defendant no.2 did not file written statement and he was proceeded exparte by order dated 02.02.2006 and he remained exparte throughout. 6 By order dated 03.02.06 my ld. predecessor framed following issues:
Issue no. 1 Whether the property bearing no. A/242, Civil Suit no. 247/2004 Page 8 of 36 Vikaspuri, Delhi has been sold away by respondent no. 1 to respondent no. 2 on 02.08.04? If so, its effect? OPD Issue no. 2 Whether the suit has been properly valued?
OPD Issue no. 3 Whether the loan for the purpose of construction of first floor of house no. A/242, Vikaspuri was taken jointly by the respondent no. 1 and petitioner and the same is being paid back out of the joint account of petitioner and respondent no. 1? OPP Issue no. 4 Whether petitioner is entitled to the relief of maintenance and residence against he respondent no. 1 and 2, as prayed? If so, to what extent? OPP Issue no. 5 Whether petitioner is entitled to the relief of injunction against respondent no. 1 and 2 from dispossessing her of matrimonial home, as prayed? OPP Issue no. 6 Whether petitioner is entitled to a decree of declaration with effect that sale deed dated 02.08.04 is null and void? OPP Issue no. 7 Relief
7 To prove this issue, plaintiff examined herself as PW1. She was cross examined at length on various dates. Her cross examination was concluded on 24.4.2007. Thereafter, the case was adjourned for remaining PE. On 27.11.2007, one summoned witness Sh. R.K. Jethwani, Special Assistant, State Bank of India appeared as a summoned witness for the plaintiff. But the plaintiff did not appear despite calls. For this reason, this witness was not examined. Thereafter, by order dated 17.1.2008, my ld. Predecessor closed Civil Suit no. 247/2004 Page 9 of 36 PE with observations as mentioned in the said order sheet. In rebuttal, defendant no.1 appeared as DW1. He was examined and cross examined at length on various dates. DW2 Sh. Balwinder Singh Chhina was also examined and cross examined. Sh. Vinod Kumar Sethi was working in Indian Bank was also examined as DW3. Sh. Nanu Lal was examined as DW4. Sh. Neeraj Sharma was examined as DW6. Sh. Sandeep Kumar, Credit Manager, Citi Bank was examined as DW7. Sh. R.K. Jethwani, Special Assistant, S.B.I., Janakpuri, New Delhi was examined as DW8. Sh. Nitin Kumar, trainee of HDFC Ltd was examined as DW9. Sh. Vishvamitra Mahajan of Income Tax Department was examined as DW10. However, perusal of the record reveals that no witness is there as DW5 and due to clerical mistake, witness numbered DW6 and so on.
8 I have gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during the course of trial. I have also heard Sh. Pradeep Narula, counsel for the plaintiff and Sh. D. S. Dalal, counsel for defendant. My issuewise findings are: 9 Issue no. 1 Whether the property bearing no. A/242, Vikaspuri, Delhi has been sold away by respondent no. 1 to respondent no. 2 on 02.08.04? If so, its effect? OPD Onus to prove this issue was upon the defendants. To prove this issue, defendant no.1 tendered his evidence by way of affidavit Ex. DW1/A. He tendered copy of the sale deed dated 02.8.2004 as Ex. DW1/15. He deposed that he sold the first floor of A242, Vikaspuri, New Delhi to his father i.e. defendant no.2 on 02.8.2004 through registered sale deed and the stamp Civil Suit no. 247/2004 Page 10 of 36 papers for the said sale deed were purchased on 30.7.2004.
During cross examination, a suggestion was given by the plaintiff to this witness that sale deed was done in connivance with defendant no. 2 so that defendant could evict the plaintiff from the house, which is denied by DW1. He has further stated that he sold the house to facilitate the education of his children and to arrange the expenditure for the same. A further suggestion was given that he was deposing falsely the fact that for making arrangement for the education of the children he had sold the house and said suggestion was also denied by the witness. A further suggestion was given that at the time, the house was sold the loan of the office has been repaid and hence there was no loan repaid by him. The said suggestion was also denied by DW1. A further suggestion was given to him that plaintiff signed upon the sale deed as a witness and the said suggestion was also denied. He admits that plaintiff did not accompany him at the time of purchase of stamp papers for executing the sale deed. He has further admitted that no negotiation was took place in front of the plaintiff. Ex. DW1/15 is perused. As per clause 2, consideration for the said sale deed was paid by defendant no. 1 to defendant no. 2 through cheque no. 681945 dated 30.07.04 drawn on Punjab National Bank, Vikas Puri, New Delhi110 018. Upon this document there is signature of vendor and vendee separately. This document is witnessed by Sh. R.S. Modgil. During cross examination no suggestion was put by the counsel for plaintiff to this witness that no consideration for the said sale deed was given by defendant no. 1 to defendant no. 2. It is further stated in Clause 5 of Ex. DW1/15 :
"(5. That the construction expenses of the first floor were initially borne by the VENDOR and later on they were repaid by the VENDEE through three different cheques Civil Suit no. 247/2004 Page 11 of 36 and the VENDOR hereby acknowledge and admit the receipt of the same."
DW6, L.D.C., Sub Registrar Office, Janakpuri also appeared who brought original of Ex. DW1/15. He proved this sale deed as he stated that the copy of the sale deed on the record as Ex. DW1/15 is a true copy as per his record. During cross examination, this witness stated that he had no knowledge whether this property was registered on market value or on the circle rate. He did not have any knowledge about the market value of the property at the time of registration. He has further stated that on the date of his deposition, the registration of the property is on the basis of circle rate. He was unable to comment upon the fact how the property was registered in 1997 for Rs. One Lac, once again registered for the same amount in the year 2004. However, this witness has not been asked by the defendant whether any objection was raised by the plaintiff to the concerned Sub Registrar against the registration of this document. In these circumstances, there is implied admission on the part of the plaintiff that she had not challenged or raised objection with the concerned Sub Registrar against the registration of this document. As per Clause5 of Ex. DW1/15, it is also stated that the construction expenses of the first floor were initially borne by the vendor and later on they were repaid by the vendee through three different cheques. Thus, the consideration of the property was by defendant no.1 to defendant no.2 not only Rs. One Lac but also the construction expenses of the first floor which were repaid by defendant no.1 to defendant no.2. This clause has not been challenged by the plaintiff during cross examination of DW1. In these circumstances, inference can be drawn that appropriate consideration was paid and if the consideration has been paid which was followed by execution of sale deed Ex. DW1/15 then inference can be drawn that this sale deed was Civil Suit no. 247/2004 Page 12 of 36 executed with a consideration and in accordance with law. Thus, defendant is successfully discharged the burden to prove this issue and accordingly, this issue is decided in favour of defendant no. 1. It is also admitted fact available on the record that at the very inception the property was in the name of defendant no.2 who in the year 1997 sold the same to defendant no.1 and in the year 2002, defendant no.1 resold this property to defendant no.2. However, the plaintiff has not challenged the transaction between defendant no.1 and defendant no.2 took place in the year 1997 but only challenged the transaction which took place in the year 2002 between both the defendants. The only ground raised that the consideration was equal but Clause5 of Ex. DW1/15 states that consideration was not the same. However, it is not opened to the plaintiff to challenge a transaction between two persons as she is a stranger to a transaction. It is only upon defendant no.2 or defendant no.1 to challenge the said transaction especially in view of observations made herein above.
10 Issue no. 2 Whether the suit has been properly valued? OPD Onus to prove this issue was upon the defendants. The plaintiff in her amended plaint has not made any valuation to the suit. However, on 03.5.2005 when an application under Section 149 CPC read with Order 6 Rule 17 CPC came up for arguments and disposal, ld. counsel for the plaintiff did not oppose that application and my ld. Predecessor on the same date i.e. on 03.5.2005 allowed the said application and directed to file enhanced court fees. The court fees was filed on 10.5.2005. Defendant did not oppose or challenge the said order thereafter. Thus, this issue is decided in view of the observations passed by my ld. Predecessor by orders dated 03.5.2005 and Civil Suit no. 247/2004 Page 13 of 36 13.5.2005 in favour of the plaintiff and against the defendants. This issue is decided accordingly in favour of the plaintiff.
11 Issues no. 3 and 4 Whether the loan for the purpose of construction of first floor of house no. A/242, Vikaspuri was taken jointly by the respondent no. 1 and petitioner and the same is being paid back out of the joint account of petitioner and respondent no. 1? OPP & Whether petitioner is entitled to the relief of maintenance and residence against he respondent no. 1 and 2, as prayed? If so, to what extent? OPP Since both these issues are interlinked to each other, therefore, I am going to decide both these issues with common findings. Onus to prove these issues was upon the plaintiff. To prove these issues, it is deposed by the plaintiff in para 3 of her affidavit of evidence Ex. PW1/A that matrimonial home of the plaintiff at the time of wedding was owned by her fatherinlaw i.e. defendant no. 2. She further deposed that in 1992, defendants no. 1 and 2 took a loan in the name of defendant no. 2 as he was owner of the ground floor. The property mortgaged for loan purposes and started constructing the first floor of the house at A242, Vikaspuri, the matrimonial home of the plaintiff. The loan was paid back from the joint account of plaintiff and defendant no. 1. In addition, the plaintiff took care of all other financial responsibilities. In para 9 she further deposed that she has a right to reside separately from defendant no. 1 in the circumstances that defendant no. 1 has treated the plaintiff with extreme physical and mental cruelty. During cross examination, this witness stated that for the first time she met defendant no. 1 in the year 1981 in Civil Suit no. 247/2004 Page 14 of 36 Jodhpur. At that time defendant no. 1 was employed in the army as Captain in short service commission. In 1983 they decided to get married. At that time also defendant no. 1 was in army. He left the army in September, 1983. They got engaged in July, 1983. She categorically stated that it was clear to her that defendant no. 1 was to leave the job of army by September, 1983. If this piece of evidence of the witness is seen in the light of Para 3 of amended plaint where it is alleged that defendant no. 3 did not have a steady job and would keep changing his job frequently. Then it is first time stated by PW1 in cross examination that at the time of engagement she was aware that defendant no. 1 has to leave the job from army. When in November, 83 they got married, defendant no. 1 was without job and plaintiff was aware about this fact. She did not state this fact in her plaint and projected the facts otherwise. She has further stated that the marriage ceremonies took place in Vasant Continental in Delhi. Husband of her mother's sister was residing in Vasant Vihar at the time of her marriage, whose tenant was one of the employees of Vasant Continental. She has further admitted that concessions were obtained from Vasant Continental through that tenant of her uncle. She further admits that marriage was even video filmed which was rare at that time and was arranged by the defendants. She has further admitted that no dowry was demanded by the defendants. It is an admitted fact in cross examination that defendants had incurred expenditure of Rs. 15,000/ (at that time) for arrangement of the marriage and the said marriage was without demand of dowry by the defendants.
She has further stated that after marriage she was given one bed room on the ground floor in the matrimonial house. She has further stated that other brothers and sisters of defendant no. 1 were not residing at that house. She Civil Suit no. 247/2004 Page 15 of 36 has further admitted that rented house was located by both of them after seeing about 20 house. She has admitted that in the year 1997 Mr. Sharma, Secretary of Diesel Group Housing society visited our house, after serving him tea she went away. She has further admitted that she visited the Bhoomi Pujan of the society along with her children. She has further admitted that she went to the site of housing society to see the progress of construction along with defendant no. 1. Thus, it is her admitted case that she was searching along with her husband an alternative accommodation and for this reason she attended Bhoomi Pujan of a housing society along with her children. She had also went to see the progress of construction along with defendant no. 1. DW2 Sh. Balwinder Singh Chhina appeared in the witness box and he stated that he was President of Dissel Shad Cooperative Group Housing Society. According to record, defendant no.1 was the member of the society. He proved relevant folio of the ledger showing the account of defendant no.1. The said folio is Ex. DW2/1. This document also proved that defendant no.1 took the membership of the housing society and accordingly he had paid the substantial amount to the said society. During cross examination, this witness has not been challenged regarding the entries of Ex. DW2/1 by the counsel for the plaintiff. It is her case in the plaint that family members of the defendant were distant and cold towards her and subjected her to lot of taunts and verbal harassment. On the other hand she has admitted in cross examination that her father in law visited first floor of the property, where the plaintiff was living. She has further admitted that he visited many times but she could not tell as to many times he visited. Same was her answer for her motherinlaw. She also admitted that during disputes between her and defendant no. 1 her motherinlaw visited first floor 5/6 times to settle their dispute on her own. She also admitted that her Civil Suit no. 247/2004 Page 16 of 36 motherinlaw never refused to come upstairs at her request for settle the dispute. Thus, story put forward by the plaintiff in her plaint regarding distant and cold behaviour of her inlaws itself falsifies in the light of her evidence before this court.
In para 11 of the plaint, it is stated by plaintiff that during consultancy work at Bhikaji Cama Place, New Delhi, it could not work due to lack interest by defendant no. 1. However she could not recollect from which source cash of Rs.35,000/ was deposited in her account on 03.08.01 though she denied the suggestion that the same was deposited by defendant no. 1. She has further admitted that loan was paid back by defendant no. 1 before the due date. Thus again plaintiff did not come with true and complete facts in her plaint as later on revealed during the course of trial. She has further admitted that her son was admitted in Bansal Classes of Kota, Rajasthan for preparing its entrance and defendant has paid One Lac initially and Rs.10,000/ per month, thereafter. She has further admitted that her son got admitted in Academy of Maritime Engineering and training at Chennai where the annual expenses of Rs.1,50,000/ were paid by defendant no. 1. She has also admitted that she is an income tax payee. She has also stated that she did not know that defendant no. 1 taken insurances in the name of her children and has been paying regular premium. She has also admitted that some of expenses of her daughter were borne by her and some by defendant no. 1. She has also admitted that after marriage, her name was included as joint account holder in the bank account held by defendant no.1 in SBI. She has further stated that at the same time she was also maintaining her separate bank account opened by her school. One witness Sh. R.K. Jethwani, Special Assistant, S.B.I., Janakpuri, New Delhi appeared as DW8. This witness was Civil Suit no. 247/2004 Page 17 of 36 earlier summoned by the plaintiff. He appeared with the summoned record on 27.11.2007. However, the plaintiff or her counsel did not appear to examine this witness. Later on, this witness appeared as defendant's witness and proved the statement of account of joint account of defendant no.1 and the plaintiff. He proved entries from 17.7.2000 upto 13.1.2009. He further proved statement of account of the bank account maintained by the plaintiff in the same branch. She has also admitted that she came to know about the fact of sale deed in the evening of the day when the impugned sale deed was registered. Original plaint is perused. Original plaint was filed on 20.08.04. It is her own case of the plaintiff that sale deed was registered on 20.08.04. Original plaint was also signed and verified on 19.08.04. It is the case of the plaintiff in evidence that on the very same day in the late evening, she came to know the fact of registration of sale deed. Thus, here again it is to be observed that what stopped the plaintiff to disclose this fact in the original plaint itself. Later on she took steps to amend the plaint and brought his fact on the record. Thus, this conduct of the plaintiff shows that at the initial stage she had concealed this material fact at the time of institution of suit. She has also admitted that water and electricity bills of the entire house were being paid by defendant no. 1. In the light of entire evidence it is the case where the plaintiff in her plaint projected defendant no. 1 as a person who did not have means or was unable to maintain the plaintiff. On the other hand she has admitted at the various places of cross examination that defendant no. 1 was taking care of all the needs of the plaintiff as well as the children. This court by order dated 12.04.10 directed both the parties to furnish the income proof for the last three months. In compliance of this order plaintiff brought her salary slip of month of November, December, 09 and March, 10. As per salary Civil Suit no. 247/2004 Page 18 of 36 slip of November, 09 plaintiff is getting net salary of Rs.41,357/ which includes house rent allowance of Rs.6,840/. Thus, plaintiff is getting house rent allowance from her employer. Thus, according to her status she is already getting house rent allowance i.e. provisions for her accommodation from her employer. I am of the considered opinion, this reason is sufficient to prove that she is not dependent upon her husband for the purpose of residence. It is not the case of the plaintiff that she is not doing a job below her states. Besides it, she is also getting medical allowance, TPT allowance and PF contribution. She is also making voluntary payment towards provident fund of Rs.5720/. Thus, she is earning sufficient amount to maintain herself. On the other hand income tax return for the assessment year 20092010 filed by defendant no. 1 wherein his gross total income is Rs.5,53,783/. In column no. 10 which is regarding value of fringe benefits and the same is nil. Thus, defendant no. 1 who has to bear out of this gross total income and has to make provision of house rent, medical, security for future i.e. insurance cover etc. Defendant no. 1 is self employed man and thus he has to arrange all such benefits out of his gross income as there is none for him to arrange these funds. If gross total income of defendant no. 1 is divided by 12 then it come out about Rs. 46,000/ per month. Thus, plaintiff and defendant no. 1 are earning equivalent amount. In these circumstances, none is dependent upon other either for maintenance or for any thing such as food, clothes or residence. Especially, when plaintiff is already getting house rent allowance from her employer. This court can take judicial notice of the fact that in Delhi city, in good locality one bed room set (one + one room) with bath room and kitchen can be easily arranged in this amount.
12 However, it is the case of the plaintiff that she has not come for Civil Suit no. 247/2004 Page 19 of 36 maintenance either for food or clothes but maintenance for residence only as she has prayed that she would be allowed for her right to reside in the matrimonial home. Let us discuss law on this aspects. 13 Ld. counsel for plaintiff has relied upon definition of Matrimonial home in Maxine M. Kerr held:
'A matrimonial home is defined by the Family Law Act to be "every property in which a person has an interest and that is or, if the spouses have separated, was at the time of the separation ordinarily occupied by the person and his or her spouse as their family residence". Only married spouses may have a matrimonial home. The significance of having a matrimonial home is that both spouses have an equal right to possession, regardless of ownership. That is, one spouse may legally own the home, but, nevertheless, both spouses will be equally entitled to live in it. If a relationship breaks down, the spouse owning the matrimonial home is not entitled to require the other spouse to leave it. Likewise, one spouse cannot unilaterally change the locks to a matrimonial home. This entitlement to equal possession can be varied only by court order or agreement (not including a marriage contract).' The Hon'ble Supreme Court of India in S. R. Batra Vs. Taruna Batra AIR 2007 SC 1118 stated in para 16 : 'There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the fatherinlaw or motherinlaw.' The Hon'ble Delhi High Court further discussed about matrimonial home in para 8 of a judgment in a case 'Neetu Mittal vs Kanta Mittal & Ors.' 152 (2008) DLT 691:Civil Suit no. 247/2004 Page 20 of 36
'As observed by the Supreme Court, 'Matrimonial home' is not defined in any of the statutory provisions. However, phrase "Matrimonial home" refers to the place which is dwelling house used by the parties, i.e., husband and wife or a place which was being used by husband and wife as the family residence. Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughterinlaw with the parents of husband turn sour and are not cordial the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is selfacquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents up to the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.' It is further observed in para 9 of this judgment '...........The parents can always forsake such a son and daughterinlaw and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a Civil Suit no. 247/2004 Page 21 of 36 son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughters. She can assert her rights, 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 'Shumita Didi Sandhu Vs. Sanjay Singh Sandhu other" Delhi High Court 2007 (2) F.J. C. C. 236, in para 17 it is stated:
'Learned counsel for the plaintiff, however, submitted that the Supreme Court did not go to the extent of holding that daughterinlaw had no right to stay in the house belonging to parents inlaw even if it was matrimonial home. His submission was that in the aforesaid judgment it was not decided as to whether the house in question was a matrimonial home and if it was so, whether daughterinlaw had right to stay in the said house or not. He pleaded that in the absence of authoritative pronouncement on this aspect by the Supreme Court, decision in the case of Taruna Batra, (supra) should prevail. I am afraid and it is difficult to read the judgment of the Supreme Court in the manner learned counsel for the plaintiff wants me to read. Ratio of this case is clear, namely, the daughterinlaw has no legal right to stay in the house which belongs to her parentsinlaw.' Para 18 of this judgment further states that:
'Legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as Civil Suit no. 247/2004 Page 22 of 36 matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parentsinlaw in which husband has no right, title or interest and they had allowed their son along with daughterinlaw to stay in the said house, it would be a permissive possession by the daughterinlaw but would not give any right to her to stay in the said house. What would be the position if there is not dispute between the husband and wife but the parents of the husband do not want their son and son's wife to stay in the said house for certain reason. Obviously, their son, who is only a permissive licencee and staying in the house with his wife cannot claim legal right therein.
Our Hon'ble High Court in 'Ajay Kumar Jain Vs. Baljit Kumar Jain' II (2009) DMC 64 (DB) held that:
'Matrimonial home is a place where both the parties i.e. husband and wife seek to resideobject of same is that wife should not be left homeless by any action of husband.' In the same judgment, Hon'ble Divisional Bench of our High Court held in para 9 and 10 that:
'9. The real bone of contention is the suit property. The respondent is adamant that the same is her matrimonial home and she is not willing to shift to another place. On the other hand, it has been pointed out by learned Counsel for the appellant that a suit for partition in respect of the said complete property had been filed by the brother of the appellant as both the appellant and his brother own 50% share each and preliminary decree had been passed. The question of the mode of division or sale of property was pending consideration before the competent Court and it was in view thereof that the Civil Suit no. 247/2004 Page 23 of 36 appellant had offered to shift the respondent to another house.
10.Learned Single Judge in the impugned order has laid great emphasis on the fact that both the appellant and the respondent had been originally residing in the suit property being the first floor....' On the other hand ld. counsel for plaintiff relied upon para 13 and 15 of Anu Seth Vs. Rohit Narain Seth 87 (2000) DLT 486.
The learned Counsel for the defendant no. 1 strongly relied upon the judgment of this court in Sardar Sudhir Singh & Ors. Narinder Kaur, (supra), to contend that nature of a permissive user as a daughterinlaw after marriage would not make the possession of the daughterinlaw lawful. In the aforesaid case the learned Single Judge of this Court held that the fatherinlaw had only the moral duty and not legal duty to provide maintenance and support to the respondent, daughterinlaw. The Court held that the obligation to provide residence is that of her husband. Further it is significant that in the aforesaid judgment the Court held that the wife was entitled to seek and claim the residence from the husband. The relevant observations are in para 14 of the judgment, which reads as follows :
"The Trial Court acted with material irregularity in not noticing that in the instant case far from establishing a prima facie case, the respondent had not even pleaded or asserted any legal right. It was not the respondent's case that the property in suit is joint family or that there is a legal obligation on the petitioners to provide her residence. Such an obligation is that of her husband. The respondent is entitled to seek and claim residence from him. In the instant case a reasonable offer made for provision of separate residence to the respondent was spurned by her purely for exploiting the situation and extracting a huge sum of money from the petitioners/inlaws. Respondent's conduct is such as Civil Suit no. 247/2004 Page 24 of 36 disentitles her from the discretionary relief of injunction. The revisions is, therefore, allowed and the injunction granted by the Appellate Court is vacated, however, the status quo order granted shall continue for a period of three months to enable the respondent to find alternate accommodation for herself."
I am, therefore, of the view that the rights of a wife cannot be defeated in this manner by the husband by shifting the residence to his married sister's houses. It is not in dispute that prior to plaintiff No. 1's leaving the matrimonial home in August, 1999 the parties were residing at 6A, Jantar Mantar Road, New Delhi and treated the portion of the house where they were staying as their matrimonial home. The defendant no. 1 cannot avoid his responsibility to provide a matrimonial home to plaintiff No.1 by sifting his residence. This stratagem and device of avoiding and evading marital responsibility cannot be countenanced by a Court.
He is bound in law to provide a matrimonial home to the plaintiff No.1. However, if he creates a situation by which such relief cannot be granted at present, I am clearly of the view that he should be directed to provide sufficient monetary support to the plaintiff No. 1 so that she can rent a house for herself and her children which will be the matrimonial house of the couple. Of course the defendant no. 1 will also be entitled to residence in such a house. Considering the social and comfortable financial status of the defendants as well as the defendant No. 1 a comfortable house should be provided to the plaintiffs. In this view of the matter I am clearly of the view that defendant No. 1 should be directed to pay a sum of Rs. 20,000/ per month to the plaintiff with effect from 1st September, 2000 so that she can set up a matrimonial home for the parties.
He further relies upon para 18 and 20 of Kavita Ghambhir Vs. Civil Suit no. 247/2004 Page 25 of 36 Harichand Ghambir, 162 (2009) DLT 459 held:
18 I am also of the view that even if it were to be accepted by this Court that the suit property was of the plaintiffs alone the decision of the trial Court holding the defendant to be an unauthorised occupant and liable to pay mesne profits cannot be sustained. As has been RFA 179/2008 Page 21 of 40 noticed already, the defendant's husband Anil Gambhir was living on the first floor of the suit property when he got married to the defendant on 04/07/1995. This fact was not disputed during the course of hearing of the appeal from the side of the respondents. It was also the plaintiffs' own case that after marrying the defendant, their son Anil Gambhir had brought her to the suit property and from the day of their marriage itself they had started living on the first floor of the suit property. The plaintiffs' case is that their son's possession of the first floor of their house was only a sort of 'permissive occupation' and so was the occupation of his wife. It was suggested to the defendant in her cross examination on behalf of the plaintiffs that her husband also had no right to stay in their house and even their children had no right to remain in occupation of their property. It is also the plaintiffs' case that the moment the permission given to their son and his wife to occupy the first floor of their property was revoked that portion was bound to be vacated by their son and his family. During the course of arguments this Court asked the learned counsel for the plaintiffs as to why the defendant's RFA 179/2008 Page 22 of 40 husband had not been sued by his parents to get back the possession of the portion of their house which they had permitted him to occupy as a 'permissive user' and when the plaintiffs themselves were claiming that even he had no right to stay in their property. Counsel's reply was that this aspect need not be gone into because the defendant had not taken any objection regarding the nonjoinder Civil Suit no. 247/2004 Page 26 of 36 of her husband in her written statement and even in appeal no such objection was raised on her behalf by her counsel during the course of arguments and secondly, the plaintiffs were not required to implead him since he had already vacated the first floor, had shifted to NOIDA before the filing of the present suit and only his wife and two minor children had continued to stay there and had become unauthorised occupants and suit could be filed against the defendant alone as the children were minors they also need not have been impleaded separately when their mother was a party. The counsel also said that in any event during the pendency of this suit both the children had been handed over by the defendant to their father. It was also submitted that a plaintiff being dominus litus can sue RFA 179/2008 Page 23 of 40 someone against whom he has to claim any relief through the process of law and he cannot be compelled to sue anybody whom he does not wish to sue or against whom no relief is to be claimed, as is the position in the present case where the plaintiffs do not want any relief against their son Anil Gambhir because of his having already vacated the house and shifted to a separate house. The occupation of the defendant's husband in the house of his parents being only permissive because of his being the son of the plaintiffs he was, according to the counsel, not a necessary party. In support of these submissions learned counsel placed reliance on three reported decisions of this court reported as 160 (2009) Delhi Law Times 642, "National Thermal Power Corporation Ltd. Vs. Wig Brothers Builders & Engineers Ltd.", 2002 (65) DRJ 146, "Ranbir Yadav Vs. State Bank of India" and 81 (1999) Delhi Law Times 370, "Amrit Kaur Vs. M/s. Om Prakash Fateh Chand Ltd. & Anr." and one unreported decision in RFA No. 286/2007 "Ramesh Kumar Handoo Vs. Binay Kumar Basu" decided on 19/11/07. Mr. Sindhwani, however, did not dispute the Civil Suit no. 247/2004 Page 27 of 36 legal position that the Court can suo moto also invoke the provisions RFA 179/2008 Page 24 of 40 of Order 1 Rule 10 CPC if it is felt that a necessary party without whom there can be no effective adjudication of the controversy between the parties has not been impleaded and also that this power can be invoked even by the appellate Court. While not disputing this position the learned counsel, however, kept on maintaining that the defendant's husband was not at all a necessary party.
20 In my view, nonimpleadment of their son in this suit by the plaintiffs is a fraud on the right of the defendant to stay in her matrimonial home being played by her husband in collusion with his parents. Learned counsel for the plaintiffs had submitted that the RFA 179/2008 Page 27 of 40 defendant's matrimonial home could be where her husband was living and the suit property had ceased to be her matrimonial home after her husband shifted to NOIDA. So, what was being suggested was that the defendant could go to occupy the house in NOIDA where her husband is staying. I do not agree with this submission. The husband may have many places to reside, whether as a tenant or licencee or in any other capacity and in each such place the wife also gets the right to stay claiming that to be her matrimonial home so long as their jural relationship as husbandwife subsists. It is also not necessary that both husbandwife must be staying in a particular house for it being labelled as the matrimonial home of the wife. In this regard I may refer to the vies of Bombay High Court in a judgment which was cited by the counsel for the plaintiffs before me. That judgment is reported as 2008 (5) Bom C R 149, "Shammi Nagpal Vs. Sudhir Nagpal".
In that case one of the points under consideration was as to what is meant by the expression 'matrimonial home' and it was observed that "In other words, the 'matrimonial home' is the domicile where Civil Suit no. 247/2004 Page 28 of 36 persons live together actually or constructively, as RFA 179/2008 Page 28 of 40 man and wife. "Now, in the present case if the plaintiffs had impleaded their son Anil in this suit only then, as observed already also, it could be known as to in what capacity he was staying on the first floor of the suit property, whether as a tenant, licencee or in any other capacity and whether that right to occupy the first floor was subsisting or had stood determined. In his absence it can not be decided by the court that his occupation was only permissive or as a gratuitous licencee of his parents. The plaintiffs have also not pleaded that they had revoked the permission given to their son to occupy the first floor of their son to occupy the first floor of their house. All these facts are required to be gone into since if the plaintiffs' permission to their son to occupy the first floor, if at all his possession was permissive, has not been revoked the first floor would continue to be the defendant's matrimonial home.
14 Thus, in view of the law discussed herein above, it comes out that matrimonial home is not defined in any law. A wife can claim provision for residence from her husband but she cannot claim as a matter of right that she is entitled to stay in the house either of her fatherinlaw or her of any inlaws. Matrimonial home is a place where both the parties i.e. husband and wife reside. The objective of the same is that a wife should not be left homeless by any action of husband but it is not open to the wife to claim as a matter of right to reside in a particular property though at the same time it is the duty of the husband to make arrangements to provide residence to the wife. The case titled as Kavita Ghambhir Vs. Harichand Ghambir is not applicable to the facts of the present case inasmuch as in the cited judgment, the husband was not a party whereas in this case husband and fatherinlaw both are parties. Moreover, the cited case was filed before the trial court by fatherinlaw for the eviction of the wife whereas in the present case no suit has been filed either by Civil Suit no. 247/2004 Page 29 of 36 fatherinlaw or by husband of the plaintiff.
15 It is further submitted by ld. counsel for plaintiff that in view of law laid down in various judgments, plaintiff is entitled the right of residence in the suit property. He further relies upon Komalam Amma Vs. Kumara Pillai Raghavan Pillai AIR 2009 SC 636 wherein para 11 and 12 it is held:
11 The Hindu Adoptions and Maintenance Act, 1956, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance, in Section 3 (b) to include "(1) In all cases, provision for food, clothing, residence, education and medical attendance and treatment."
12 In B.P. Achala Anand Vs. Appl. Reddy and Anr. (2005 (2) SCALE 105) it was observed as follows :
"Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual context of the present case, we are confining ourselves to dealing with the personal law as applicable to Hindus as the parties are so. A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is comelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance can not be defeated by the husband executing a Will to defeat such a right. (See : MULLA, Principles of Hindu Law, Vol. I, 18th Ed. 2001, paras 554 and 555). The right has come to be statutorily recognized with the enactment of the Hindu Adoptions and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause (b) of Section 3 of the Hindu Civil Suit no. 247/2004 Page 30 of 36 Adoption and Maintenance Act, 1956 as to include therein provision for residence amongst other things. For the purpose of maintenance the term 'wife' includes a divorced wife."
On the other hand, ld. counsel for defendant no. 1 further relied upon Sardar Malkiat Singh Vs. Kanwaljit Kaur 168 (2010) DLT 521 in para 15 and 16 it is held:
15 While the legal position is clear that the husband has a legal and moral obligation to provide residence to his wife, and if the house where the wife lived on being wedded, belongs to her husband, it would certainly be treated as a "shared household" or a matrimonial home, there is no such obligation on the fatherinlaw or the motherinlaw to provide residence to the daughterinlaw. It is also clear that if the house in question belongs to the joint Hindu family, of which the husband is a member, even that would be termed as a "matrimonial house". In the instant case, no such assertion has been made by the respondent No. 1 and as a matter of fact, it is fairly conceded that the house stands in the name of the appellant, her fatherinlaw. This would not, in my view, vest any right in the respondent No. 1 to stay indefinitely in the said house by claiming right of residence.
16. In Vimalben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel and Ors., III (2008) SLT 630=III (2008) CLT 147 (SC)=2008 (4) SCC 649, the Supreme Court while observing that the Domestic Violence Act provides for a higher right in favour of a wife, in that, she not only acquires a right to be maintained, but also thereunder acquires a right of residence, clarified that the said right as per the legislation extends to joint properties in which the husband has a share. In para18 of the said judgment, it was stated thus :
"18. Maintenance to a married wife during subsistence of marriage is on the husband. It is his Civil Suit no. 247/2004 Page 31 of 36 personal obligation. The obligation to maintain a daughterinlaw arises only when the husband has died. Such an obligation can only be met from the properties of which the husband is a cosharer and not otherwise. For invoking the said provision, the husband must have a share in the property. The property in the name of the motherinlaw can neither be a subject matter of attachment nor during the lifetime of the husband his personal liability to maintain his wife can be directed to be enforced against such property."
16 In view of the law discussed herein above, I am of the considered opinion that a woman can claim maintenance regarding her residence from her husband only when she is dependent upon her husband for residence. She could not claim for residence in a particular property but it is duty of the husband to provide residence to a wife who is dependent upon him or to make provisions thereof. But in this case it is already observed herein above that plaintiff is already earning equivalent income to her husband. It is also observed herein above that plaintiff is getting house rent allowance (HRA) from her employer and for this reason she is having means to make arrangement for her own residence. It is also admitted fact in his case that plaintiff was in the job as a teacher prior to her marriage in Jodhpur. After marriage she found a job in Delhi as a teacher. Thus, her status prior to marriage and after the marriage as a teacher and because of this status she is already getting house rent allowance, which is sufficient to provide the provisions for her house. In these circumstances, she is not dependent upon her husband i.e. defendant no. 1 either for residence or otherwise. Thus, defendant no. 1 is not liable to make provisions of residence for the plaintiff in the facts and circumstances of this case. Regarding defendant no. 2 it is already observed herein above that defendant no. 2 is fatherinlaw of the plaintiff and according Civil Suit no. 247/2004 Page 32 of 36 to the facts and circumstances of this case till defendant no. 1 is alive defendant no. 2 has no obligation to provide any maintenance or residence to the plaintiff. Moreover it is also observed herein above at various place that plaintiff is guilty of concealment and suppression of material facts at the time of filing of this suit.
The Hon'ble Supreme Court in S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and others (2004) 7 SCC 166 to177 in para 13 held:
13 As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been envolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case.
17 In this case, it is already observed that plaintiff has suppressed material facts as well as projected the story which she herself falsifies during cross examination. It is also to be observed that defendant in para 7 of Ex. DW1/A mentioned about his office where he was working and during cross examination, there is no challenge to this statement of defendant no.1 by the plaintiff. It is also the case of defendant no. 1 that she discharged the obligation and moral duty towards his children as well as the plaintiff. During cross examination it is stated by DW1 that he had spent the amount on the children as mentioned in affidavit. He has further stated that he maintained two cars one was Maruti 800 and another was Esteem. He has further stated that Esteem Car was in the name of his wife and he purchased the same in the name of his wife. He has further stated that plaintiff had not signed papers for the sale of Esteem car and he had singed the same on her behalf. He sold the car and kept this amount with him. However, there is no challenge to the Civil Suit no. 247/2004 Page 33 of 36 statement of defendant no. 1 that he had purchased both the cars. It is not the case of the plaintiff that she had made payment or contribution to purchase any of the cars though she was earning equivalent amount. It is further stated by defendant no. 1 that he was making payment of insurance, service and other relevant purposes in respect of car throughout. Again there is no challenge by the plaintiff to this piece of evidence. During cross examination, he has further stated that he had sold the house to facilitate the eduction of the children and to arrange expenditure for the same. A suggestion was given that he was making false statement regarding the education but it is not the case put by the plaintiff to DW1 how the amount for eduction of the children was arranged or the plaintiff had made the payment for the education of the children. It is brought on the record that defendant no. 1 had incurred huge expenditure towards the education of the children. It is also the case of defendant no. 1 that he had paid installments for the repayment of the loan for his office or other such obligations. If a husband pays the installments towards the repayment of the loan taken by him for his office then it is duty of a wife to share the said responsibility also, because making an office by a husband definitely enhance the income of the entire family which shall also be enjoyed by the wife as well as children. But it is not the case put by the plaintiff during cross examination that any specific amount or part thereof was made available by the plaintiff to her husband i.e. defendant no. 1 for repayment of loan of his office. On the other hand, it is admitted case of the plaintiff that she was maintaining her separate account also whereas it is not the case of the plaintiff that defendant no. 1 was maintaining his separate account. All along the case of the plaintiff is that plaintiff as well as defendant no. 1 was maintaining joint account. It is not the case of the plaintiff during cross examination that Civil Suit no. 247/2004 Page 34 of 36 defendant no. 1 had ever spent money on any luxury or vices which is detrimental to the interest of the family. In plaint, it is the case of the plaintiff that defendant no. 1 was having relationship with a woman whereas in Ex. Pw1/A nothing has been deposed by the plaintiff for any such relationship of defendant no. 1. Even, when defendant no.1 entered into witness box nothing as such was put by the plaintiff. Thus, plaintiff is also guilty of making false allegations in the plaint which are of very serious nature against defendant no.
1. Nothing as such has been put either in evidence of the plaintiff or during cross examination of the defendant by the plaintiff. Thus, conduct of the plaintiff disentitled her for any relief from this court. Plaintiff also did not disclose intentionally that she was also getting house rent allowance and has come before this court for the relief of right to reside in her matrimonial home. She is getting a handsome salary according to her job and status, from her employer in this regard. It is already observed that this court can take judicial notice of the fact that the plaintiff is getting amount as house rent allowance is sufficient for two rooms set (one bed room set) on rent in a decent colony. Thus, plaintiff is guilty of false and frivolous litigation before this court. This court is of the view that such type of suit should be dismissed with heavy cost. However this court is exercising restrain to itself keeping in view of the fact that plaintiff and defendant no. 1 are still living and dinning together and their further relationship should not be deteriorated. For this reason no cost is being imposed. Thus, issues no. 3 and 4 are decided against the plaintiff as she is failed to discharge the onus to prove these issues.
18 Issue no. 5 Whether petitioner is entitled to the relief of injunction against respondent no. 1 and 2 from dispossessing her of matrimonial home, as prayed? OPP Civil Suit no. 247/2004 Page 35 of 36 Onus to prove this issue was upon the plaintiff. However, during the disposal of issues no. 3 and 4, it is already observed that plaintiff has no right for residence qua the suit property. It is already discussed that plaintiff is also guilty of concealment and suppression of material facts. She is also guilty of projection of false allegations before this court. Therefore, she is also not entitled for the relief of injunction and this issue is also decided against the plaintiff.
19 Issue no. 6 Whether petitioner is entitled to a decree of declaration with effect that sale deed dated 02.08.04 is null and void? OPP Onus to prove this issue was upon the plaintiff. However, in view of observations made by this court during disposal of issue no. 1, this issue is also decided against the plaintiff as she is failed to discharge the burden to prove this issue.
20 Issue no. 7 Relief In view of observations made hereinabove, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court today i.e. 30.04.2010 Jitendra Kumar Mishra ADJ (Central)12, Delhi Civil Suit no. 247/2004 Page 36 of 36 Civil Suit No.: 247/2004 30.4.2010 Present Vide separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Jitendra Kumar Mishra ADJ (Central)12, Delhi 30.4.2010 Civil Suit no. 247/2004 Page 37 of 36