Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Pronounced on: 15 November, 2021
+ CM(M) 380/2021 & CM APPL.17058/2021 (by the petitioner
for grant of ad-interim stay)
SNEHA AHUJA ..... Petitioner
Through: Mr. J.P. Sengh, Senior Advocate
with Mr. Prashant Mehta and Mr.
Himanshu Kapoor, Ms. Manisha
Mehta and Mr. R.L. Sinha,
Advocates
Versus
SATISH CHANDER AHUJA & ANR. .....Respondents
Through: Mr. Prabhjit Jauhar, Advocate.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
J U D G M E N T
1. This petition under Article 227 of the Constitution of India has
been filed by the petitioner seeking the setting aside of the order dated
th
19 April, 2021 passed by the learned Additional District Judge (ADJ),
South-East District Saket, New Delhi in CS No.792/2017 filed by the
respondent No.1 against the petitioner herein.
2. Before coming to the impugned order, a few facts may be set out.
3. The petitioner is the wife of the respondent No.2 and daughter-in-
law of the respondent No.1. The respondent No.1 filed a suit being CS
No.792/2017 against the petitioner for eviction from Property No.D-077,
CM(M) 380/2021 Page 1 of 27
New Friends Colony, New Delhi-110025 (hereinafter referred to as the
suit premises) wherein an application under Order XII Rule 6 of the Code
of Civil Procedure, 1908 ( CPC for short) filed by the respondent No.1
‘ ’
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resulted in the order dated 8 April, 2019 whereby the suit was decreed.
Against this decree, a Regular First Appeal (RFA) was filed by the
petitioner being RFA No.381/2019. This RFA was disposed of along
with several other matters by a Co-ordinate Bench of this court vide
th th
judgment dated 18 December, 2019 whereby the decree dated 8 April,
2019 was also set aside and the matter was remanded back to the learned
Trial Court for fresh adjudication. The respondent No.2 was also
impleaded in the suit pursuant to the directions issued by this court on
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18 December, 2019.
4. Being aggrieved by these directions issued by this court, the
respondent No.1 preferred an appeal before the Supreme Court being
Civil Appeal No.2483/2020 which was dismissed vide judgment dated
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15 October, 2020.
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5. The impugned order dated 19 April, 2021 has been passed by the
learned Trial Court on an application filed by the respondent No.1 under
Section 19(1)(f) of the Protection of Women from Domestic Violence
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Act, 2005 ( DV Act for short). Prior thereto, vide its order dated 29
‘ ’
January, 2021, the learned Trial Court had held that the respondent No.1
was entitled to file such an application seeking interim relief directing the
petitioner to shift to an alternate accommodation on payment of rental
amount by the respondents. This order was challenged before this court
nd
through CM(M) No.179/2021 which was disposed of vide order dated 2
CM(M) 380/2021 Page 2 of 27
March, 2021 directing the Trial Court to adjudicate the application
remaining uninfluenced by any observation made by it in its order dated
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29 January, 2021.
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6. The learned Trial Court vide the impugned order dated 19 April,
2021 allowed the application of the respondents and issued the following
directions:
38. In the light of aforesaid discussion, the present
“
application under Section 19(1)(f) of the D.V. Act filed on
behalf of plaintiff is allowed with following directions:
(i) The Plaintiff and defendant no.2 shall jointly or
severally pay a total sum of Rs.1,60,000 as an advance
amount of the two months rental value to the defendant no.1
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in her bank account before 10 May, 2021 in order to
enable her to take on rent a suitable accommodation for
herself.
(ii) Ther the plaintiff and defendant no.2 jointly or
severally pay next monthly payment of Rs.80,000 within 30
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days i.e. by 10 June, 2021 and after that on the succeeding
month by tenth day of every month directly into her bank
account.
(iii) Upon the said payment being commenced, the
daughter-in-law (Defendant no.1) shall vacate the suit
property within 40 days from the date of first payment or
counting from 01.05.2021 whichever is later e.g. if the
payment of Rs.1,60,000 is received on 05.05.2021, she will
vacate by 15.06.2021 after receiving the next instalment of
Rs.80,000 by 10.06.2021.
(iv) The advance amount of Rs.1,60,000 shall not be
adjusted in next monthly instalment till further orders.
(v) This order is subject to final decision of the present
suit. ”
CM(M) 380/2021 Page 3 of 27
7. Aggrieved by the impugned order, the present petition has been
filed by the defendant No.1 in the suit.
8. Extensive arguments have been advanced by Mr. J.P. Sengh,
learned senior counsel on behalf of the petitioner and Mr. Prabhjit Jauhar,
learned counsel on behalf of the respondents. The learned counsel have
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quoted extensively from the judgment dated 18 December, 2019 of the
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Co-ordinate Bench of this Court and the judgment dated 15 October,
2020 of the Supreme Court to bolster their respective submissions.
9. Mr. J.P. Sengh, learned senior counsel for the petitioner has
submitted that the learned Trial Court had completely misdirected itself in
its understanding of the directions of the High Court as well as the
Supreme Court. According to the learned senior counsel, the Supreme
Court had underlined the need for determining the question, whether the
premises constituted shared household , and was of the view that
“ ”
evidence was required to determine this question. Thus, the learned Trial
Court could not have, in this summary manner, directed the eviction of
the petitioner from the suit premises, where she had been residing for
about twenty years.
10. The learned senior counsel submitted that the petitioner and the
respondent No.2 were married in the year 1995, and she had come into
and had started living on the first floor of the suit premises since then.
However, in the year 2004, the respondent No.2 shifted to the ground
floor with his parents, though an attempt was made to pretend that he had
shifted elsewhere. Further, it was submitted that the respondent No.2
filed a divorce petition in 2014. Thereafter, an effort had been made to
CM(M) 380/2021 Page 4 of 27
somehow throw the petitioner out of her matrimonial home. It was
submitted that the petitioner had pleaded in her written statement that the
suit premises had been purchased with funds from the joint family
business and therefore, was not the self acquired property of the
respondent No.1. This question had to be decided only after evidence had
been brought on record. However, even if the suit premises belonged to
the respondent No.1, nevertheless, since it was a shared household, the
petitioner could not be evicted without proper adjudication of facts.
11. The learned senior counsel further argued that an application under
Section 19 of the DV Act could be filed only by the “ aggrieved person ” ,
to seek an alternate residence and it was in that context that the High
Court had observed that the learned Trial Court would be empowered to
consider the question for grant of an alternate residence to the petitioner.
It was not as if the High Court had issued directions to the respondents to
move such an application and made it binding on the learned Trial Court
to pass eviction orders subject to provision of alternate accommodation.
Such an understanding of the directions by the learned Trial Court was
erroneous.
12. It was further submitted by the learned senior counsel for the
petitioner that the learned Trial Court ought to have abided by the caution
of the High Court that the orders granting alternate accommodation could
not be rendered “ meaningless ” . However, without considering the fact
that the respondent No.2/husband had not paid the maintenance which
was in arrears and for which execution had to be filed and that the
respondent No.2/husband had also applied to the court to modify the
CM(M) 380/2021 Page 5 of 27
order as he claimed he was unable to pay the electricity charges, it
accepted the offer of the respondents to pay the rent for alternate
accommodation. Moreover, in the time of Covid-19, the learned Trial
Court had directed the petitioner to herself search out an alternate
accommodation and vacate the suit premises. Such an order was against
the spirit of the directions of the High Court. Therefore, the impugned
order was liable to be set aside.
13. It was also submitted by the learned senior counsel for the
petitioner that since the Supreme Court had come to the view that the
decision in S.R. Batra Vs. Taruna Batra (2007) 3 SCC 169 was not
correct, the directions issued by the High Court being based on Vinay
Verma Vs. Kanika Pasricha 2019 SCC OnLine Del 11530, itself
following S.R. Batra (supra), stood modified by the directions issued by
the Supreme Court, particularly to the effect that the question of a shared
household was a matter of evidence and trial. Therefore, the learned Trial
Court in the instant case could not have allowed an application moved by
the respondents and directed the petitioner to shift out of the suit
premises. It was further submitted that the Supreme Court in S. Vanitha
Vs. Deputy Commissioner, Bengaluru Urban District 2020 SCC OnLine
SC 1023 had held that even where there was a non-obstante clause such
as in the Maintenance and Welfare of Parents and Senior Citizens Act,
2007 ( ‘ Senior Citizens Act, 2007 ’ for short), wherever the question of
‘ shared household ’ arose, that question had to be considered first. In the
light of all these submissions, the learned senior counsel urged that the
impugned order was liable to be set aside.
CM(M) 380/2021 Page 6 of 27
14. Mr. Prabhjit Jauhar, learned counsel appearing on behalf of the
respondents submitted that the petition itself was not maintainable and
that this Court could not sit in appeal over the decision of the learned
Trial Court. According to the learned counsel, the decision of the High
Court had been affirmed by the Supreme Court, particularly in para 83 of
the judgment of the Supreme Court and it would be against judicial
discipline to look into the issue again. The decision of the Supreme Court
being inter partes had decided the question finally and the parties were
governed by the principles of res judicata and could not re-agitate the
issue of the right of the respondents to offer alternate accommodation to
the petitioner. It was submitted that the High Court had specifically
granted such a right to the respondents to move an application offering
alternate accommodation which was to be considered by the learned Trial
Court. Therefore, the learned Trial Court was not wrong in allowing the
respondents to move that application and then direct the petitioner to shift
out of the suit premises. The learned counsel submitted that the Supreme
Court upheld the directions issued by the High Court, specifically
observing that it balanced the rights of both parties. There was no
question of any merger as the appeal filed by the respondents had been
dismissed. The petitioner on the other hand had not challenged the High
Court order. The learned counsel further submitted that the petitioner
could claim a right for a roof over her head but could not claim a
proprietary right and that too in respect of a particular premises. All that
the petitioner wanted was to squat over the suit premises which had been
built in 1983 with no modern amenities.
CM(M) 380/2021 Page 7 of 27
15. It was further submitted that the concept of shared household
‘ ’
would be relevant only where the woman was an aggrieved person under
the DV Act, having been subjected to domestic violence. According to
the learned counsel, it was for determination of this question, as to
whether the petitioner had been subjected to domestic violence, that the
case had been remanded back to the learned Trial Court for recording of
evidence. Once the petitioner failed to discharge that burden and was
unable to prove that she was being subjected to domestic violence, her
claim to shared household or a right of residence under the DV Act would
fail. Thus, the issue to be determined by the learned Trial Court was with
regard to the subjection of the petitioner to domestic violence and not the
question, whether the premises formed a ‘ shared household ’ .
16. It was further submitted that the presence of the petitioner on the
first floor of the suit premises caused great distress to the respondent
No.1 and his wife, as they were being threatened and abused by the
petitioner in their old age. It was also submitted that the wife of the
respondent No.1 had also filed a police complaint against the petitioner
but since the petitioner had withdrawn the case against the brother-in-law,
the mother-in-law also withdrew her complaint against the petitioner.
The learned counsel submitted that even in the presence of the Police, the
petitioner had slapped her brother-in-law. Furthermore, she not only filed
a case in her own capacity against the respondent No.2/husband under the
DV Act but also instituted a case under the DV Act on behalf of the elder
daughter of the petitioner and respondent No.2/husband who was
presently studying in United Kingdom (UK). In that petition, the
CM(M) 380/2021 Page 8 of 27
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petitioner had claimed 1/9 share on behalf of the elder daughter in the
Karol Bagh property. Thus, she was continually harassing the
respondents.
17. With regard to the maintenance, the learned counsel submitted that
the order for arrears had been passed in January, 2021 and the entire
arrears had been paid. Rs.80,000/- was fixed by the learned Trial Court
for enabling the petitioner to take on rent a 2 BHK flat, after assessing the
extent of area presently in possession of the petitioner. Admittedly, she
had only two rooms on the first floor but now she had expanded her
demands which were rightly rejected by the learned Trial Court. Thus,
the learned counsel submitted that the learned Trial Court had acted
within the parameters of the directions issued by the High Court and it
was not available to the petitioner to re-agitate concluded matters.
18. In rejoinder, Mr. J.P. Sengh, learned senior counsel submitted that
the petitioner was not asking for residence in a particular property but
was asserting her right to remain in her shared household. It was
submitted that it would be improper to say that a daughter-in-law is
squatting in the suit premises to which she was brought after marriage.
Further, it was pointed out that in CM(M) 179/2021 filed by the petitioner
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against the order dated 29 January, 2021, the Co-ordinate Bench of this
Court had held that there was no automatic eviction as per para 56(iii) of
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the judgment dated 18 December, 2019 and thus the argument of the
learned counsel for the respondents was misplaced. Furthermore, the
judgment of the High Court was a common judgment in five other
matters and therefore orders had to be seen as applicable to each of the
CM(M) 380/2021 Page 9 of 27
cases on their own facts. It was submitted that the respondents had a
rd
thriving business and despite the respondent No.2/husband being a 1/3
partner in a Rs.100 crores business and the property having been
purchased by the grandfather out of the said business funds, the petitioner
was being denied her rights. The High Court had itself observed that an
order of alternate accommodation must be a meaningful one but the same
was lacking in the impugned order. As such, the impugned order was
liable to be set aside.
19. At the outset, it has to be kept in mind that this Court is concerned
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only with the impugned order dated 19 April, 2021, so far as to see,
whether it is without error or perversity, not considering irrelevant factors
while ignoring relevant factors. As has been held in India Pipe Fitting
Co. Vs. Fakruddin M.A. Baker (1977) 4 SCC 587, the powers under
Article 227 of the Constitution of India are not the same as those of an
Appellate Court. What concerns this Court is, whether the decision of the
learned Trial Court was or was not appropriate.
20. The learned Single Judge of this Court had in para-No.56 of the
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judgment dated 18 December, 2019, while holding that it was not
looking into the question of shared household since the matter was
“ ”
pending before the Magistrate, passed the following directions:
“ 56. In these circumstances, the impugned judgments cannot be
sustained and are accordingly set aside. The matters are
remanded back to the trial Court for fresh adjudication in
accordance with the directions given hereinbelow:
(i) At the first instance, in all cases where the respondent ’ s
son/the appellant ’ husband has not been impleaded, the trial
CM(M) 380/2021 Page 10 of 27
Court shall direct his impleadment by invoking its suo motu
powers under Order I Rule 10 CPC.
(ii) The trial Court will then consider whether the appellant
had made any unambiguous admission about the
respondent s ownership rights in respect of the suit
’
premises; if she has and her only defence to being
dispossessed therefrom is her right of residence under the
DV Act, then the trial Court shall, before passing a decree of
possession on the sole premise of ownership rights, ensure
that in view of the subsisting rights of the appellant under
the DV Act, she is provided with an alternate
accommodation as per Section 19(1)(f) of the DV Act, which
will continue to be provided to her till the subsistence of her
matrimonial relationship.
(iii) In cases where the appellant specifically disputes the
exclusive ownership rights of the respondents over the suit
premises notwithstanding the title documents in their favour,
the trial Court, while granting her an opportunity to lead
evidence in support of her claim, will be entitled to pass
interim orders on applications moved by the respondents,
directing the appellant to vacate the suit premises subject to
the provision of a suitable alternate accommodation to her
under Section 19(1)(f) of the DV Act, which direction would
also be subject to the final outcome of the suit.
(iv) While determining as to whether the appellant s
’
husband or the in-laws bears the responsibility of providing
such alternate accommodation to the appellant, if any, the
trial Court may be guided by paragraph 46 of the decision
in Vinay Verma (supra).
(v) The trial Court shall ensure that adequate safeguards
are put in place to ensure that the direction for alternate
accommodation is not rendered meaningless and that a
shelter is duly secured for the appellant, during the
subsistence of her matrimonial relationship.
(vi) This exercise of directing the appellant to vacate the suit
premises by granting her alternate accommodation will be
CM(M) 380/2021 Page 11 of 27
completed expeditiously and not later than 6 months from
today.
”
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21. The Supreme Court in its judgement dated 15 October, 2020
concluded that since under Section 26 of the DV Act, Civil Courts could
also consider the issuance of various directions under Section 19 of the
DV Act, the question of shared household , if raised before it, would
“ ”
have to be considered by the Civil Courts as well. It observed that the
impleadment of the husband as a respondent was to be in the discretion of
the Trial Court as per the facts and circumstances of each case. It was
also observed that the orders of the Magistrate would have to be taken
into consideration by the Civil Court while considering eviction of the
daughter-in-law from the shared household. The Supreme Court also
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held that the directions issued vide judgment dated 18 December, 2019
adequately balanced out the mutual rights of the parties.
22. The learned Trial Court at the first instance had asked for an
application to be moved by the present respondents under Section
19(1)(f) of the DV Act. This was challenged by the petitioner in CM(M)
No. 179/2021 which was disposed of by the Co-ordinate Bench of this
nd
Court vide order dated 2 March, 2021 rejecting the contention of the
counsel for the petitioner that the Supreme Court barred the
maintainability of an application offering alternate accommodation to the
petitioner. At the same time, it was clarified that such an application
could not be allowed as a matter of routine and had to be considered by
the learned Trial Court on the facts and circumstances of each case and
that the mere offer of an alternate accommodation was not the
CM(M) 380/2021 Page 12 of 27
determining factor for allowing such an application. It further directed
the learned Trial Court in the instant case to adjudicate on the application
remaining uninfluenced by any of the observations that it had made in its
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order dated 29 January, 2021.
23. With this preliminary note, we may come to the impugned order.
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On a perusal of the impugned order dated 19 April, 2021, the following
may be taken note of:-
(i) That with reference to the arguments of the learned counsel
for the petitioner before the learned Trial Court that the
issues raised by both the parties were to be decided on the
basis of evidence led by them and that the application under
Section 19(1)(f) of the DV Act was not maintainable,
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following the order dated 2 March, 2021 in CM(M)
No.179/2021 of this Court, it felt bound to follow the
observations made therein to decide the issue afresh.
(ii) That in the opinion of the learned Trial Court, the
observations of the Supreme Court in Civil Appeal
No. 2483/2020 related to evidence and pleading with
reference to the right of residence of the petitioner and not a
right of the respondents to offer an alternate accommodation
on rent.
(iii) That it was further of the opinion that these observations
were on the aspect of passing of a judgment on admission
under Order XII Rule 6 of the CPC and on the interpretation
of the judgment of S.R. Batra (supra) and not in the context
CM(M) 380/2021 Page 13 of 27
of considering the right of the parties under Section 19(1)(f)
of the DV Act.
(iv) That since the Supreme Court had upheld the directions of
the High Court in para No.56 of RFA No. 381/2019
th
contained in the judgment dated 18 Dece mber, 2019, the
Trial Court was bound by the said directions.
(v) That the predicaments of the senior citizens must be kept
foremost in the mind as otherwise the purpose of the filing of
the suit would get defeated.
Being so guided, the learned Trial Court allowed the application of
the respondents, calculating the area in the occupation of the petitioner
and the rent that would be payable to enable her to take a similar
accommodation and further granted 40 days time from the date of first
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payment viz. 15 June, 2021 to vacate the premises. Thus, these aspects
need to be considered to arrive at a conclusion on the reasonableness of
the impugned order.
24. The Supreme Court had considered the right of residence under the
DV Act which includes the right of alternate residence and held that the
right of residence would depend on evidence being led on there being a
shared household and domestic violence, which were to be pleaded and
proved by way of evidence. The right to residence is closely connected to
the aspect of ‘ shared household’ and it is where situations were such that
made it impossible for continued residence in a shared household, that the
question of alternate residence would arise. The right to seek alternate
residence thus flows from the right to a residence. Technically, it is the
CM(M) 380/2021 Page 14 of 27
aggrieved person who can file an application including under Section
19(1)(f) of the DV Act. However, this Court had in the judgment dated
th
18 December, 2019 permitted the husband and in-laws to move an
application under Section 19(1)(f) of the DV Act even before the Civil
Court where their suit was pending.
25. This Court is therefore, of the view that reading the judgment of
the Supreme Court narrowly and compartmentalizing reliefs, the relief
sought into a right of residence and the other to a right to provide
alternate residence as opined by the learned Trial Court, would be flawed.
If this reasoning was to be accepted, then once the “right” of the parents-
in-law/husband to “provide” an alternate residence fructified in an order
directing the petitioner to shift to that residence without reference to
evidence that she was entitled to lead, she would be precluded
straightaway from establishing her case of joint ownership and shared
household, which is not what this court and the Supreme Court has held.
The alternate residence is to be considered as an interim arrangement
subject to final orders in the suit, which final orders would be founded on
evidence in respect of the existence of domestic violence, shared
household and joint family ownership.
26. The learned Trial Court has missed the point that the Supreme
Court held that the High Court as other Civil Courts, when faced with the
claim of shared household or joint ownership as raised by a daughter-in-
law against her husband and in-laws, had to consider the issue of the
existence of a “ shared household ” which would have a significant impact
on her right to continue residing in the same premises. To say, therefore,
CM(M) 380/2021 Page 15 of 27
that the observations of the Supreme Court were limited to the
interpretation of the judgment in S.R. Batra (supra) and had no bearing
on the question of the rights of the parties under Section 19(1)(f) of the
DV Act is a completely erroneous understanding of the judgment.
27. The learned Trial Court seems to have misdirected itself even while
following the directions of the High Court encapsulated in para 56
thereof. The learned Trial Court read only sub-paras (iii) & (vi) of para
56 to assume that these were binding directions to the Trial Courts that in
all cases, while allowing defendants before them being the
wives/daughters-in-law, an opportunity to prove their defence of joint
ownership (as also shared household now, in view of the judgment of the
Supreme Court) to without exception, within six months, pass “orders of
eviction” against them after “calling” for applications in this regard.
28. This was neither the intent nor the purpose of the said directions.
As noticed, under the DV Act, it is the “aggrieved person” who can move
the court for relief including residence. This court by issuing directions
in para 56(iii) allowed the in-laws or the husband to move applications
and also empowered the courts to allow such applications, directing the
provision of suitable alternate accommodation to the defendant/daughter-
in-law/wife. However, it was also clarified that when such an application
was moved and was being considered by the learned Trial Court, care
was to be taken to dispose the same expeditiously within six months. The
disposal cannot mean only an order of eviction.
29. Unfortunately, while the learned Trial Court felt “bound” to follow
the directions in para 56, it has completely ignored the caution issued in
CM(M) 380/2021 Page 16 of 27
para 56(v) which is reproduced below for ready reference:
56.
“ ….
(i)
…
(ii)
….
(iii)
….
(iv)
….
(v) The trial Court shall ensure that adequate safeguards
are put in place to ensure that the direction for alternate
accommodation is not rendered meaningless and that a
shelter is duly secured for the appellant, during the
subsistence of her matrimonial relationship.
(vi) ….”
( emphasis added )
30. What the learned Trial Court has done is totally at variance with
this direction. But before proceeding further we may consider two other
aspects. Finding the facts of both the cases similar and in view of the fact
that this court had in Vinay Verma’s case directed the father-in-law and
husband of the petitioner to provide an alternate accommodation and had
fixed a rent payable month by month into her bank account, the learned
Trial Court also has issued an order of eviction against the petitioner
while granting rent to be paid by her husband and father-in-law.
However, it is considered apposite to reproduce the guidelines issued by
the Co-ordinate Bench of this Court in case:
Vinay Verma’s
“58. However, later decisions of various High Courts have,
while giving divergent opinions on the concept of ‘shared
household’, followed one uniform pattern in order to protect
the daughter-in-law and to provide for a dignified roof/shelter
for her. The question then arises as to whether the obligation of
providing the shelter or roof is upon the in-laws or upon the
CM(M) 380/2021 Page 17 of 27
husband of the daughter-in-law i.e., the son. Some broad
guidelines as set out below, can be followed by Courts in order
to strike a balance between the PSC Act and the DV Act:
1. The court/tribunal has to first ascertain the nature of
the relationship between the parties and the
son's/daughter's family.
2. If the case involves eviction of a daughter in law, the
court has to also ascertain whether the daughter-in-law
was living as part of a joint family.
3. If the relationship is acrimonious, then the parents
ought to be permitted to seek eviction of the son/daughter-
in-law or daughter/son-in-law from their premises. In
such circumstances, the obligation of the husband to
maintain the wife would continue in terms of the
principles under the DV Act.
4. If the relationship between the parents and the son are
peaceful or if the parents are seen colluding with their
son, then, an obligation to maintain and to provide for the
shelter for the daughter-in-law would remain both upon
the in-laws and the husband especially if they were living
as part of a joint family. In such a situation, while parents
would be entitled to seek eviction of the daughter-in-law
from their property, an alternative reasonable
accommodation would have to be provided to her.
5. In case the son or his family is ill-treating the parents
then the parents would be entitled to seek unconditional
eviction from their property so that they can live a
peaceful life and also put the property to use for their
generating income and for their own expenses for daily
living.
6. If the son has abandoned both the parents and his own
wife/children, then if the son's family was living as part of
a joint family prior to the breakdown of relationships, the
parents would be entitled to seek possession from their
daughter-in-law, however, for a reasonable period they
would have to provide some shelter to the daughter-in-law
CM(M) 380/2021 Page 18 of 27
during which time she is able to seek her remedies against
her husband.”
Significantly, it is for the learned Trial Court to determine the
nature of relationship between the parties and to permit eviction, if the
relationship was acrimonious. The learned Trial Court was also to
ascertain, whether the daughter-in-law was residing in a joint family.
This was to be during the subsistence of the matrimonial life. But the
learned Trial Court has not dealt with these aspects at all as it felt bound
to call for the application from the respondents and issue an eviction
order forthwith. Important facts have been overlooked.
Secondly, the judgment of the Supreme Court in S. Vanitha
(supra) needs to be taken into account while balancing the rights of the
daughter-in-law and the senior citizens. In that case, a daughter-in-law
was directed by the Tribunal to be evicted as her in-laws were senior
citizens and the order of eviction had actually been obtained under the
Senior Citizens Act, 2007. Interestingly, the Supreme Court referred to
its judgment in the SLP filed by the respondent No.1 herein, as well as
the intent and purpose of both the enactments namely the Senior Citizens
Act, 2007 and the DV Act to hold as below:
37. In this case, both pieces of legislation are
“
intended to deal with salutary aspects of public
welfare and interest. The PWDV Act 2005 was
intended to deal with the problems of domestic
violence which, as the Statements of Objects and
Reasons sets out, “ is widely prevalent but has
remained largely invisible in the public domain ” .
The Statements of Objects and Reasons indicates
that while Section 498A of the Penal Code, 1860
CM(M) 380/2021 Page 19 of 27
created a penal offence out of a woman's
subjection to cruelty by her husband or relative,
the civil law did not address its phenomenon in its
entirety. Hence, consistent with the provisions of
Articles 14, 15 and 21 of the Constitution,
Parliament enacted a legislation which would
provide for a remedy under the civil law which is
“
intended to protect the woman from being victims
of domestic violence and to prevent the occurrence
of domestic violence in the society . The ambit of
”
the Bill has been explained thus:
“ 4. The Bill, inter alia, seeks to provide for
the following: —
(i) It covers those women who are or have
been in a relationship with the abuser where both
parties have lived together in a shared household
and are related by consanguinity, marriage or
through a relationship in the nature of marriage or
adoption. In addition, relationships with family
members living together as a joint family are also
included. Even those women who are sisters,
widows, mothers, single women, or living with the
abuser are entitled to legal protection under the
proposed legislation. However, whereas the Bill
enables the wife or the female living in a
relationship in the nature of marriage to file a
complaint under the proposed enactment against
any relative of the husband or the male partner, it
does not enable any female relative of the husband
or the male partner to file a complaint against the
wife or the female partner.
(ii) It defines the expression “ domestic
violence ” to include actual abuse or threat or
abuse that is physical, sexual, verbal, emotional or
economic. Harassment by way of unlawful dowry
demands to the woman or her relatives would also
be covered under this definition.
CM(M) 380/2021 Page 20 of 27
(iii) It provides for the rights of women to
secure housing. It also provides for the right of a
woman to reside in her matrimonial home or
shared household, whether or not she has any title
or rights in such home or household. This right is
secured by a residence order, which is passed by
the Magistrate.
(iv) It empowers the Magistrate to pass
protection orders in favour of the aggrieved
person to prevent the respondent from aiding or
committing an act of domestic violence or any
other specified act, entering a workplace or any
other place frequented by the aggrieved person,
attempting to communicate with her, isolating any
assets used by both the parties and causing
violence to the aggrieved person, her relatives or
others who provide her assistance from the
domestic violence.
(v) It provides for appointment of Protection
Officers and registration of non-governmental
organisations as service providers for providing
assistance to the aggrieved person with respect to
her medical examination, obtaining legal aid, safe
shelter, etc.
”
38. The above extract indicates that a significant
object of the legislation is to provide for and
recognize the rights of women to secure housing
and to recognize the right of a woman to reside in
a matrimonial home or a shared household,
whether or not she has any title or right in the
shared household. Allowing the Senior Citizens
Act 2007 to have an overriding force and effect in
all situations, irrespective of competing
entitlements of a woman to a right in a shared
household within the meaning of the PWDV Act
2005, would defeat the object and purpose which
the Parliament sought to achieve in enacting the
CM(M) 380/2021 Page 21 of 27
latter legislation. The law protecting the interest of
senior citizens is intended to ensure that they are
not left destitute, or at the mercy of their children
or relatives. Equally, the purpose of the PWDV Act
2005 cannot be ignored by a sleight of statutory
interpretation. Both sets of legislations have to be
harmoniously construed. Hence the right of a
woman to secure a residence order in respect of a
shared household cannot be defeated by the simple
expedient of securing an order of eviction by
adopting the summary procedure under the Senior
Citizens Act 2007. ” ( emphasis added )
The Supreme Court has gone to the extent of holding that even the
powers of the Special Tribunal constituted under the Senior Citizens Act,
2007 to grant remedies of maintenance as envisaged under Section 2(b)
of the Senior Citizens Act, 2007, do not result in obviating competing
remedies under the DV Act. Therefore, in the event of a composite
dispute where the suit premises is a site of contestation between the two
groups protected by the law, appropriately moulded reliefs qua both the
sides ought to be granted. Section 3 of the Senior Citizens Act, 2007
cannot be deployed to override and nullify other protections in law
particularly that of a women s right to a shared household under
’ “ ”
Section 17 of the DV Act. In other words, the fact situation had to be
assessed at least on a prima facie evaluation before directing the eviction
of the daughter-in-law from what she describes is her ‘ shared household ’ .
It bears repetition that the Supreme Court has held that what constitutes a
shared household is a matter of evidence.
31. In the present case, it has been stated before this Court that in the
suit, an interim order had been passed restraining the petitioner from
CM(M) 380/2021 Page 22 of 27
approaching the respondents, as both were residing in separate floors of
the suit premises namely, the respondents on the ground floor and the
petitioner on the first floor. It is not the respondents case that thereafter,
’
there has been any violation of the said order. FIRs which had been filed
against each other though, seem to have been withdrawn. The learned
counsel for the respondents had argued that the petitioner had slapped her
brother-in-law in the presence of the Police. However, the circumstances
in which such an incident may have happened has not been explained. At
this juncture, it is not even the case of the respondents that the petitioner
has been entering the residence of the respondents or physically
assaulting them. Availing of legal remedies can hardly be described as
harassment. Thus, even as per the requirement of Vinay Verma’s (supra)
case, the learned Trial Court has not come to a cogent conclusion that the
relationship was acrimonious. The learned Trial Court has also
overlooked the interim injunction still in force against the petitioner
which she has clearly not violated so far.
32. The Supreme Court has opined that, whether a premises constitutes
a shared household, is to be determined on evidence. The learned Trial
Court has not given thought to this question of shared household even
perfunctorily. It has taken the view that there is no proprietary right of a
daughter-in-law to stay in a particular premises to enforce her right of
residence under the DV Act. While this may be true, the obligation on
the learned Trial Court to weigh all circumstances before directing
eviction of the daughter-in-law being an onerous one has not been duly
discharged. An important fact which seems to have been overlooked by
CM(M) 380/2021 Page 23 of 27
the learned Trial Court is that the petitioner had begun to reside on the
th
first floor of the suit premises upon her marriage on 4 March, 1995,
whereafter two children were born from the wedlock and who too were
brought up in the same premises. It is only now, because of matrimonial
disputes leading to the respondent No.2/husband instituting divorce
proceedings against the petitioner in 2014, that an effort is being made to
evict the petitioner alone, from the first floor. The petitioner s elder
’
daughter is studying in United Kingdom whereas the younger daughter is
not being evicted from the premises in question. When clearly, the
petitioner is not interfering with the life of the respondents, this targeted
eviction being sought, should have weighed in the mind of the learned
Trial Court.
33. However, the starkest fact that stands out from the impugned
judgment is the total insensitivity of the learned Trial Court in issuing the
impugned directions. It cannot be overlooked that the impugned order
th
was passed on 19 April, 2021 when Delhi was at the peak of the second
wave of Covid-19. The hospitals were overflowing with patients and no
family had remained untouched by the mayhem caused by the Covid-19
pandemic. Yet, it left the petitioner to search for herself and take some
premises on rent.
34. The rent was fixed at Rs.80,000/- per month and directions were
th
issued for payment of two months ’ rent by 10 May, 2021 and
th th
Rs.80,000/- by 10 June, 2021 and thereafter by the 10 day of every
succeeding month directly to the bank account of the petitioner. The
th
petitioner was directed to vacate the premises by 15 June, 2021. Despite
CM(M) 380/2021 Page 24 of 27
th
the caution issued by this court in the orders dated 18 December, 2019
that the order of alternate accommodation should not be a meaningless
exercise, that is precisely what the learned Trial Court has ended up
doing.
35. Admittedly, the respondents have been in arrears of payment of
maintenance. Though the learned counsel for the respondents submitted
st
that it was only on 1 March, 2021 that the respondent No.2/husband had
been directed to pay up the arrears, that is not the complete truth. Orders
for payment of Rs.1,00,000/- per month and payment of all arrears within
th
six months in six equal installments had been passed on 14 January,
2021. While six months time was granted to pay the arrears, the record
bears out the fact that the said maintenance was not paid ever upon the
st
directions of the Division Bench of this court dated 1 March, 2021. After
th
this Court had directed on 25 May, 2021, that the advance rent paid may
be adjusted towards maintenance, it appears that all the arrears have been
paid. It is also relevant to note that the petitioner was compelled to file
execution petition for the payment of maintenance. The petitioner also
had to file an application in October, 2020 seeking payment of electricity
charges as the respondent No.2/husband had refused to pay the electricity
charges which reflects his reluctance to discharge his legal obligations of
taking care of the expenses of the petitioner. In this factual background,
without ensuring that the directions issued for payment of future rent
would be complied with without fail, the learned Trial Court asked the
th
petitioner to vacate the premises by 15 June, 2021.
36. No doubt the powers under Article 227 of the Constitution of India
CM(M) 380/2021 Page 25 of 27
cannot be exercised as if the court is an Appellate Court. However, when
the learned Trial Court overlooks significant facts and considers
irrelevant facts, this Court in its supervisory jurisdiction would interfere
with a decision of a Trial Court, especially in the event the orders appear
to be perverse and unreasonable.
37. In the present case, the learned Trial Court seems to have been
particularly keen to pass an eviction order against the petitioner without
proper application of mind to all the circumstances that could justify such
an order of eviction.
38. In light of the special circumstances in the present case that: (a)
since marriage, the petitioner has been in occupation of the first floor; (b)
the premises in her occupation was separate from the premises in
occupation of the respondents; (c) the subsistence of an injunction order
in this very suit, restraining the petitioner from disturbing the possession
of the respondents of the ground floor; (d) the fact that this order has not
been violated by the petitioner; (e) the petitioner being pushed to file
Execution Petitions to obtain the maintenance awarded to her; (f) the
application moved by the petitioner for payment of the electricity charges
in respect of the first floor of the premises where the petitioner is residing
and the claim of the respondent No.2 that he did not have the means to do
so; (g) the uncertainty, in these circumstances of the respondents meeting
their obligation of paying rent regularly, and (h) finally, the prevailing
circumstances of the pandemic when such an order was passed, all reflect
the perversity and unreasonableness of the impugned order. The
directions issued to the petitioner to shift out to a rented accommodation
CM(M) 380/2021 Page 26 of 27
were most unwarranted.
39. Though it was argued before this Court by the learned counsel for
the respondents that now that there was no pandemic like situation in
Delhi and therefore the petitioner could shift to some other premises, in
view of the other circumstances as enumerated above, this Court does not
find any force in this submission.
40. The petition is accordingly allowed and the impugned order is set
aside. The pending application also stands disposed of. No order as to
costs.
41. The judgment be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
NOVEMBER 15, 2021
bs
‘ ’
CM(M) 380/2021 Page 27 of 27