Delhi District Court
Gian Singh vs (1) Hemant Kumar on 16 March, 2022
IN THE COURT OF HARVINDER SINGH,
SENIOR CIVIL JUDGE, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
JUDGMENT
Gian Singh ................ Plaintiff
S/o Late Sh.
R/o H. No.970,
Shahbad Mohd. Pur,
New Delhi - 110 061.
Versus
(1) Hemant Kumar ..............Defendants
S/o Sh. Gian Singh
Presently at B - 1/93,
2nd Floor, Sewak Park,
Uttam Nagar, New Delhi - 110 059.
(2) Neha
W/o Sh. Hemant Kumar
D/o Sh. Raju Yadav
R/o 1/66, Sunder Vihar,
Paschim Vihar, New Delhi.
SUIT FOR PERMANENT INJUNCTION
DATE OF INSTITUTION : 20.09.2016
DATE OF DECISION : 16.03.2022
FINAL DECISION : DECREED
1. Vide this judgment, this Court shall decide the present suit filed by plaintiff against defendants for permanent injunction that they be restrained from visiting/entering the property bearing no.H. No.970, Shahbad Mohd. Pur, New Delhi - 110 061 (hereinafter referred to as suit property) and from creating any nuisance/hindrance in the peaceful living and Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.1 of 25 enjoyment of suit property by plaintiff and his family members. CASE OF PLAINTIFF
2. Succinctly, the plaintiff's case as discernible from his pleadings is that he is owner of suit property purchased by him on 03.07.1988, defendant no.01 is his younger son and defendant no.02 is wife of defendant no.01. Defendant no.01 was married with defendant no.02 on 29.11.2013 and both started living with plaintiff and his family members in the suit property. Plaintiff and his family members gave due respect to defendant no.02, but she did not responded reciprocally. After just 10 - 15 days of marriage, defendant no.02 started insulting plaintiff and his family members. She started instigating defendant no.01 also against the plaintiff and his wife. The plaintiff and his family kept on tolerating conduct of defendant no.02 with the hope that everything would be normal with the passage of time, but the behaviour of defendant no.02 deteriorated with the passage of time. In November, 2015, defendant no.02 threatened that she would commit suicide and implicate entire family of plaintiff in a false case. Defendant no.01 apprehending any untoward incident reported conduct of defendant no.02 with PS Dwarka Sector - 23 vide D.D.No.88B dated 18.01.2016. In the night of 15.02.2016, the defendant no.02 assaulted defendant no.01, same was also reported to the police. On 22.05.2016, defendant no.02 tried to Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.2 of 25 commit suicide by cutting her wrist, but plaintiff and his family members somehow managed to save her. It was reported to the police vide written complaint on 27.05.2016. Due to behaviour and conduct of defendant no.02, the plaintiff and his wife has disowned both defendants vide public notice dated 24.08.2016 published in newspapers. They requested defendants to vacate the suit property, but they were threatened by defendant no.02 that she will teach them a lesson. On 30.08.2016 at about 05:00 pm, parents of defendant no.02 along-with their associates came to suit property and abused plaintiff along-with his family members. On being objected, they were threatened with dire consequences. The incident was reported to the PS Dwarka Sector - 23. Since 30.08.2016, the defendant no.02 is living with her parents and is making illegal demands of money and transfer of suit property in her name. Father of the defendant no.02 also threaten to grab the suit property with the help of anti-social aliments. The defendant no.01 has also vacated the suit property along-with all his belongings and is living separately in Uttam Nagar. Plaintiff and his family members have no concern with the defendants. For last 6 - 7 days, some unknown persons started regularly visiting suit property and are inquiring about defendant no.01. On 11.09.2016, defendant no.02 with her father, mother and 4 - 5 unknown persons visited the suit property and tried to forcibly enter in the Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.3 of 25 same. The defendants have no right, title or interest in the suit property. With these main averments, the plaintiff has filed this suit seeking permanent injunction as noted above.
MISCELLANEOUS PROCEEDINGS
3. Summons of the suit along-with notice of application under Order 39 Rule 1 and 2 of The Code of Civil Procedure, 1908 (hereinafter referred to as CPC) were issued against defendants, same were served upon defendants, defendants appeared, filed their written statements and replies to application under Order 39 Rule 1 and 2 CPC. Application under Order 39 Rule 1 and 2 CPC of the plaintiff was allowed vide order dated 28.11.2016. CASE OF DEFENDANTS Case of Defendant No.01 4.1 Succinctly, the case of defendant no.01 as discernible from his pleadings is that the suit is not maintainable and he has not visited the suit property since September, 2016. He is residing separately from plaintiff since September, 2016. He himself is victim of defendant no.02 and his family members. In order to keep his marital bond intact, he has fulfilled all illegal demands of defendant no.02 and has even isolated himself from his parents. He supported the averments of the suit of plaintiff regarding incidents averred by the plaintiff in his plaint. He however prayed that the suit be dismissed.
Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.4 of 25 Case of Defendant No.02 4.2 Succinctly, the case of defendant no.02 relevant for decision of present suit as discernible from her pleadings is that the suit is not maintainable and is barred under Section 41 (i) and (j) of The Specific Relief Act, 1963. The plaintiff has not approached the Court with clean hands. The plaintiff has not disclosed about details of property no.172B, Shahbad Mohd. Pur. The plaintiff has not disclosed that he is original resident of Village Shahbad Mohd. Pur. The suit property is ancestral property in hands of plaintiff. It is her matrimonial home. At the time of partition, two rooms came to the share of plaintiff and rest of the part of property was encroached by plaintiff. Earlier the properties falling under Lal Dora were not having house numbers, latter, when Lal Dora certificates were issued by the government, they were given numbers. The suit property and property no.172B are of same measurement and are of same village. The plaintiff has filed false site plan of suit property. It is clear from title documents and copy of ration-card placed on record by plaintiff that suit property is ancestral one. The suit has been filed by the plaintiff in collusion with defendant no.01. She faced cruel acts of defendant no.01, plaintiff and their other family members when she was staying in her matrimonial home. Complaints averred by plaintiff were made just to conceal illegal demands of dowry, acts Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.5 of 25 of cruelty upon her and to create evidence against her. On 18.01.2016, she was pregnant by eight months and on 19.11.2016, defendant no.01 was at Shirdi, Maharashtra. On 10.07.2015, she gave birth to a girl child at her parental home. The complaints were made by defendant no.02 in collusion with plaintiff. The complaints averred to have been made were false complaints. The suit property is ancestral property in hands of plaintiff and she stayed their with defendant no.01 till 30.08.2016. The defendant no.02 denied all other averments of the suit of the plaintiff and prayed for dismissal of the suit of the plaintiff.
REPLICATIONS
5. The plaintiff filed replications to the written statements of defendants vide which he denied most of the averments made by them contrary to his pleadings and reiterated that averments of his suit are true and correct.
ISSUES FRAMED
6. After completion of proceedings, following issues were framed by my scholarly predecessor vide order dated 24.04.2017 : -
(i) Whether the plaintiff is entitled to the relief of permanent injunction against both the named defendants, as prayed for in the plaint?
OPP Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.6 of 25
(ii) Relief.
PLAINTIFF'S EVIDENCE 7.1 In order to prove his case, plaintiff has examined himself as PW1, tendered his examination-in-chief vide affidavit Ex.PW1/A reiterating almost similar facts as of his pleadings and exhibited/marked documents i.e. (a) site plan Ex.PW1/1, (b) ownership documents running into 07 pages Ex.PW1/2 (collectively), (c) copy of ration-card, election-ID, Aadhar Card, Water Bill and Electricity Bill running into six pages Ex.PW1/2A (collectively), (d) complaint dated 18.01.2016 by the defendant no.01 Ex.PW1/3 (collectively),
(e) copy of police complaint dated 05.05.2016 by defendant no.01 along- with postal receipts running into six pages Ex.PW1/4 (collectively), (f) copy of police complaint dated 27.05.2016 by defendant no.01 along-with postal receipts running into eight pages Ex.PW1/5, (g) copy of publication in the newspaper dated 24.08.2016 running into three pages Ex.PW1/6, (h) copy of police complaint dated 03.09.2016 by defendant no.01 running into 12 pages along-with postal receipts Ex.PW1/7 (collectively) in his evidence. PW1 was cross-examined at length by defendant side which is not reproduced herein for sake of brevity and was discharged.
7.2 PW2 ASI Gajraj, No.3005/SW, PS Sector - 23, Dwarka has brought on record local complaint register for year 2016. He has exhibited Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.7 of 25 D.D.No.38B, complaints dated 03.06.2016 and D.D.No.36B dated 06.09.2016 as Ex.PW2/A (collectively) in his evidence. He has also brought Roznamcha Register/Daily Diary Register of complaint as Ex.PW2/B on record. PW2 was cross-examined at length by defendant side which is not reproduced herein for sake of brevity and was discharged. 7.3 No other witness was examined by plaintiff side.
EVIDENCE OF DEFENDANTS 8.1 Defendant no.01 examined himself as DW1, tendered his examination-in-chief vide affidavit Ex.DW1/A reiterating almost similar facts as of his pleadings and exhibited/marked document i.e. police complaint Mark 'A' in his evidence. DW1 was examined, cross-examined at length by plaintiff side which is not reproduced herein for sake of brevity and was discharged.
8.2 Defendant no.02 examined herself as DW2, tendered her examination-in-chief vide affidavit Ex.DW2/A reiterating almost similar facts as of her pleadings and exhibited/marked documents i.e. (a) copy of complaint dated 18.01.2016 Mark 'A', (b) six photographs Mark 'B', (c) complaint dated 31.08.2016 Ex.DW2/3 and (d) copy of complaint dated 01.09.2016 Mark 'C' in her evidence. DW2 was examined, cross-examined at length by plaintiff side which is not reproduced herein for sake of brevity Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.8 of 25 and was discharged.
8.3 Defendant no.02 has also examined ASI Harsh Manee as DW3 who has brought on record complaint made by defendant no.01 dated 18.01.2016 vide D.D.No.38B Ex.DW3/A on record. DW3 was examined, cross-examined by plaintiff side and was discharged.
8.4 Defendant no.02 has also examined ASI Gajraj as DW4 who has brought on record application dated 18.01.2016 made/given vide D.D. Entry No.38B by defendant no.01 as Ex.DW4/A on record. DW4 was examined, cross-examined by plaintiff side and was discharged.
8.5 Defendant no.02 has also examined Sh. Manoj Sharma S/o Sh. Moti Lal, JJA from Court of Ms. Deepika Thakran, Ld. MM (Mahila Court-
04), West District, Tis Hazari Court, Delhi who has brought complaint dated 01.09.2016 made by defendant no.02 to CAW Cell, Kirti Nagar, New Delhi as Ex.DW5/A on record. DW5 was examined, not cross-examined by plaintiff side despite opportunity given and was discharged. 8.6 No other witness was examined by defendants.
FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 9.1 Final arguments of both sides heard.
9.2 It is submitted/contended by plaintiff side that the plaintiff is owner of suit property, the defendants were allowed to reside in the suit Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.9 of 25 property only as gratuitous licensees, the defendants have left the suit property on their own, the plaintiff does not want to retain defendants in the suit property, therefore, suit of plaintiff be decreed with costs. It is further submitted/contended that the behaviour of defendant no.02 since inception was hostile, she started insulting plaintiff and his other family members just after 10 - 15 days of her marriage, she also started instigating defendant no.01, she started extending threats to commit suicide, she and other family members of her parental side are extending threats for transfer of suit property in the name of defendant no.02, therefore, the plaintiff requires the protection sought against the defendants.
9.3 It is submitted/contended by defendant no.01 that he is residing separately from plaintiff since September, 2016. He is also victim at the hands of defendant no.02 and her parental family-members. He has fulfilled the illegal demands of defendant no.02 and isolated/separated himself from his parents. The defendant no.02 has suicidal attitude and has made various attempts for same. Defendant no.02 and other family-members of her parental family threatened him with dire consequences. He has no claim over suit property, has already vacated it, therefore, no question arises that he would create hindrance in the peaceful enjoyment of same by the plaintiff. 9.4 It is submitted/contended by defendant no.02 that plaintiff is Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.10 of 25 original resident of Village Shahbad Mohd. Pur and the suit property is ancestral property of plaintiff. It is her matrimonial home. The plaintiff has two properties in Shahbad Mohd. Pur bearing no.970 and 172B of same measurement. The plaintiff has placed the documents of property no.172B on record. The property documents placed on record were executed on 03.07.1998 whereas the plaintiff was residing in Shahbad Mohd. Pur even prior to the same. The defendant no.01 is in collusion with the plaintiff. When complaints were made by the plaintiff to the police, she was staying with the defendant no.01 in the suit property as her matrimonial home and she was unaware of ulterior motives of plaintiff and defendant no.01. The false complaints were filed by defendant no.01 with the police to conceal their illegal demands of dowry and acts of cruelty upon her. The complaints were made to create proofs against her. The present suit has been filed by plaintiff in collusion with defendant no.01 and her other in-laws in order to support defendant no.01. She was pressurized to leave the suit property and she stayed in it till 31.10.2016 as her matrimonial home. She also made complaints to the PS and to CAW Cell. It is submitted/contended by the defendant no.02 that the suit of the plaintiff needs to be dismissed in given circumstances as has been filed in collusion with defendant no.01. 9.5 Submissions/contentions of both sides considered. Records Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.11 of 25 perused.
ISSUE WISE DISCUSSION Issues no.(i) 10.1 The onus of proving this issue was upon the plaintiff. Since this is a case where a father/father-in-law is seeking the eviction of son and daughter-in-law, the competing rights of father-in-law under civil law and The Maintenance & Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as Senior Citizens Act) vis-a-vis rights of daughter- in-law under The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as D. V. Act) would be pitted against each other, therefore, it would be relevant first to note down the development of case law in such cases.
10.2 Hon'ble Supreme Court of India in matter of "S. R. Batra and Anr. Vs Smt. Taruna Batra and Anr.", 2007(3) SCC 169, has held : -
"As regards Section 17 (1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a 'shared household'.
10.3 The Division Bench of Hon'ble High Court of Delhi in matter of "Navneet Arora Vs. Surender Kaur and Ors.", 2014 SCC Online Del Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.12 of 25 7617 distinguished the judgment of Taruna Batra and recognized the daughter-in-laws right to residence by holding that Taruna Batra would be applicable only in a factual situation where she lived with the husband separately but not as a member of joint family. The relevant observations of Hon'ble High Court of Delhi are as under : -
"48. We are of the view that the plain language of the Act vis. Section 2(s) read in conjunction with Section 19 (1)(a) is unambiguous and enables an aggrieved person to claim right of residence' in a household even though the aggrieved person or the respondent may have no right, title or interest in the said household, if the aggrieved person and the respondent have lived therein by establishing a domestic relationship with the joint family of which the respondent is a member and to which such household belongs."
10.4 Hon'ble High Court of Delhi in matter of "Vinay Varma vs Kanika Pasricha and anrs.", 2019 SCC Online Del 11530 while discussing relevant case law regarding the right of residence of a daughter-in-law under D. V. Act and the rights of old aged parents-in-law under Senior Citizens Act in the property from which eviction of a daughter-in-law is sought has laid following broad guidelines to be followed by Courts below to strike a balance in such cases : -
"46. xxxxxxxxxxxxxxxxx
1. The court/tribunal has to first ascertain the nature of the relationship between the parties and the sons /daughters family.
2. If the case involves eviction of a daughter-in-law, the court has to also ascertain whether the daughter-in-law was living as part of a joint family.
3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/ daughter-in-law or daughter/son-in-law from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.
4. If the relationship between the parents and the son are peaceful or Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.13 of 25 if the parents are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughter-in-law would remain both upon the in-laws and the husband especially, if they were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughter-in-law from their property, an alternative reasonable accommodation would have to be provided to her.
5. In case the son or his family is ill-treating the parents then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.
6. if the son has abandoned both the parents and his own wife/children, then if the sons family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughter-in-law, however, for a reasonable period they would have to provide some shelter to the daughter-in-law during which time she is able to seek her remedies against her husband.
10.5 Hon'ble Supreme Court of India in its Full Bench Decision in matter of "Satish Chander Ahuja Vs. Sneha Ahuja", (2021) 1 SCC 414 while seized of similar matter between parents-in-law and daughter-in-law claiming competing rights under civil law to have right of exclusive possession of property being owner/right of peaceful living under Senior Citizens Act and right of residence under D. V. Act on aspects of definitions of 'share-household', of 'respondent', of 'save in accordance with procedure established by law' under D. V. Act, whether husband is necessary party to civil suits of eviction filed by parents-in-law and relevance/effect of orders passed under Section 19 of D. V. Act in proceedings before civil Court has observed and held as under : -
".......................(i) The definition of shared household given in Section 2
(s) cannot be read to mean that shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.14 of 25 aggrieved person has a share.
(ii) The judgment of this Court in S. R. Batra Vs. Taruna Batra (supra) has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law.......................
..................As noted above, one of the conditions to treat a person as a respondent is that "against whom the aggrieved person has sought any relief under the Act". The defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice that although learned Magistrate passed an interim or- der in the application filed by the defendant under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that "the application prima facie disclosed that the respondent is committing or has committed an act of domestic violence". For granting any relief by the Civil Court under Section 19 it has to be proved that the respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the "respondent" for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person.
104. We, thus, are of the view that for the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as "respondent", but for the grant of any relief to the defen- dant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defen- dant, only then the relief can be granted by the Civil Court to the defendant..................
..................Drawing the analogy from the above case, we are of the opin- ion that the expression "save in accordance with the procedure established by law", in Section 17(2) of the Act, 2005 contemplates the proceedings in court of competent juris- diction. Thus, suit for mandatory and permanent injunction/eviction or possession by the owner of the property is maintainable before a Competent Court. We may further no- tice that in sub-section (2) the injunction is "shall not be evicted or excluded from the shared household save in accordance with procedure established by law". Thus, the pro- vision itself contemplates adopting of any procedure established by law by the respon- dent for eviction or exclusion of the aggrieved person from the shared household. Thus, in appropriate case, the competent court can decide the claim in a properly instituted suit by the owner as to whether the women need to be excluded or evicted from the shared household. One most common example for eviction and exclusion may be when the aggrieved person is provided same level of alternate accommodation or payment of rent as contemplated by Section 19 sub-section (f) itself. There may be cases where plaintiff can successfully prove before the Competent Court that the claim of plaintiff for eviction of respondent is accepted. We need not ponder for cases and circumstances where eviction or exclusion can be allowed or refused. It depends on facts of each case for which no further discussion is necessary in the facts of the present case. The High Court in the impugned judgment has also expressed opinion that suit filed by the plain- tiff cannot be held to be non-maintainable with which conclusion we are in agreement.
117. In case, the shared household of a woman is a tenanted/allotted/li- Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.15 of 25 censed accommodation where tenancy/ allotment/license is in the name of husband, fa- ther-in-law or any other relative, the Act, 2005 does not operate against the landlord/lessor/licensor in initiating an appropriate proceedings for eviction of the ten- ant/allottee/licensee qua the shared household. However, in case the proceedings are due to any collusion between the two, the woman, who is living in the shared household has right to resist the proceedings on all grounds which the tenant/lessee/licensee could have taken in the proceedings. The embargo under Section 17(2) of Act, 2005 of not to be evicted or excluded save in accordance with the procedure established by law oper- ates only against the "respondent", i.e., one who is respondent within the meaning of Section 2(q) of Act, 2005..................
....................The above direction is a little wide and preemptory. In event, the High Court was satisfied that impleadment of husband of defendant was necessary, the High Court itself could have invoked the power under Order I Rule 10 and directed for such impleadment. When the matter is remanded back to the Trial Court, Trial Court's discretion ought not to have been fettered by issuing such a general direction as noted above. The general direction issued in paragraph 56(i) is capable of being misin- terpreted. Whether the husband of an aggrieved person in a particular case needs to be added as plaintiff or defendant in the suit is a matter, which need to be considered by the Court taking into consideration all aspects of the matter. We are, thus, of the view that direction in paragraph 56(i) be not treated as a general direction to the Courts to implead in all cases the husband of an aggrieved person and it is the Trial Court which is to exercise the jurisdiction under Order I Rule 10. The direction in paragraph 56(i) are, thus, need to be read in the manner as indicated above..................
By a written statement, the defendant is sure to resist the suit on the ground that she had already filed an application under Section 12 where plaintiff Dr. Prem kant Ahuja(mother-in-law of the defendant) is one of the respondent and she may also place reliance on the interim order dated 26.11.2016 restraining the respondents which in- cluded Dr. Prem Kant Ahuja from dispossessing the applicant except without obtaining an order of competent Court. The order dated 26.11.2016 which was passed by the Mag- istrate under D.V. Act, 2005, shall be relevant evidence and fully admissible in the civil suit, but the above order shall only be one of the evidence in the suit but shall neither preclude the civil court to determine the issues raised in the suit or to grant the relief claimed by the plaintiff Dr. Prem Kant Ahuja. The Civil Court in such suit can consider the issues and may grant relief if the plaintiff is able to prove her case. The order passed under D.V. Act whether interim or final shall be relevant and have to be given weight as one of evidence in the civil suit but the evidentiary value of such evidence is limited. The findings arrived therein by the magistrate are although not binding on the Civil Court but the order having passed under the Act, 2005, which is an special Act has to be given its due weight.
We need to observe that in event a judgment of criminal court is relevant as per Sections 40 to 43 of Evidence Act in civil proceedings, the judgment can very well be taken note of and there is no embargo on the civil court to place reliance upon it as a corroborative material..........................
We are in full agreement with the above view. There is no embargo in refer- ring to or relying on an admissible evidence, be of a civil court or criminal court both in civil or criminal proceedings.
From the above discussions, we arrive at following conclusions :-
Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.16 of 25
(i) The pendency of proceedings under Act, 2005 or any order interim or fi-
nal passed under D.V. Act under Section 19 regarding right of residence is not an em- bargo for initiating or continuing any civil proceedings, which relate to the subject mat- ter of order interim or final passed in proceedings under D.V. Act, 2005.
(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Evidence Act and can be referred to and looked into by the civil court.
(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit................" 10.6 Hence, now the judgment of Hon'ble Supreme Court of India in matter of "S. R. Batra and Anr. Vs. Smt. Taruna Batra and Anr." is no more law on the aspect of share-household and daughter-in-law can claim right of residence in a household, if the daughter-in-law has lived there by establishing domestic relation with joint family (but not causal stay) of which her husband/in-laws is/are member(s) and to which such household belongs. It is clear that orders passed under D. V. Act or pendency of proceedings under D. V. Act are not an embargo upon civil proceedings of similar nature. The defendant daughter-in-law in such suits could certainly claim the releifs available to her under Section 18 to 22 of D. V. Act as per Section 26 of D. V. Act. The defendant's/daughter-in-law's claim of right under Section 19 of D. V. Act needs to be addressed and decided on the basis of evidence lead by both sides in such civil suit. The judgment/order of criminal Court under Section 19 of D. V. Act are relevant in such civil suits and have to be Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.17 of 25 referred to and looked into at the time of deciding these types of suits by civil Court. So precisely, now this Court needs to find out whether the suit property belongs exclusively to the plaintiff or defendant no.01 has also share/interest in the same, the nature of residence/stay/occupation of the defendants in the suit property. After ascertaining same, if property is found to be exclusively owned by plaintiff, then this Court further needs to find out whether the defendant no.02 was residing in the suit property as part of joint family or not, whether it is share-household or not, type of relationship between both sides, whether there is collusion between plaintiff and his defendant son etc. etc. as envisaged by above decision of Hon'ble High Court of Delhi in matter of "Vinay Varma Vs. Kanika Pasricha and Anrs.".
10.7 Now coming to the facts of the case in hand, lets decide this matter point-wise according to above judgment of Hon'ble High Court of Delhi.
Status of Parties Qua Suit Property 10.7 (a) The plaintiff has set-up a case that he is the exclusive owner of the suit property which he purchased in year 1998 vide documents Ex.PW1/2 brought on record. The case set-up by defendant no.01 is that he has no share or interest in the suit property. The defendant no.02 has set-up Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.18 of 25 a case that the suit property is ancestral property in the hands of plaintiff and defendant no.01 has share in the same. She has also set-up case that there is another property of same dimensions of the plaintiff in the village in question and the plaintiff has produced documents of said property to show them being of suit property and being exclusive owner of the same. But, nothing substantial supporting the case of the defendant no.02 could come out in the cross-examination of plaintiff/PW1. The defendant no.02 has also not produced any documentary proof in her evidence to show that there were some ancestral properties in the hands of ancestors of plaintiff and the plaintiff received the suit property in lieu of his share in the same. Just because the suit property has been purchased by plaintiff from his father is itself not a sufficient circumstance to infer that the suit property has been received by the plaintiff in lieu of his share in ancestral property from his father. The case set-up by defendant no.02 of there being two properties in the hands of plaintiff could also not be established in evidence by the defendant no.02. So, nothing substantial could be brought on record by defendant no.02 to prove the suit property is ancestral property in hands of plaintiff. The defendant no.01 must have been child in year 1988 at the time of purchase of suit property by plaintiff, so there is no probability that he could have contributed anything at the time of said purchase. In totality of Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.19 of 25 circumstances, at the scales of preponderance of probabilities, the plaintiff has been able to prove that he is the exclusive owner of suit property. As per general civil law in such cases, the children are gratuitous licensees in the house/property of parents.
Whether Suit Property is Shared-Household 10.7 (b) The defendant no.02 has claimed vide her written statement and her deposition that the suit property is her matrimonial home and she resided there till 30.08.2016 from the date of her marriage solemnized on 29.11.2013. The said factum and deposition was not controverted by the plaintiff side in cross-examination of defendant no.02/DW2. In fact, there are averments and deposition of the plaintiff himself that the defendant no.02 used to never cooperate and help the wife of plaintiff in household chores including cooking etc. In these circumstances, it is clear that plaintiff resided in suit property from date of her marriage till 30.08.2016 as her matrimonial home and it was a shared-household where defendant no.02 resided with the plaintiff and his family as part of joint family.
Nature of Relationship Between Defendant No.02 and Plaintiff & His Family 10.7 (c) The plaintiff has deposed in his examination-in-chief that behaviour of the defendant no.02 was hostile towards him and his family- members since beginning. Defendant no.02 used to harass plaintiff and his Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.20 of 25 family-members by creating ugly scenes. She used to not cooperate or give help in household chores. Defendant no.02 used to threaten them to commit suicide and to implicate him and his entire family. The defendant no.02 also tried to commit suicide on 15.02.2016 by cutting her wrist. The defendant no.02 and her family-members also threatened to dispossess his family from the suit property. The complaints regarding same were made to the police from time to time. On the other hand, the deposition of defendant no.02 is that the present suit has been filed by plaintiff in collusion with defendant no.01. The defendant no.02 faced cruelty from the side of plaintiff, his family-members and defendant no.01 at the time she was staying in the suit property. The defendant no.01 gave false complaints against her in order to create evidence. She also lodged complaint against the plaintiff, his family and defendant no.01 with police and with the CAW Cell. Both sides have exhibited on record the complaints being made by them against each other, but the complaints brought on record by the plaintiff side are only the complaints which were made by defendant no.01 to the police. However, it is clear from the facts brought on record by both sides that the relations between plaintiff and his family and defendant no.02 are/were acrimonious in nature.
Nature of Relationship Between Defendant No.01 With Plaintiff & His Family Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.21 of 25 10.7 (d) On this aspect, the case of the plaintiff is that the defendant no.02 also used to instigate defendant no.01 against him and his family-members. He has also disowned defendant no.01 along-with defendant no.02 vide public notice dated 24.08.2016. Beside same, no act of cruelty has been pleaded by plaintiff against defendant no.02. The defendant no.01 vide his written statement has deposed that he is residing separately from the plaintiff and his family since September, 2016. In totality of circumstances, it could be safely inferred that the relations of defendant no.01 with plaintiff and his family are cordial and there is/was no acrimony between them as such. Whether Plaintiff and Defendant No.01 are in Collusion With Each Other 10.7 (e) It is clear even from the written statement of defendant no.01 that he is supporting the case of plaintiff since inception. He has been blaming only defendant no.02 for all the issues between them and plaintiff and his family. The defendant no.01 has also claimed to have left the suit property and have not visited it since September, 2016 which is corresponding with the time of defendant no.02 when she left the suit property, so as to lend support to the case of plaintiff that none of defendants are residing in suit property. The plaintiff is also relying upon the complaints made by the defendant no.01 to the police against defendant no.02. The averments of the suit of the plaintiff regarding the behaviour of defendant no.02 are similarly Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.22 of 25 worded as were complaints made by defendant no.01 to the police against defendant no.02. So, in totality of circumstances, it could be inferred that the plaintiff and defendant no.01 are in collusion with each other against the defendant no.02. The suit appears to have been filed by plaintiff in collusion with defendant no.01 to keep defendant no.02 out of the suit property where she has resided as her matrimonial home in a joint family. Conclusion 10.7 (f) In view of above discussion and findings, this Court finds the present case to be falling in category of cases where the relations between in-laws and daughter-in-law are acrimonious due to primary acrimony between son and daughter-in-law. The daughter-in-law has resided in the suit property as her matrimonial home being part of joint family and suit property could be certainly termed as shared-household. The plaintiff and his family appears to be in collusion with their son who is defendant no.01. Now, coming to the aspect as to what relief could be granted to defendant no.02 in this matter, it is pertinent to note here that the defendant no.02 has not claimed any of the reliefs available to her under Section 18 to 22 of D. V. Act in her written statement or in her evidence. It is also pertinent to note here that the plaintiff has also not averred that she intends to reside in the suit property and orders may be passed for the same. Defendant no.02 has Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.23 of 25 also not produced any order of criminal Court under D. V. Act to have been passed qua suit property in her favour. The defendant no.02 has also not claimed any right of residence in the suit property as being shared-household or to provide any alternative accommodation or compensation etc. It is settled preposition of civil law that in absence of averments and prayer for any relief, no relief could be granted by a civil Court. In these circumstances where defendant no.02 has failed to do so, no orders could be passed regarding providing of alternative reasonable accommodation even for reasonable period. The husband/defendant no.01 is certainly under obligation to maintain his wife/defendant no.02 and would continue to remain so in terms of principles of D. V. Act and other laws. In totality of circumstances, the plaintiff is entitled for injunctions sought. Hence, issue no.01 is decided in favour of plaintiff and against the defendants. CONCLUSION/RELIEF
11. In view of discussions above, the suit of plaintiff is hereby decreed. A decree of mandatory injunction is passed in favour of plaintiff and against defendants, defendants are hereby restrained from entering/visiting the suit property bearing no.H. No.970, Shahbad Mohd. Pur, New Delhi - 110 061, from creating nuisance/hindrance in peaceful living/enjoyment of the same by the plaintiff and his other family-members. Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.24 of 25 No orders as to costs. After preparation of decree-sheet, file be consigned to record room after due compliance. Digitally signed by HARVINDER HARVINDER SINGH SINGH Date: 2022.03.16 Announced in open Court 17:59:38 +0530 on 16.03.2022.
(HARVINDER SINGH) SCJ-cum-RC/South-West, DWK/ND/16.03.2022 Gian Singh Vs. Hemant Kumar & Ors. CS No.27356/2016 [16.03.2022] Page No.25 of 25