JUDGMENT

RAJ MOHAN SINGH, J. –

1. Defendant No.2-Varinder Kaur has filed this Regular Second Appeal against the judgment and decree dated 16.07.2016 passed by Additional District Judge Panchkula whereby both the appeals filed by the parties against the judgment and decree dated 17.11.2015 passed by the Civil Judge (Sr. Divn.) Panchkula were dismissed.

2. Brief facts as gathered from the record are that plaintiff Jitender Kumar father-in-law of the appellant filed a suit for mandatory injunction seeking direction against the defendants to vacate the first floor of House No.737 Sector 12 Panchkula consisting of two bed rooms, one washroom, one drawing-cum-dining, kitchen along with front and rear courtyards and to hand over its vacant possession to the plaintiff. Plaintiff further sought relief of mesne profits from the defendants for use and occupation charges of the suit property @ Rs.20,000/- per month from the date of filing of the suit till handing over the vacant possession of the premises to the plaintiff. Restraint order was also sought against the defendants from letting out the suit property to any other person.

3. Plaintiff alleged that he was an old retired person from Indian Navy. He left the job in the year 2001 due to medical health problem. Plaintiff was owner of double storeyed House No.737 Sector 12 Panchkula which was his self-acquired property. Plaintiff was living on the ground floor whereas defendants were living on the first floor of the house in question. Defendant No.1 is his son, whereas defendant No.2 is the daughter-in-law of the plaintiff. Marriage of the defendant Nos.1 and 2 was solemnized on 08.12.2001 at Ludhiana according to Hindu rites and ceremonies. The marriage was a simple marriage. A female child took birth from this wedlock on 03.09.2002 at Jindal Nursing Home, Chandigarh, who is studying in Gurukul School, Sector 20 Panchkula.

4. The relationship between defendant Nos.1 and 2 were not cordial and even not respectful towards the plaintiff and his wife. The conduct of the defendant No.2 was always been inclined towards her parents and brother. She left the company of defendant No.1 and got registered FIR No.156 dated 13.09.2005 under Sections 498, 498-A of IPC registered at Police Station Model Town Ludhiana against defendant No.1. Defendant No.1 was acquitted in the aforesaid case by the trial Court vide judgment dated 30.01.2007. After the acquittal of defendant No.1, defendant No.2 and her parents felt sorry for their past conduct and promised to reside peacefully. Defendant No.2 was shifted to the rented accommodation in Sector 20, Panchkula. After the birth of female child, plaintiff allowed the defendants to shift on the first floor of the house in the month of October 2009. Since then defendants have been residing on the first floor of the house in question.

5. Defendant No.2 again started misbehaving with plaintiff and his family members. Wife of the plaintiff died due to cardiac arrest on 26.04.2013. The plaintiff alleged the cause of death on account of misconduct of the defendant No.2. After the death of wife of the plaintiff, defendant No.2 maltreated the plaintiff and started misbehaving with him and threatened for false implication in criminal matters. Plaintiff also alleged that on the death anniversary of his wife on 15.02.2004, the parents of defendant No.2 after attending the ceremony left the place in angry mood. On 16.02.2014 at about 6.00 p.m., defendant No.2, her parents and brother along with 7-8 anti-social elements came to the house of the plaintiff and tried to mishandle him in the presence of neighbours. However, the plaintiff was rescued due to intervention of the neighbours and a DDR No.26 dated 16.02.2014 was registered at the instance of the petitioner in Police Station Sector 2 Panchkula.

6. It was further alleged that defendant No.2 was threatening the plaintiff to transfer the property in her name, otherwise she would involved the petitioner in some false criminal case. Defendants were occupying the house as licensees and the plaintiff was not interested in allowing them to occupy the said house even as licensees anymore. A legal notice dated 22.02.2014 was served upon the defendants for terminating their licence over the suit property. The notice was replied by defendant No.2, however defendants failed to vacate the premises within the time specified in the notice. Plaintiff filed the suit in question with the aforesaid background and also claimed occupation charges @ Rs.20,000/- per month from the date of filing of the suit. A separate suit for permanent injunction was also pending at the instance of the plaintiff against the defendants at the time of filing of the present suit.

7. Defendant No.1 contested the suit by filing separate written statement. He took the stand that he was shifted to rented accommodation in House No.319, Sector 16 Panchkula. He denied the allegation of the plaintiff that he ever threatened the plaintiff for letting out the first floor. He took up the stand that since he was already shifted from the property to a rented accommodation, question of paying the mesne profits of Rs.20,000/- per month by him to the plaintiff does not arise.

8. Defendant No.2 contested the suit by filing separate written statement. She took the objections of maintainability, estoppel, concealment of true facts, cause of action and collusive affair between plaintiff and defendant No.1. Defendant No.2 pleaded that she is living in entire House No.737 Sector 12 Panchkula along with her minor daughter Zoyya including the plaintiff jointly. The property in question was claimed to be joint Hindu family property and the defendants were living jointly therein. Separate possession of the plaintiff on the ground floor and defendant No.2 on the first floor was denied. Defendant No.2 staked her claim of residing in the shared house along with her daughter. The house in question was claimed to be matrimonial home of defendant No.2 wherein she was living along with her husband and daughter. Her marriage with defendant No.1 was solemnized on 08.12.2001 and since the date of marriage, she was living in the house along with her husband. She also asserted that she got FIR No.156 dated 13.09.2005 under Sections 498-A, 406 IPC registered against defendant No.1 in Police Station Model Town, Ludhiana on account of his misconduct.

9. It was claimed by the defendant No.2 that during pendency of above said criminal case, a written compromise was arrived at between the parties on 29.01.2007 and pursuant to that she changed her statement and ultimately that resulted into acquittal of defendant No.1. Defendant No.2 also claimed that her daughter Zoyya took birth on 03.09.2009 while she was residing in the house in question and other allegations were denied. It was pleaded that the conduct of the plaintiff and his family members was not good towards defendant No.2. On the occasion of death anniversary of the wife of the plaintiff, the parents and other relatives of defendant No.2 had come to Panchkula and they left for Ludhiana in the evening itself. Defendant No.1 raised dowry demands of Rs.20 lacs from defendant No.2 or in alternative, asked her to sign divorce papers. Defendant No.2 did not concede to the dictate of defendant No.1, rather she was assaulted by defendant No.1 along with his family members on 16.02.2014 and she along with her daughter was tuned out of the matrimonial house on that day.

10. Defendant No.2 told her parents about the episode and her parents took her away to Ludhiana along with Zoyya on 16.02.2014. Defendant No.2 was medically examined at Ludhiana on 18.02.2014. A petition under the Protection of Women from Domestic Violence Act, 2005 (hereinafter to be referred as 'the Act') at Ludhiana was filed wherein restraint order dated 19.02.2014 was passed by the Court, restraining the plaintiff and his family members from restricting the entry of defendant No.2 and her minor daughter Zoyya in the shared house i.e. property in question till 04.03.2014. Interim order was extended thereafter by the Court on 04.03.2014. The application for interim relief was disposed of by the Court on 21.05.2014. Defendant No.2 filed another complaint against defendant No.1, plaintiff and Smt. Vandana Singh @ Ruhi (sister-in-law) to the Police Commissioner, Panchkula and the matter was under consideration. Defendant No.2 also filed petition under Section 125 Cr.P.C. against defendant No.1 for grant of maintenance as he started neglecting defendant No.2 and her daughter Zoyya. Defendant No.2 denied her status of being licensees over the suit property, rather claimed the house to be matrimonial shared house in her independent capacity.

11. After completion of pleadings, both the parties went to trial on the following issue:-

“1.   Whether the defendants are liable to hand over the vacant possession of the premises in question to the plaintiff as alleged? OPP”

2.    Whether the defendants are liable to pay mesne profits @ Rs.20,000/- per month to the plaintiff in lieu of the use and occupation charges of the tenanted premises during the pendency of this suit? OPP.

3.    Whether the defendants are liable to be restrained from letting out the premises in question to any other person during the pendency of this suit? OPP

4.    Whether the suit is not maintainable in the present form? OPD

5.    Whether the plaintiff is estopped by his own action and conduct from filing this suit? OPD.

6.    Whether the plaintiff has concealed the true and material facts from the Court? If so, its effect? OPD.

7.    Whether the plaintiff has no cause of action to file this suit? OPD

8.    Relief.”

12. Both the parties led their respective evidence on the aforesaid issues to prove their case.

13. After appraisal of the evidence, trial Court vide judgment and decree dated 17.11.2015 decreed the suit partly with costs. The defendants were directed to hand over the vacant possession of the house in question within a period of two months from the date of the judgment passed by the trial Court, failing which the plaintiff was also entitled to seek assistance of the Court to get the decree executed. Defendants were also restrained from sub-letting the house in question in any manner. Plea of mesne profits of the plaintiff was declined.

14. Feeling aggrieved against the aforesaid judgment and decree passed by the trial Court, both the parties filed civil appeals before the lower Appellate Court. Defendant No.2 filed Civil Appeal No.375/2015 titled as Smt. Varinder Kaur vs. Jitender Kumar and another, whereas plaintiff filed Civil Appeal No.378/2015 titled as Jitender Kumar vs. Arundeep Verma and another. The lower Appellate Court dismissed both the appeal vide judgment and decree dated 16.07.2016. Against which the present Regular Second Appeal has been preferred by defendant No.2.

15. I have heard learned counsel for the parties.

16. Learned counsel for the appellant vehemently submitted that the house in question is a shared house. The daughter took birth in nursing home and at that time she was living in the house in question. Learned counsel also asserted that appellant along with the plaintiff and minor daughter are the members of joint Hindu family and the house in question is a shared house.

17. Learned counsel for the appellant contended that vide order dated 21.05.2014 passed by Judicial Magistrate Ist Class, Ludhiana, the appellant was held entitled maintenance from respondent No.1 Arundeep Verma to the tune of Rs.10,000/- per month as interim maintenance under Section 23 of the Act. In the aforesaid order House No.737 Section 12 Panchkula was held to be shared household within the meaning of Domestic Violence Act. Husband and his family members were restrained from blocking ingress and egress of defendant No.2 to the first floor of the house in the said proceedings and also they were restrained from forcibly dispossessing her. The husband and his family members were held to be having equal right to reside in the shared house in every floors of the house.

18. Learned counsel for the appellant further contended that the plea of defendant No.1 that he was residing separately in a rented accommodation was false inasmuch as the owner of House No.319 Sector 16 Panchkula had issued a certificate dated 06.09.2014 to the effect that though Arundeep Verma had taken two room set in the aforesaid house w.e.f. 26.03.2014 but after signing the rent agreement, he never resided in the said house and a notice was given by the landlord to him on 23.08.2014 for vacation of the said house.

19. Learned counsel for the appellant by referring to the definition of shared house as contained in Section 2(s) of the Act contended that shared household means a house where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or alone with the respondent and includes such a household whether owned and tenanted either jointly by the aggrieved person and the respondent, or owned and 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 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. As per Section 2(f) of the Act, the domestic relationship means a relationship between two person who live or have at any point of time, lived together in the shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as joint family.

20. By referring to the aforesaid provision, learned counsel for the appellant contended that appellant was in relationship with her husband and she was in domestic relationship with respondent No.1 as well, being daughter-in-law. Respondent No.1 had admittedly allowed the appellant to stay in the house along with her minor daughter. Therefore, they have lived together in a shared household. Learned counsel further contended that the judgment and decree was not executable against minor daughter namely 'Zoyya' who was not party to the litigation. The custody of the minor daughter was with the appellant/defendant No.2. Defendant No.1 had filed a petition under Guardianship and Wards Act for taking custody of minor daughter.

21. Learned counsel for the appellant relied upon Smt. Preeti Satija vs. Smt. Raj Kumari and another, 2014(1) RCR (Criminal) 1035, Delhi (DB) to contend that daughter-in-law has a right of residence in a shared household under Domestic Violence Act, even if, house was not owned by her in-laws and the husband had no ownership right in the said house. Such a right is not dependent upon the title, but the wife has a right in the shared household as long as matrimonial relationship between wife and husband subsists. The Court further observed that in such circumstances parents of the husband often disown the son from common premises.

22. To confine the reference to joint family property for bringing in the concept of Hindu Undivided Property would be to restrict the application of the provision to a point which is contrary to Parliamentary intention that the law is non-sectarian one. The joint status of a family obviously is in a generic sense and importing notions of HUF would unwittingly gave greater benefits to one section of the community which was never the intention of the Parliament. On the strength of aforesaid case, learned counsel for the appellant vehemently espoused the cause of the appellant.

23. Per contra, learned counsel for the respondents vehemently submitted that the house being a self-acquired property of respondent No.1 cannot be termed to be shared household in terms of Section 2 of the Act. In S.R. Batra and Another vs. Smt. Taruna Batra, 2007(1) RCR (Criminal) 403, the Hon'ble Apex Court laid down certain principles. The self-acquired property of in-laws cannot be treated to be shared household in terms of Section 2(s) of the Act. Section 17(2) of the Act prescribes that the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

24. By relying upon S.R. Batra and another's case (supra) in Suman vs. Tulsi Ram, 2015(1) RCR (Civil) 304, this Court held in the following manner:-

“21. After going through both the judgments in S.R. Batra and another's case (supra) and in Smt. Preeti Satija's case (supra), I have come to the conclusion that the reasons given in S.R. Batra and another's case (supra), defining 'shared household', is of more conviction than the view taken by the Division Bench of the Delhi High Court in Smt. Preeti Satija's case (supra). Hence, it is held that the petitioner does not have any right of protection under Section 17 of the Act for the purpose of living in the house in question, which is exclusively owned by the respondent.”

In the aforecited case Preeti Satija's case (supra) was distinguished and it was held that if the house exclusively belong to father-in-law and if his son is living separately, then the daughter-in-law has no right to live in the house of the father-in-law. The property cannot be claimed to be a shared household.

25. Learned counsel for the respondents further contended that the factum of taking house on rent was an admitted fact as per the certification done by the owner of the House No.319, Sector 16 Panchkula. The rent deed was duly executed on 26.03.2014 and no ejectment was sought by the landlord. In Sangeeta vs. Om Parkash Balyan and another, 2015(3) RCR (Civil) 495, this Court considered the proposition in terms of Section 17 and 12 of the Act where wife was living separately and her husband died, she was held not entitled to live in the house of parents-in-law against their wishes. Daughter-in-law had no right against father-in-law to occupy any portion of his self-acquired property against his wishes. Preeti Satija's case (supra) was also distinguished. It was held that Section 4 of Hindu Adoption and Maintenance Act provides non obstante clause.

26. In terms of aforesaid, any obligation on the part of inlaws on account of rule or interpretation of law or custom or usage as a part of law before commencement of the Act are no longer valid. In view of non obstante clause in terms of Section 4 of Hindu Adoption and Maintenance Act, the provision of the Act alone are applicable and any liability in respect of maintenance of daughter-in-law on death of son cannot be fastened upon the self-acquired property of the parents-in-law. In other statutes like Hindu Adoption and Maintenance Act, the maintenance of wife is the personal obligation of the husband. Such an obligation cannot be satisfied from the self-acquired property of the parents of the husband. During subsistence of marriage maintenance of a married wife is a personal obligation on the part of husband. Such an obligation can be met from the properties of the husband out of joint properties. The properties shown exclusively in the name of parents cannot be subject matter of any attachment or enforcement of any right of maintenance of wife against her husband. In nutshell it was held that the daughter-in-law cannot claim right to live in the house of the parents-in-law against their wishes.

27. In Hamina Kang vs. District Magistrate (U.T.) Chandigarh and others, 2016(1) L.A.R. 397 = 2016(1) RCR (Civil) 976, this Court while interpreting the provisions of the Domestic Violence Act held in the following manners:-

“44. The Hon'ble Supreme Court in S.R. Batra v. Taruna Batra, (2007) 3 SCC 169, held that the wife could claim the right of residence in terms of Section 17(1) of the Act, only 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. It was held that the house which was the exclusive property of the mother-in-law could not be said to be a `shared household' entitling the daughter-in-law to claim a right of residence therein. The Hon'ble Court negatived the contention on behalf of the daughter-in-law that as per the definition, `shared household' would include a household where the aggrieved person lives or at any stage had lived in a domestic relationship. It was observed that if such submission is accepted it would lead to chaos, because in that event every place where the husband and wife had resided would be a shared household. The Hon'ble Court also observed that the definition of 'shared household' in Section 2(s) appears to be the result of clumsy drafting and that it had given it a sensible interpretation.

The pertinent observations of the Hon'ble Court are as under:

"24. Learned counsel for the respondent Smt. Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.

25.   We cannot agree with this submission.

26.   If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

27.   It is well settled that any interpretation which leads to absurdity should not be accepted.

28.   Learned counsel for the respondent Smt. Taruna Batra has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's (sic) in-laws or other relatives.

29.   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 2, mother of Amit Batra. Hence it cannot be called a "shared household".

30.   No doubt, the definition of "shared household" in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society."

46. This decision has been reiterated by the Hon'ble Supreme Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649. In this case, the Hon'ble Supreme Court adverted to the legal position that in terms of Sections 18 and 19 of the Hindu Adoption and Maintenance Act, 1956, liability in regard to maintenance of wife is upon her husband and only on his death does it become the liability of the father-in-law. In the context of the 2005 Act, it was observed that it provided a higher right in favour of wife, which extends to the joint properties in which the husband has a share. It was held that an order of maintenance against the husband can be executed only against the husband and his properties but not against the property of her mother-in-law. The relevant observations in this context are as under:

"27. The Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share.

28.   Interpreting the provisions of the Domestic Violence Act this Court in S.R. Batra v. Taruna Batra held that even a wife could not claim a right of residence in the property belonging to her mother-in-law, stating: (SCC p. 173, paras 17-19)

"17.  There is no such law in India like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother-in-law.

18.   Here, the house in question belongs to the mother-in-law of Smt Taruna Batra and it does not belong to her husband Amit Batra. Hence, Smt Taruna Batra cannot claim any right to live in the said house.

19.   Appellant 2, the mother-in-law of Smt Taruna Batra has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.

47. Following these decisions, different High Courts have ruled that a residence belonging to the mother-in-law or father-in-law would not be a 'shared household' within the meaning of Section 2(s) of the 2005 Act and that a daughter-in-law would have no right of residence therein in terms of Section 17(1) of the 2005 Act. Following cases may be usefully referred to : Ekta Arora vs. Ajay Arora and another, 2016(1) RCR (Criminal) 39, 2015 AIR (Delhi) 180, V.P.Anuradha vs. S.Sugantha alias Suganthi and others, 2015(4) RCR (Criminal) 631 and A.R.Hashir and others vs. Shima and others, 2015(5) RCR (Civil) 35.

48. The Delhi High Court in two decisions which were relied upon by the Ld. Counsel for the petitioner has distinguished the aforementioned decisions of the Hon'ble Supreme in the matter of the restricted meaning given to 'shared household' as not including a property wherein the husband does not have any right, title or interest. In Navneet Arora's case(supra), the decision of the Hon'ble Supreme Court in S. R. Batra's case was explained as having been rendered in the fact situation obtaining therein where Taruna Batra (the aggrieved daughter-in-law) and her husband Amit Batra had been residing on the first floor, whereas the mother-in- law, (the owner of the house in question) along with her husband were residing on the ground floor. The Court held that they were not residing as members of a 'shared household' as understood in the legalistic sense as the residence and kitchen were separate. It was concluded that S.R. Batra's case is only an authority for the proposition that under the 2005 Act, a wife is precluded from claiming the right of residence in a premises, not owned by the husband, where she has lived with her husband separately, but not as a member of the 'joint family' along with the relatives of the husband who own the premises. But if the couple live with the relatives of the husband as members of 'joint family' along with the relatives of the husband in premises owned by such relatives of the husband, then such residence would fall within the meaning of `shared household' giving the wife the right of residence therein irrespective of the fact whether her husband has any right, title or interest therein. It was explained that living as 'joint family' meant living under one roof and having a common kitchen.

49. In Preeti Satija's case (supra), also the decisions in S.R. Batra and Vimalben Ajitbhai Patel, were held to have been rendered in a different context and it was observed that these decisions did not decide the question that despite the definition of `shared household' enabling a wife the right of residence in premises not owned by the husband, she could not claim to live there.

57. Similarly, the judgment in Natasha Sood vs Chandigarh Administration, 2016 (1) RCR (Civil) 336: 2015 (4) PLR 521, is distinguishable. In that case, there was no pleading or evidence that the house in question belonged to the father-in-law or mother-in-law. It was held that as the question as to whether the house in question is a `shared household' or not, was yet to be determined, hence the order for ejectment passed under the 2007 Act was quashed. In the present case it has already been concluded that the house is question is not `shared household' qua the petitioner.”

28. The House No.737, Sector 12 Panchkula in question was proved to be a self-acquired property. The appellant sought to adduce additional evidence by tendering documents Ex.D-30 to D-32 in order to show that an amount of Rs.10 lacs which was granted towards insurance claim in Australia was transferred in the account of defendant No.1 Arundeep Verma and the same was utilized for renovation of the house and, therefore, the house can be treated to be ancestral property of defendant No.1. The plea was declined by the Additional District Judge, Panchkula vide order dated 16.07.2016 on the premise that the parties had already led evidence. The defendant No.2 remained unsuccessful before the trial Court, wherein in para No.32 of the judgment it was held that defendant No.2 did not lead any evidence to prove the house to be a joint Hindu family property. The additional evidence was not intended to prove the property to be ancestral property on the strength of such evidence which was sought to be adduced before the lower Appellate Court.

29. In view of above and in the light of aforementioned judicial pronouncements, it can be safely culled out that the appellant has no right to live in the self-acquired property of the plaintiff/respondent No.1. The lower Appellate Court has rightly passed the impugned judgment and decree against the appellant. This appeal is accordingly dismissed.

Appeal dismissed.

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