w w w . L a w y e r S e r v i c e s . i n

Richa Gaur v/s Kamal Kishore Gaur

Company & Directors' Information:- KAMAL CORPORATION PRIVATE LIMITED [Active] CIN = U27107RJ2007PTC025203

Company & Directors' Information:- KAMAL INDIA PRIVATE LIMITED [Active] CIN = U74899DL1986PTC025780

Company & Directors' Information:- P KISHORE & CO PVT LTD [Strike Off] CIN = U51909WB1980PTC033193

Company & Directors' Information:- KISHORE INDIA PVT LTD [Strike Off] CIN = U70101AS1984PTC002242

    First Appeal No. 704 of 2019

    Decided On, 24 October 2019

    At, High Court of Judicature at Allahabad


    For the Appearing Parties: Shyam Shanker Pandey, Kapil Tyagi, Samarth Sinha, Vijay Sinha, Advocates.

Judgment Text

Heard learned counsel for the appellant and Sri Vijay Sinha alongwith Sri Samarth Sinha, learned counsel appearing for the respondent.

2. Present appeal has been filed against the judgment and order dated 17.8.2019 passed by the Civil Judge (Senior Division), Ghaziabad in Civil Suit No. 839 of 2017, Kamal Kishore Gaur Vs. Smt. Richa Gaur.

3. A suit for mandatory injunction was filed by the plaintiff-respondent against the defendant-appellant herein, who is daughter-in-law of the plaintiff. Relevant facts are that after marriage the defendant started living with her husband, son of the plaintiff, but subsequently, matrimonial disputes arose between them and the plaintiff divested his son and daughter-in-law on 25.7.2017 from his property and asked them to leave the house, which belongs to the plaintiff. Thereafter, son of the plaintiff, namely, Vikas Gaur, husband of the defendant-appellant herein, left the house and started living elsewhere. The suit for mandatory injunction was filed on the ground that the defendant is a licensee and has no right to reside in the house in question after cancellation of license by the plaintiff. It is not in dispute that several matrimonial disputes including criminal cases are pending between the husband and wife, wherein plaintiff and other family members were also implicated.

4. The Trial Court framed six issues. For the purpose of considering the appeal at the admission stage three issues are relevant, namely, (1) whether the defendant is licensee in the house in question; (2) whether the defendant is entitled to live in the house in question; and (3) to what relief the plaintiff is entitled for. On issue Nos. 1 and 2 it was found by the Trial Court that the defendant was a mere licensee and has no right to reside in the house in question after cancellation of the licence by the original owner i.e. the plaintiff. The suit was decreed and the defendant was directed to handover the possession of the property in question to the plaintiff otherwise the plaintiff shall be entitled to recover the possession of the suit property through Court.

5. Challenging the aforesaid judgment, submission of the learned counsel for the defendant-appellant is that the trial court has not considered the right of the daughter-in-law, who is residing in the house in dispute since 2012 and that admittedly, her husband is residing in another house and is not maintaining her, therefore, she is entitled to reside in the house in question as daughter-in-law as soon after marriage she had started living in this house and has a right to reside therein.

6. Per contra, learned counsel for the respondent has disputed the same and submits that the law is settled that the plaintiff is exclusive owner of the house and admittedly, husband of the defendant is living separately and license of the defendant, who is living in the house, was legally terminated by the plaintiff, therefore, she has no right to reside in the house in question. In support of his arguments, learned counsel for the respondent has placed reliance on a judgment of this Court dated 29.9.2015 passed by Hon'ble Single Judge in First Appeal No. 76 of 2014 (Smt. Sunita vs Smt. Brahmwati And Another) whereby the appeal was dismissed at the admission stage itself.

7. I have considered the rival submissions and perused the record.

8. On perusal of record I find that admitted fact is that plaintiff is the owner of the house in question; son of the plaintiff i.e. husband of the defendant- Vikas Gaur, who is living separately, has been divested from the property and was asked to leave the house by his father, the plaintiff.

9. Under such circumstances, she has no right to reside in the house in question after cancellation of license by the original owner i.e. the plaintiff herein. A reference may be made in this regard, to a judgment of the Hon'ble Apex Court in the case of S.R. Batra and another vs. Taruna Batra (Smt), (2007) 3 SCC 169. Paragraphs 24, 25, 26, 29 and 30 of the aforesaid judgment are quoted as under:-

"24. Learned counsel for the respondent Smt. Taruna Batgra 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 grand parents, 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 the 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.

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 No. 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."

10. In the aforesaid case, the Hon'ble Apex Court has interpreted the provisions of Section 2(s) and Section 17 of the Protection of Women From Domestic Violence Act, 2005 and has observed as noted above and refused to grant relief to the wife.

11. S.R. Batra (supra) was relied on in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel & Others, (2008) 4 SCC 649, paragraphs of 28, 47 and 48 whereof are quoted as under:-

"28. Interpreting the provisions of the Domestic Violence Act this Court in S.R. Batra vs. Taruna Batra, (2007) 3 SCC 169 held that even a wife could not claim a right of residence in the property belonging to her mother-in-law, stating :

"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. Reliance has also been placed on I.J. Divakar and others vs. Govt. of Andhra Pradesh and another, (1982) 3 SCC 341. The said decision was rendered under the Industrial Law. Regularization was directed to be provided to the workmen. A Constitution Bench of this Court in Secretary State of Karnataka and others vs. Umadevi and others, (2006) 4 SCC 1 opined that all such decisions shall stand overruled.

48. Sympathy or sentiment, as is well known, should not allow the Court to have any effect in its decision making process. Sympathy or sentiment can be invoked only in favour a person who is entitled thereto. It should never be taken into consideration as a result whereof the other side would suffer civil or evil consequences."

12. It would also be relevant to extract the relevant paragraphs of Smt. Sunita (supra) which are quoted as under:-

"The appellant is daughter-in-law of the plaintiff who has filed a suit for mandatory injunction against her son and daughter-in-law. The defendant no. 1, son of the plaintiff did not appear in the suit and hence the suit had proceeded ex-parte against defendant no. 2. The claim made by defendant no. 2 was that soon after marriage, she came to this house and as such she has a right to reside therein. The plaintiff cannot evict her from her marital home.


More so, in view of the findings recorded by the court that the defendant no. 2 was a mere licencee and has no right to reside in the house in question after cancellation of licence by the original owner i.e. plaintiff.

The challenge to this finding on issue no. 1 cannot be accepted for the reason that a woman has a right to reside in the house of her husband after marriage. She has no claim on the house of her father-in-law or mother-in-law. The property in dispute was self acquired property of her father-in-law and the plaintiff had inherited the said house after death of her husband. On account of mis-deeds of defendant no. 2, the relations between mother-in-law and daughter-in-law have strained and therefore, the plaintiff has asked the defendants to leave her house. The plaintiff is a 70 years old lady and she cannot be subjected any more physical or mental harassment at the hands of the defendant, her son and daughter-in-law."

13. Thus, not only what has been held in S.R Batra (supra) as held by Constitutional Bench in Uma Devi (supra) referred to in Vimlaben Ajitbhai Patel (supra), if any relief is granted to the defendant-appellant it would be a case of misplaced sympathy in favour of the defendant, who had already filed several cases including criminal case against the old age plaintiff and other family members.

14. In the present case, undisputedly, the house in question belongs to the father

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, the plaintiff and he had divested his son from his property and admittedly, the son (husband of the defendant) is not living in the house. 15. In view of the discussion as made hereinabove, it is clear that the house, which admittedly belongs to the plaintiff, cannot be treated as a shared house in the facts and circumstances of the case and as such the status of defendant, as rightly held by the trial court, would be merely of a licensee, whose license stood terminated by the original owner i.e. the plaintiff herein. As such she has no right to reside in the house in question after cancellation of the license by the original owner i.e. the plaintiff herein. 16. In case of Smt. Sunita (supra) the plaintiff was about 70 years old lady and in the present case also the plaintiff was aged about 68 years in the year 2017 when the suit was filed and as such the ratio of the said judgment applies with full force. 17. Accordingly, I find that there is no legal infirmity in the findings recorded by the trial court. No other ground has been pressed. 18. The appeal stands dismissed at the admission stage itself.