FAO (OS) 341/07 Page 1 of 38 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 26.10.2010 + FAO (OS) 341/2007 SHUMITA DIDI SANDHU ..... Appellant versus SANJAY SINGH SANDHU & OTHERS ..... Respondents Advocates who appeared in this case: For the Appellant : Mr Akhil Sibal with Mr Salim Inamdar For the Respondents : Mr Chetan Shrma, Sr Advocate with Mr S.S. Jauhar and Mr P.K. Dey CORAM:- HON’BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MS JUSTICE VEENA BIRBAL 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes BADAR DURREZ AHMED, J 1. This appeal raises interesting issues with regard to the concepts of „matrimonial home‟ and „shared-household‟ and also concerning the right of residence of a wife in the matrimonial home, shared-household or some other place. 2. This appeal is directed against the judgment and / or order dated 02.07.2007 passed by a learned single Judge of this court in IA Nos.291/2005 and 8444/2005 in CS(OS) 41/2005. The suit had been filed by the appellant against her husband, Mr Sanjay Singh Sandhu (defendant No.1), her father-in-law, Mr Hardev Singh Sandhu (defendant No.2) (since FAO (OS) 341/07 Page 2 of 38 deceased) and her mother-in-law, Mrs Shiela Sandhu (defendant No.3). During the pendency of the suit as also the said applications, the appellant‟s father-in-law (the said defendant No.2) passed away and his legal representatives, being his widow (Mrs Sheila Sandhu), son (Mr Sanjay Singh Sandhu), daughter, Mrs Zoya Mohan and another daughter (Mrs Tani Sandhu Bhargava), were brought on record. 3. In the said suit, the appellant / plaintiff had sought the following reliefs:- “(a) Grant a decree of permanent injunction restraining the Defendant Nos. 1, 2 and 3 from committing themselves or through their agents / representatives acts of violence and intimidation against the plaintiff; (b) Grant a decree of permanent injunction restraining the Defendant Nos. 1, 2 and 3 and their agents / representatives from forcibly dispossessing the Plaintiff out of her matrimonial home without due process of law; (c) Grant any other / further relief / relief (s) as may be deemed fit and proper under the facts and circumstances of the case.” 4. In IA No.291/2005, the appellant / plaintiff sought an interim order restraining the defendants from dispossessing her from her „matrimonial home‟, which, according to her, was the property at 18-A, Ring Road, Lajpat Nagar-IV, New Delhi. It is her case that she was occupying the first floor of the said property and there was imminent danger of her being dispossessed from the said portion of the said property without following the due process of law. IA No.8444/2005 was filed by the appellant / plaintiff seeking interim orders restraining the defendants from creating any third party rights in the said property. The said applications FAO (OS) 341/07 Page 3 of 38 were dismissed by the learned single Judge by virtue of the impugned order dated 02.07.2007. The learned single Judge was of the view that the plaintiff could not claim any right to stay in the said property as it did not belong to her husband (defendant No.1), but it belonged to her parents-in- law. Taking note of the statement under Order 10 of the Code of Civil Procedure, 1908 made by the defendant No.2 that the defendants have no intention to throw out the plaintiff from the first floor of the said property, which is occupied by her, without following the due process of law, the learned single Judge ordered that the said defendants would be bound by the statement. However, the learned single Judge clarified that this would not prevent the defendants 2 and 3 from taking recourse to law for dispossessing the plaintiff. 5. The learned single Judge in paragraph 9 of the impugned judgment and / or order observed as under:- “There is no dispute that the suit property belongs to the defendant Nos. 2 and 3. The plaintiff‟s husband, namely, the defendant No.1 has no share and / or interest in the same.” Again in para 9 of the impugned judgment / order, the learned single Judge observed that:- “The question for prima facie consideration is as to whether the plaintiff has any right to stay in the suit property in which her husband has no right, interest or share and belongs to her father-in-law and mother-in-law. Incidental question for determination is as to whether it could be treated as matrimonial home of the plaintiff?” FAO (OS) 341/07 Page 4 of 38 6. The learned single Judge, it is obvious from the aforesaid extracts, proceeded on the basis that the said property belonged to defendant Nos. 2 and 3, that is, the father-in-law and the mother-in-law and that there was no dispute with this proposition. Consequently, relying on the Supreme Court decision in the case of S.R. Batra v. Taruna Batra: 2007 (3) SCC 169, he observed that the ratio of the said Supreme Court decision was clearly that the daughter-in-law has no legal right to stay in the house which belongs to her parents-in-law. The learned single Judge observed that the legal position which emerged was that the husband had a legal and moral obligation to provide residence to his wife and, therefore, the wife was entitled to claim a right of residence against her husband. He further observed that if the house in question where she lived after marriage belonged to her husband, the same could certainly be treated as a matrimonial home. Furthermore, if the house in question belonged to a Hindu undivided family in which her husband was a co-parcener, even that house could be termed as a matrimonial house. But, where the house belonged to the parents-in-law in which the husband had no right, title or interest and the parents-in-law had merely allowed their son alongwith the daughter-in-law to stay in the said house, it would amount to mere permissive possession on the part of the daughter-in-law and would not give her any right to stay in the said house inasmuch as the same would not be her matrimonial home. FAO (OS) 341/07 Page 5 of 38 7. The learned single Judge also noted that there was a serious dispute as to whether the property could, at all, be termed as a matrimonial home. He referred to the pleadings from which it, prima facie, appeared that the appellant / plaintiff lived in the said property from the date of her marriage in 1994 till 1996 when she moved out to Defence Colony as her relations with the defendants had become strained. Interestingly, her husband (defendant No.1) also joined her and started residing with her in Defence Colony, which was a rented accommodation. In 1999, the appellant / plaintiff and her husband (defendant No.1) returned to the said property and resided in the first floor. Serious allegations have been hurled by the plaintiff as well as the defendant No.1 against each other with regard to their chastity. There is also an allegation that the defendant No.2 married another lady sometime in 2004 and that she had moved into the said property. It was alleged that because of these incidents, the appellant / plaintiff left the property in 2004. Of course, she re-entered the first floor of the said property on 10.10.2004 at 2.30 a.m. It is because of this circumstance, that the learned single Judge was prima facie of the view that there was some credence in the allegations of the defendants that the appellant / plaintiff had forced her entry into the said property on 10.10.2004 at an odd hour. Another circumstance which may be noted is that the appellant / plaintiff had also taken a flat in Mumbai for the period December 1999 to November 2000 and that the lease of the flat was in her name and she had stayed there for three-four months and her husband had also joined her. It is because of these circumstances that the learned single Judge was of the view that there FAO (OS) 341/07 Page 6 of 38 was a serious dispute as to whether the suit property could, at all, have been termed as a matrimonial house, particularly when the appellant / plaintiff had left the said property in the early part of 2004 and had, prima facie, forcibly entered the same on 10.10.2004. 8. Anyhow, the main thrust of the reasoning adopted by the learned single Judge was that the daughter-in-law (appellant/plaintiff) cannot claim any right to stay in the said property inasmuch as the said property belonged to her parents-in-law. This conclusion is based on the said decision of the Supreme Court in the case of S.R. Batra (supra). 9. Mr Akhil Sibal, the learned counsel appearing on behalf of the plaintiff raised three points of attack insofar as the impugned decision is concerned. His first and main point was that the learned single Judge had proceeded on the basis that there was no dispute that the property belonged to the defendants 2 and 3. He submitted that the plaintiff had nowhere admitted the defendants 2 and 3 to be the sole and exclusive owners of the said property. Consequently, the learned counsel submitted that since the very premise was wrong, the conclusion based on such premise was obviously erroneous. He also submitted that because the said premise was faulty, the decision of the Supreme Court in the case of S.R. Batra (supra) would not be applicable to the facts and circumstances of the present case. 10. The second point of attack was that the learned single Judge had erred in holding that the appellant / plaintiff, could not, as a matter of law, FAO (OS) 341/07 Page 7 of 38 claim any right in the property of the mother-in-law. He submitted that the plaintiff / appellant had a right of residence and that this proposition was not correct. The third point of attack was that since the learned single Judge had decided that in law, the appellant / plaintiff could not claim any right in the property of the mother-in-law, the suit as such had virtually been dismissed without returning any conclusive findings or recording any satisfaction on the factual aspects at all. He, therefore, submitted that this was a fit case for remand, after the impugned order was set aside. 11. Elaborating on the first aspect of the matter, that the appellant / plaintiff had not admitted the defendant Nos. 2 and 3, jointly or the defendant No.3 by herself, to be the exclusive owner(s) of the said property, Mr Sibal drew our attention to the pleadings of the parties and, in particular, to the written statements filed on behalf of the defendant Nos.1, 2 and 3. Referring to para 3 of the written statement of the defendant No.1, Mr Sibal pointed out that the stand taken is that the said property belonged to defendant No.3 (the mother-in-law). However, in paragraph 17 of the same written statement, a somewhat different statement has been made to the following effect:- “… The suit property lawfully belongs to the parents of the defendant No.1 and the plaintiff has no claim whatsoever in the said suit property.” Again, in para 21 of the written statement of the defendant No.1, it is stated as under:- FAO (OS) 341/07 Page 8 of 38 “… the matrimonial house of the parties will be the residence of the husband i.e. defendant No.1 and not the house / property of the parents of the husband i.e. defendant No.2 and 3 to whom the suit property belongs. The suit property is the self acquired property of the defendant No.2 and 3 and no person except the defendant No.3 has any right, title or interest in the suit property. The matrimonial home of the plaintiff thus will be the house in which her husband i.e. defendant No.1 resides who has his residence in Dehradun and not in the suit property.” 12. Mr Sibal submitted that from the aforesaid averments made in the written statement, the defendant No.1 has taken conflicting stands. At one place, the defendant No.1 has stated that the property belongs to his mother (defendant No.3) and not to the plaintiff and at other places he has stated that it belongs to his parents, i.e., both defendant Nos.2 and 3. 13. Referring to the written statement of the defendant No.2, Mr Sibal submitted that the defendant No.2 claimed the said property to have been built from his personal earnings and also on the basis of the loan which he had taken from LIC. He referred to the following averments in paragraph 6 of the written statement:- “6. That the correct facts in brief imperative for the proper adjudication of the present matter are that the house at 18A, Ring Road, Lajpat Nagar was built from the personal earnings of defendant No.2 and also the loan which he had taken from LIC. The defendant No.2 was living on the ground floor with his wife, defendant No.3 and three unmarried children. The plaintiff and the defendant No.1 got married in the year 1994. After the marriage, the plaintiff and the defendant No.1 lived with defendants no.2 and 3 in the ground floor of their house. Thereafter, in the year 1996, the plaintiff and the defendant No.1 left the said premises at Lajpat Nagar and took a separate residential premises for their living in C-461, FAO (OS) 341/07 Page 9 of 38 Defence Colony, New Delhi which remained their residential premises till 1999. The said house was taken on lease by plaintiff and defendant No.1 and all the payments for rent and were duly reflected in defendant No.1‟s Bank statement for the said period. Thereafter plaintiff and defendant No.1 had been living at different places from time to time. For the last few years plaintiff and defendant no.1 started living in defendant No.1‟s house in Dehradun or at times at the First Floor of the suit property with permission of defendants no.2 & 3. Whenever they stayed at Lajpat Nagar House even though they maintain separate kitchen. Defendant No.2 had been paying all electricity and water charges including payment to security guards and other related expenses. For the said reasons the first floor at Lajpat nagar house belonging to defendant No.3 was never considered to be matrimonial home of plaintiff and defendant No.1.” The defendant No.3, in paragraph 11 (preliminary objections) of her written statement, has categorically stated that the suit property is the self acquired property of the defendant No.3 and no person except the defendant No.3 has any right, title or interest in the suit property. In para 2 (parawise reply on merits), the defendant No.3 once again stated that she was the true and legal owner of the suit property and the defendant No.2 and 3 have been in possession of the suit property. 14. In view of the averments made in the said written statements, Mr Sibal submitted that the stand of the defendants is unclear. At one point, they claim that the property belongs to the defendant Nos.2 and 3 and at other points they claim that the property belongs to defendant No.3 exclusively. Thus, according to Mr Sibal, the shifting stands are indicative of the ulterior designs of the defendants to oust the appellant / plaintiff from her matrimonial home. FAO (OS) 341/07 Page 10 of 38 15. He then referred to para 21 of the replication, where, for the first time, the plaintiff raised the plea that the said property was not the self- acquired property of the defendants 2 and 3 and also denied that no person except the defendant No.3 had any right, title or interest in the suit property. It was, therefore, contended by Mr Sibal that there was a dispute with regard to the ownership of the suit property. Continuing further, Mr Sibal referred to the Order X statement made under the Code of Civil Procedure, 1908 by the defendant No.2, where once again, the said defendant took a different stand that the property bearing No.18-A, Ring Road, Lajpat Nagar, Delhi had been bought by his wife, Mrs Sheela Sandhu out of her own income and that the perpetual lease deed was executed by DDA in her favour. 16. Mr Sibal also submitted that an application being IA No.8442/2005 had been filed by the appellant / plaintiff under order 6 Rule 17, CPC seeking amendment of the plaint. One of the amendments sought was the introduction of para 12-B, wherein the plaintiff proposed to allege that the defendant No.3, in collusion with the other defendants, had transferred part of the above said property in the name of defendant No.4 falsely claiming this to be her absolute property, knowing fully well that the said property was the joint ancestral property and by making false averments regarding possession and consideration. In other words, the appellant / plaintiff sought to take, inter alia, the plea of joint ancestral property by virtue of the said amendment application. Mr Sibal said that that application is pending and is yet to be disposed of. He submitted that the learned single FAO (OS) 341/07 Page 11 of 38 Judge ought to have disposed of the application for amendment prior to passing the impugned order. This, according to him, is another reason as to why the impugned order ought to be set aside and the matter be remanded to the learned single Judge for a fresh consideration. 17. There was also some controversy with regard to a status quo order dated 08.01.2005. But, we need not go into that aspect of the matter. The main thrust of the arguments advanced by Mr Sibal was that the foundation on which the learned single Judge had premised his conclusions was itself faulty inasmuch as the learned single Judge, assumed that there was no dispute that the suit property belonged to the defendants 2 and 3 in which the appellant‟s / plaintiff‟s husband had no share or interest. He submitted that he has been able to show, prima faice, that there was a dispute as to whether the defendants 2 and 3 or the defendant No.3 alone was the exclusive owner of the said property and that the issue as to whether it was a joint family property also needed to be looked into. Therefore, the decision in the case of S.R. Batra (supra) would not be applicable to the facts and circumstances of the present case, because, in the Supreme Court decision, the position with regard to ownership, being that of the mother-in- law, was undisputed. 18. Referring to the following decisions, Mr Sibal submitted that the property in question was the matrimonial home of the appellant / plaintiff and she had a right to reside therein and, therefore, she was entitled to an FAO (OS) 341/07 Page 12 of 38 order restraining the defendants from dispossessing her and / or creating any third party interest therein:- 1) Kavita Gambhir v. Hari Chand Gambhir & Another: 162 (2009) DLT 459; 2) Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade and Ors.: 2007 (1) SCC 521; 3) Komalam Amma v. Kumara Pillai Raghavan Pillai & Others: AIR 2009 SC 636; 4) Mangat Mal (Dead) & Another v. Punni Devi (Dead) and Others: 1995 (6) SCC 88; 5) S.R. Batra & Another v. Taruna Batra: 2007 (3) SCC 169; 6) S. Prabhakaran v. State of Kerala: 2009(2) RCR(Civil) 883; 7) P. Babu Venkatesh Kandayammal and Padmavathi v. Rani: [CRL. R.C. Nos.48 and 148 of 2008 and M.P. Nos. 1 of 2008 decided on 25.03.2008]. 19. Mr Chetan Sharma, the learned senior counsel, appearing for the respondent No.3, submitted that the present appeal is merely academic because the learned single Judge has virtually decreed the suit. He submitted that one of the reliefs claimed in the suit was to permanently injunct the defendants from forcibly dispossessing the plaintiff out of her matrimonial home “without due process of law”. He submitted that this relief has already been granted by the learned single Judge by virtue of the impugned order, whereby he directed as under:- “19. In view of the above, insofar as the right of the plaintiff to stay in the suit property is concerned, she cannot claim any such right as the property belongs to her parents-in-law. However, statement of defendant No.2 was recorded by the Court under Order X CPC where he stated that he or his wife had no intention to throw her out of the premises in question without due process of law. FAO (OS) 341/07 Page 13 of 38 Therefore, while dismissing the applications of the plaintiff, it is ordered that the defendant Nos.1 and 2 shall remain bound by the said statement. This, however, would not prevent the defendants to take recourse to the law for dispossessing the plaintiff.” 20. Mr Chetan Sharma further submitted that at the time when IA Nos. 291/2005 and 8444/2005 were being argued and which ultimately came to be disposed of by the impugned order, the appellant / plaintiff did not press for hearing of the amendment application. Consequently, she cannot now be permitted to submit that the said amendment application ought to have been decided prior to the said IA Nos.291/2005 and 8444/2005. He further submitted that the appellant / plaintiff did not press for any additional issue with regard to the title in respect of the said property. Referring to the Supreme Court decision in Om Prakash Gupta v. Ranbir B. Goyal: 2002 (2) SCC 256, Mr Sharma submitted that the rights of the parties stand crystallised on the date of institution of the suit and subsequent events are not to be taken into account unless the three circumstances referred to therein arise. The said three circumstances are:- (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. FAO (OS) 341/07 Page 14 of 38 21. Mr Chetan Sharma fully supported the impugned judgment and contended that there was no infirmity in the same and, therefore, did not call for any interference. He submitted that the case of the appellant / plaintiff was that there was no abandonment of the matrimonial home and that she had a right to live in the matrimonial home even if it belonged to her in- laws. Earlier, the High Court decision in the case of Taruna Batra v. S.R. Batra & Another: 116 (2005) DLT 646 had been relied upon by the appellant / plaintiff as observed in the impugned order itself, but the Supreme Court decision in S.R. Batra (supra) reversed the decision of the High Court and sealed the fate of the appellant / plaintiff. Mr Chetan Sharma also referred to a decision of a learned single Judge of this court in the case of Neetu Mittal v. Kanta Mittal & Others: (2008) 106 DRJ 623 by way of persuasive value to submit that under the Protection of Women from Domestic Violence Act, 2005, there is no concept of matrimonial home. On the other hand, the concept is of a „shared house-hold‟. In that case, the learned single Judge, after referring to and relying upon the decision of the Supreme Court in S.R. Batra (supra) held that a daughter-in-law has no right to live in the house belonging to her parents-in-law. 22. Mr Chetan Sharma also submitted that in the present case, the said property cannot be regarded as the matrimonial home because, first of all, the appellant / plaintiff left the house in 1996 when she