Pushpa v. Kanta Devi

1. Allowed, subject to just exceptions.

2. The application is disposed of. RSA 124/2018 & CM No.35584/2018 (for stay)

3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 4th July, 2018 in RCA No.140/2017 of the Court of District Judge, Shahdara] of dismissal of the First Appeal under Section 96 of the CPC preferred by the appellant/defendant against the judgment and decree [dated 27th May, 2017 in Suit No.9934/2016 of the Court of Additional Civil Judge, Shahdara] allowing the suit filed by the respondent/plaintiff for mandatory injunction directing the appellant/defendant to vacate the second floor of House No.B- 257/2, Gali No.7, Ashok Nagar, Delhi.

4. The respondent/plaintiff is the mother-in-law of the appellant/defendant. It is not in dispute that the house aforesaid is in the ownership of the respondent/plaintiff. 2018:DHC:5587

5. The counsel for the appellant/defendant has argued that the Courts below have not considered that the appellant/defendant is residing in the aforesaid house along with her husband. It is stated that the suit was filed, claiming the appellant/defendant to be a licensee, when the appellant/defendant is not a licensee and is residing in the house along with her husband. It is yet further contended that the husband of the appellant/defendant was not impleaded as a party to the suit.

6. It is not the case of the appellant/defendant that her husband, even if residing in the house aforesaid, has any right to the house. Once that is so, the house cannot qualify as the matrimonial home of the appellant/defendant as daughter-in-law of the respondent/plaintiff, as per the dicta of the Supreme Court in S.R. Batra Vs. Taruna Batra (2007) 3 SCC 169 and Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel (2008) 4 SCC 649. A daughter-in-law has no right of residence against her mother-in-law. Reference can also be made to Shumita Didi Sandhu Vs. Sanjay Singh Sandhu (2010) 174 DLT 79 (DB), Sushma Sharma Vs. Bimla Devi Sharma 2014 SCC OnLine Del 650, Sunita Gangwal Vs. Chottey Lal 2018 SCC OnLine Del 6708 and Komal Vs. Panchi Devi 2018 SCC OnLine Del 7151.

7. The counsel for the appellant/defendant admits that there are matrimonial proceedings between the appellant/defendant and her husband and the appellant/defendant in the said proceedings, has filed an application under Section 125 of the Code of Criminal Procedure, 1973.

8. It has been held in Amina Bharatram Vs. Sumant Bharatram (2018) 249 DLT 104, that residence is a facet of maintenance and the right of the appellant/defendant, if any is to claim residence from her husband and/or to in her claim of maintenance also claim monies for residence and a daughter-in-law cannot force her mother-in-law to provide residence.

9. The only other argument urged is, that the respondent/plaintiff along with the husband of the appellant/defendant is “playing a game on the appellant/defendant”.

10. Once the law is settled in this regard, the appeal does not raise any substantial question of law, which is sine qua non for entertaining a Regular Second Appeal.

11. Dismissed. No costs.

RAJIV SAHAI ENDLAW, J. AUGUST 31, 2018 bs..