Mere Visits Not Sufficient To Constitute Residence In Shared Household: Bombay HC Quashes Domestic Violence Case Against A Married Sister In Law

It will be beneficial to refer to the decision of of this Court (Aurangabad Bench) in Criminal Application No.4281 of 1999 (Avinash s/o. Rangnath Bhokare vs. State of Maharashtra and Ors), where in the learned Single Judge was considering an application under Section 482 of the Code of Criminal Procedure, 1973, filed by the Applicant which included the married sister-in- law and has held that it would be sheer abuse of process of law that merely because they sometimes visited their parental house, they were sharing the household with the aggrieved person within the meaning of Section 2(f) of the D.V. Act so as to constitute a domestic relationship as defined under Section 2(f) of the D.V. Act. {Para 26}

27. In view of the discussion above, in my view, there was no subsisting domestic relationship between the Petitioner and the Respondent No 1 and the Petitioner could not have been arrayed as Respondent in the D.V. application. The mere visits of the Petitioner to the shared household being devoid of any permanency is not sufficient and adequate to constitute residence in shared household. Even otherwise considering the pleadings in the applications read with the reliefs, there is no case of domestic violence made out qua the Petitioner.

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition (ST.) No. 18350 of 2023

Decided On: 14.02.2024

Kinjal  Vs. Disha

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

 Citation: 2024:BHC-AS:7359 MANU/MH/0892/2024.

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Whether son can refuse to pay maintenance to mother on the ground that he has no earnings?

  Learned counsel for the Petitioners vehemently argues that:they do not have sufficient means to pay  the amount and they are ready & willing to look after their mother and therefore, she should be asked to join their home, leaving the place of her daughters; the mother has claimed maintenance only at the instigation of her daughters and thus the claim lacks bona fide. {Para 2}

(ii) The second submission of learned counsel for the

Petitioners that his clients do not have any means to pay

the amount directed in terms of impugned orders, is too

farfetched an argument and therefore, does not merit

countenance. Law, religion & custom mandate sons to

look after their parents, and more particularly aged

mother. 

The above shloka nearly translates to: to neglect the

parents, particularly in their old age, when they become

weak and dependent and to cause anguish, is a heinous

act for which there is no atonement available. The

virtuous idea is that one should respect & serve one’s

parents, guests & gurus, before one worships the

Almighty. 

(iii) The argument that Petitioners do not have means to

pay, is too poor a justification for not looking after the

aged & ailing mother, especially when it is not their case

that they are not able bodied or diseased. The first

Petitioner who is present before the Court and participated

in the proceedings, is hale & healthy; the second Petitioner

is not before the Court, is true; but it is not his case too

that he is weak & incapable of earning; if an able bodied

person is bound to maintain his dependent wife, there is

no reason why such a rule should not apply when it comes

to the case of a dependent mother. An argument to the

contra falls foul of law & religion, to which the Petitioners

belong.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION NO. 13182 OF 2022 (GM-RES)

SRI. GOPAL  LATE YELLAIAH Vs  THE DEPUTY COMMISSIONER,

BEFORE

THE HON'BLE MR JUSTICE KRISHNA S DIXIT

DATED THIS THE 12TH DAY OF JULY, 2023.

Read full Judgment here: Click here

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Whether the son can compel mother to reside with her if she is claiming maintenance from him?

Learned counsel for the Petitioners vehemently

argues that: Petitioners being the appellants could not

have been made worse off in their own appeal; they do

not have sufficient means to pay the amount and they are

ready & willing to look after their mother and therefore,

she should be asked to join their home, leaving the place

of her daughters; the mother has claimed maintenance

only at the instigation of her daughters and thus the claim

lacks bona fide.

(v) The next contention of the Petitioners that they are

ready & willing to look after their mother and therefore

she should be directed to join them, is neither legally

sustainable nor factually desirable. This Court saw the

mother Smt.Venkatamma, who is absolutely illiterate and

who has a fragile health condition; she is aged about 84

years, as admitted in the Petition itself. Her eyesight is

considerably diminished. Law of marriage generally

provides for restitution of conjugal rights qua the deserting

spouse, is true. No law or ruling of the kind is cited at the

Bar that the unwilling parents can be forced to reside with

their children. Such a contention is incongruous and

abhorrent to our culture & tradition, to say the least.

(vi) Absolutely no material is produced by the Petitioners

to substantiate their allegation that the mother is being

manipulated by her daughters. It is not that the daughters

want any share in the family property. It is they who have

been looking after the mother abandoned by the sons.

But for them, she would have been on the streets. The

gestures shown by the daughters merits a deep

appreciation at the hands of this Court.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION NO. 13182 OF 2022 (GM-RES)

SRI. GOPAL  LATE YELLAIAH Vs  THE DEPUTY COMMISSIONER,

BEFORE

THE HON'BLE MR JUSTICE KRISHNA S DIXIT

DATED THIS THE 12TH DAY OF JULY, 2023

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Whether court can pass eviction decree on ground of non user even if tenant has no intention to shift his residence?

The contention of Learned Counsel for the Petitioner is that the burden of proof has been wrongly placed on the Petitioner/Landlord. It has, however been recognised in the impugned judgment itself that in cases of the present genere, it is the tenant who can best discharge the burden of proving that he/she had not resided in the demised premises for a period of over six months immediately preceding the filing of the Petition. However, residency inherently implies permanency. Before a finding can be returned to the effect that a tenant has not resided in the demised premises for the said period of six months, the Court must be fully satisfied that there was an intention to shift the residence to an alternative place. For instance, a tenant may be transferred to another city and as a consequence it may become necessary for him to be away from the demised premises for even six months. The grounds of eviction would be made out. Could the tenant defeat the purpose of the legislation by making a short stay, in between this period, I would think that it would be a futile exercise, and he would not succeed in sewing himself from eviction. For the same reason, if there is no intention to reside at another place for this period, if this incidentally transpires for circumstances beyond the control of the Tenant, in my view he would not be liable to eviction. In the present instance, it appears to be the common case that the Respondent had left India with the purpose of visiting her children. There is no evidence that she had the intention of shifting residence for a period of over six months. As it happened, she appears to have returned to within three months. The Court must be alive fact that it is conceivable that the tenant leaves the residence with the intention of staying out for a couple of months, and for reasons beyond their control, staying out for a period of over six months. The burden of giving an acceptable Explanation would rest with the Tenant. In such case, there is no intention not to reside in the said premises within this period. In my view, Therefore, the initial burden would be on the Petitioner not only to state that there has been an absence of the tenant from the demised premises for a period of six month but also that this absence was fully intended. Only once the initial burden of proof is discharged by the Landlord does it shift to the Tenant. Learned Counsel has relied on the decision of Sushil Chander Gupta Vs. Radha Krishan Bathisa, 1981 (1) All IRCJ 711. I am in respectful agreement with the extracted view expressed therein which reads as follows

The question of residence or non-residence is not a question of presumption. It is question of fact. It is not a question of inference but of positive proof. The landlord cannot prove the negative except by his statement. The tenant is required to prove the positive. The burden at once shift to him to show that he was residing during the period in question.

IN THE HIGH COURT OF DELHI

C.M.(M) No. 576 of 1998

Decided On: 13.12.2000

Ranjit Singh Vs. Inez Richards

Hon'ble Judges/Coram:

Vikramajit Sen, J.

Citation: 2001(2) RCR 716

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Whether eviction decree will be denied to landlord if tenant casually visits tenanted premises?

 Chagla, C.J. Has further observed that - "Now, a mere casual occupation of premises does not constitute residence in those premises. In construing sub-clause (k), one must also bear in mind the object of the Legislature in passing this legislation. The Rent Restriction Act is passed because there was a scarcity of premises and therefore it was necessary to protect bonafide tenants and also to see that premises were not left unoccupied so that people in need of premises should not be deprived of them and also a tenant should not have one set of premises of one place and go about residing in some other premises. Therefore, the purpose within the meaning of sub-clause (k) for which premises are let is the purpose of permanent residence; not a mere casual occupation, not a mere spasmodic stay in the premises." So this decision of Chagla, C.J. interprets the words 'use' in a way connecting it with 'residence' importing that word in sub-clause (k) also and quite justifiably. As considered by me earlier, the purpose of the Rent Control Act is that the people in need of premises should not be deprived of them and also a tenant should not have one set of premises at one place and go about residing in some other premises. This is what exactly done in the instant case. The petitioner wants to continue her premises in Baroda and she states that her parents stay in the said premises. Her very parents have their own premises in Bombay where the petitioner herself stays. So it is not a case where person is without a shelter. But on the contrary, the person is trying to have shelter at both the places depriving some needy tenant of shelter in Baroda. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Civil Revision Application No. 713 of 1979

Decided On: 03.04.1984

Mohini Bhiryomal Hingorani Vs. Bhanubhai Manilal Patel

Hon'ble Judges/Coram:

V.V. Bedarkar, J.

Citation: 1985 Bom RC 27

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Whether mere casual visit to tenanted premises will amount to residence required U/S 16(1)(n) of maharashtra rent control Act?

 Proceeding to consider as to whether any other member of the family was residing in the premises, having regard to the fact that the evidence in that case showed that son of the petitioner stayed in the premises from June 9 to June 14 and C J. observed : -

" ................... As a matter of fact, the learned District Judge finds and I am bound by that finding - that there was merely a casual occupation by the petitioner's son for a spasmodic period of a week. Now, a mere casual occupation of premises does not constitute residence in those premises. In construing sub-clause (k), one must also bear in mind the object of the Legislature in passing this legislation. The Rent Restriction Act is passed because there was a scarcity of premises and therefore it was necessary to protect bona fide tenants and also to see that premises were not left unoccupied so that people in need of premises should not be deprived of them and also a tenant should not have one set of premises at one place and go about residing in some other premises. Therefore, the purpose within the meaning of sub-clause (k) for which premises are let is the purpose of permanent residence; not a mere casual occupation, not a mere spasmodic stay in the premises ........"
(Underlining mine).

IN THE HIGH COURT OF BOMBAY

Special Civil Appln. No. 2795 of 1969

Decided On: 23.03.1972

 Achut Pandurang Kulkarni Vs. Sadashiv Ganesh Phulambrikar

Hon'ble Judges/Coram:
M.S. Vaidya, J.
Citation : AIR 1973 Bom 210

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Whether eviction decree can be passed against tenant if he gives tenanted premises to his nephew for residence?

 Viz-a-vis the aspect of sub-letting, we are inclined to concur with the finding of the Trial Court that Motichand, who was the nephew of the original Defendant, had been inducted in the suit premises as a sub-tenant. Further as it is a matter of record that the original Defendant had constructed his own house elsewhere where he has been residing with his wife, the accommodation of his nephew Motichand in the suit premises did amount to sub-letting and the same having been done without the knowledge and approval of the landlords, this too provided a ground for his eviction therefrom.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4309 of 2017 (Arising out of SLP (C) No. 17414 of 2015).
Decided On: 21.03.2017

Om Prakash and Ors.Vs. Mishri Lal (dead) represented by his LR. Savitri Devi and Ors.

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Whether father can demand tenanted premises in eviction suit for residence of his daughter?

The fact that the petitioner and his wife, who are somewhat in the evening of their lives, desire that their daughter should come and stay with them can be regarded as a fact of bonafide requirement by the petitioner of the suit premises - the learned Joint Judge has referred to a judgment of this Court in Nanalal Goverdhandas & Co. v. Samratbai, AIR 1981 Bombay 1, wherein certain illustrative cases of the requirement of the landlord of the premises tenanted by the tenants have been given. I do not see why the petitioner's case should not fall under proposition No. 6 mentioned in that case, which is as follows:-

"Even if emotionally the landlord feels that a relation of his, such as his daughter or son-in-law, would stay with him, it can be regarded as the requirement by the landlord of the premises for occupation by himself."

8. The learned Joint Judge, though had a look at this proposition, thought that it was not enough because, according to him, the emotional inter-dependence between the petitioner and his daughter has not been sufficiently established on evidence. The learned Joint Judge also thought that there was no trace of any such emotional dependence disclosed in the deposition of the petitioner. The depositions may not have been, as indeed they are not always given, in terms of the requirements of the legal propositions which often find place in the judgments. The Court should not lightly brush aside a requirement pleaded by the father for accommodation of his daughter. Reading the judgment of the Court to first instance and the material which has been noticed by the learned Joint Judge I would, if I were called upon do so, have reversed the finding of the learned Joint Judge and held that the petitioner has established his bonafide requirement of the suit premises. The question, however, is whether the petitioner has established reasonable requirement of the suit premises and whether greater hardship would be caused to the respondent if a decree for possession were refused.

IN THE HIGH COURT OF BOMBAY

W.P. No. 2362 of 1981

Decided On: 03.10.1984

Dattaraya Pilaji Atre Vs. S.G. Hiremath

Hon'ble Judges/Coram:
Jahagirdar, J.

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Govt bungalow can not be used for purposes other than residence: Supreme court

NEW DELHI: Former President A P J Abdul Kalam's grand nephew A P J Sheikh Salim has quit BJP riled by the NDA government's refusal to earmark the ex-President's official bungalow in Lutyen's Delhi as a 'Knowledge Centre' as a mark of respect to the departed. 

But Salim might not know that the government's hand are tied in this issue. The Supreme Court on July 5, 2013 had taken serious note of official bungalows in New Delhi and state capitals under unauthorized occupation and ordered eviction of the illegal occupants. 

A bench of Justices P Sathasivam and Ranjan Gogoi had taken objection to official residences getting converted into memorials for departed political leaders. It had ordered - "Henceforth, no memorials should be allowed in future in any government houses earmarked for residential accommodation." 

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Whether citizenship or ordinary residence of deceased determines territorial jurisdiction for grant of succession certificate?

A perusal of provisions contained in Section 371 of Indian Succession Act, 1925 as reproduced above, would clearly manifest that Distt. Judge within whose jurisdiction deceased ordinarily resided would have Jurisdiction to entertain and try Petition Under Section 372 of Indian Succession Act, 1925, It is 'ordinary residence' of deceased which determines jurisdiction and not his citizenship. Even though, therefore,Appellant might be a citizen of Canada also, but his ordinary place of residence being Jaipur the District Judge, In our considered view, had jurisdiction to entertain and try Petition Under Section 372 of Indian Succession Act, 1925 for grant of succession certificate. In so far as Section 5 of Indian Succession Act, 1925 Is concerned, same only deals with law which would regulate succession to deceased persons' movable and Immovable properties.

Rajasthan High Court

Surendra Bhatia vs Poonam Bhatia And Ors. on 22 November, 2005

Equivalent citations: AIR 2006 Raj 128, I (2006) DMC 667, RLW 2006 (1) Raj 612, 2006 (1) WLC 648

Bench: V Bali, A Rastogi

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