IIT-B, IIM-B, 498-A

My experiences with legal terrorism

DIL cant claim residence in in-law’s house -3

Courtesy: PK – Shimla (Real name withheld on request)

Summary: 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 appellant cannot claim any legal right of residence in the house belonging to her mother-in-law.

How to use these judgments: This is the first landmark judgment of SC in DV case. Use this judgment to deny the claim of your wife for accommodation or residence in your father or mother’s house or property where you use to live presently without your wife or earlier lived with your wife. The house/property in question should have been self acquired or raised by your mother or father and it should not be a joint family property. Your mother or father should be sole & exclusive owner of this house/property.

Full Judgment :

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

APPEAL FROM ORDER NO. 866 OF 2007 IN S.C.SUIT NO. 3072 OF 2007

WITH CIVIL APPLICATION NO. 1194 OF 2007

Smtl Hemaxi Atul Joshi … Appellant

(Org.Deft.No.1)

Vs.

Smt. Muktaben Karsandas Joshi & Anr. Respondents

(Resp.No.1 – org.Plff

& Resp.No.2 – org.

Defendant nO.2)

Mr.Jaydev Trivedi, Advocate, for the appellant.

Mr.Nitin Vhatkar, Advocate, a/w G.S.Hiranandani,Advocate

for respondent No.1.

Mr. Prajit S.Manjarekar, Advocate, for respondent No.2.

CORAM: J.H.BHATIA,J.

DATE: 5th December,2007.

1. Heard learned Counsel for the parties.

2. Admittedly, the appellant, who is defendant No.1, was married to respondent No.2 sometime in the year 1996 and out of this wedlock, they have two children. After the marriage, they were living in the suit house with the other family  members. The relations between the husband and wife got strained and the Marriage Petition for divorce was filed by respondent No.2-husband against the present appellant before the Family Court at Bandra, Mumbai. Plaintiff/Respondent No.1, who is the mother of respondent No.2 and mother-in-law of the appellant, claims that she is the exclusive owner of the suit house and her son and daughter-in-law after the marriage, were living with her in her house. However, in the year 2002, the appellant and respondent No.2 purchased another flat at a short distance from her house and intermittently they also used to live there. Respondent No.1 claims that she and other family members had noticed illicit relationship of the appellant with some other person. This was objected to by her and therefore relations were strained. According to her, the daughter-in-law went to her parents’ place at Surat in May 2007 after the Divorce Petition was filed. However, in the last week of May, 2007, she came back to Mumbai and forcibly entered into the plaintiff’s house and started harassing the plaintiff and her family members. She also abused the plaintiff in filthy language and assaulted her. In view of these circumstances, she filed the suit for perpetual injunction restraining the defendants from entering into and/or occupying and/or remaining in occupation of the suit premises belonging to her. She also took out a Notice of Motion seeking temporary injunction of the same nature. The application was opposed by the present appellant on the ground that the suit house is the matrimonial home and she is entitled to reside there in view of the Protection of Woman from Domestic Violence Act, 2005 (in brief, “Domestic Violence Act”).

3. After hearing the parties, the learned Judge of the City Civil Court accepted the contention of the plaintiff and rejected the contention of the defendant No.1-appellant that it is a shared household for the appellant. The learned Judge held that the suit house being the exclusive property of the mother-in-law/plaintiff, the daughter-in-law cannot claim any legal right of residence. In the result, the Notice of Motion was allowed and the temporary injunction was granted against the defendant No.1-appellant. Hence, she has preferred the present Appeal.

4. On perusal of the pleadings of the parties and the impugned order, it becomes clear that the suit house was purchased by the plaintiff/mother-in-law sometime in 1975 and, admittedly, the suit house stands in her name alone. There is nothing to show that it is a joint family property of the plaintiff, her husband and the children. Admittedly, it is not the house belonging to the appellant or her husband. The learned trial Court relied upon an authority of the Supreme Court in S.R.Batra vs. Taruna Batra AIR 2007 SC 1118 wherein the

provisions of the Domestic Violence Act, 2005 came to be considered.

5. Section 19 of the Domestic Violence Act provides protection of residence to the aggrieved person.

Section 19(a) reads as under :-

“19. Residence orders (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order -

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared

household;”

Under Section 2(a) of the Domestic Violence Act, “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent”. . Section 2(q) defines “respondent” as any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the

male partner. . Section 2(s) defines “shared household” as follows :-

“shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or  along with the respondent and includes such a household whether owned or tenanted either

jointly by the aggrieved person and the respondent, or owned or 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 the 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.”

5. The question is whether merely because the appellant/daughter-in-law was living along with husband in the household of her mother-in-law, she would get a legal right of residence in the house of mother-in-law. Admittedly, the appellant and her husband-respondent NO.2 had purchased another flat in December, 2002 jointly. It is not disputed that intermittently the husband and wife used to sleep and stay in that house. That house is at a walking distance of about 5 minutes from the suit house. The appellant can claim legal right in that house firstly, because it is the joint property of herself and her husband and secondly, because she was intermittently living or at least staying in that house along with her husband and children. As far as the suit house is concerned, it is

not the property in which her husband has got any legal right and therefore she cannot claim that the suit house is the shared household within the meaning of Section 2(s) of the Domestic Violence Act. After referring to the provisions of the Domestic Violence Act and some case law, Their Lordships of the Supreme Court in the case of S.R.Batra vs. Taruna Batra, observed as follows in para

16 of the Judgment :-

“16. 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.” From this, it is clear that the wife may have rights only against the husband and not against father-in-law or mother-in-law. Their Lordships further observed as

follows :-

“28. 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 is a member. It is the exclusive property of appellant No.2, mother of Amit Batra. Hence it cannot be called a ‘shared household’.

The facts in the case of S.R.Batra and the present matter are almost similar. Taking into consideration the legal position and the facts, the appellant cannot

claim any legal right of residence in the house belonging to her mother-in-law. She can claim such right only in the house of her husband and incidentally in the present case, she and her husband jointly own another house at a short distance from the suit house. Taking into consideration all the facts and circumstances, the learned trial Court Judge was justified in passing the order of temporary injunction restraining the defendant-appellant from entering into

the suit house and causing interference in possession of her mother-in-law on the suit house.

6. In the result, the Appeal stands dismissed.

7. As the Appeal itself is dismissed, the Civil

Application does not survive and stands disposed of accordingly.

(J.H.BHATIA,J.)

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23 Responses to “DIL cant claim residence in in-law’s house -3”

  1. Biswajeet said

    Good Evening Sir

    My wife and her dad left no stone unturned to provoke us so much so that we get tempted enough to file case of divorce. It is now that we realize what a wife can do to her husband’s family.

    My existing status:
    ——————–
    1 no case has been filed against us yet, but they had threatened to do so
    2 my parents have disowned me and my wife(i now realize that they should have disowned only me)

    A. i do not spend my weekly offs at home to avoid her to which she threatens that she has right to know where i go. if i spend my time at my leisure anywhere, can that be regarded as mental cruelty to my wife in any way ? am i wrong if i dont tell her where i go and spend night ??

    B. what papers should we be in posession of, if we anticipate our parent’s arrest even though they live separately from me and my wife and we both have been dis-owned by them.

    • iluvshrutiverma said

      Good evening,

      A – I can understand your painful situation if you can not comfortably spend time at home. Not telling where you are going is not cruelty. Moreover she will never be able to prove all this.

      B – Your parents would easily get bail (99%) in case of an arrest just because they are old and live separately. You do not need any special papers for this.

    • Biswajeet said

      if i stay outside home and seldom come to home then what can anybody frame charges on me to prove where i go if not at home ?

      • iluvshrutiverma said

        You can stay where you want. I am not surprised at your state, even I used to get up at 4am and go and walk in the park for 2-3 hours before going to work; because my wife had created such a horrible environment at home.

    • Rohit said

      Normally the lower courts do not grant bail and we have to go to the HC for it.

      Can’t we apply to get AB directly from the HC ?

      • iluvshrutiverma said

        I do not know who is guiding you:

        AB can be granted ONLY by HC, the question of AB in lower court does not arise.

      • ashish jolly said

        so one should apply for bail to high court?

      • iluvshrutiverma said

        yes

      • roh said

        1 what evidence do i require to get AB from high court?
        2 does the judge needs to be convinced to get AB.
        3 if judge does not grant me permission to get AB and arrest happens then what ?

      • iluvshrutiverma said

        1. reasonable fear of arrest is the primary pre-requisite to get AB
        2. yes
        3. then u will get regular bail

  2. Vaibhav said

    if i transfer my money into my relative’s or parent’s account, after marriage, then can court stop me from doing it ?

    • iluvshrutiverma said

      No, courts can not do anything. (This can be a problem only in case you declare insolvency at a date in near future but that status does not have much meaning in our country.)

      • Roh said

        my FIL says that my parents are interfering in my life and that is why they are taking money from their son to monetarily weaken my wife. you mentioned somewhere – it is all about convincing the judges. i see that courts make judgements even without applying senses. in my case, my wife is a very good actress.

        Question: if i deny her allegations then can the court do anything or again the fate of a man depends at the mercy of the woman (wife or female judge) or the $e#-starved men’s wish ?

  3. Roh said

    I have only one question, and it is at the end of my story.

    i was living with my wife and parents. from month#1 she had started utterring filth . she made my and my parent’s life hell. my parents left the home. now she became quite astonishingly. But kept on utterring filth about not only my parents but family members.

    She did all the shameless things that nobody will like to tolerate and will go out of control. this clearly indicates that whatever she did was on purpose.

    i was now living like a dead man with my wife with no relation between us. just legally married.

    i stopped visiting my home where i used to live with my legal burden(wife), and stayed here and there. my FIL kept harassing me by coming regularly to my office to make drama publicly and mentally harass me. i did not pay any attention to him or to his spoilt brats(his kins). he even keeps calling my family members and asks them to interfere.

    Question: please tell me if i(the husband) does not want to live with the blunder of my life(my legally wedded wife) then do i have to worry about anything but to pay alimony to her ?

  4. sssss said

    I am working. My husband left his job since one year and now unemployed. So I am paying rent, as I am not allowed to stay in my in laws house. Recently I told husband that as you spend much time at your mother’s house, I will leave this flat, will stay at my mothers house too with my daughter. My father in law died. That house belong to my mother in law, brother in law and my husband (as I know that ). Now can I do petition in court to let me stay in my in laws house with me?

  5. ABCD said

    I am not sure if some one is reading this thread….But still want to put across my situation and need to know what should I do? I am a working female, mother of 2 and staying with husband and mother-in-law. This house is in the name of mother in law but this was purchased by my Father in law. How did father in law purchased this property? He got a share from his ancestral house long in 1986 and through that he purchased this flat. My FIL died few years ago and the house was then transferred to my MIL’s name.

    I am a short tempered but still decent female and is not interested in any one’s property. I believe in earning myself. What made me to write here is…..My husband is the only son and we are going through financial crisis since 2008. It is the reason we could not purchase any assets and to help my husband, I am working.

    My MIL for no reason keep on complaining and then use abusive language which I cannot tolerate when I tell her to mind her language. She statues that he house is owned by her and tells us to leave the house and creates a scene. Infact she is making a statement that the house is owned by her and we have no rights to stay at home. Now, I want to know what should we do? This house is not exactly purchased by my FIL it is purchased through a property share.

    Awaiting for your reply.

    • shalini said

      Hi,

      Even I am in the same situation can some one please help me to sort out the issue.

      I am staying with my Mother inLaw and married sister in law. I have a daughter and my husband works in the govt office and hence he is stayin gout of Bangalore. He is least bothered about my daughters future. He spend all his earnings to his Mom and sisters. I am working woman, i need to take care of my daughter. the house where i am staying currently belongs to My father in law and he is expired. My mother in law and sister in laws allways force me to go out of the home and they abuse me with volgure words too. my husband is not talking single words. Can I understand on my rights. Do I have any rights to stay my Father Inlaw’s house or not. I am really unable to understand my husband many times he also said go on rent. I am not getting what to do. can some one please guide me.

      • iluvshrutiverma said

        I don’t think u have a right to stay in your mother in law’s house BUT your husband seems to have a good job and he can be forced to properly support you and your daughter. Read about Crpc 125 maintenance and DV act maintenance (and right to residence under DV act).

  6. rahul said

    hi ILSV,
    u r doing great job by guiding people. i have two questions :
    1) my wife has filed a complaint in CAW cell delhi.
    shall i take notice bail? ( notice bail is the bail granted to you when you apply for Anticipatory Bail but there is no FIR so u get a notice bail stating that u will be notified seven days before the arrest in case of FIR)

    2) my mother has filed injunction suite against me and my wife so that my wife cant enter my mother’s house ( title of the house is in the name of my late father ) but recently i consulted a leading lawyer in delhi , he says that dont go for disowning the son. it will give negative result in future.
    please reply
    thanks

    • iluvshrutiverma said

      hi

      thank you for your kind words

      1 – if there is a complaint in CAW cell, chances are that it will become FIR sometime in future, and then it will be either arrest or anticipatory bail (AB). So it is a good idea to get AB/notice bail now

      2 – I don’t see how it will give negative result in future

      • rahul said

        hi ILSV,
        thanks for your reply
        I have following questions :

        1) Notice from CAW cell is in my name only but in complaint my wife has put allegations in both my name and my mother’s name. so shall we take notice bail for both of us or only in my name as notice from CAW cell came only in my name.
        please note that I stay 350 km from delhi and I have never stayed or married in delhi. my wife is currently working and staying in rented accommodation in delhi. she has filed complaint in CAW cell delhi to harass us so that we would be going to delhi for every date in CAW cell. also we have to take bail from delhi only

        2) lawyer says that disowning the son after DIL left the home reflects negative impact over the judge, they see it as a planned move. I stayed at my mother’s house after marriage with my wife. when my wife left home I also booked a room at different address from my mother’s address and shifted . lawyer says that continue with your new address but withdraw the injunction suit ( which mother filed against me and my wife) as don’t show disowning the son. what is your opinion ?

        please reply
        thanks in anticipation

      • iluvshrutiverma said

        1 – u will need AB for both
        2 – i dont think it matters too much either way

  7. rahul said

    Thanks for your reply.
    As I told you that I stay 350 km from delhi and I have never stayed or married in delhi. my wife is currently working and staying in rented accommodation in delhi. she has filed complaint in CAW cell delhi to harass us so that we would be going to delhi for every date in CAW cell. Can we go for quashing / staying the proceedings of the complaint on jurisdiction basis ?

    thanks again

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