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Himachal Pradesh High Court · body

2020 DIGILAW 449 (HP)

Pooja Kapil v. Rishi Kapil

2020-07-20

AJAY MOHAN GOEL

body2020
JUDGMENT Ajay Mohan Goel, J. - By way of this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for the following relief:- "It is, therefore, respectfully prayed that this petition may kindly be allowed and the impugned order dated 17.01.2020, passed by the learned Principal Judge, Family Court, Himachal Pradesh in Cr.MA No. 568- IV of 2018, RBT No. 04 of 2020, in case titled, Pooja Kapil versus Rishi Kapil and others, may kindly be modified, thereby directing respondent No. 1 to pay maintenance @ Rs. 20,000/- per month w.e.f. 01.12.2018 i.e. the date of the application and further litigation expenses be awarded of Rs. 30,000/- to the petitioner and also directing respondents No. 1 to 3 to provide the entire accommodation in the ground floor which consists of two bed rooms, one drawing room, one kitchen, one wash room, one small store room and further respondents may kindly be restrained from entering the rooms of the petitioner in the ground floor without her permission and justice be done. The other directions passed by the learned Court for restraining the respondents from committing any act of domestic violence may kindly be upheld in the interest of justice. Such other or further order as may deem fit and proper in the facts and circumstances may also be passed while allowing this petition and justice be done." 2. Brief facts necessary for the adjudication of the present petition are that the petitioner herein has preferred an application under Section 23 of the Protection of Women from Domestic Violence Act, 2005, for grant of interim relief of maintenance/protection orders etc. In the application, copy of which stands appended with this petition as Annexure P-1, following reliefs have been prayed:- "It is, therefore prayed that the following interim reliefs may kindly be granted to the applicant in the interest of justice: a) The Respondent No. 1 be directed to pay maintenance to the applicant @ Rs. 20,000/- P.M. and Rupees 30,000/- as litigation expenses. b) The Respondents be directed to unlock the rooms, kitchen and toilets of the ground floor of the house where the applicant was residing. c) The respondents be directed by passing a protection order to not come in the rooms in which the applicant will live without permission or knocking the door. 20,000/- P.M. and Rupees 30,000/- as litigation expenses. b) The Respondents be directed to unlock the rooms, kitchen and toilets of the ground floor of the house where the applicant was residing. c) The respondents be directed by passing a protection order to not come in the rooms in which the applicant will live without permission or knocking the door. d) Any other relief which the hon'ble Court deems fit be also awarded in the interest of justice by allowing the application." 3. This application has been disposed of by the Court of learned Principal Judge, Family Court, Hamirpur, in the following terms:- "In view of the above, the present application is partly allowed and maintenance of ?4000/- per month is granted to the applicant. She is also granted litigation expenses of ?10,000/- . In addition to this, the respondent No. 1 will provide one room with kitchen, bathroom and toilet for the residence of the applicant, the rent of which shall be provided by the respondent No. 1. Further, the protection order is issued in favour of the applicant for restraining the respondents from committing any act of domestic violence during the pendency of the petition. The observations made here-in-before shall remain confined to the disposal of the application and will have no bearings whatsoever on the merits of the case. It be tagged with main case file." 4. Feeling aggrieved, the petitioner has filed the present petition. 5. Mr. Jiya Lal Bhardwaj, learned Counsel for the petitioner has argued that the order passed by learned Family Court is not sustainable in the eyes of law as learned Court has erred in not appreciating that the petitioner was entitled to maintenance at least at the rate of ?20,000/- per month from the date of filing of the application and she was also entitled to the accommodation in the premises where she was residing with her husband at Hamirpur. Learned Counsel has argued that the order passed by learned Family Court directing respondent No. 1 to provide one room with kitchen, bathroom and toilet for the residence the applicant on rent, is not sustainable in law and the petitioner had a legal right to reside in the residence where she was residing with her husband which might be belonging to father-in-law of the petitioner. He has relied upon the judgment of Hon'ble High Court of Delhi passed in RFA(OS) 24/2012, C.M. APPL.4236/2012, 4237/2012 & 5431/2013, titled as Smt. Preeti Satija versus Smt. Raj Kumari and another, decided on 15.01.2014. No other point was urged. 6. On the other hand, Mr. Rohit Sharma, learned Counsel for respondent No. 1 has argued that there was no infirmity with the order passed by learned Family Court and the maintenance which stood granted by the Family Court was reasonable as there were no means with respondent No. 1 to pay to the petitioner maintenance as was being claimed by her. He further argued that respondent No. 1 was ready and willing to provide the accommodation on rent to the petitioner as directed by learned Family Court and this petition stood filed by the petitioner simply to harass respondent No. 1 and his parents because the endeavour of the petitioner was to somehow gain entry into the house of her father-in-law so that they could be implicated in false cases. Learned Counsel thus prayed that this petition be dismissed. 7. Mr. K.D. Sood, learned Senior Counsel appearing for respondents No. 2 and 3 while supporting the argument made by learned Counsel for respondent No. 1, added that the petitioner had no legal right to claim accommodation in the premises which were owned by respondent No. 2 and the intent of filing the petition was to harass respondents No. 2 and 3 who are aged persons and are living alone in Hamirpur as their son respondent No. 1 was residing in Chandigarh. Learned Senior Counsel also submitted that respondents No. 2 and 3 earlier also have been falsely implicated by the petitioner in certain matters, and in case, she succeeds in gaining entry into the household of respondents No. 2 and 3, then, she will unnecessarily create further troubles for them. 8. I have heard learned Counsel for the parties and gone through the order passed by the learned Court below as also the documents appended with the petition. 9. 8. I have heard learned Counsel for the parties and gone through the order passed by the learned Court below as also the documents appended with the petition. 9. As is mentioned above, the order passed by learned Family Court has been assailed by learned Counsel for the petitioner primarily on two grounds, (a) the maintenance granted by learned Family Court is on the lower side; and (b) the order directing respondent No. 1 to provide one room with kitchen, bathroom and toilet on rent to the petitioner is bad in law. 10. I will deal with both these contentions separately. As far as the first contention of learned Counsel for the petitioner is concerned that the amount of ?4,000/- per month, which stood allowed partly as maintenance to her, was on the lower side, during the course of arguments, learned Counsel for the petitioner could not demonstrate that as to what actually was the salary of respondent No. 1 so as to warrant interference with the order of maintenance passed by learned Family Court. A perusal of the order passed by learned Family Court demonstrates that it took into consideration the admission of respondent No. 1 who stated that he was working as an Engineer in Chandigarh and his salary was ?12,000/- per month, from which, he had to maintain himself at a far away place. Learned Court also took notice of the certificate issued by Canaus Overseas filed by respondent No. 1, in which, it was mentioned that respondent No. 1 was working as a Junior Executive since April, 2017 and his total remuneration was ?12,000/- per month. Learned Court held that petitioner could not place on record anything to show that the contents of said certificate were incorrect. Now, it is a matter of record that no material has been produced by the petitioner to substantiate that the income of respondent No. 1 was ?65,000/- per month as alleged by her. In these circumstances, it cannot be said that the findings returned by learned Family Court that the petitioner was entitled for maintenance to the tune of ?4,000/- per month, in view of the fact that respondent No. 1 was getting salary of ?12,000/- per month, are perverse and not sustainable in law. In these circumstances, it cannot be said that the findings returned by learned Family Court that the petitioner was entitled for maintenance to the tune of ?4,000/- per month, in view of the fact that respondent No. 1 was getting salary of ?12,000/- per month, are perverse and not sustainable in law. While coming to the conclusion as to what would be the appropriate and reasonable amount of maintenance, which could be awarded to the petitioner, learned Family Court relied upon the documents/evidence which the respective parties have produced before it. It is not the case of the petitioner that while arriving at the sum of ?4000/- per month as maintenance, learned Family Court erred in not taking into consideration the documents/ evidence produced by the petitioner on record from which it could be inferred that the income of respondent was not ?12,000/- per month but was much more. Therefore, as the petitioner has not been able to demonstrate that the findings which have been returned by learned Family Court while awarding ?4,000/- per month as maintenance to her, are perverse and contrary to the record, the plea of the petitioner that the maintenance which has been awarded by the learned Court below is on the lower side, is rejected. 11. Now coming to the second issue, i.e. the contention of the petitioner that the order passed by learned Family Court directing respondent No. 1 to provide premises on rent to the petitioner is bad in law and the petitioner is entitled to residence in the premises owned by her father-in- law is concerned, this Court finds no infirmity with the directions which have been issued by learned Family Court in this regard. It is not in dispute that the house in issue where the petitioner is seeking residence is exclusively owned by respondent No. 2, which was allotted to him by Himachal Pradesh Housing and Urban Development Authority. Learned Family Court while directing respondent No. 1 to provide a premises on rent to the petitioner, relied upon the judgment of this Court in Sandeep Gupta Versus Indu Gupta, 2015 3 HLR 571 as well as in Gaji Ram & Ors. Learned Family Court while directing respondent No. 1 to provide a premises on rent to the petitioner, relied upon the judgment of this Court in Sandeep Gupta Versus Indu Gupta, 2015 3 HLR 571 as well as in Gaji Ram & Ors. Versus Smt. Badalu, (2014) 2 LatestHLJ 1318 (HP), wherein this Court has held that a woman cannot claim every household where she lives or where she had lived at any stage in a domestic relationship and she can only claim a residence in a shared household which would only mean the house belonging to or taken on rent by the husband. This Court while deciding Gaji Ram & others vs. Smt. Badalu (supra) relied upon the judgment of the Hon'ble Supreme Court in S.R. Batra and another vs. Taruna Batra (Smt.), (2007) 3 SCC 169 , in which, Hon'ble Supreme Court held as under:- "24. Learned counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household. 25. We cannot agree with this submission. 26. 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. 27. It is well settled that any interpretation which leads to absurdity should not be accepted. 28. Learned counsel for the respondent Smt Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. Such a view would lead to chaos and would be absurd. 27. It is well settled that any interpretation which leads to absurdity should not be accepted. 28. Learned counsel for the respondent Smt Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives. 29. 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'. 30. 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." 12. On the basis of said precedence, learned Family Court held that petitioner could not claim a right of residence in the house owned by her father-in-law and respondent No. 1 was directed to provide accommodation to her by taking it on rent. 13. As I have already mentioned above, this Court finds no infirmity with the findings so returned by learned Family Court and this Court concurs with the findings returned by learned Family Court to the effect that the wife cannot claim right of residence in the house owned by her father-in-law. Now herein, it is not the grievance of the petitioner that the Family Court has not provided her with any shelter whatsoever. Specific directions stand issued by the learned Family Court to respondent No. 1 to provide the petitioner one room with kitchen, bathroom and toilet for her residence, rent of which shall be paid by respondent No. 1. Now herein, it is not the grievance of the petitioner that the Family Court has not provided her with any shelter whatsoever. Specific directions stand issued by the learned Family Court to respondent No. 1 to provide the petitioner one room with kitchen, bathroom and toilet for her residence, rent of which shall be paid by respondent No. 1. Said respondent has shown his willingness to comply with these directions and this Court has been informed that he has already taken on rent premises in terms of the order passed by learned Family Court. The adamancy on the part of the petitioner to seek residence in the premises owned by her father-in-law gives credence to the plea taken on behalf of the respondents that the endeavour of the petitioner is to somehow gain entry into the house owned by her in-laws. During the course of arguments, it has not been disputed that complaints have already been filed by the petitioner against respondents No. 2 and 3. In such like situations, otherwise also, it is not prudent for this Court to alter the order passed by the Family Court and order that the petitioner be given the right of residence in the house owned by respondent No. 2. 14. Now coming to the judgment relied upon by learned Counsel for the petitioner, in my considered view, the same does not furthers the cause of the petitioner for the reason that perusal of the said judgment in general and para 23 of same in particular, demonstrates that the said judgment has been given in the peculiar facts of that case. 15. Be that as it may, as far as this Court is concerned, there are already judicial precedents to the effect and that too by following the law laid down by Hon'ble Supreme Court of India that the wife cannot claim right of residence in the house owned by her father-in-law and this Court is bound by the judicial precedents, as stand laid down by the Hon'ble Supreme Court and Hon'ble Coordinate Bench(s) of this Court. Therefore, in view of discussions held herein above, as this Court does not finds any merit in this petition, the same is accordingly dismissed. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any, also stand dismissed.