Page 1
IN
THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
APPEAL FROM ORDER NO. 866 OF 2007
IN
S.C.SUIT NO. 3072 OF 2007
WITH
CIVIL APPLICATION NO. 1194 OF 2007
Smtl Hemaxi Atul Joshi ... Appellant
(Org.Deft.No.1)
Vs.
Smt. Muktaben Karsandas Joshi & Anr. Respondents
(Resp.No.1 - org.Plff
& Resp.No.2 - org.
Defendant nO.2)
Mr.Jaydev Trivedi, Advocate, for the appellant.
Mr.Nitin Vhatkar, Advocate, a/w G.S.Hiranandani,Advocate
for respondent No.1.
Mr. Prajit S.Manjarekar, Advocate, for respondent No.2.
CORAM:
J.H.BHATIA,J.
DATE: 5th December,2007.
P.C.
Page
2
1.
Heard learned Counsel for the parties.
2. Admittedly, the appellant, who is defendant
No.1, was married to respondent No.2 sometime in the
year 1996 and out of this wedlock, they have two
children. After the marriage, they were living in the
suit house with the other family members. The relations
between the husband and wife got strained and the
Marriage Petition for divorce was filed by respondent
No.2-husband against the present appellant before the
Family Court at Bandra, Mumbai. Plaintiff/Respondent
No.1, who is the mother of respondet No.2 and
mother-in-law of the appellant, claims that she is the
exclusie owner of the suit house and her son and
daughter-in-law after the marriage, were living with her
in her house. However, in the year 2002, the appellant
and respondent No.2 purchased another flat at a short
distance from her house and intermittently they also
used to live there. Respodent No.1 claims that she and
other family members had noticed illicit relationship of
the appellant with some other person. This was objected
to by her and therefore relations were strained.
According to her, the daughter-in-law went to her
parents’ place at Surat in May 2007 after the Divorce
Petition was filed. However, in the last week of May,
2007, she came back to Mumbai and forcibly entered into
the
plaintiff’s house and started harassing the
plaintiff and her family members. She also abused the
plaintiff in filthy laguage and assaulted her. In view
of these circumstances, she filed the suit for perpetual
injunction restraining the defednants from entering into
and/or occupying and/or remaining in occupation of the
suit premises belonging to her. She also took out a
Notice of Motion seeking temporary injunction of the
same nature. The application was opposed by the present
appellant on the ground that the suit house is the
matrimonial home and she is entitled to reside there in
view of the Protection of Woman from Domestic Violence
Act, 2005 (in brief, "Domestic Violence Act").
3. After hearing the parties, the learned Judge of
the City Civil Court accepted the contention of the
plaintiff and rejected the contention of the defendant
No.1-appellant that it is a shared household for the
appellant. The learned Judge held that the suit house
being the exclusive property of the
mother-in-law/plaintiff, the daughter-in-law cannot
claim any legal right of residence. In the result, the
Notice of Motion was allowed and the temporary
injunction was granted against the defendant
No.1-appellant. Hence, she has preferred the present
Appeal.
4.
On perusal of the pleadings of the parties and
the impugned order, it becomes clear that the suit house
was purchased by the plaintiff/mother-in-law sometime in
1975 and, admittedly, the suit house stands in her name
alone. There is nothing to show that it is a joint
family property of the plaintiff, her husband and the
children. Admittedly, it is not the house belonging to
the appellant or her husband. The learned trial Court
relied upon an authority of the Supreme Court in
S.R.Batra vs. Taruna Batra AIR 2007 SC 1118 wherein the
provisions of the Domestic Violence Act, 2005 came to be
considered.
5. Section 19 of the Domestic Violence Act provides
protection of residence to the aggrieved person.
Section 19(a) reads as under :-
"19. Residence orders (1) While disposing of an
application under sub-sectiino (1) of sectiin
12, the Magistrate may, on being satisfied that
domestic violance has taken place, pass a
residence order -
(a) restraining the resondent from dispossessing
or in any other manner disturbing the possesion
of the aggrieved person from the shared
household, whether or not the respondent has a
legal
or equitable interest in the shared
household;
......"
Under Section 2(a) of the Domestic Violence Act,
"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
violece by the respondent".
. Section 2(q) defines"respondent" as 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.
. Section 2(s) defines "shared household" as
follows :-
"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
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 famly 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."
5. The question is whether merely because the
appellant/daughter-in-law was living along with husband
in the household of her mother-in-law, she would get a
legal right of residence in the house of mother-in-law.
Admittedly, the appellant and her husband-respondent
NO.2 had purchased another flat in December, 2002
jointly. It is not disputed that intermittently the
husband and wife used to sleep and stay in that house.
That house is at a walking distance of about 5 minutes
from the suit house. The appellant can claim legal
right in that house firstly, because it is the joint
property of herself and her husband and secondly,
because she was intermittently living or at least
staying in that house along with her husband and
children.
As far as the suit house is concerned, it is
not the property in which her husband has got any legal
right and therefore she cannot claim that the suit house
is the shared household within the meanig of Section
2(s) of the Domestic Violence Act. After referring to
the provisons of the Domestic Violece Act and some case
law, Their Lordships of the Supreme Court in the case of
S.R.Batra vs. Taruna Batra, observed as follows in para
16 of the Judgment :-
"16. There is no such law in India, like the
British Matrimonial Homes Act, 1967, and in any
case, the rights which may be available under
any law can only be as against the husband and
not against the father-in-law or mother-in-law."
From this, it is clear that the wife may have rights
only against the husband and not againat father-in-law
or mother-in-law. Their Lordships further observed as
follows :-
"28. 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 is a member. It is the exclusive
property of appellant No.2, mother of Amit
Batra. Hence it cannot be called a ‘shared
household’.
The facts in the case of S.R.Batra and the present
matter are almost similar. Taking into consideration
the legal position and the facts, the appellant cannot
claim any legal right of residence in the house
belonging to her mother-in-law. She can claim such
right only in the house of her husband and incidentally
in the present case, she and her husband jointly own
another house at a short distance from the suit house.
Taking into consideration all the facts and
circumstances, the learned trial Court Judge was
justified in passing the order of temporary injunction
restraining the defendant-appellant from entering into
the suit house and causing interference in possession of
her mother-in-law on the suit house.
6. In the result, the Appeal stands dismissed.
7. As the Appeal itself is dismissed, the Civil
Application
does not survive and stands disposed of
accordingly.
(J.H.BHATIA,J.)