Khushwant Kaur and Others vs Gagandeep

Indermeet Kaur, J.—This revision petition is directed against the impugned order dated 30.05.2013 which has endorsed the findings returned by the Magistrate wherein the respondent/complainant was permitted to keep her istridhan articles in a portion of the house which was in her physical possession.

Record discloses that the complainant Gagandeep was married to Sarvjeet Singh son of the petitioners on 14.11.2010 at Delhi. They stayed together at the residential address No. 11/8, Ground Floor, Gali No. 142, Old Gobind Pura Extension, New Delhi from the time of their marriage up to October, 2011. The contention of the petitioners is that on 29.10.2011, they had disowned their son, a public notice to this effect had also been given. On 01.11.2011, their son Sarvjeet Singh along with the complainant shifted to a nearby rented accommodation. On 02.11.2011, the complainant accompanied by the police forcibly entered the house after breaking open the locks. The petitioners being senior citizens are aggrieved by the acts of the complainant; submission being that it is the obligation of their son i.e. the husband of the complainant to look after his wife, the present property where the complainant is forcibly residing being owned by petitioner No. 2 Daljeet Singh, the complainant cannot forcibly continue to stay in the said property. The petitioners to vent their grievance had also filed suit for permanent, mandatory injunction i.e. CS OS No. 248/2011 titled Daljeet Singh Vs. Gagandeep Sidhu, Another. This was on 26.11.2011. The complainant was also aggrieved. She filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 against her husband, the present petitioners on 22.12.2011. In this petition, she has prayed for continuation of residence in the property which she alleges was in her physical occupation; she has also prayed for other interim reliefs including the relief of maintenance. A complaint under Sections 406/498A/34 of the IPC was also filed by the complainant in the CAW Cell, Nanak Pura pursuant to which FIR no.122/2012 was registered.

On 27.01.2012, in the proceedings under the Protection of Women from Domestic Violence Act, the learned Magistrate had noted the contention of the complainant that she is in the family way; her relief that she be not dispossessed from the shared household without following the due process of law was accepted as both the petitioners then present were agreeable to this proposition. The in-laws of the complainant petitioners No. 1, 2 were accordingly restrained from dispossessing the complainant from the aforenoted property without following the due process of law. This order was passed admittedly with the consent of the present petitioners as is evident from the order. On 10.05.2013, the learned Magistrate extended the order dated 27.01.2012 restraining the petitioners from dispossessing the complainant from the property in question till further orders. The Court had noted that it is only after the evidence that it could be decided whether it is a shared household or not as admittedly after the marriage, the husband of the complainant had taken the complainant to the aforesaid property. The Court had also noted that the petitioners had filed a suit for possession against the complainant which was pending which is CS OS No. 248/2011 noted supra. The Magistrate vide order dated 10.05.2013 had accordingly permitted the complainant to keep her istridhan articles which had been returned to her in bail proceedings in the property in question.

This order was impugned before the Sessions Court. The Sessions Court had noted the contentions, counter contentions raised by the learned counsels for the parties as also the submission of the learned counsel for the petitioners who had placed reliance upon a judgment of the Apex Court reported as Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) to substantiate the submission that where the property was owned by the father-in-law of the victim, the victim had no right to continue to reside in the said property. The Sessions Judge had also noted the counter contention that a civil suit for permanent injunction qua this issue had been filed by the father-in-law, which was pending decision. The Court had also noted the concession granted by the petitioners on 27.01.2012 that they would not dispossess the complainant from the shared household without following the due process of law which order stood reiterated on 10.05.2013. The Sessions Judge in this factual background had held that since the suit for possession is pending inter se the parties, in case the petitioners succeed in that suit, the respondent would be liable to remove all her good but till then her possessory right in the portion of the property in which she was living was maintained.

On behalf of the petitioners, arguments have been addressed in detail. Learned counsel for the petitioners has vehemently relied upon the proposition laid down by the Supreme Court in the judgment of S.R. Batra Supra. Reliance has also been placed upon the judgments reported as Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) , Savitri Devi Vs. Manjoj Kumar, Anr. CSOS No. 910/2011 decided on 18.09.2013 to canvas her proposition that where the property is admittedly owned by the father-in-law, the son has set up a separate residence submission being that son had shifted out of the matrimonial home on 01.11.2011, a rent agreement to this effect has also been placed on record, the daughter-in-law the complainant has no vested right to continue to retain the property.

The counter submissions made by the learned counsel for the respondent as also his reliance upon a Division Bench of this Court reported as Anya v. University of Oxford, 2001 EWCA Civ 405 (CA) have also been noted.

This Court is sitting as a revisional Court. Until, unless there is a patent illegality or a perversity in the order which has been impugned, this Court may not interfere. Admittedly CS OS No. 248/2011 titled Daljeet Singh Vs. Gagandeep Sidhu, Another for permanent/mandatory injunction, possession has been filed by petitioner No. 2 father-in-law against his daughter-in-law the complainant. No interim relief has been granted to the petitioner in that suit. That suit is pending trial.

The Supreme Court in S.R. Batra supra had noted that the Court cannot interfere with the findings of fact under Articles 226 or 227 of the Constitution; in that case a positive fact finding had been returned that Taruna Batra was not residing in the premises in question. In the instant case, the fact findings are otherwise. It has been admitted in all the proceedings that the complainant was living in the suit property; she had never left it; submission of the petitioners that an accommodation had been taken by their son on rent on 01.11.2011, the complainant had also shifted to that residence is negatived by the communication addressed by Sarvjeet Singh son of the petitioners to the SHO Police Station Jagat Puri dated 02.11.2011 wherein he had informed him that on 01.11.2011 he had taken on rent an accommodation, this information about his having taken this accommodation had been given on telephone to his wife; meaning thereby that the wife/complainant was not privy to this agreement. The submission of the petitioners that the complainant had broken open the locks on 02.11.2011, had forcibly reentered the house is further negatived by the fact that there is no police report or proceeding to that effect of 02.11.2011.

In the judgment of S.R. Batra Supra, the Supreme Court had in fact while interpreting Section 17 of the Domestic Violence Act noted as under:-

As regards Section 171 of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household,, 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 2, mother of Amit Batra. Hence, it cannot be called a shared household.

The finding of the Sessions Judge in the impugned order was as follows:-

Though shared house hold has been defined authoritatively, the facts of each case are to be considered on their own merit. The appellants in the present case admit that respondent has the possession of a specified portion of the house by virtue of statement given by appellant no.1 in the Court. She also admits that she has taken recourse to the law to get the respondent evicted from the said house. Ld. Trial Court has merely recognized this right of the respondent, has not declared any right in favour of the respondent. The order of Ld. Trial Court does not suggest that any finding regarding the house being a shared household has been given at this stage. However, since prima facie, the respondent showed to the court that she has legal possessory rights in the property, which was also admitted by the appellants, the Trial Court gave effect to this admitted right of the respondent, which order cannot be said erroneous in the eyes of law. Order of Ld. Trial Court does not say that the house is a shared household as defined under Section 2s of D.V. Act, therefore, she has granted permission to the respondent in the house. She, has merely given effect to the order of Ld. Civil Court, which has recognized the right of the respondent in the property till her legal dispossession from the said house. Needless to say that since the Ld. Trial Court has not passed any residence order in favour of the respondent, the effect of the present order passed by the court shall be only for the time till respondent continues to be in the possession of the house and the moment appellant obtains a decree from the Civil Court, the impugned order shall cease to have effect and the respondent shall be liable to remove her articles from the house."

It is not as if the Sessions Judge has returned a finding that the portion of the property in occupation of the complainant was a part of the shared household. The matter was under trial. The Court had also noted that a civil suit (CS (OS) 248/2011) qua this issue is pending. This order in fact only recognized the right of the complainant to stay in the property till her legal dispossession from the house which was the subject matter of CS (OS) No. 248/2011 is decided. This Court also notes that Sarvjeet Singh, the husband of the complainant had also appeared in the present proceedings. He submitted that the property which he had earlier taken on lease on 01.11.2011 has since been surrendered. He has now shifted to another accommodation vide a fresh lease deed dated 24.02.2013 which has also been surrendered. He had thereafter taken a third accommodation on rent which was vide lease deed dated 03.02.2014. The submission of the learned counsel for the complainant that her husband has no permanent or semi permanent place to stay and the complainant also having a minor child (born out of the wedlock) aged about 5-6 years will be left on the road in case she is directed to be dispossessed at this stage is another circumstance which cannot be overlooked. It is also not as if the impugned order has given a final judgment in favour of the complainant. The matter is in trial. It is only after evidence that it can be decided as to whether the occupation of the complainant in the property in question was in terms of a ''shared household'' or not.

The impugned order in this background does not appear to be perverse. The judgment has been passed on sound and fair discretionary principles. It does not call for any interference.

Revision petition is without any merit. Dismissed.