Thursday, 20 September 2018

Whether wife can claim right of residence in property in the name of her father in law?

Against the above backdrop, the contentions raised by the
petitioner that she has a right to continue to live in a portion of the
above-mentioned property cannot survive. The claim of her husband
through whom she claims the right of residence in his property has
already been repelled by the civil court twice, once in the partition suit
and second time in the suit for partition brought by the first respondent
himself. The claim brought through her son has already been rejected,
the suit for partition having already been dismissed.
12. It is clear from the averments of the petitioner herself, she has
been permitted to use a portion of the property by the second
respondent. This averment may be assumed to be correct. But, then it
is clear from the averment itself that what was allowed was only a
permissive user. The petitioner cannot force herself on the owner of

the property, particularly when she has no vested or legal right to claim residence in his property.
13. The judgments reported as Navneet Arora vs. Surender Kaur & Ors. in FAO (OS 196/2014, decided by a division bench of this Court on 10.09.2014, and Smt. Preeti Satija vs. Smt. Raj Kumari & Anr. in RFA (OS) 24/2012, decided by another division bench of this Court on 15.01.2014, do not assist the petitioner in the present case in view of the ruling of the Supreme Court in S.R. Batra vs. Taruna Batra (2007) 3 SCC 169, particularly, the observations in para 29 of which read as under:-
“As regards Sec. 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’.”
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 30th August, 2018
 Crl.M.C. 2082/2016 & Crl.M.A. 8823-24/2016

MANJU GUPTA  Vs  PANKAJ GUPTA 

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA



1. The petitioner was married to Pankaj Gupta (the first
respondent) on 06.12.1985 and they have a male child Pranav Gupta
as part of family. Concededly, the parties had lived in a portion of
property bearing no. 47/35, Punjabi Bagh West, New Delhi for some
time. Concededly again, the marriage ran into rough weather and this
resulted in an estranged relationship and matrimonial dispute,
eventually resulting in a petition (CC No. 66/1/2014) being filed under
Section 12 of Protection of Women from Domestic Violence Act,
2005 by the petitioner impleading the said husband Pankaj Gupta and

his father Prem Prakash Gupta (the second respondent herein). In the
said proceedings, the petitioner also claimed right of residence,
referring in this context to the above-mentioned property, describing it
as the “shared household”. The property in question concededly
stands in the name of the second respondent (the father-in-law).
2. The Metropolitan Magistrate, by order dated 01.03.2016,
declined to grant any relief in the nature of right to residence in
respect of a portion in the above-mentioned property, referring in this
context to the litigation in various cases, primarily one in the civil
court. The petitioner challenged the said order in the court of Sessions
by Crl. Appeal No. 14/2016 which was dismissed by order dated
21.04.2016.
3. Feeling aggrieved, the present petition was filed invoking the
inherent jurisdiction of this Court under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) read with Article 227 of the
Constitution of India. The petitioner, reiterating her case, states that
she has a right to continue to reside in the portion of the abovementioned
property notwithstanding the fact that it stands in the name
of the father-in-law (second respondent), asserting that she has been
permitted the use and occupation of room in the said property by the
second respondent by way of a “family arrangement” and that further
in light of the fact that her husband (the first respondent) would have a
right of succession in the property.
4. The short and simple issue which needs to be addressed is as to
whether the property in question or any portion thereof can be

described in the given facts and circumstances to be a “shared
household”.
5. The expression “shared household” is described in the
Protection of Women from Domestic Violence Act, 2005 by Section
2(s) as under:-
“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
family 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”.
6. It is conceded at the bar that the right of residence under the
above-mentioned special legislation can be claimed and pressed only
against the husband and not against the father. It is inherent in the
above-mentioned definition of “shared household” that the person
against whom the right of residence is claimed qua the household
described as such should have a right, title or interest therein. In this
view, the right of the petitioner to continue to live in or enjoy the
occupation of a portion of the above-mentioned property is only
through her husband i.e. the first respondent.

7. In above context, it is pertinent to note, as has also been the
basis of the decision of the two courts below, that the first respondent
had been proceeded against by the second respondent by civil suit no.
210/2001 seeking relief in the nature of decree of possession/eviction
in which the first respondent was the defendant. The said suit was
decreed by the court of Additional District Judge in favour of the
second respondent on 31.08.2002. It is clear from the material on
record to confirm that the first respondent, as the judgment debtor in
the said decree, had challenged it by regular first appeal no. 792/2002
before this Court but the said appeal was dismissed by judgment dated
30.11.2011. It is also conceded that the first respondent had also
preferred SLP (Civil) 19361/2012 before the Supreme Court, but the
same was dismissed by order dated 24.07.2012.
8. On the other hand, the first respondent had brought a civil suit
(no. 2653/95) seeking relief in the nature of decree of partition of the
above-mentioned property. The said suit came to be dismissed by
judgment dated 25.07.2012, no appeal having been preferred against
the said decision, it having consequently become final and binding
between the parties.
9. In 2011, the petitioner as the next friend of her son Pranav
Gupta had instituted another suit – CS (OS) no. 598/2011 – for the
relief of partition against the second respondent in respect of the said
very property. The said civil suit was dismissed by order dated
06.05.2013. An appeal (RFA 102/2013) was preferred against the said
decision, it was withdrawn and dismissed accordingly by order dated

03.02.2016. The matter, as far as the claim of the grandson against the
second respondent is concerned, has rested there.
10. Though the second respondent has taken out execution
proceedings (execution case 15/2013) pursuant to the decree of
possession in civil suit no. 210/2001, the same have been pending in
the concerned forum. It appears that the petitioner had filed some
application in the nature of objections seeking stay of the execution
proceedings which application/objection was dismissed by order dated
24.08.2013. The said order was also challenged in the revisional
forum by Rev. Petition no. 155/2013, but it was withdrawn and
dismissed accordingly on 19.08.2014.
11. Against the above backdrop, the contentions raised by the
petitioner that she has a right to continue to live in a portion of the
above-mentioned property cannot survive. The claim of her husband
through whom she claims the right of residence in his property has
already been repelled by the civil court twice, once in the partition suit
and second time in the suit for partition brought by the first respondent
himself. The claim brought through her son has already been rejected,
the suit for partition having already been dismissed.
12. It is clear from the averments of the petitioner herself, she has
been permitted to use a portion of the property by the second
respondent. This averment may be assumed to be correct. But, then it
is clear from the averment itself that what was allowed was only a
permissive user. The petitioner cannot force herself on the owner of

the property, particularly when she has no vested or legal right to claim residence in his property.
13. The judgments reported as Navneet Arora vs. Surender Kaur & Ors. in FAO (OS 196/2014, decided by a division bench of this Court on 10.09.2014, and Smt. Preeti Satija vs. Smt. Raj Kumari & Anr. in RFA (OS) 24/2012, decided by another division bench of this Court on 15.01.2014, do not assist the petitioner in the present case in view of the ruling of the Supreme Court in S.R. Batra vs. Taruna Batra (2007) 3 SCC 169, particularly, the observations in para 29 of which read as under:-
“As regards Sec. 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’.”
14. The petition and the applications filed therewith, therefore, are dismissed.
15. The interim orders are vacated.
R.K.GAUBA, J. AUGUST 30, 2018.
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