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`shared household’ within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’). Section 2(s) states: “`shared household` means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household”. Smt. Taruna Batra was married to Amit Batra, son of the appellants, on 14.4.2000. After the marriage respondent Taruna Batra started living with her husband Amit Batra in the house of the appellant no.2 in the second floor. It is not disputed that the said house which is at B-135, Ashok Vihar, Phase-I, Delhi belongs to the appellant no.2 and not to her son Amit Batra. Amit Batra filed a divorce petition against his wife Taruna Batra, and it is alleged that as a counter blast to the divorce petition Smt. Taruna Batra filed an F.I.R. under Sections 406/498A/506 and 34 of the Indian Penal Code and got her father-in-law, mother-in-law, her husband and married sister-in-law arrested by the police and they were granted bail only after three days. It is admitted that Smt. Taruna Batra had shifted to her parent’s residence because of the dispute with her husband. She alleged that later on when she tried to enter the house of the appellant no.2 which is at property No. B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and hence she filed Suit No. 87/2003 for a mandatory injunction to enable her to enter the house. The case of the appellants was that before any order could be passed by the trial Judge on the suit filed by their daughter-in- law, Smt. Taruna Batra, along with her parents forcibly broke open the locks of the house at Ashok Vihar belonging to appellant No. 2, the mother- in-law of Smt. Taruna Batra. The appellants alleged that they have been terrorized by their daughter-in-law and for some time they had to stay in their office. It is stated by the appellants that their son Amit Batra, husband of the respondent, had shifted to his own flat at Mohan Nagar, Ghaziabad before the above litigation between the parties had started. The learned trial Judge decided both the applications for temporary injunction filed in suit no.87/2003 by the parties by his order on 4.3.2003. He held that the petitioner was in possession of the second floor of the property and he granted a temporary injunction restraining the appellants from interfering with the possession of Smt. Taruna Batra, respondent herein. Against the aforesaid order the appellants filed an appeal before the Senior Civil Judge, Delhi who by his order dated 17.9.2004 held that Smt. Taruna Batra was not residing in the second floor of the premises in question. He also held that her husband Amit Batra was not living in the suit property and the matrimonial home could not be said to be a place where only wife was residing. He also held that Smt. Taruna Batra had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application. Aggrieved, Smt. Taruna Batra filed a petition under Article 227 of the Constitution which was disposed of by the impugned judgment. Hence, these appeals. The learned Single Judge of the High Court in the impugned judgment held that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra. He further held that even if her husband Amit Batra had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. Taruna Batra. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of the High Court held that Smt. Taruna Batra was entitled to continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as that is her matrimonial home.

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CASE NO.:
Appeal (civil) 5837 of 2006

PETITIONER:
S.R. Batra and Anr.

RESPONDENT:
Smt. Taruna Batra

DATE OF JUDGMENT: 15/12/2006

BENCH:
S.B. Sinha & Markandey Katju

JUDGMENT:
JUDGMENT

MARKANDEY KATJU, J.

Leave granted.

This appeal has been filed against the impugned judgment of the Delhi High
Court dated 17.1.2005 in C.M.M. No. 1367 of 2004 and C.MM. No. 1420 of
2004.

Heard learned counsel for the parties and perused the record.

The facts of the case are that respondent Smt. Taruna Batra was married to
Amit Batra, son of the appellants, on 14.4.2000.

After the marriage respondent Taruna Batra started living with her husband
Amit Batra in the house of the appellant no.2 in the second floor. It is
not disputed that the said house which is at B-135, Ashok Vihar, Phase-I,
Delhi belongs to the appellant no.2 and not to her son Amit Batra.

Amit Batra filed a divorce petition against his wife Taruna Batra, and it
is alleged that as a counter blast to the divorce petition Smt. Taruna
Batra filed an F.I.R. under Sections 406/498A/506 and 34 of the Indian
Penal Code and got her father-in-law, mother-in-law, her husband and
married sister-in-law arrested by the police and they were granted bail
only after three days.

It is admitted that Smt. Taruna Batra had shifted to her parent's residence
because of the dispute with her husband. She alleged that later on when
she tried to enter the house of the appellant no.2 which is at property No.
B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and
hence she filed Suit No. 87/2003 for a mandatory injunction to enable her
to enter the house. The case of the appellants was that before any order
could be passed by the trial Judge on the suit filed by their daughter-in-
law, Smt. Taruna Batra, along with her parents forcibly broke open the
locks of the house at Ashok Vihar belonging to appellant No. 2, the mother-
in-law of Smt. Taruna Batra. The appellants alleged that they have been
terrorized by their daughter-in-law and for some time they had to stay in
their office.

It is stated by the appellants that their son Amit Batra, husband of the
respondent, had shifted to his own flat at Mohan Nagar, Ghaziabad before
the above litigation between the parties had started.

The learned trial Judge decided both the applications for temporary
injunction filed in suit no.87/2003 by the parties by his order on
4.3.2003. He held that the petitioner was in possession of the second
floor of the property and he granted a temporary injunction restraining the
appellants from interfering with the possession of Smt. Taruna Batra,
respondent herein.

Against the aforesaid order the appellants filed an appeal before the
Senior Civil Judge, Delhi who by his order dated 17.9.2004 held that Smt.
Taruna Batra was not residing in the second floor of the premises in
question. He also held that her husband Amit Batra was not living in the
suit property and the matrimonial home could not be said to be a place
where only wife was residing. He also held that Smt. Taruna Batra had no
right to the properties other than that of her husband. Hence, he allowed
the appeal and dismissed the temporary injunction application.

Aggrieved, Smt. Taruna Batra filed a petition under Article 227 of the
Constitution which was disposed of by the impugned judgment. Hence, these
appeals.

The learned Single Judge of the High Court in the impugned judgment held
that the second floor of the property in question was the matrimonial home
of Smt. Taruna Batra. He further held that even if her husband Amit
Batra had shifted to Ghaziabad that would not make Ghaziabad the
matrimonial home of Smt. Taruna Batra. The Learned Judge was of the view
that mere change of the residence by the husband would not shift the
matrimonial home from Ashok Vihar, particularly when the husband had filed
a divorce petition against his wife. On this reasoning, the learned Judge
of the High Court held that Smt. Taruna Batra was entitled to continue to
reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as that is
her matrimonial home.

With respect, we are unable to agree with the view taken by the High Court.

As held by this Court in B.R. Mehta v. Atma Devi and Ors., [1987] 4 SCC
183, whereas in England the rights of the spouses to the matrimonial home
are governed by the Matrimonial Homes Act, 1967, no such right exists in
India.

In the same decision it was observed "it may be that with change of
situation and complex problems arising it is high time to give the wife or
the husband a right of occupation in a truly matrimonial home, in case of
the marriage breaking up or in case of strained relationship between the
husband and the wife."

In our opinion, the above observation is merely an expression of hope and
it does not lay down any law. It is only the legislature which can create
a law and not the Court. The courts do not legislate, and whatever may be
the personal view of a Judge, he cannot create or amend the law, and must
maintain judicial restraint.

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.

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.

Appellant No. 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.

Learned counsel for the respondent then relied upon the Protection of Women
from Domestic Violence Act, 2005. He stated that in view of the said Act
respondent Smt. Taruna Batra cannot be dispossessed from the second floor
of the property in question.

It may be noticed that the finding of the learned Senior Civil Judge that
in fact Smt. Taruna Batra was not residing in the premises in question is
a finding of fact which cannot be interfered with either under Article 226
or 227 of the Constitution. Hence, Smt. Taruna Batra cannot claim any
injunction restraining the appellants from dispossessing her from the
property in question for the simple reason that she was not in possession
at all of the said property and hence the question of dispossession does
not arise.

Apart from the above, we are of the opinion that the house in question
cannot be said to be a `shared household' within the meaning of Section
2(s) of the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as the 'Act').

Section 2(s) states:

"`shared household` means a household where the person aggrieved lives or
at any stage has lived in a domestic relationship either singly or along
with the respondent and includes such a household whether owned or tenanted
either jointly by the aggrieved person and the respondent, or owned or
tenanted by either of them in respect of which either the aggrieved person
or the respondent or both jointly or singly have any right, title, interest
or equity and includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of whether the
respondent or the aggrieved person has any right, title or interest in the
shared household".

Learned counsel for the respondent Smt. Taruna Batra has relied upon
Sections 17 and 19(1) of the aforesaid Act, which state:

"17. (1)Notwithstanding anything contained in any other law for the time
being in force, every woman in a domestic relationship shall have the right
to reside in the shared household, whether or not she has any right, title
or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared
household or any part of it by the respondent save in accordance with the
procedure established by law.

19. (1) While disposing of an application under sub-section (1) of section
12, the Magistrate may, on being satisfied that domestic violence has taken
place, pass a residence order--

 (a) restraining the respondent from dispossessing or in any other
 manner disturbing the possession of the aggrieved person from the
 shared household, whether or not the respondent has a legal or
 equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared
household;

(c) restraining the respondent or any of his relatives from entering
any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the
shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared
household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her in the shared
household or to pay rent for the same, if the circumstances so require:

 Provided that no order under clause (b) shall be passed against any
 person who is a woman".

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.

We cannot agree with this submission.

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.

It is well settled that any interpretation which leads to absurdity should
not be accepted.

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.

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'.

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.In view of the above, the appeal is allowed. The impugned judgment of the
High Court is set aside and the order of Senior Civil Judge dismissing the
injunction application of Smt. Taruna Batra is upheld. No costs.Contempt Petition (C) No. 38/2006In view of the judgment given above, the contempt petition stands
dismissed.
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