Navaneetham @ Sundaravadivu v. E.Jayagandhi

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.09.2021

CORAM:

THE HONOURABLE MR.JUSTICE M.GOVINDARAJ SECOND APPEAL NO.1152 OF 2012 Navaneetham @ Sundaravadivu ...

Appellant/Defendant Vs.

E.Jayagandhi Rep. by Power Agent R.Mohan ...

Respondent/Plaintiff PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree passed in A.S.No.5 of 2011 dated 28.09.2011 on the file of Principal Sub Judge, Pondicherry, confirming the judgment and decree dated 23.12.2010 passed in O.S.No.973 of 2005 on the file of Principal District Munsif Court at Pondicherry.

For Appellant :

Mr.S.Sudharshan For Respondent :

Mr.K.Anbarasan

J U D G M E N T

The unsuccessful defendant is the appellant before this Court. The plaintiff filed a Suit for vacating and handing over possession of the Suit property against the present appellant. 2.For the sake of convenience, the parties are called as per their ranking in the Suit.

3.Originally, the house property which is the subject matter of the Suit was purchased by one Mariammal W/o. Thangavel by way of registered Sale Deed dated 21.11.1970. She sold the same to the plaintiff by virtue of a registered Sale Deed dated 11.02.1981 and both the Sale Deeds were marked as Document Nos.1 and 2. The plaintiff purchased the property with the help of her brother. Thereafter, she developed the property and obtained electricity connection, water connection and other facilities

and lived in the ground floor of the property. She let out the first floor portion on rent to third party.

4.While the matter stood thus, the plaintiff's younger son E.Jeyachandran got married to the defendant on 01.05.2000. In November 2001, the defendant forced the plaintiff to shift her residence to the first floor portion from ground floor after vacating the tenant. Thereafter, in January 2004, the plaintiff was chased out of her own house. The defendant let out the first floor portion and was receiving a sum of Rs.3,000/- as rentals. However, the defendant failed to maintain the house, did not pay the electricity charges and other statutory dues, kept the ground floor under lock and seal and allowed it to deteriorate. 5.The plaintiff was paying the electricity and all other statutory dues to maintain the house in proper condition.

Since she is 74 years old, she seeks recovery of possession from the defendant who is none other than her daughter-in-law. 6.The defendant denied all the averments and contended that she got married to the younger son of the plaintiff on 01.05.2000 and gave birth to a male child on 30.01.2001. In order to nurture the child, she stayed with her parents. On 03.10.2003, her husband issued a legal notice directing her to go over to her matrimonial home and join him. On 07.10.2003, she joined with her husband. She underwent so much of harassment and cruelty by the members of the husband's family. Her husband has an affair with another girl and that girl refused to snap the relationship. Therefore, she filed a case in MOP No.162 of 2003 for restitution of conjugal rights. Her husband filed another MOP No.21 of 2004 for divorce.

The defendant has no other go other than maintaining the tiny child and to reside in the shared household.

7.The Trial Court after framing appropriate issues has decreed the Suit on the basis of the judgment of the Hon'ble Supreme Court in S.R.BATRA AND ANOTHER VS. SMT. TARUNA BATRA [2007 (1) 1 4 LRC SC] wherein it is held that the exclusive property of the in-law cannot be called as "shared household". An appeal preferred against the said judgment was also dismissed. Against which, she preferred the above Second Appeal. 8.The learned counsel for the appellant would contend that the view taken by the Hon'ble Supreme Court in S.R.BATRA's case (cited supra) has been distinguished in the judgment of the Hon'ble Supreme Court in SATISH CHANDER AHUJA VS. SNEHA AHUJA [2021 (1) SCC 414]. Therefore, the house of the in-law shall be considered as a "shared household" and in view of the said

judgment, she is entitled to reside in the shared household of the plaintiff. Therefore, the decree and judgment passed by the Courts below are liable to be set aside.

9.Heard the submissions made on either side.

10.The main focus of the arguments is on the judgment of the Hon'ble Supreme Court in S.R.BATRA's case (cited supra) wherein it is held as under:

"In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.

As regards Section 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'. 11.The learned counsel for the appellant would contend that the view taken by the Hon'ble Supreme Court in S.R.BATRA's case (cited supra) has been distinguished in SATISH CHANDER AHUJA's case (cited supra) wherein, the Hon'ble Supreme Court has framed the following questions for determination:- "27. From the submissions of the learned counsel for the parties following questions arise for determination in this appeal:

(1) Whether definition of shared household under Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 has to be read to mean that shared household can only be that household which is household of joint family or in which husband of the aggrieved person has a share?

(2) Whether judgment of this Court in S.R. Batra and Anr. Vs. Taruna Batra, (2007) 3 SCC 169 has not correctly interpreted the provision of Section 2(s) of Protection of Women from Domestic Violence Act, 2005 and does not lay down a correct law?

(3) Whether the High Court has rightly come to the conclusion that suit filed by the appellant could not have been decreed under Order XII Rule 6 CPC?

(4) Whether, when the defendant in her written statement pleaded that suit property is her shared household and she has right to residence therein, the Trial Court could have decreed the suit of the plaintiff without deciding such claim of defendant which was permissible to be decided as per Section 26 of the Act, 2005?

(5) Whether the plaintiff in the suit giving rise to this appeal can be said to be the respondent as per definition of Section 2(q) of Act, 2005 ?

(6) What is the meaning and extent of the expression "save in accordance with the procedure established by law" as occurring in Section 17(2) of Act, 2005 ?

(7) Whether the husband of aggrieved party (defendant) is necessary party in the suit filed by the plaintiff against the defendant?

(8) What is the effect of orders passed under Section 19 of the Act, 2005 whether interim or final passed in the proceedings initiated in a civil court of competent jurisdiction?"

Question Nos.1 and 2 are relevant and the decision rendered in support of the same by the Hon'ble Supreme Court reads as under: "84.In view of the foregoing discussions, we answer issue Nos. 1 and 2 in following manner:- (i) The definition of shared household given in Section 2(s) cannot be read to mean that

shared household can only be that household which is household of the joint family of which husband is a member or in which husband of the aggrieved person has a share.

(ii) The judgment of this Court in S.R.

Batra Vs. Taruna Batra (supra) has not correctly interpreted Section 2(s) of Act, 2005 and the judgment does not lay down a correct law."

Further, paragraph No.89 of the said judgment reads as under: "89.Now, coming back again to the facts of the present case, there being specific pleading on behalf of the respondent that the house, which is in the name of the appellant is the matrimonial home of the respondent where she was residing in first floor since her marriage. The fact that respondent is residing in first floor of the premises is not matter of dispute. Even if the house is in the name of the appellant and that even if we accept the case of the appellant that appellant's son Raveen has no share in the house belonging to appellant, with whom the respondent was living in the domestic relationship, whether the respondent is entitled to reside in the premises in question as shared household is the question to be answered.

In the impugned judgment, Delhi High Court has refrained from deciding the point as to whether suit property is a shared household on the ground that the application filed under Section 12 of Act, 2005 by the respondent is pending. In the suit filed by the appellant where respondent has pleaded and claimed that it is shared household and she has right to live and it was on that ground she was resisting the suit for mandatory injunction, the question that whether the suit property is a shared household or not becomes relevant and necessary and the said issue cannot be skipped on the ground that application under D.V. Act is pending.

have been very well gone into by virtue of Section 26, which we shall further deal a little later. "

12.In the very same judgment, it is also held that in a case that determination of right of the wife under Sections 17 and 19 read with Section 26 of the Domestic Violence Act, 2005, the plaintiff can be treated as respondent and the respondent / aggrieved person can be treated as plaintiff. It is incumbent on the aggrieved person to plead and prove that an act of domestic violence was committed on the aggrieved person and that she is entitled to shared household. In this regard, paragraph Nos.110 to 112 of the said judgment are relevant:

"110.Learned counsel for the appellant submitted that in the suit in question the defendant has not sought for any relief under Section 19. It is true that no separate application or separate prayer has been made by the defendant in the suit for grant of any relief under Section 19 but in her pleadings she has resisted the claim of plaintiff on the ground that she has a right to reside in the suit property it being her shared household. Thus, the question whether the suit premises is shared household of the defendant and she has right in the shared household so as the decree before the Trial Court can be successfully resisted were required to be determined by the Trial Court. We are further of the view that when in the suit defendant has pleaded to resist the decree on the ground of her right of residence in the suit property it was for her to prove her claim in the suit both by pleadings and evidence.

111.As noted above, one of the conditions to treat a person as a respondent is that "against whom the aggrieved person has sought any relief under the Act". The defendant in her pleadings having claimed that she has right of residence in the suit property, she for successful resisting the suit has to plead and prove that she has been subjected to any act of domestic violence by the respondent, which is implicit in the definition of the aggrieved person itself as given in the Section 2(a) of the Act, 2005. It is, further, relevant to notice

that although learned Magistrate passed an interim order in the application filed by the defendant under Section 12 on 26.11.2016 but said order was interim order which was passed on the satisfaction of the Magistrate that "the application prima facie disclosed that the respondent is committing or has committed an act of domestic violence". For granting any relief by the Civil Court under Section 19 it has to be proved that the respondent is committing or has committed an act of domestic violence on the aggrieved person. To treat a person as the "respondent" for purposes of Section 2(q) it has to be proved that person arrayed as respondent has committed an act of domestic violence on the aggrieved person.

112.We, thus, are of the view that for the purposes of determination of right of defendant under Sections 17 and 19 read with Section 26 in the suit in question the plaintiff can be treated as "respondent", but for the grant of any relief to the defendant or for successful resisting the suit of the plaintiff necessary conditions for grant of relief as prescribed under the Act, 2005 has to be pleaded and proved by the defendant, only then the relief can be granted by the Civil Court to the defendant."

Therefore, it is the law laid down by the Hon'ble Supreme Court that only when it is pleaded and proved that a women has been subjected to domestic violence, she can claim the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. 13.In the instant case, the defendant / appellant claims that it is a shared household. But, irony of fact is that she had chased out her mother-in-law, who is 74 years old from the house and before this Court offers that she can come and reside in the very same property. From the evidence let in by the witnesses D.W.1 and D.W.4, it is clearly made out that the husband and wife are living separately from 2004 and the whereabouts of the plaintiff was not known. The house is kept under lock and seal after the plaintiff was chased out of the

house. Further, D.W.4 would depose that the plaintiff was living in a rental accommodation which means that the plaintiff was chased out of the house which is no more a shared household. Even assuming that as per the judgment of the Hon'ble Supreme Court in SATISH CHANDER AHUJA'S case (cited supra) to claim right of residence in the shared household, it is incumbent upon her to plead and prove that she was put to severe harassment, cruelty and domestic violence.

14.In the instant case, there is a vague and superficial averment that she underwent harassment and suffering and she had to go out of her home and was living separately. However, there is no evidence on record to prove the allegations. Therefore, it can be safely inferred that the appellant has not suffered any domestic violence, much less at the hands of the respondent. On the other hand, the respondent has been suffering the same at the hands of the appellant. It is found that the First Appellate Court has dealt with the issue and arrived at the conclusion that the appellant was provided with maintenance by her husband for herself and her child by virtue of the decree passed in MOP No.21 of 2004 by the Family Court, Pondicherry and she is taking money towards the educational expenses of the child.

The First Appellate Court has also held that if the appellant seeks further relief, she can seek it from her husband. Therefore, the judgment relied on by the learned counsel for the appellant supports the cause of the respondent and does not aid the appellant in the peculiar facts and circumstances of the present case on hand. The appellant has not pleaded and proved the act of domestic violence and her entitlement to the shared household as envisaged under Section 26 of the Domestic Violence Act, 2005. In fact, the respondent / plaintiff had suffered the domestic violence at the hands of the appellant and was chased out from the house and living separately in a rental accommodation from the year 2005. The admitted position entitled her to get recovery of possession of the house which absolutely belongs to her through her husband.

Further, the whereabouts of the husband of the appellant is not known. However, the appellant is receiving maintenance for herself and her son and also educational and other expenses from her husband.

15.Further, absolutely there is no domestic violence involved in this case and the provisions of the Domestic Violence Act, 2005 is also not involved. In that event, I do not find any question of law arising out of this Second Appeal much less a substantial question of law arises from the factual background. The Second Appeal merits no consideration and does

not deserve any admission and accordingly stands dismissed. No costs.

16.The appellant is directed to hand over possession to the respondent within a period of one month from the date of receipt of a copy of this order.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar TK To 1.The Principal Subordinate Judge Principal Sub Court Pondicherry.

2.The Principal District Munsif Principal District Munsif Court Pondicherry.

+2cc to Mr.K.Anbarasan, Advocate SR.No.46588 +1cc to Mr.S.Subramanian, Advocate SR.No.47057 SA NO.1152 OF 2012 KK(CO) GN(11/02/2022)