1 AO-778-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 778 OF 2011 WITH CIVIL APPLICATION NO. 1033 OF 2011 IN NOTICE OF MOTION NO. 1223 OF 2011 IN S.C.SUIT NO. 969 OF 2011 Ranjana Rehan Yar Khan ) Aged about 38 years, Occ: Business ) residng at 24/8, Nav Alka, A.G.Khan ) Road, Worli, Mumbai 400 018. ).. Appellant (Orig. Deft. No.1) Vs. 1. Mohammed Hayat Yar Khan ) Aged about 69 years, Occu: Retired ) residing at 402, Phoenix Towers "A" ) Lower parel, Mumbai 400 013. ) 2. Mrs. Zarina Yar Khan ) Aged about 67 years, Occu:Housewife) residing at 402, Phoenx Towers "A" ) Lower parel, Mumbai 400 013. ) 3. Rehan Yar Khan ) Aged about 39 years, Occu: Business ) residing at 24/8, Nav Alka, A.G.Khan) Road, Worli, Mumbai 400 018. ).. Respondents (Respondents 1 & 2 - original Plaintiffs Respondent No.3 - original Deft. No.2.) Ms. Rajani Iyer, Senior Advocate a/w Shri Pankaj Kowli and Khushnuma Khan i/b. M/s. K.K.Associates, Advocates, for the appellant Mr.Swanand Ganoo a/w Manish Rai i/b. Smt. Manjula Rao,Advocates for the respondent Nos. 1 & 2. Shri pankaj Kansara, Advocate, for respondent No.3. 2 AO-778-11.sxw CORAM: J.H.BHATIA,J. DATE : 20th July, 2011. JUDGMENT: 1. Heard the learned Counsel for the parties. 2. The Appeal is preferred by the original defendant No.1 challenging the order dated 8.7.2011 passed by the City Civil Court in Notice of Motion taken out by the original plaintiffs, who are respondent Nos. 1 and 2 before this Court and whereby the trial Court restrained the defendants from entering into the suit premises and from obstructing occupation and possession of the plaintiffs over the suit premises in any manner till the disposal of the suit. 3. Facts, in brief, leading to this litigation may be stated thus :- The suit premises is Flat No.402, Phoenix Towers "A", Lower Parel, Mumbai. Respondent Nos. 1 and 2 here are father-in-law and mother-in-law respectively of the appellant. Defendant No.2, Rehan Yar Khan, who is respondent No.3 in the Appeal, is the husband of the appellant. The appellant and respondent No.3 were married in 2004 and after the marriage she went to live in the suit premises with her husband. The suit flat was purchased by the 3 AO-778-11.sxw plaintiffs in the year 1994 and, admittedly, they are the exclusive owners of the suit property. For the purpose of business, the plaintiffs were living in Dubai as the plaintiff No.1 was the Executive Director of an Oil Company and plaintiff No.2 was also a Director of a company, started by their son respondent No.3 in Dubai. The said company was dealing in the business of import and export and the appellant was also given employment in the said company. She was normally staying in Mumbai in the suit flat with her husband and was also required to go to Dubai for short periods. According to the plaintiffs, the plaintiff No.1 has retired and they have decided to come back to Mumbai and live in the suit flat. Disputes had started between the appellant and her husband prior to this litigation. According to the plaintiffs, the defendants had started living in another Flat No.24/8, Nav alka, A.G.Khan Road, Worli, Mumbai. It may be referred as rented house as it is is taken on rent or leave and license by the husband of the appellant. After the dispute between the husband and wife for some time the appellant allegedly shifted to her parents' place and then she started paying visits to the suit flat in the month of March 2009 and tried to forcibly stay in the suit flat with the plaintiffs and thus she disturbed and interfered in their possession over the suit flat. In these circumstances, the plaintiffs filed the suit for perpetual injunction restraining the defendants from entering into the suit premises and from causing disturbance in possession of the plaintiffs over the same. They also 4 AO-778-11.sxw sought temporary injunction of same nature by filing Notice of Motion. 4. The appellant contended that she is actually residing in the suit premises continuously and not in the rented premises. According to her, she is entitled to stay in the suit premises as she has been living there since her marriage. The plaintiffs have several other properties, including two other properties at Mumbai, which are also available with them for residence. According to her, the plaintiffs are not residing in the suit premises and the suit has been falsely filed just to evict the appellant from the suit premises, where she resides. 5. The respondent No.3 did not file any reply to the Notice of Motion. The learned Counsel for the respondent No.3 pointed out that because of the disputes between husband and wife she has filed the Marriage Petition before the Family Court, Bandra on 18.4.2011 for restitution of conjugal rights. He orally submitted that before disputes which started in March 2011, the appellant and respondent No.3 were living in the suit premises but after the disputes, he has shifted to the rented premises at Nav Alka, which is provided to him for residence by Large Tech Service Pvt.Ltd. in which company he is the CEO. 5 AO-778-11.sxw 6. After hearing the learned Counsel at length and after perusing the several pleadings and documents produced by them, it becomes clear that the suit premises are the exclusive property of the plaintiffs which they had purchased in the year 1994. The parties are Muslims. Under Muslim law, there is no concept of joint family or joint family property. Therefore, neither son nor the daughter- in-law of the plaintiffs can claim any legal right in the suit property belonging to the plaintiffs. The suit premises is the residential flat of the plaintiffs. Though for certain years they were living in Dubai because of their business or occupation, now they have decided to come back to Mumbai and to stay in their own house. The appellant was residing in the suit flat neither as a tenant nor as a licensee, but only as a member of the family after the marriage in the year 2004. As long a the relations between the parties were cordial, there was no problem. However, shortly before the suit was filed, disputes had arisen between husband and wife and in these circumstances, the plaintiffs find it unconformable to live with the estranged daughter-in-law. According to them, she had also shifted to the rented premises at Nav Alka, while according to her, she had never shifted and she continues to stay here. As the plaintiffs are the exclusive owners and in occupation of the premises, it s their choice to allow any other family member to live with them or not to live. The daughter-in-law cannot force them to allow her to live in their residential premises. Even under the provisions of Protection of 6 AO-778-11.sxw Women from Domestic Violence Act, she can only claim the right of accommodation against her husband in the shared household which means house of the husband. This legal position is settled by the Supreme Court in S.R.Batra & Anr. v. Smt. Taruna Batra AIR 2007 SC 1118, wherein Supreme Court observed as follows :- "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. 23. 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. 24. We cannot agree with this submission. 25. 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 grand parents, his 7 AO-778-11.sxw 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. 26. it is well settled that any interpretation which leads to absurdity should not be accepted. 27. 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 in-laws or other relatives. 28. As regards Section 17(1) of the Act, in our opinion the wife is only entitled to 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'." 8 AO-778-11.sxw In view of the settled position of law as explained by the Supreme Court, the wife can only claim right of accommodation against her husband and not against any other relatives, including the father-in-law or mother-in- law. If the house exclusively belongs to the father-in-law or mother-in-law, she can stay there only with their permission and not as a matter of right nor she can force them to arrange accommodation for her. 8. In the present case, the husband is living in a rented premises at Nav Alka, which, according to him, is provided by his employer- company. The learned Counsel for the respondent No.3 makes a statement that the said flat at Nav Alka is available and the appellant can reside in that house. He undertakes that her occupation of that flat will not be disturbed. That is also a flat of about 750 sq. ft. According to the learned Counsel for respondent No.3, it is a 2-BHK, while according to the appellant, it is 1-BHK. That is not material as the husband is willing to provide alternate accommodation to the wife and undertake that her occupation will not be disturbed till their matrimonial disputes are settled or decided or her right to accommodation against husband continues. Taking into consideration all these facts and circumstances, the claim of the 9 AO-778-11.sxw plaintiffs for injunction restraining the daughter-in-law from entering into their residential house and disturbing their possession pending the suit appears to be justified and I find no fault with the impugned order passed by the trial Court. 9. For the aforesaid reasons, the Appeal stands dismissed. However, the respondent N.3 - Rehan Yar Khan shall file an undertaking before this Court within two weeks that the flat No.24/8, Nav Alka, A.G.Khan Road, Worli, Mumbai 400 018 shall be available to the appellant/defendant No.1 for residence and her possession will not be disturbed. He will take responsibility to pay rent/license fee, outgoings, etc. without fail. In case the said flat is required to be vacated for any reason, including demolition and redevelopment, he would make alternate arrangement in an equally suitable premises for the residence of the appellant till she is entitled to residential accommodation from him as per law. 10. The learned Counsel for the respondent No.3 states that the said flat at Nav Alka is presently being painted, its completion will take one week. Therefore, till 27th July, 2011, the parties shall maintain status quo. 10 AO-778-11.sxw 11. As the Appeal itself is disposed of, C.A. No.1033 of 2011 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)