Mohinder Kaur vs Sukhwinder Kaur and others

This petition is by the mother-in-law who has assailed the order dated 09.08.2016, vide which the appeal filed by respondents no.1 & 2 had been

allowed & order dated 04.06.2016 passed by the Magistrate has been modified.

It is necessary to have the facts first. Sukhwinder Kaur along with her daughter filed a complaint under the Domestic Violence Act. Sukhwinder Kaur

was married to Pargat Singh in March 2002. A child was born in January 2003. Disputes arose in the very beginning of the marriage and an FIR was

registered in 2004. Subsequently, compromise was effected and a petition for quashing of FIR was filed and the FIR was quashed.

In the complaint filed under the Domestic Violence Act, it was claimed that the husband was a permanent employee in Punjab University and was

getting salary of Rs.17,000/- per month and he had other business i.e. sale and purchase of old vehicles. It was pleaded that petitioner no.1 (wife) had

no source of income and she required Rs.6,000/- per month for herself and some amount for the daughter's education, transportation, books etc.

The husband pleaded that a petition under Section 125 Cr.P.C. had also been filed. It was pleaded that the wife left the matrimonial home in May

2002 without informing anyone but she returned the next day. In view of this, he and his wife shifted to one portion of the house as his parents wanted

to separate them. It was pleaded that in May 2003, the father of his wife got a DDR registered and he was got arrested. It was pleaded that he was

getting salary of Rs.8,387/- per month as take home salary and there was no other source of income and the wife was earning by doing embroidery

work.

Both the sides led evidence. The salary statement of the husband was produced, according to which his gross salary was Rs.34,912/- per month.

The trial Court noted that the relationship between the parties were strained from the very beginning and there was no domestic incident and the

petitioner had admitted that she had got the FIR lodged in 2004 and had also given a complaint to the SSP in 2010. The trial Court found that the

petitioner had not been able to prove any domestic incident and dismissed the complaint.

An appeal was carried by the wife and maintenance was allowed. The appellate Court also noted that the husband was not residing in house no. 1216,

Sector 49-B and was living in rented accommodation. It also noted that house no. 1216, Sector 49-B was owned by the mother and therefore, the

husband was directed to provide accommodation to the wife as per his status within two months from the date of order.

It was claimed on behalf of the wife that the husband did not arrange any accommodation and the wife filed an execution petition but when the

husband disclosed that he had arranged an accommodation. Sukhwinder Kaur withdrew her execution petition on 05.07.2016 vide Annexure P-9.

The petitioner (mother-in-law) filed an application seeking enforcement of the order dated 28.07.2015 seeking eviction of the daughter-in-law from the

room occupied in her house. The application was disposed of on 04.06.2016. The Executing Court noted that since the daughter-in-law

was put in possession of the house pursuant to the interim order through the help of the police, therefore, it was the duty of the Court to restore the

possession to the owner. It also noted that the mother-in-law was not required to pay any maintenance and directed the daughter-in-law to vacate the

premises and also asked the concerned SHO to enforce the order so that the possession was delivered to the rightful owner. Against that order

Sukhwinder Kuar filed an appeal and the order was reversed. The case was remanded back to the trial Court to reconsider the application in terms of

the order passed by the Additional Sessions Judge, Chandigarh earlier. It also passed an order that the status of the husband shall have to be kept in

view. It further made an order that whatever accommodation was to be provided, approval should be taken from the petitioner. The petitioner is

aggrieved by the directions given by the Appellate Court as it modified the order passed by the First Appellate Court.

I have heard counsel of both the sides.

Counsel for the petitioner contends that the petitioner is the owner of the house and the daughter-in-law had been directed to vacate the premises and

the assistance of the police was ordered to be given and the petitioner's son is living in rented accommodation in village Umra in Mohali and he has

taken a room on rent @ Rs.2,300/- per month, which is referred to in the earlier orders. The counsel submits that the wife had already withdrawn the

execution and it was the application filed by the petitioner (mother-in-law) upon which an order was passed and directions were given to respondents

no.1 & 2 to vacate the premises but the First Appellate Court modified the order passed by the Appellate Court on 28.07.2015 going beyond what was

ordered, which it could not have.

Counsel for the petitioner further contends that Pargat Singh-respondent no.3 is present in the Court and earlier also they had shown some houses but

the wife is not willing to move out of that house and is demanding that a house should be taken near the school. Pargat Singh states that he is ready to

pay rent @ Rs.5,000/- per month and houses are available on rent in Sector 45 @ Rs.3,500 - 4,000/- per month. He states that he is living in Sector 68,

Mohali.

On the other hand, the counsel representing respondents no.1 & 2 states that the Apex Court in Vaishali Abhimanyu Josi Vs. Nanasaheb Gopal Joshi

2017(2) RCR (Civil) 1021 has given a right to the wife to stay in the house of the father-in-law and she can maintain a counter claim. The counsel

submits that the child is studying and they cannot be asked to take a house on rent which is 10 kilometers away and the flats which are near the school

are available on rent @ Rs.15,000/- per month and no house is available at the rate being offered.

The operation of the impugned order passed by the Additional Sessions Judge had been stayed in November 2016. Thereafter, certain efforts were

made for mediation. The parties were also called in the Court several times. Respondent no.1 was not ready to vacate the premises nor she was

ready to accept any rent. It is necessary to reproduce the order dated 10.05.2018, which reads as under:-

“Both the parties are present in person. Respondent no.1 is not ready for any settlement nor she is ready to accept any rental amount. She is

presently in possession of the property which is in the name of petitioner (mother-in-law).

Adjourned to 07.08.2018.

Learned counsel for the petitioner states that there is a connected matter i.e. CRR-1295-2015 which is pending before the Co-ordinate Bench.

Registry is directed to list both the cases together before the same Bench.â€​

The First Appellate Court vide its order dated 09.08.2016 went into questions which were not before it and wrongly remanded the case, directing the

trial Court to reconsider and implement the order passed by Additional Sessions Judge, forgetting all together that the application filed by the wife

seeking execution of the order had been withdrawn by her and the application was not filed by the wife. It was the mother-in-law who had

approached the trial Court seeking restoration of her house and implementation of the order passed an order on 04.06.2016. Mohinder Kaur was to get

back possession of the portion which was occupied by the daughter-in-law. It was the Court who had ordered the police to deliver possession to the

daughter-in-law, so their assistance was ordered to regain possession. It is against that order that Sukhwinder Kaur filed an appeal. The limited

question was only with respect to whether the mother-in-law could re-possess her house. Instead of deliberating on the issue the Additional Sessions

Judge, wrongly remanded the matter to the trial Court asking it to implement the order of the Additional Sessions Judge. There was no execution

pending at the instance of the wife. The order, therefore, passed on 09.08.2016 has to be set aside. Respondent no.3 is present and efforts for arriving

at a consensus have failed. Alternate accommodation was suggested but some arrangement will also have to be made for the shelter of the wife and

the child. Respondent no.3 was already ordered to pay Rs.10,000/- per month as maintenance.

The petition is allowed Respondents no.1 & 2 are directed to vacate the premises within 45 days from today. Since they would be occupying the

premises owned by the petitioner, therefore, it is further directed that respondent no.3 would deposit rent of Rs.5,000/- per month in the bank account

of respondent no.1 in lieu of residence from October 2018 onwards. The amount would be transferred in the first week of each month. Respondent

no.1 would intimate her account number so that respondent no.3 can transfer the amount in her account regularly. In case, respondent no.1 fails to

vacate the premises within 45 days, the petitioner would take the assistance of the trial Court for execution of the order.