provides non obstante clause. In terms of which any obligation on
the part of in-laws in terms of an rule or interpretation of Hindu Law
or custom or usage as part of law before the commencement of the
Act are no longer valid. In view of the non obstante clause in terms
of Section 4 of the aforesaid Act, the provisions of the Act alone are
applicable and anything and any liability in respect of maintenance of
daughter-in-law on death of son cannot be fastened from the selfacquired
property of the parents.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.24168 of 2014
Date of Decision: 6.04.2015
Sangeeta
Vs
Om Parkash Balyan and another
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
RAJ MOHAN SINGH, J.
Citation; 2015 CRLJ 2635
[1]. In this petition, petitioner has assailed the order dated
12.06.2014 (Annexure P-4) passed by Additional Sessions Judge,
Rohtak vide which order dated 25.02.2014 (Annexure P-2) passed
by Judicial Magistrate Ist Class, Rohtak was set aside.
[2]. Marriage of the petitioner was solemnised with late Satish
Kumar Balyan son of Sh. Om Parkash Balyan-respondent No.1 on
14.01.2000. One daughter Lokansha took birth from their wedlock on
26.02.2004. Husband of the petitioner died on 06.06.2009. Petitioner
alleged that she along with her minor daughter lived with respondent
No.1 in House No.28-A/22 Luxmi Nagar, Rohtak till 20.02.2010.
[3]. The petitioner filed complaint under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (hereinafter
referred to as 'the Act') against the respondent-Om Parkash Balyan
and one Ram Kumar Nara alleging that petitioner and her minor
daughter have been thrown out of the house.
[4]. Judicial Magistrate Ist Class Rohtak passed an order dated
25.02.2014 as an interim relief that at this stage plea of respondents
that house is not shared house cannot be entertained for want of
prima facie proof to that effect and granted interim residential order
to allow petitioner/complainant to reside in the house as shared
household. The respondents were further restrained from alienating
the share of the complainant, however the Magistrate did not agree
to restrain the respondents from alienating the house situated at
village Boria, District Jhajjar and one plot measuring 3000 sq. yards
at Badli Road, Jhajjar for want of documents.
[5]. Respondents went in revision before Additional Sessions
Judge, Rohtak who vide judgment dated 12.06.2014 accepted the
revision petition, thereby setting aside the order dated 25.02.2014
passed by Judicial Magistrate Ist Class, Rohtak granting interim
residence order in favour of petitioner.
[6]. Facts as emerged on record are that petitioner's husband
was found murdered in his car on 07.06.2009. Learned counsel for
the petitioner submitted that order passed by Magistrate was an
interlocutory order and revision against the same was not
maintainable before Additional Sessions Judge.
[7]. Learned counsel for respondents argued that under Section
29 of the Act an appeal is maintainable only against final order and
revision is maintainable against the interim relief which can be
revised by the Court of Sessions. Learned counsel placed reliance
upon S. Srikanth v. Divyalaxmi, 2013(2) RCR (Civil) 35, Sheetal v.
Hitesh, 2012(3) RCR (Criminal) 706 and Asifa Khatoon v. Rubina
and another, 2010(6) RCR (Criminal) 2032.
[8]. Under Section 17(1) of the Act, right to residence in a
shared household can only be appreciated if the house belong to or
taken on rent by husband or the house belong to joint family to which
husband is a member. Shared household cannot mean that
wherever the husband and wife lived together in the past, the same
would become shared household. There cannot be any legal
obligation on the part of parents of the husband to maintain the wife
of deceased son particularly in view of the fact that disrespect or
disregard to them has become source of nuisance. The bonding can
be on the basis of mutual relationship of love and affection but in any
case parents of the husband cannot be forced to maintain daughterin-
law from their self-acquired property. The wife has only right to
maintenance against her husband or sons/daughters or from the
ancestral share of her husband in the property but certainly she
cannot thrust herself against the wishes of parents of her husband
nor she can claim against the wishes of the parents of her husband.
[9]. According to photocopy of sale deed No.953 dated
27.10.1989, plot No.28-A/22 in Luxmi Nagar, Rohtak was purchased
by respondent No.1 for a lawful consideration from its vendors.
Therefore, house in question is self-acquired property of respondent
No.1.
[10]. The petitioner along with Satish Kumar Balyan (husband)
were living at S-2 Parwana Vihar, Plot No.52, Sector-9, Rohini Delhi.
Income tax return of Satish Kumar Balyan for the year 2007-08
shows the aforesaid position i.e. resident of Delhi. Even the
petitioner also filed the income tax return on the same address
according to the assessment for the year 2007-08. Daughter of the
complainant also took birth at Delhi on 26.02.2004 at Max Hospital
and birth certificate of the daughter also showed the aforesaid
factum of residence at Delhi. The aforesaid flat at Parwana Vihar
was purchased by Satish Kumar Balyan and in this context its
agreement to sell and general power of attorney assume
significance and falsifies the plea of petitioner. The telephone bill
also showed address of Satish Kumar Balyan to be that of Parwana
Vihar Delhi. The declaration submitted by the petitioner also showed
same address and so as her affidavit dated 04.12.2007. The rent
agreement dated 11.04.2008 showed Satish Kumar Balyan had
taken another flat on rent.
[11]. The aforesaid material showed that the petitioner has a flat
in Delhi and in fact was residing therein for substantial period of time.
On the other hand house No.28-A/22 at Luxmi Nagar, Rohtak, is a
self-acquired property of respondent No.1 and it was purchased by
him for lawful consideration and after construction thereon, the
petitioner cannot allege her right of residence particularly in view of
the fact that neither the house in question is ancestral house nor the
husband of petitioner was having any joint share in it. Prima facie
material was available before the Magistrate at the time of passing
interim order of shared household.
[12]. In such type of situation where relation of daughter-in-law
and father-in-law are not cordial, no such fastening should be made
as it may result in more ill-fated occurrence. Equally true is the
proposition where the relations are cordial, then no father-in-law
would object to daughter-in-law to give address of house for the
purposes of making election voter identity card or in the school
record of the grandchildren. The primary issue is whether house in
question qua which interim relief of shared household has been
granted by the Magistrate is self-acquired property of respondent
No.1 or the same is property of husband of the petitioner or joint
property in which husband of the petitioner was having share?
Prima facie evidence on record i.e. copy of sale deed
brought on record makes out a case of self-acquired property in
favour of respondent No.1.
[13]. Learned counsel for the petitioner relies upon Smt. Preeti
Satija v. Raj Kumar and another, 2014(2) RCR (Civil) 8 to contend
that daugher-in-law has a right of residence in shared house even if
the house was owned by he mother-in-law and her husband had no
ownership right therein.
[14]. Each case has to be decided on its own distinct features.
The Hon'ble Supreme Court in S.R. Batra and another v. Smt.
Taruna Batra, 2007(1) RCR (Criminal) 403 laid down the concept of
shared household where it should be applied.
[15]. In the present case the petitioner was found to be residing
in Delhi along with her husband in their own flat. The principle laid
down in S.R. Batra and another's case (supra) are the guiding
principles particularly in view of facts and circumstances involved in
the present case where petitioner is found to be owner of flat where
she resided along with her husband for substantial period of time.
The self-acquired property of respondent No.1 cannot be treated to
be shared household for petitioner.
[16]. In Neetu Mittal v. Kanta Mittal, 2008(4) RCR (Civil) 630
aforesaid proposition came up for consideration before the Delhi
High Court and it was held that a woman has right of maintenance
against her husband or sons/daughters. She can assert her right
against the property of her husband but she cannot impose herself
against the wishes of parents of her husband.
[17]. In CRR 3833 of 2009 titled as Shubwant Kaur @ Subh v.
Lt. Col. Prithi Pal Singh Chugh this Court also discussed the
aforesaid phenomenon feature in the context of right of shared
leasehold available to women and it was held that daughter-in-law
has no right against father-in-law to occupy any portion of selfacquired
property against his wishes.
[18]. Even in other statutes like Hindu Adoption Maintenance
Act, maintenance of wife is the personal obligation of the husband.
Such an obligation cannot be satisfied from the self-acquired
properties of the parents. It is settled law that during subsistence of
marriage, maintenance of a married wife is always an obligation of
the husband. This is a personal obligation. After the death of
husband, such obligation can be met from the properties of husband
where he is co-sharer. The property in the name of parents of
husband cannot be made subject matter of any attachment and
cannot be made subject matter of enforcement of any right of
maintenance to wife against her husband.
[19]. Section 4 of the Hindu Adoption and Maintenance Act
provides non obstante clause. In terms of which any obligation on
the part of in-laws in terms of an rule or interpretation of Hindu Law
or custom or usage as part of law before the commencement of the
Act are no longer valid. In view of the non obstante clause in terms
of Section 4 of the aforesaid Act, the provisions of the Act alone are
applicable and anything and any liability in respect of maintenance of
daughter-in-law on death of son cannot be fastened from the selfacquired
property of the parents.
[20]. In the light of numerous precedents following i.e. Sardar
Malkiat Singh v. Kanwaljit Kaur and ors., 2010(2) PLR (Delhi) 59
and Vimalben Ajitbhai Patel v. Vastslaben Ashokbhai Patel and
Ors., 2008(4) SCC 649 it has become established legal principle that
daughter-in-law cannot claim right to live in the house of the parents
of her husband against their wishes.
[21]. Looking to the facts and circumstances of the case, Judicial
Magistrate Ist Class, Rohtak was obligated to see the prima facie
title of the house in favour of respondent No.1 particularly when
photostat copy of the sale deed was very much available, before
ordering shared household in favour of petitioner. Order granting
such permission has virtually decided the legal right of respondent
No.1 at this stage and the proceedings being semi-criminal in nature
does not provide any right of any appeal against such order,
therefore, respondent No.1 has rightly availed remedy of revision of
such order. Even otherwise this Court while exercising powers under
Section 482 Cr.P.C. can endorse right course of action by giving
effect to legal position in law.
[22]. In view of the facts as stated above, order dated
12.06.2014 (Annexure P-4) passed by Additional Sessions Judge,
Rohtak does not seem to be illegal and, therefore, the same is
upheld.
[23]. Petition is dismissed being bereft of merits.
April 6, 2015 (RAJ MOHAN SINGH)
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