Civil Revision No.770 of 2007 (O&M) & -1- Civil Revision No.2598 of 2007 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.770 of 2007 (O&M) Date of decision:21.04.2009 Major Harmohinder Singh .............Petitioner Vs. Ranjit Kaur and others ............Respondents Present: Mr. Puneet Bali, Advocate for the petitioner. None for the respondents. 2. Civil Revision No.2598 of 2007 Ranjit Kaur ............Petitioner Vs. Major Harmohinder Singh and others .........Respondents Present: None. CORAM: HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K.KANNAN, J. (ORAL) 1. The twin revisions arise out of same impugned order dated 04.01.2007 passed by Additional District Judge (Adhoc), Ropar. The husband, who was restrained from dispossessing his wife from his own residence by a suit for injunction filed by the divorced wife is the revision petitioner in C.R. No.770 of 2007 before this Court. C.R. No.2598 of 2007 is filed at the instance of the wife against the Civil Revision No.770 of 2007 (O&M) & -2- Civil Revision No.2598 of 2007 (O&M) direction contained in the same order permitting the husband to sell the property. 2. Now to some facts: The suit had been filed by the wife seeking for relief of injunction restraining husband from alienating the suit property and for restraint against PUDA from issuing any No Objection Certificate for transfer of property. In such a suit, the wife had sought for a restraint under Order 39 Rule 1 and 2 CPC against alienation of the property and from disturbing of possession. The basis of the claim filed by the wife for such a restraint was a decree passed by the High Court in R.S.A. No.3451 of 1999 dated 17.05.1999 that the wife should be given a right to reside in the house being the wife of the petitioner. The suit in the application was resisted by the husband pointing out to a significant subsequent event that the marriage has been dissolved since the decision of the High Court and in the petition for dissolution of marriage passed under the Hindu Marriage Act, there had been no provision made for permanent alimony under Section 25 of the Hindu Marriage Act. The husband also contended that the wife had earlier filed a petition for maintenance under Section 125 Cr. P.C. but it was rejected finding that the wife was adequately provided for and also attributing to certain conduct that disentitled her to claim such maintenance. This order of dismissal was sustained by the District Court in revision filed under Section 399 of the Cr.P.C. 3. The Court of first instance before whom the suit was pending granted the interim order as prayed for, essentially referring to the decision of this Court passed in R.S.A. referred to above that Civil Revision No.770 of 2007 (O&M) & -3- Civil Revision No.2598 of 2007 (O&M) the wife was entitled to reside in the house. The plea by the husband that there had been a change of circumstance since the passing of the decree by the High Court where the marriage between the husband and wife had itself been dissolved did not seem to cut ice with the Trial Judge. In appeal by the husband before the District Court, the District Judge was pleased to allow the appeal in part setting aside the portion of the order that fettered the husband from alienating the property but directed that there shall be a recital in the sale deed if ever it takes place that the suit is pending and it further directed that the husband shall make provision for alternative residence for the plaintiff/respondent. It is this portion of the order requiring the husband to provide alternative residence that is challenged in revision. 4. Learned counsel appearing on behalf of the petitioner submits that the right of residence, which the wife could claim and which could not be jeopardized by the husband even in an action for eviction against the husband by an offer to surrender the property would always be seen in the context of what the wife would be entitled at the time of dissolution of a marriage. The law was settled, progressive as it was, in protecting a hapless woman from being exposed at the prospect of being thrown out by an estranged husband in B.P. Achala Anand Vs. S. Appi Reddy and another 2005 (3) SCC 313. The Hon'ble Supreme Court did not go as far as to say that the right of residence will have to be protected at all times but qualified the right to depend on the terms and conditions of divorce decree/settlement and the provision for maintenance including residence that is made in such a divorce decree. This decision was Civil Revision No.770 of 2007 (O&M) & -4- Civil Revision No.2598 of 2007 (O&M) further explained by a later judgment of the Hon'ble Supreme Court in Ruma Chakraborty Vs. Sudha Rani Banerjee and another 2005 (8) SCC 140 where affirming the observations that the right of residence of a divorced wife in a matrimonial home would depend on the terms and conditions of a divorce decree, observed with particular reference to the facts in that case that the divorced wife, who had expressly waived her right to maintenance by consenting for maintenance only in favour of the children lost the right to remain in the matrimonial home. The Hon'ble Supreme Court held that termination of a matrimonial relationship brought to an end the status of wife as such and hence her right of residence in the matrimonial home. 5. These decisions have significant value for this case where admittedly at the time when a decree of divorce was passed, there had been no provision made under Section 25 of the Hindu Marriage Act. It is not stated that a right to maintenance will be completely lost in cases where the Court has not passed any order under Section 25 of the Act. At least, it does not provide a prima facie right to a divorced wife to seek for her continuance in possession of erstwhile matrimonial home. The Court, which vacated the order of injunction restraining alienation ought not to have made an exception for a right of residence when there existed no claim for maintenance which would include a right of residence. I do not propose to touch on the issues, which the learned counsel for the revision petitioner submitted that the wife was by her conduct of visiting cruelty on the husband was disentitled to maintenance or she was sufficiently provided for and that she had no right to demand maintenance while it was the Civil Revision No.770 of 2007 (O&M) & -5- Civil Revision No.2598 of 2007 (O&M) husband who required to be maintained and that he was literally on the streets after his retirement. The order of the District Judge requires an intervention for the reason that it sets forth a wrong statement on law in assuming that a divorced wife is always entitled to maintenance or, has a right to continue in possession of the property, which ceased to be a matrimonial home after the divorce has taken place. Indeed such a right would be an exception in cases where the decree for divorce itself spells out a right by a matrimonial settlement. A right which has not so far fructified by any such action is not a right, which is available prima facie for the plaintiff to seek by means of an interim order. The relief of injunction as sought for by the plaintiff ought to have been rejected in toto. The appeal, which was only partly allowed suffers from the vice of granting an order of right of residence, which did not exist in her favour, at least, prima facie, after a decree of dissolution of marriage that provided for no right of residence. 6. Civil Revision No.770 of 2007 is allowed setting aside the order of the District Judge, in so far as it directs the husband to make alternative residence for the plaintiff. Consequently the petition for interim injunction filed through the interlocutory application in suit is dismissed in toto. Civil Revision is allowed in the above terms. Civil Revision No.2598 of 2007 filed at the instance of the wife is dismissed. There shall be, however, no direction as to costs. (K.KANNAN) JUDGE April 21, 2009 Pankaj*