Punjab-Haryana High Court
Ranjit Kaur vs Major Harmohinder Singh on 2 December, 1999
Equivalent citations: (2000)126PLR267
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Major Harmohinder Singh instituted suit for permanent injunction against his wife Smt. Ranjit Kaur and others restraining them from interfering in any manner in his ownership and peaceful possession of the property in dispute. Later on, the suit was amended into one for mandatory injunction directing them to restore him possession as he was dispossessed (allegedly illegally and forcibly). It was alleged in the plaint that he was owner of the property in dispute and he was running Mansha Security Service in the said house, which was registered with the Director General Re-settlement, Ministry of External Affairs. Telephone No. 575179 was also lying installed in his house in his name. He is ex service man. He retired recently and constructed the house after having taken loan from the Housing Development financial Corporation. Instalments are being repaid by him. He was putting up in the house along-with his mother, servant and other staff. Unfortunately, his relations with his wife Smt. Ranjit Kaur became strained. Divorce proceedings arose between them, which are pending in the District Court at Chandigarh. Jasbir Singh and Balbir Singh defendants are her brothers while defendant No. 5 is also their relation. With the muscle power at their back, they dispossessed him forcibly from the said house No. 84 Phase IX SAS Nagar, Mohali.
2. Defendant Ranjit Kaur contested the suit urging that she is in exclusive possession of the house in which she is residing with her two minor sons for the last more than two years. This house was constructed by her with her own money. Her husband (Major Harmohinder Singh) filed divorce/judicial separation case against her and he is presently residing at Chandigarh with his sister in house No. 435, Sector 20-A, Chandigarh. Later on, she amended written statement and filed counter claim urging that she is entitled to retain the house in dispute as a residence being part of maintenance.
3. On the pleadings of the parties, the following issues were framed.
1. Whether the plaintiff is entitled to the permanent injunction, prayed for ? OPP 1/A. Whether the plaintiff is entitled to restoration of the possession as alleged? OPP 1/B. Whether the defts, are entitled to retain the possession of the disputed property on the basis of their rights of maintenance ? OPD
2. Relief.
4. Learned Civil Judge, Junior Division, Kharar decreed the suit of the plaintiff for mandatory injunction directing the defendants to restore possession of the disputed house to him (plaintiff). At the same time, conceding right of residence to her in the said house till she is provided with separate residence by her husband if he so desired in view of her findings, that this house was owned by the plaintiff and was in his possession and that he was dispossessed from there forcibly. It was also found that this house was built by him with his own funds. It was found that his wife Smt. Ranjit Kaur was entitled to be provided with residence by her husband and, therefore, right of residence was conceded in her favour.
5. Smt. Ranjit Kaur defendant went in appeal against the order of learned Civil Judge, Jr. Divn., Kharar dated 10.12.1997. Learned Additional District Judge, Ropar dismissed the appeal vide order dated 17.5.1999.
6. I have heard the learned counsel for the parties and have gone through the records.
7. It is conceded position that Major Harmohiner Singh is the husband and Smt. Ranjit Kaur is his wife. Conveyance deed Ex.PW1/3 shows that property in dispute is the ownership of Major Harmohinder Singh. He took a loan of Rs. 50, 000/- for constructing the house in dispute. He took loan on the basis of equitable mortgage. He mortgaged his Army Group Insurance Fund Scheme Certificate Ex. PW 2/C. Smt. Ranjit Kaur could not produce any record to show that she had constructed the house. Rather, she admitted the ownership of her husband so far as this house is concerned. She also admitted that loan was taken by her husband for the construction of the house. She also admitted the telephone installed in the name of her husband since the year 1991. There is no evidence that this house was constructed by Smt. Ranjit Kaur with her own funds. There is concurrent finding of fact arrived at by two Courts below that the house in dispute was constructed by plaintiff Major Harmohinder Singh and that he was the owner there of. There is no material on the record so that this finding of fact could be interfered with.
8. Now the question arises whether the wife had any right of residence in the house of her husband and whether that right is enforceable at law. Section 18 of the Hindu Adoptions and Maintenance Act, 1956 lays down as follows:-
"Maintenance of wife-(1) Subject to the provisions of this Section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her.
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
(c) if he is suffering form a virulent form of leprosy;
(d) if he has any other wife living.
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately;
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion."
9. According to Hindu Law, it is the right of the wife to be maintained by the husband and this right is an incident of the status or estate or matrimony. The obligation of the husband to maintain her is personal in character and arises from the very existence of their relationship by marriage. Where the husband fails to discharge the obligation of maintaining his wife, she can enforce her right to maintenance by instituting appropriate action. Ordinarily, the Hindu wife is bound to live with her husband. Sub-section (2) of this Section, however, spells out the circumstances in which a wife may live separately from her husband without forefeiting her claim to maintenance. She is, thus, entitled to put up separately from her husband if there are circumstances justifying her separate living from her husband.
10. It is the inherent right of a wife to be maintained by her husband. Right of maintenance includes right of residence also. When a husband marries, there arise certain obligations upon him towards his wife. Right of maintenance of the wife by her husband is one such right, which has been conceded by the provisions of Section 18 of the Hindu Adoption and Maintenance Act, 1956. It is the duty of the husband to provide his wife a home, comforts and necessities of life within his means and to treat her kindly and nicely and not cruelly or inhumanly and to discharge the duties flowing out of marital relationship.
11. It may be reiterated that the house in dispute is owned by the husband. Wife has a right to reside in this house. Husband is not entitled to dispossess his wife from this house as it is his duty to provide her with residence.
12. In view of the fact that Smt. Ranjit Kaur has a right of residence against her husband, which is enforceable at law, the plaintiff-respondent's suit should have been dismissed and defendant appellant's counter claim should have been decreed. So, this appeal is accepted and the plaintiff-respondent's suit is dismissed. Defendant-appellant's counter claim is decreed and she is entitled to retain possession of the house in dispute in view of her right to residence, which she has against her husband.
13. Appeal allowed. No costs.