Delhi District Court
Naveleen Kler Bhatia vs Sh. Sarabjit Singh Bhatia on 20 March, 2012
ID No.02406R02s98502011
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Appeal No. 28/2011
ID No. 02406R0298502011
Naveleen Kler Bhatia
w/o Sh. Sarabjit Singh Bhatia
r/o 32 Central Lane, DLF Farms
Chattarpur, Mehrauli, New Delhi
also at AR 616A, Aralias, Near DLF,
Phase5, Gurgaon, Haryana. ..........Appellant
Versus
Sh. Sarabjit Singh Bhatia
s/o Sh. Kulwant Singh Bhatia,
r/o 86, Sunder Nagar, New Delhi. ..........Respondent No. 1
Sh. Kulwant Singh Bhatia
r/o 86, Sunder Nagar, New Delhi. ..........Respondent No. 2
Instituted on : 24th November, 2011
Argued on : 13th March, 2012
Decided on : 20th March, 2012
O R D E R
This appeal u/s 29 of The Protection of Women from Domestic Violence Act,2005 (herein after, in short referred as 'Act') is directed against the order dated 24.10.2011 passed by Ms. Pooja Talwar Ld. Metropolitan Magistrate, Mahila Court, South East, whereby an application u/s 23 of 'Act' for grant of interim injunction order filed by the appellant/complainant is dismissed.
2. Briefly stated, relevant facts for the disposal of this appeal, are that appellant/complainant was married to respondent no. 1/husband on 29.10.2001 ID No.02406R02s98502011 at 32, Central Drive, DLF Farms Chattarpur, Mehrauli, New Delhi and thereafter the marriage was registered on 24th May, 2004. According to the appellant, after marriage she lived at her matrimonial home 86, Sudner Nagar, New Delhi at top floor area/barsati, where her and her daughter's personal belongings were lying. From the wedlock, a baby child Gia Kler Bhatia was born on 07th November, 2007. It is stated that appellant/complainant became a victim of constant harassment, mental and physical torture at the hands of her husband, his father and his sister. Appellant/wife filed an application under Section 12 of Domestic Violence Act on 17.03.2010 alongwith an application for interim relief under Section 23 of Domestic Violence Act seeking right of residence in property No. 86, Sunder Nagar. It is alleged that complainant/appellant had resided in the said property belonging to her fatherinlaw/respondent No. 2 for the period she was in India before leaving abroad with respondent no. 1/husband. It is alleged that the appellant while claiming residence order u/s 19 of Protection of Women from Domestic Violence Act had stated that 2nd Floor of House No. 86, Sunder Nagar, New Delhi was her matrimonial home and had sought an order seeking that she and her daughter be allowed to reside at 86, Sunder Nagar, New Delhi and appellant/complainant also sought an order restraining respondents from alienating/disposing/encumbering the shared household i.e. 86, Sunder Nagar, New Delhi. She also sought an order, directing respondent no. 1 to renounce his rights in the said shared household 86, Sunder Nagar, New Delhi in favour of the appellant and her daughter Gia. It is stated that in August, 2011, appellant/complainant learnt that respondent No. 2 in connivance with Respondent No. 1 was planning to sell the shared matrimonial house 86, Sunder Nagar, New Delhi to Uppal Builders. Thereafter, Appellant/complainant immediately on 09.08.2001 moved an application seeking restraint order against respondents from disposing of or creating any third party interest in the alleged ID No.02406R02s98502011 shared household at 86, Sudner Nagar, New Delhi.
3. I have heard Sh. Pradeep Narula, Learned Counsel for the appellant with appellant and Ms. Malvika Rajkotia, Learned Counsel for the respondent and have perused the record.
4. Learned Counsel for the appellant/complainant submits that Learned Metropolitan Magistrate erred in holding that the title of the property was not clear and that parties have to approach Civil Court for enforcement of property rights. He submits that Learned Metropolitan Magistrate has not passed an appropriate order u/s 18 (e) and u/s 19 of PWDV Act for restraining the respondents from alienating the share household. Learned Counsel submits that Learned Trial Court has not imposed any condition or direction which may deem reasonable to protect the appellant/complainant or her child. Learned Counsel submitted that when on 12.08.2011, Learned Trial Court had restrained the respondents, therefore, Learned Trial Court should not have observed that these domestic violence Act is not an Act to enforce property rights or that the parties should approach Civil Court for enforcement of property rights. This Court finds no merits in this contention. Court has to consider the legality, and the propriety of the impugned order and simply because, Learned Trial Court, while issuing notice to the respondents, had restrained the respondents on the first date of hearing till the disposal of the application, would not ipso facto imply that, after hearing both the parties, the Court cannot modify previous exparte order, in accordance with law.
5. Learned Counsel for the respondent vehemently argued that no doubt maintenance encompasses the provisions for residence, but in this case, appellant/complainant was already having a residence and admittedly, property at 86, Sunder Nagar exclusively belongs to Respondent no. 2/father in law of appellant/complainant and therefore, she is not entitled to seek relief and that ID No.02406R02s98502011 property at 86, Sunder Nagar cannot be termed as 'shared household' as the appellant/complainant had not resided last with respondent no. 1/husband at 86, Sunder Nagar and even otherwise, the property does not belong to her husband and, therefore, it cannot be said to be a shared household. Learned Counsel for the respondent submitted that appellant resided in the house of her father in law for a few days only. At present, respondent no. 1/husband is residing at Singapore and appellant/complainant is admittedly residing at AR 616A, Aralias, Near DLF Gold Club, DLF Phase5, Gurgaon, Haryna, which is a house jointly owned by the appellant/complainant and her husband. Appellant has mentioned this address in the Memo of Parties filed with this appeal. Ld. Counsel for respondent submitted that the property in question has already been sold. Learned Counsel placed on record a copy of sale deed executed on 14.12.2011 whereby the property no. 86, Sunder Nagar, New Delhi in question has been sold by Kulwant Singh Bhatia, respondent no. 2/father in law of appellant/complainant to one Vasudha Rohtagi. When the property no. 86, Sunder Nagar, New Delhi regarding which restrained order is sought, has already been disposed of, how could any restraint order be passed regarding the same. Sh. Narula, Learned Counsel for the appellant/complainant wanted that the respondents should be asked to account for the sale proceeds of the said house and disclose about the property, if any, purchased of those funds. This Court is not impressed with their argument. In support of her submission, Learned Counsel for the respondents placed reliance upon "Adil and Ors. Vs. State and Another" 2011 (1) Crimes 1 and "Shumita Didi Sandhu Vs. Sanjay Singh Sandhu and Ors" 174 (2010) DLT 79.
6. 'Domestic relationship' as defined in Section 2(f) of the Act, means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, ID No.02406R02s98502011 marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. "shared household" defined in Section 2(s) means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
7. Section 17 of "Act" read as under:
Section17 : Right to reside in a shared household (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
8. In Shumita Didi Sandhu's case issues with regard to the concepts of 'matrimonial home' and 'sharedhousehold' and also concerning the right of residence of a wife in the matrimonial home, sharedhousehold or some other place were discussed at length. In that case, appellant/plaintiff sought an interim order restraining the defendants from dispossessing her from her 'matrimonial home', which, according to her, was the property at 18A, Ring Road, Lajpat NagarIV, New Delhi and the question for prima facie consideration was whether the 'wife' had any right to stay in the suit property in which her husband had no right, interest or share and belonged to her fatherinlaw and motherinlaw and ID No.02406R02s98502011 whether it could be treated as matrimonial home of the wife?
9. Hon'ble Supreme Court in S.R. Batra and Anrs. Vs Taruna Batra 2007 (3) SCC 169 wherein facts were somewhat similar, Taruna Batra married Amit Batra and started living with him in the second floor of the house belonging to Amit Batra's mother. It was not disputed that the said house at B135, Ashok Vihar, PhaseI, Delhi belonged to Taruna Batra's motherinlaw and not to her husband Amit Batra. Hon'ble Supreme Court considered the provisions of the Act and particularly the concept of a "shared household" under Section 2(s) of the said Act as also the provisions of Sections 17 and 19(1) thereof and repelled the argument that since Smt Taruna Batra had lived in the property in question in the past, therefore, the said property was her 'shared household'. Hon'ble Supreme Court observed as under:
"If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned Counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd."
10. It was further observed that it is well settled that any interpretation which leads to absurdity should not be accepted. As regards Section 17(1) of the ID No.02406R02s98502011 Act, 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 husband nor was it taken on rent by him nor is it a joint family property of which the husband is a member, it is the exclusive property of appellant No. 2, father in law of appellant/complainant. Hence it cannot be called a 'shared household'. No doubt, the definition of 'shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society. From this line of cases, it is apparent that the concept of maintenance, insofar as a Hindu lady is concerned, necessarily encompasses the provision for residence. Insofar as Section 17 of the said Act is concerned, a wife would only be entitled to claim a right of residence in a "shared household" and such a 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 which neither belongs to the husband nor is taken on rent by him, nor is it a joint family property in which the husband is a member, cannot be regarded as a "shared household". Clearly, the property which exclusively belongs to the fatherinlaw or the motherinlaw or to them both, in which the husband has no right, title or interest, cannot be called a "shared household".
11. The right of residence is not the same thing as a right to reside in a particular property which the appellant refers to as her 'matrimonial home'. The Act was introduced, inter alia, to provide for the rights of women to secure housing and to provide for the right of the women to reside in a shared household, whether or not she had any right, title or interest in such a ID No.02406R02s98502011 household.
12. The word "household" used in Section 2(s) actually means a house in the normal sense of referring to a property, be it a fullfledged house or an apartment, or some other property by any other description. This is also clear because the expression "household" has been referred to as a place where the person aggrieved lives or, at any stage has lived. It also refers to a property whether owned or tenanted or in which the aggrieved person or the respondent has any right, title, interest or equity. Therefore, in order to fall within the meaning of "shared household" as defined in Section 2(s), it is essential that the property in question must be one where the person aggrieved lives, or at any stage, has lived in a domestic relationship, either singly or alongwith the respondent. It also includes such a property whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either of them or both jointly or singly have any right, title, interest or equity. It also includes a property which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest therein.
13. In Adil's case (supra), it was observed that :
"a perusal of Section 6 of the Act makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or 'at any point of time'. The problem arises with the meaning of phrase "at any point of time". Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that "at any point of time" under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the ID No.02406R02s98502011 aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, "at any point of time" cannot be defined as "at any point of time in the past" whether the right to live survives or not. For example if there is a joint family where father has several sons with daughtersinlaw living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of fatherinlaw because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughterin law, soninlaw, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase 'at any point of time', say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in ID No.02406R02s98502011 families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughterinlaw etc survives but the domestic relationship of living in a joint household would not survive & comes to an end ......."it must be kept in mind that resort of Domestic Violence Act cannot be done to enforce property rights. For enforcement of property rights, the parties are supposed to approach civil court. Resort to Domestic Violence Act can be done only where there is urgent requirement of wife to be maintained and provided residence when because of domestic violence, she had been rendered homeless and she had lost source of maintenance. Domestic Violence Act is not meant to enforce the legal rights of property, neither an interim order can be passed without first prima facie coming to conclusion that a domestic relationship existed between the parties and the applicant was an aggrieved person within the meaning of Section 2(a) of the Domestic Violence Act".
15. In view of aforesaid position of law, in the present case, property in question cannot be considered to be a shared "household". Neither the appellant/complainant , nor her husband (respondent No. 1) has primafacie any right, title or interest or equitable right in the same. The property belonged to Respondent No. 2 exclusively and did not belong to the Respondent No. 1 or the appellant. Property in question does not fall within the expression "shared household" as appearing in Section 2(s) of the said Act.Therefore, Section 17 in itself would be inapplicable in view of the fact that the property in question cannot be regarded as a "shared household". The residence orders that may be passed under Section 19 are also subject to the Magistrate/court being satisfied that domestic violence has taken place and all the residence orders relate to "shared household". Consequently, Section 19 would also does not comes to the aid of the appellant/complainant. The right of residence which a wife ID No.02406R02s98502011 undoubtedly has does not mean the right to reside in a particular property. It is only in that property in which the husband has a right, title or interest that the wife can claim residence and that, too, if no commensurate alternative is provided by the husband whereas, in this case, admittedly, appellant/wife has a residence at Aralias, Gurgaon, a property jointly owned by her and respondent no. 1. Observations made in Shumita's and Adil's case (supra) are squarely applicable to the facts situation obtaining in the instant case. In the result, this Court finds no fault in the impugned order. No interference, thus, is called for by this Court. Revision petition is dismissed. Copy of this order alongwith TCR be sent back to Ld. Trial Court. Revision File be consigned to Record Room.
announced in the
open court on (VINAY KUMAR KHANNA)
20th March 2012 Additional Sessions Judge04
(SouthEast) Saket/New Delhi
ID No.02406R02s98502011
CA no. 28/11
Navleen Kler Bhatia vs Sarabjit Singh Bhatia
20.03.2012
Present : None for the appellant.
Sh. Ranjay ld. Proxy counsel for Ms. Malvika Ld. Counsel for the respondent Vide separate order Revision petition is dismissed. A copy of this order be sent to the Learned Trial Court . Revision Petition File be consigned to Record Room.
(VINAY KUMAR KHANNA) ASJ04 (SE), Saket Courts, New Delhi/20.03.2012 ID No.02406R02s98502011