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2008 DIGILAW 296 (KAR)

B. Krishnappa v. Chandrika G.

2008-06-17

ARALI NAGARAJ

body2008
ORDER Arali Nagaraj, J The petitioner herein has challenged the correctness of the judgment and decree dated 28.7.2007 passed in Small Cause Case No.357/03 by the learned Chief Judge of Small Causes Court, Bangalore,( hereinafter referred to as “the Learned Judge” for short dismissing the suit for ejectment that was filed by the petitioner- plaintiff. 2. Despite service of notice of this petition the respondent has remained absent. Though this case is listed today for admission by consent of Sri S.S. Padmaraj, Learned Counsel for the petitioner, it is taken up for final disposal and his arguments are heard. The impugned judgment is perused. 3. The present petitioner filed his Small Cause Case No.357/03 against the respondent, who is none other than his divorced wife, on the ground that she is residing in a portion of the same building in which he has been residing and her stay is continued even after his marriage with her came to be dissolved by a decree granted by the Family Court, Bangalore, in M.C.No.511/97. Since no right has been conferred upon her in the divorce decree to stay in the said premises, after dissolution of her marriage with the petitioner, the relationship between the petitioner and the respondent became that of licensor and licensee and therefore he claimed possession of it by filing the said ejectment suit. 4. Sri S.S. Padmaraj, Learned Counsel for the petitioner strongly urged that the learned Judge committed serious error in dismissing the ejectment suit of the petitioner only on the ground that the petitioner allowed the respondent to stay in the said premises as she has been his divorced wife and he has been paying her only a sum of Rs.1,000/- per month towards alimony as per the order of the Family Court in the said matrimonial case and therefore he could not seek the possession of the said premises unless he makes alternative arrangement for her residence. Placing reliance on the decision of this Court in the case pertaining to the very petitioner and the respondent reported in ILR 2006 Kar 4704 submitted that the learned Judge failed to consider the observations made by this Court in the said case [CRP No. 129/04(SC)] that the relationship of petitioner-plaintiff and the respondent-defendant has been that of licensor and licensee and as such, the petitioner has right to recover possession of the said premises by getting her evicted from it. 5. On perusal of the said decision it could be seen that the very same learned Judge returned the plaint in the S.C.No.357/03 itself by order dated 17.12.2003 holding that the Small Causes Court did not have jurisdiction to try the said suit, and, aggrieved by the said order, the petitioner preferred C.R.P.No.129/04 (SC) and the same came to be disposed of by this Court by order dated 28.10.2006 which came to be reported in ILR 2006 Kar 4704. It is further seen from the order in the said case that while allowing the revision petition and remanding the matter to the Court of Small Causes, this Court observed at paragraph 10 of the order as under: “From the facts referred to supra, it is noticed that the parties do not dispute that the defendant came into schedule premises and cohabited with the plaintiff after the marriage. They lived together in matrimony, which unfortunately did not work. The fact that their marriage has been dissolved by virtue of decree of divorce dated 4.7.2000 would also show extinguishment of rights over each other.” It is further observed at paragraph 14 in the said order as under: “Thus, undisputed fact establishes that the possession of the defendant in respect of schedule property is only as a licensee and nothing more. Her occupation is co-related to the nuptial knot that was tied with the petitioner and which knot was unfortunately snapped with dissolution of marriage. Therefore, her status would not be better than of a licensee. The Plaintiff is therefore, a licensor and the possession i.e., corpus of the schedule property continues to be with the licensor, which right is not inhibited by physical occupation by the defendant licensee. She acquires no right or interest in the corpus, i.e., schedule property in her occupation.” 6. Therefore, her status would not be better than of a licensee. The Plaintiff is therefore, a licensor and the possession i.e., corpus of the schedule property continues to be with the licensor, which right is not inhibited by physical occupation by the defendant licensee. She acquires no right or interest in the corpus, i.e., schedule property in her occupation.” 6. It is the settled principle of law that once a decree of divorce is passed by the competent Court, dissolving the marriage between the husband and wife, they cease to be husband and wife and consequently they ceased to have any right or obligation against each other which they had during the subsistence of their marriage. Such rights and obligations include the right of the wife to reside with her husband and the obligation on the part of the husband to live with her under the same roof; her right to succeed to his properties. Therefore, after obtaining a decree of divorce though the husband would be liable to pay alimony towards maintenance of his divorced wife till she re-marries or till she dies, he would not be liable to make arrangement for her stay by securing an accommodation when she has to leave his residence by reason of dissolution of his marriage with her. At best, his obligation would extend to enhance the alimony payable by him to her so as to enable her to meet the additional expenses towards rent of the residential premises wherein she has to reside after leaving his residence. This being so, the respondent herein cannot claim against the petitioner any right to reside in the said premises after dissolution of her marriage with him. She has no alternative but to quit the said premises, stay in any other premises suitable to her and claim from the petitioner enhancement in the monthly alimony. 7. While respectfully agreeing with the above said observations made by this Court in the said decision, I am of the considered opinion that the relationship between the petitioner and the respondent with respect to the said premises has been that of licensor and licensee but not that of husband and wife so that the respondent could exercise her right to residence in the said premises. Therefore, I hold that the learned Judge committed an error in dismissing the said suit of the petitioner holding that if the petitioner wants the respondent to vacate the premises, he has to make alternative accommodation for her living and then only he can ask her to vacate. 8. In view of the fact that the Family Court fixed the permanent alimony at the rate of Rs.1,000/- per month having regard to the fact that since the respondent was permitted by the petitioner to reside in the said premises even after the decree of divorce, she was not required to spend any amount towards rent for her residence. Further, it is not in dispute that subsequently the Family Court enhanced the said amount of alimony from Rs.1,000/- to Rs.1,350/- per month. Besides this, the petitioner has produced in this case at Annexure- T, a copy of the memo dated 7.7.2007 filed by him in the Court of Small Causes in the same S.C.No.357/03 stating that the plaintiff (petitioner herein) is offering to pay to the defendant (respondent herein) a sum of Rs.10,000/- towards advance for securing alternative accommodation for her and to increase the permanent alimony from Rs.1,350/ - to Rs.2,000/- per month from the date on which she vacates the premises and delivers to him the vacant possession thereof. This conduct of the petitioner clearly goes to show that he has been generous enough towards the respondent-divorcee. In view of this offer by the petitioner, the respondent can certainly seek an order from the Family Court concerned enhancing the amount of permanent alimony payable to her by the petitioner so as to enable herself to meet the additional expenses towards payment of rent in respect of the residential premises which she has to secure after vacating the petition premises. Therefore, under these circumstances, I feel that the respondent deserves grant of some reasonable time to vacate the premises so as to enable her to obtain suitable order from the Family Court enhancing her alimony. 9. For the reasons aforesaid, I pass the following ORDER The present revision petition is allowed, the impugned order dated 28.7.2007 passed in S.C.No.357/03 by the learned Chief Judge of Small Causes Court, Bangalore, is hereby set aside. 9. For the reasons aforesaid, I pass the following ORDER The present revision petition is allowed, the impugned order dated 28.7.2007 passed in S.C.No.357/03 by the learned Chief Judge of Small Causes Court, Bangalore, is hereby set aside. The said small cause suit is hereby decreed directing the defendant to vacate the schedule premises and deliver vacant possession thereof to the plaintiff on or before the expiry of six months from the date of this order, within which period she may approach the Family Court concerned and obtain the necessary order as to enhancement of alimony payable to her by the plaintiff. The petitioner-plaintiff shall appear before the Family Court in response to the notice that may be issued to him on the application of the respondent-defendant seeking enhancement in the permanent alimony. The plaintiff shall not himself cause any delay in disposal of the said petition. If he causes any delay, in that event, the respondent defendant would be entitled to seek extension of the time granted to her by this order for vacating the premises. The learned Judge, Family Court concerned, shall dispose of the application that may be filed by the respondent seeking enhancement in the alimony, as expeditiously as possible, so as to enable her to vacate the premises within the stipulated period. The offer given by the petitioner as to the payment towards deposit in respect of alternative accommodation and enhancement of monthly alimony shall be subject to the discretion of the Family Court concerned. A copy of this order shall be sent to the learned Chief Judge, Small Causes Court, Bangalore and also to the learned Prl. Judge, Family Court, Bangalore, for compliance.