Judgment - Right to Residence - Shared Household

Court: ADDL. DISTRICT JUDGE­: SOUTH WEST DISTRICT: DWARKA COURTS

Bench: JUSTICE TARUN YOGESH

Smt Vimla Devi Vs. Smt. Ruchi Sharma 23 April 2019

Law Point:
It is not sufficient to merely show that the house in which the wife claims residence is a shared household, in addition she has to show that her husband has a right in the property.

JUDGEMENT

Date of Institution of Appeal : 24.09.2018 Date on which order was reserved : 15.04.2019 Date on which order was pronounced : 23.04.2019 APPEAL UNDER SECTION 104 READ WITH ORDER XLIII RULE 1 CPC AGAINST ORDER DATED 27.08.2018 PASSED BY MS. NIYAY BINDU, SCJ CUM RC, SOUTH WEST, DWARKA COURTS, DELHI.

: O R D E R :­

1. Present appeal is directed against order dated 27.08.2018 passed by Ld. Senior Civil Judge, South­West, Dwarka Courts, Delhi Page 1 of 5 DOD: 23.04.2019 Smt Vimla Devi vs.Smt. Ruchi Sharma MCA No. 35/18 dismissing plaintiff’s application under Order XXXIX Rules 1 and 2 CPC.

2. As gleaned from Trial Court Record, plaintiff Smt. Vimla Devi has filed suit for permanent and mandatory injunction against her daughter­in­law Smt. Ruchi Sharma for restraining defendant, her parents, relatives, etc. from entering and creating any kind of hindrance, obstruction, interference or nuisance in the enjoyment of Flat No. 358, Ground floor, Vikas Kunj, Vikas Puri, New Delhi.

3. Summons was issued and served upon defendant who appeared along with counsel before Ld. Trial Court on 18.05.2018 and filed her application under Order VII Rule 11 read with Section 151 CPC for rejection of plaint.

4. Submissions were addressed by their counsels and plaintiff’s application under Order XXXIX Rules 1 and 2 CPC was dismissed vide impugned order on the ground that ­ (i) No record of complaint / call to PCR on 100 number with respect to alleged three incidents was filed along with plaint; (ii) defendant during course of arguments has stated that she was constrained to leave the premises about 2­3 months back which could not be rebutted by plaintiff and (iii) there was not a single averment about plaintiff’s son who is stated to be residing in a separate accommodation casting doubt and raising suspicion of collusion between plaintiff and her son who was not impleaded as defendant.

5. Advocate Sh. R. D. Singh for appellant and Advocate Sh. Shakti Narayan for defendant have addressed their submissions by referring to case­laws in support of their respective contentions.

6. Ld. counsel for appellant has relied upon the judgment of Hon’ble High Court of Delhi titled “Gauri Bhalla vs. Ashish Bhalla & Page 2 of 5 DOD: 23.04.2019 Smt Vimla Devi vs.Smt. Ruchi Sharma MCA No. 35/18 Ors.” Crl. M.C. No. 3381/2018 dismissing petition against order dated 26.02.2018 rejecting application seeking residence in the matrimonial home / shared household.

7. Respondent’s counsel, on the other hand, has relied upon judgment of Hon’ble High Court of Delhi titled “Preeti Satija vs. Raj Kumari & Ors.” 2014 III AD (Delhi) 329 and also referred to order dated 29.11.2018 passed by Sh. B. R. Kedia, Ld. Principal Judge, South­West District, Family Courts, Dwarka in Maintenance Petition No. 225/2018.

8. Perusal of plaint reveals that Smt. Vimla Devi has asserted herself as owner of Flat No. 358, Ground Floor, Vikas Kunj, Vikas Puri, New Delhi on the basis of registered agreement to sell and purchase and registered GPA dated 04.04.2008 and photocopies of aforesaid documents have been filed along with copy of SPA, affidavit, receipt and possession letter.

9. It is also relevant to note that plaintiff in para No. 4 of the plaint has averred that defendant has been staying in a rented accommodation at 8053, GH­7, Crossing Republic, Ghaziabad, U.P. along with her husband and daughter which averment has not been disputed by defendant in the absence of written statement filed before Ld. Trial Court.

10. Similarly, it is also pertinent to note that observation of Ld. Trial Court that defendant had been residing in the suit property with her husband and was constrained to leave the premises around 2­3 months back has been recorded notwithstanding the fact that no such averment has been raised by defendant in her application under Order VII Rule 11 CPC.

11. Hon’ble High Court of Delhi in its judgement titled “Varun Page 3 of 5 DOD: 23.04.2019 Smt Vimla Devi vs.Smt. Ruchi Sharma MCA No. 35/18 Kumar Nahar vs. Parul Nahar” 2013 (199) DLT 1 has referred to catena of judgments titled (i) “S. R. Batra & Anr. vs. Taruna Batra” (2007) 3 SCC 169; (ii) “Neetu Mittal vs. Kanta Mittal” 152 (2008) DLT 691; (iii) “Shumita Didi Sandhu vs. Sanjay Singh Sandhu & Ors” 174 (2010) DLT 79 (DB) and (iv) “Kavita Chaudhari vs. Eveneet Singh and Anr.” 2012 (130) DRJ 83 and concluded that none of the statutes including The Hindu Marriage Act, 1955; The Hindu Succession Act, 1956; The Hindu Adoption and Maintenance Act, 1956; The Protection of Women From Domestic Violence Act, 2005 or The Code of Criminal Procedure, 1973 confer any right of maintenance including residence for the married woman as against the parents of the husband.

12. Since defendant is neither residing in Flat No. 358, Ground Floor, Vikas Kunj, Vikas Puri, New Delhi nor filed her written statement disputing plaintiff’s title and ownership so impugned order of Ld. Trial Court dismissing plaintiff’s application for interim relief is liable to be set aside in view of the well settled law laid down in aforesaid judgments. Para No. 8 of judgment titled Gauri Bhalla’s vs. Ashish Bhalla & Ors.” (supra) cited by appellant’s counsel being relevant is extracted hereinbelow:

8. To be entitled to a right of residence in a house, the wife has to show that the same is a shared household in which her husband has a right to reside. It is not sufficient to merely show that the house in which the wife claims residence is a shared household, in addition she has to show that her husband has a right in the property.”
13. Appeal assailing order dismissing plaintiff’s application Page 4 of 5 DOD: 23.04.2019 Smt Vimla Devi vs.Smt. Ruchi Sharma MCA No. 35/18 under Order XXXIX Rules 1 and 2 CPC is therefore allowed and order dated 27.08.2018 is set aside with direction to Ld. Trial Court to rehear submissions after completion of pleadings and decide plaintiff’s application for interim relief as per law.

14. Trial Court Record be sent back along with copy of order.

15. Appeal file be consigned to Record Room after due compliance. Digitally signed by TARUN TARUN YOGESH YOGESH Date:

2019.04.24 15:32:30 +0530 Announced in the open Court (Tarun Yogesh) On 23.04.2019 ADJ­03/South West Dwarka / New Delhi Page 5 of 5 DOD: 23.04.2019

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