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2014 DIGILAW 1452 (PNJ)

Suman v. Tulsi Ram

2014-10-28

RAKESH KUMAR JAIN

body2014
Rakesh Kumar Jain, J. 1. The defendant is in revision, aggrieved against the order dated 10.07.2014, passed by the learned trial Court allowing an application for ad interim mandatory injunction, directing the defendant to vacate the house in question and order dated 16.08.2014 whereby her miscellaneous appeal was dismissed by the lower Appellate Court. In short, the respondent is the father-in-law of the petitioner who has filed the suit for mandatory injunction alleging that he is a retired Principal from the Government Senior, Secondary School, suffering from various old age diseases and is 66 years of age, whereas his wife Roshni Devi, who is also retired as a Principal from a Government Senior Secondary School, aged 61 years, both are residing in the house in question, built up by the respondent on a plot measuring 0 kanal 10 marlas, being 10/1081 share of land comprising in khasra No. 2053/1, total measuring 54 kanal 1 marla, situated in New Dabwali which falls in the area of Municipal Committee, Dabwali, purchased by him vide sale deed No. 1303 executed on dated 12.08.1988 and registered on 16.08.1988, from his own earnings. The mutation No. 13171 dated 28.08.1988 has already been sanctioned in favour of the respondent on the basis of the sale deed No. 1303. It is also alleged that Sanjeev Kumar, husband of the petitioner, was born in the year 1979 and being a minor was not earning anything when the house was purchased and constructed in the year 1993 by the respondent. Sanjeev Kumar was employed as a JBT Teacher in Government High School, Behlana, UT, Chandigarh and was residing at Chandigarh/Panchkula. He got married with the petitioner on 09.05.2005 at Adampur Mandi, District Hisar. The petitioner was employed as JBT Teacher in Government Primary School, Kishangarh, Barwala, District Hisar and soon after the marriage, she was transferred from Government Primary School, Kishangarh to Government Primary School, Billah, District Panchkula. 2. It is further alleged that the petitioner used to torture Sanjeev Kumar mentally and physically as a result thereof he was compelled to resign from his job at Chandigarh, which was a pensionable job, and joined as a JBT Teacher in Haryana in the year 2011 in village Maujgarh, Tehsil Dabwali, District Sirsa, which is a non-pensionable job. 2. It is further alleged that the petitioner used to torture Sanjeev Kumar mentally and physically as a result thereof he was compelled to resign from his job at Chandigarh, which was a pensionable job, and joined as a JBT Teacher in Haryana in the year 2011 in village Maujgarh, Tehsil Dabwali, District Sirsa, which is a non-pensionable job. He had lost all benefits of his previous job, i.e. 9 years of his valuable pensionable service It is also alleged that since January 2011, Sanjeev Kumar is residing at village Maujgarh in the rented house owned by Bharat Lal and now in the house of Rajinder Kumar, whereas the petitioner resided alone in House No. 1123, Sector-4, Panchkula and, thereafter, she is residing in House No. 1608, Sector-4, Panchkula and working as JBT Teacher in Government Primary School, Haripur, Sector-4, Panchkula. The petitioner was blessed with a girl child, namely, Vanshika, to whom she refused to look after and hence, Sanjeev Kumar brought his daughter at Maujgarh and got her admitted in Modem Montessory School at Dabwali. 3. It is alleged that the petitioner tried to forcibly enter the house of the respondent with the help of her family members on 14.06.2013 and also got registered a false FIR No. 187, under Sections 498-A/323/34 IPC at Police Station City Dabwali against the respondent, his wife Roshni Devi and son Sanjeev Kumar. After lodging the FIR, the petitioner took away Vanshika from the house of Sanjeev Kumar. On 25.07.2013, the petitioner along with some hired persons entered the house of the respondent forcibly and since then she is residing therein and when the respondent asked the petitioner to vacate the house, she had threatened to commit suicide and to involve the family of the respondent in some other false criminal case. It is further alleged that the petitioner had filed a suit for mandatory injunction titled as "Suman v. Sub Divisional Officer (O.P.), DHBVNL, Mandi Dabwali" for installation of an electric meter in the house of the respondent in which the respondent became a party and contested the suit. It is further alleged that the petitioner had filed a suit for mandatory injunction titled as "Suman v. Sub Divisional Officer (O.P.), DHBVNL, Mandi Dabwali" for installation of an electric meter in the house of the respondent in which the respondent became a party and contested the suit. The application filed by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC") was dismissed by the Civil Court on 24.09.2013 holding that the petitioner is not lawful occupier of the house in question and is not entitled to install an electric meter in the house of the respondent. The respondent has thus filed the suit for mandatory injunction for a direction to the petitioner to leave the house in question and also for permanent injunction restraining them forever to enter the house in question forcibly and illegally. 4. The respondent also filed an application under Order 39 Rules 1 and 2 of the CPC for interim directions which was allowed by the Civil Court on 10.07.2014 directing the petitioner to vacate the house in question during the pendency of the suit and the miscellaneous appeal filed by the petitioner against that order has been dismissed by the District Judge, Sirsa on 16.08.2014. Hence, the present revision petition. 5. Learned counsel for the petitioner has raised two questions in this revision petition; firstly, the petitioner is entitled to live in the house in question in view of Section 17 of the Protection of Women from Domestic Violence Act, 2005 (here-in-after referred to as the "Act") and secondly, the Courts below have erred in issuing directions to the petitioner to vacate the house in question on an application filed for ad interim injunction, which has resulted into finally decreeing the suit. In support of his submission, reliance has been placed upon a Division Bench judgment of the Delhi High Court in the case of Suit. Preeti Satija v. Smt. Raj Kumari and another, 2014(1) RCR (Criminal) 1035 and two judgments of the Supreme Court in the cases of Metro Marins & anr. v. Bonus Watch Co. Pvt. Ltd. & Ors., 2004(2) R.C.R.(Rent) 371 : 2004(4) R.C.R.(Civil) 375 : 2005(1) Civil Court Cases 308 (S.C.) and Purshottam Vishandas Raheja and another v. Shrichand Vishandas Raheja (D) through L.Rs. v. Bonus Watch Co. Pvt. Ltd. & Ors., 2004(2) R.C.R.(Rent) 371 : 2004(4) R.C.R.(Civil) 375 : 2005(1) Civil Court Cases 308 (S.C.) and Purshottam Vishandas Raheja and another v. Shrichand Vishandas Raheja (D) through L.Rs. and others, 2011(3) R.C.R.(Civil) 762 : 2011(4) Recent Apex Judgments (R.A.J.) 129 : 2011(3) Civil Court Cases 553(S.C.). 6. On the other hand, learned counsel for the respondent has submitted that the house in question belongs to the respondent exclusively and is not a joint family property in which Sanjeev Kumar, husband of the petitioner, has a right there-fore, it cannot be called a 'shared household' and as such, Section 17 of the Act is not applicable. In this regard, he has relied upon a decision of the Delhi High Court in the case of Neetu Mittal v. Kanta Mittal and others, 2008(4) R. C.R. (Civil) 630 and a judgment of the Supreme Court in the case of S.R. Batra and another v. Smt. Taruna Batra, 2007(1) R.C.R. (Civil) 378. 7. As regards the interim directions are concerned, he has also relied upon a judgment of the Delhi High Court in the case of Mr. Barun Kumar Nahar v. Parul Nahar and another, 2013(2) AD(Delhi) 517. It is also argued that the petitioner is residing at Panchkula and has filed a transfer application before this Court for the purpose of transferring divorce petition filed by Sanjeev Kumar at Sirsa to the Court at Panchkula which is now pending before this Court for 17.11.2014 as it is fixed before the Mediation and Conciliation Centre of this Court. It is also submitted that the respondent, being an old man, against whom the petitioner got registered a false FIR No. 187 dated 14.06.2013, is afraid that while living in the house in question, she may not involve him or his wife, who is also a retired Principal from the Government Senior Secondary School, in some other criminal matter despite the fact that his son Sanjeev Kumar is living separately from him in a rented accommodation. I have heard learned counsel for the parties and examined the available record with their able assistance. 8. The first question to be decided is as to whether the petitioner is entitled to reside in the house in question in view of Section 17 of the Act. 9. I have heard learned counsel for the parties and examined the available record with their able assistance. 8. The first question to be decided is as to whether the petitioner is entitled to reside in the house in question in view of Section 17 of the Act. 9. In order to appreciate the submission made by both the learned counsel for the parties, it would be relevant to refer to Section 17 of the Act, Which reads as follows:-- "17. 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." 10. According to the aforesaid provision, the woman in a domestic relationship has been conferred a right to reside in the shared household. It also provides that the aggrieved person shall not be evicted from the shared household or any part of it except in accordance with the procedure established by law. 11. The words "aggrieved person", "domestic relationship", "shared household" and the "respondent" are all defined in Section 2 of the Act itself and for the ready reference, the said definitions are reproduced here-as-under:-- "2. 11. The words "aggrieved person", "domestic relationship", "shared household" and the "respondent" are all defined in Section 2 of the Act itself and for the ready reference, the said definitions are reproduced here-as-under:-- "2. Definitions.--In this Act, unless the context otherwise requires, - (a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent; (b) to (e) xxx xxx xxx (f) "domestic relationship" 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, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;" (g) to (p) xxx xxx xxx (q) "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner." (r) xxx xxx xxx (s) "shared household" 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 persons 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." xxx xxx xxx" 12. Since the purpose of the Act is to provide more effective protection to the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for mattes connected therein or incidental thereto, the definition of "domestic relationship" is required to be understood. Since the purpose of the Act is to provide more effective protection to the rights of the women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for mattes connected therein or incidental thereto, the definition of "domestic relationship" is required to be understood. According to this definition, "domestic relationship" means relationship between two persons who live or have, at any point of time, lived together in a shared household on account of their marriage as it happened in the present case that both the parties were married and alleged by the petitioner that she lived for sometime in the house in question, which is alleged by her to be the shared household. The definition of "shared household" is provided under Section 2(s) of the Act as per which the "shared household" 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 persons and the respondent and includes such a household which may belong to the joint family of which the respondent is a member irrespective of the fact that the respondent or the aggrieved persons has any right, title or interest in the shared household. The word "respondent" means any adult male person who is, or has been, in a domestic relationship with the aggrieved person. 13. Thus, the respondent would be Sanjeev Kumar and aggrieved persons would mean petitioner Suman who has been in a domestic relationship and is alleging domestic violence by said Sanjeev Kumar against her. 14. In this maze of different words used by the Legislature in Section 17 and also defined in Section 2 of the Act, one thing has definitely cropped up that the aggrieved person/petitioner would have a right to live in the shared household and cannot be evicted or excluded except in accordance with law. Thus, most important aspect of the matter is to understand the meaning of shared household. Thus, most important aspect of the matter is to understand the meaning of shared household. The respondent has prima facie proved, on the strength of the sale deed and other material on record, that the plot underneath the house was purchased by him in the year 1988 by way of a registered sale deed and the construction was raised in the year 1993, after spending ` 3 lacs, whereas Sanjeev Kumar, husband of the petitioner, was born in the year 1979 and was a minor both at the stage of purchasing the plot and construction of the house: The question thus would be that if the house in question is owned exclusively by the respondent, whether it would be called a 'shared, household'. In this regard, the Supreme Court, in S.R. Batra and another's case (supra), has categorically held as under:-- "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'." 15. In that case, it was found that the property in question neither belonged to Amit Batra nor was it taken on rent by him nor was it a joint family property of which the husband Amit Batra was a member. Since it was found that the property in that case was exclusively owned by mother of Amit Batra, therefore, it was held that it cannot be called a shared household. 16. In the judgment relied upon by learned counsel for the petitioner in Smt. Preeti Satija's case (supra), the plaintiff had filed the suit for possession, permanent injunction and mesne profits against the defendants, her son and mother-in-law in which the first defendant was the plaintiffs daughter-in-law and wife of her disowned son who was also arrayed as the second defendant. In the judgment relied upon by learned counsel for the petitioner in Smt. Preeti Satija's case (supra), the plaintiff had filed the suit for possession, permanent injunction and mesne profits against the defendants, her son and mother-in-law in which the first defendant was the plaintiffs daughter-in-law and wife of her disowned son who was also arrayed as the second defendant. The suit property belonged to the plaintiffs husband who died on 30.06.2008 leaving behind a registered Will dated 20.11.2006 bequeathing the suit property to the plaintiff. The case of the plaintiff was that after the death of her husband, she became the sole and absolute owner of that property and claimed that the back portion of the suit property consisting of one bedroom, a bathroom and a small kitchen is in occupation of the defendants. She alleged that since the relationship between her and the defendants became estranged, therefore, she wanted that the suit property may be vacated. She also filed an application during the pendency of the suit alleging her entitlement to a decree on alleged admission. In the reply to the said application, the defendants had taken a stand that the plaintiff was not the absolute owner of the suit property as the Will had not been granted probate. 17. The Single Judge opined that since the defendant had not disputed the due execution of the Will and had merely contested that it had no legal effect because it had not been probated, therefore, it was in fact an admission and concluded that it is not essential to seek a probate and the Will having been admitted remain operative between the parties. It was also held that the suit property cannot be held to be a shared household and thus the suit was decreed in part holding that the defendant would be liable to be evicted. 18. The stand taken by the daughter-in-law was that the husband had not been served and had not entered appearance; there were matrimonial disputes between her and the husband and there was collusion between the plaintiff and her son to deprive the wife of her right of residence in the shared household. 19. 18. The stand taken by the daughter-in-law was that the husband had not been served and had not entered appearance; there were matrimonial disputes between her and the husband and there was collusion between the plaintiff and her son to deprive the wife of her right of residence in the shared household. 19. Counsel for the petitioner has heavily relied upon this judgment of the Division Bench of the Delhi High Court in which it has been held that in case the mother-in-law is the owner, it is her obligation to allow the daughter-in-law to live in the shared household, as long as the matrimonial relationship between her and the husband subsists; continues and in such cases, the parents of the husband often disown them after the son moves out from the common or joint premises owned by either or both his parents, when there is outbreak of marital discord which in fact is an act directed against the daughter-in-law. 20. After going through both the judgments in S.R. Batra and another's case (supra) and in Smt. Preeti Satija's case (supra), I have come to the conclusion that the reasons given in S.R. Batra and another's case (supra), defining 'shared household', is of more conviction than the view taken by the Division Bench of the Delhi High Court in Smt. Preeti Satija's case (supra). Hence, it is held that the petitioner does not have any right Of protection under Section 17 of the Act for the purpose of living in the house in question, which is exclusively owned by the respondent. 21. Insofar as the second question as to whether the Court can pass the order of vacating the property in dispute at the interim stage is concerned, the Supreme Court in Metro Marins and another's case (supra) has held that the temporary mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the case of Dorab Cawasji Warden v. Coomi Sorab-Warden, 1990(1) R.R.R. 563 : 1990(2) SCC 117 but the view taken by the Delhi High Court in Mr. Barun Kumar Nahar's case (supra), while relying upon the judgment of the Supreme Court in Dorab Cawasji Warden's case (supra), is more convincing and close to the reality. The observations made in the said case in this regard are as under:-- "32. Barun Kumar Nahar's case (supra), while relying upon the judgment of the Supreme Court in Dorab Cawasji Warden's case (supra), is more convincing and close to the reality. The observations made in the said case in this regard are as under:-- "32. In the facts of the present case, the plaintiff is aged about 80 years and his wife is aged, about 74 years and they are suffering from various old age and other ailments. It is also an admitted position that the defendant No. 1 left the subject premises on 20.10.2010 but again entered the said premises later although her husband started residing in a rented accommodation. Without going into the veracity of the complaints and counter complaints filed by the plaintiff and the daughter-in-law, one thing clearly emerges that the relation between the parties are highly embittered and they are on a complete war path. In my view, in such a scenario, while also considering the effect that such environment would have on the minor children, it would be preposterous for both the parties to stay under the same roof. Consideration may also be given to the well known fact that the civil litigation takes years to conclude and by not granting interim stay in favour of the aged parents-in-law for all these years until the date of final decision of the case, they would be unnecessarily compelled to spend far end of their lives in a formulated, non-consensual and woeful environment. The court can also not lose sight of the fact that the defendant No. 1 has already been offered by the defendant No. 2 to reside with him in his rented accommodation or in the alternate has also been offered a sum of ` 30,000/- to reside in some other rented accommodation. The defendant No. 1, being herself not happy with the conduct of her in-laws and husband, can avail this facility and shift to another equally good accommodation for which her husband is ready to bear the monthly rental expenses. By such an arrangement, in my opinion, interest of both the parties would be secured at such an interim stage." 22. The defendant No. 1, being herself not happy with the conduct of her in-laws and husband, can avail this facility and shift to another equally good accommodation for which her husband is ready to bear the monthly rental expenses. By such an arrangement, in my opinion, interest of both the parties would be secured at such an interim stage." 22. As a matter of fact, admittedly, teh petitioner has also filed a transfer application in this Court alleging that she is a resident of Panchkula and the divorce petition filed by her husband at Sirsa may be transferred at Panchkula as she is unable to travel to Sirsa, meaning thereby she is residing at Panchkula. Moreover, she has also lodged FIR No. 187 dated 14.06.2013 against the respondent under Sections 498-A/323/34 IPC, which would further aggravate the dispute between the parties with her presence in the house in question and may spoil the peace and tranquility of the house of the old aged couple whose son is living separately from them. 23. Thus, in view of the aforesaid facts and circumstances, there is no error on the part of the Courts below in granting ad interim mandatory injunction in favour of the respondent. Resultantly, the present revision petition is hereby dismissed. However, at the same time, keeping in view the facts and circumstances of the case, the Court seisin of the suit, filed by the respondent, is directed to expedite the trial and try to conclude it as early as possible, preferably within a period of six months from the date of passing of this order, after giving short adjournments to the parties.