Saturday, 11 June 2016

When wife is entitled to reside in house jointly owned by her husband and mother in law?

There can be no quarrel with the aforesaid exposition of law. But, then the petitioner has failed to prove on record that the house belongs exclusively to his mother. Rather, it has come on record that he alongwith his mother had taken a loan for building the house and he was repaying the loan amount in monthly installment of ` 7,000/-. He also admitted that his salary was ` 25,000/- per month, whereas, his mother had retired from a government job in the year 2010 and his father was handicapped. The petitioner himself has admitted that there are 9-10 rooms in the old and new houses and once this is the position, the petitioner cannot back out from his legal obligation of providing residence to the respondent in the shared household.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.M.M.O. No. 248 of 2014
Decided On: 21.05.2015
Appellants: Sandeep Gupta 
Vs.
Respondent: Indu Gupta
Hon'ble Judges/Coram:Tarlok Singh Chauhan, J.
Citation: 2016 ALLMR(CRI)JOURNAL225

1. This petition under Section 482 Cr.P.C. is directed against the judgment passed by learned Additional Sessions Judge, Kullu, on 21.10.2014 whereby he affirmed the order passed by learned Chief Judicial Magistrate, Kullu, directing the petitioner to provide one room to the aggrieved person in the newly constructed shared household for residence purpose.
2. The matrimonial relationship inter se parties is not denied. The learned Courts below have concurrently found the respondent to be the legally wedded wife of the petitioner. The marriage between the parties had been solemnized as per Hindu rites and ceremonies on 04.11.2007 and out of this wedlock a son was born to them. On the application of the wife, the respondent was directed to pay monthly maintenance at the rate of ` 4,000/- to her and their minor child and provide one room in the shared household.
3. The learned counsel for the petitioner has argued that instead of petitioner being compelled to provide the respondent with the shared household, he is ready to hire a separate accommodation for the respondent and their child and, therefore, the orders of the Courts below to provide a shared household be quashed and set aside. He further argued that once the accommodation belongs to his mother, the same cannot be said to be a shared household and, therefore, the respondent has no right to claim residence in such premises.
I have heard the learned counsel for the parties and have gone through the records of the case.
4. Section 19 of the Protection of Women from Domestic Violence Act, 2005 (for short the 'Act') reads thus:--
"19. Residence Orders.-(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-
(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;
(b) directing the respondent to remove himself from the shared household;
(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;
(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or
(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:
Provided that no order under clause (b) shall be passed against any person who is a woman.
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to execute a bond with or without sureties, for preventing the commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an order under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) and shall be dealt with accordingly.
(5) While passing an order under sub-section (1), sub-section (2) or sub-section (3), the Court may also pass an order directing the officer in-charge of the nearest police station to give protection to the aggrieved person or to assist her or the person making an application on her behalf in the implementation of the order.
(6) While making an order under sub-section (1), the Magistrate may impose on the respondent obligations relating to the discharge of rent and other payments, having regard to the financial needs and resources of the parties.
(7) The Magistrate may direct the officer in-charge of the police station in whose jurisdiction the Magistrate has been approached to assist in the implementation of the protection order.
(8) The Magistrate may direct the respondent to return to the possession of the aggrieved person her stridhan or any other property or valuable security to which she is entitled to."
5. Insofar as the first contention of the petitioner is concerned, it is only after the petitioner has invited adverse findings from the learned Courts below that such an offer of hiring separate premises is being made. In terms of the Act, the wife has a right of residence which does not mean a right to residence in a particular property. Though the same essentially is a right of residence in a commensurate property, but this action does not translate into a right to reside in a particular property. But, then there should be some plausible reason as to why the petitioner is not ready to provide a residence in the shared household. It is not a case where a house has been allotted to a higher functionary or that the petitioner is residing in government accommodation for which exception for providing residence in the shared household can always be carved out. Therefore, in such facts and circumstances, the wife definitely has a right in the property over which her husband has a right, title and interest to claim residence. The offer of the husband at the initial stage to provide a commensurate alternate residence could have been considered, but not now when the petitioner has lost in both the Courts below.
6. In support of his second contention regarding the household belonging to the mother and, therefore, the same being incapable of being provided as shared household, the learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in S.R. Batra & Anr. versus Taruna Batra MANU/SC/0007/2007 : AIR 2007 SC 1118. It was held therein that the claim of the wife for a shared household is only available against the husband and not against her in-laws or other relatives and in case the shared household belongs to mother-in-law, the same does not become "shared household" only because of the wife had shared that house with her husband earlier. For enforcing this claim, the house has to be owned and taken by the husband on rent or a house which belongs to a joint family of which husband is a member.
7. There can be no quarrel with the aforesaid exposition of law. But, then the petitioner has failed to prove on record that the house belongs exclusively to his mother. Rather, it has come on record that he alongwith his mother had taken a loan for building the house and he was repaying the loan amount in monthly installment of ` 7,000/-. He also admitted that his salary was ` 25,000/- per month, whereas, his mother had retired from a government job in the year 2010 and his father was handicapped. The petitioner himself has admitted that there are 9-10 rooms in the old and new houses and once this is the position, the petitioner cannot back out from his legal obligation of providing residence to the respondent in the shared household.
8. In view of the aforesaid discussion, there is no merit in this petition and the same is dismissed alongwith pending application(s), if any, leaving the parties to bear their own costs.

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