Rohini Court, Delhi - Kamini Lau Woman only can claim right on the property of her husband and NOT her Parents-in-laws' Property

Rohini Court, Delhi  - Kamini Lau - Woman only can claim right on the property of her husband and NOT on her Parents-in-laws' Property

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 

JUDGE­II (NORTH­WEST) : ROHINI COURTS: DELHI

CA No. 62/2013

Chetna Kapoor

W/o Dheeraj Kapoor

Permanent Resident of 253, 3rd  Floor

Rajdhani Enclave, Pitampura, Delhi. 

Presently at: 7/11, Tilak Nagar, Delhi.

................. Appellant

Versus

Suman Bala Kapur

W/o Subhash Chander Kapoor

R/o H. No. 253, 3rd  Floor

Rajdhani Enclave, Pitampura, Delhi. 

................. Respondent

6.11.2013

ORDER

Present: Sh. Vivek Aggarwal, Advocate with appellant. 

(1) This appeal under Section 29 of the Protection of Women From Domestic Violence Act, 2005, has been filed against the order of  Ld.  MM  dated   7.10.2013   dismissing   the   application   filed   on behalf of  the appellant   dated   25.6.2013   for   modification   / alteration   of   order   dated   4.6.2013 on the ground   that   the respondent has abused and misused the process of law by making false submissions which are contrary to the pleadings given by the respondent in her petition under Section 12 of DV Act, and obtained the order dated 4.6.2013.  It is pleaded that the Ld. Trial Court   has   totally   ignored   the  report of   the protection   officer holding  that   the appellant  had been  residing at   the above said premises with the respondent which fact was not disclosed by the respondent while obtaining the order dated 4.6.2013. It s further pleaded that the judgment of the Hon'ble Apex Court in the case of  Nitu Mittal Vs. Kanta Mittal & Ors., 152 (2008) DLT 691, was not applicable to the facts and circumstances of the present case since the respondent has no absolute power to throw out the appellant from the share household accommodation and there is no justified and lawful grounds for the withdrawal of the benefits given to her.  It is alleged that by their acts, the respondent have taken away appellant's valuable right to lead her life with dignity, honour and reputation. It is pleaded that the order dated 7.10.2013 is contrary to the letter and spirit and intention of the legislature in Section 2 (s) which defines the share household accommodation and also to the provisions of Section 2 (f) which defines  the domestic relationship. It is submitted that the Ld. Trial Court has failed to exercise its judicial power and discretion judiciously and totally ignored the material facts and the acts of the respondent is sheer misuse and abuse of process of law. It is also submitted that the Ld. Trial Court has failed to appreciate that the respondent in collusion and connivance of her son has dispossessed the appellant from the share household accommodation on 24.5.2013 and when she returned from the job she  saw  the  locks on  the  share household accommodation  i.e. house no. 253, 3rd Floor, Pitampura and hence the dishonest and fraudulent conduct on the part of the respondent totally disentitled her for claiming any release form the court and hence it is prayed that the impugned order dated 7.10.2013 passed by the Ld. Trial Court be set aside.

(2) After going through the impugned order and the grounds raised before me,  no notice has been  issued  to  the  respondent  as no requirement for the same was felt.

(3) At   the very outset  I  may observe  that I may observe  that   the Protection   from Domestic Violence Act,   2005  covers   those women who are or have been in a relationship with the abuser where both parties have lived together in a shared household and are  related by consanguinity,  marriage or  a relationship in the nature  of  marriage, or adoption; in  addition relationship with family members living  together as a joint family are also included. “Domestic   violence” includes actual abuse or the threat  of abuse  that   is physical, sexual, verbal, emotional and economic. One of the most important features of the Act is the woman’s   right   to   secure   housing. The Act provides for the woman’s right to reside in the matrimonial or shared household. This is an act meant to save a women from destitution. Under these circumstances the Courts of Law are under obligations to ensure that while dealing with the rights of the parties, the rights of daughter ­in­law are equitably balanced with the rights of other women which include the mother-­in-­law, as happened in the present case.

(4) It is not disputed that the property in question is owned by the respondent/ mother-­in-­law who is the owner in possession of the said property bearing No. 253, 3rd  Floor, Rajdhani Enclave, Pitampura, Delhi.   It has not been disputed that the respondent Suman Bala Kapur and her husband i.e. the parents­-in­laws of the appellant  are  the  registered and exclusive owners of  the above said property vide registered sale deed dated 16.6.2010 whereas her husband Dheeraj has no share in the same.

(5) The husband of the appellant i.e. Dr.Dheeraj Kapoor is working and residing separately at Chandigarh for the past several years. The matrimonial house of the appellant under the given circumstances is the place where her husband is working and residing and not where she herself chose to reside of her free will.

(6) It is also not disputed that the appellant Chetna Kapoor is herself a doctor in a Government hospital and is drawing House Rent Allowance. Hence, under the given circumstances the argument of the appellant that by her acts the respondent (mother­-in­-law) has allegedly taken away the constitutional rights of appellant to live with dignity, honour and reputation is devoid of merits.  The Right of a daughter in law does not over­ride the constitutional and statutory rights of her parents­-in-­law to enjoy their self acquired property in the manner they want.  If it is anybody from whom she is entitled to relief, it is her husband  Dr. Dheeraj Kapoor and her parents-­in-­law who are the senior citizens cannot be held liable for any kind of burdens. Here, I totally agree with the view taken by the Ld. MM which is in confirmation with the observations made in the case of Neetu Mittal Vs. Kanta Mittal  & Ors., wherein the Hon'ble Apex Court has observed as under:

“.........  where the house is self acquired house of  parents, son whether married or unmarried has no  legal right to live in that house or he can live in that  only at the mercy of parents upto the time  parents allow. Merely because parents have allowed him to live in house so long as his relations with the parents are cordial, does not mean that the parents have to bear his burden   throughout  the life. The  parents cannot be forced to keep a son or daughter  in law with them nor there is any statutory provision  which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband as sons/daughters. She can assert   her rights, if any, against the property of her husband  but she cannot thrust herself against the wishes of  parents of her husband nor can claim a right to live  in the house of parents of her husband, against their consult and wishes .......”

(7) The Hon'ble Apex Court while being confronted with a similar situation  in the case of  S.R. Batra Vs. Smt. Taruna Batra reported in  AIR 2007 SC 1118(1)  had an occasion to deal with the same wherein  it observed that there was no law in India similar to the law in UK i.e. British Matrimonial Homes Act 1967 and that the Rights available to a woman under any law can only be against the husband and not against the father-in-law and mother-in-law. In the said case the Hon'ble Supreme court had also observed that the house in question belonged to the mother in law and therefore the daughter in law cannot claim any right to live in the said house. In the said case the Hon'ble Apex Court  was of the opinion that the house in question cannot be said to be a shared household within the meaning of Section 2(s) of  Protection of Women from Domestic Violence Act. The Hon'ble Apex Court was also of the view that the Definition  of 'Shared  Household' in Section 2 (s) was not happily worded and appeared to be a result of clumsy drafting and hence an interpretation which is sensible and does not lead to a chaos in the society as to be given.

(8) By application of the logic and ratio of the Hon'ble Apex Court to the facts of the present case, I hereby hold that the appellant Dr. Chetna Kapoor is only entitled to claim the Right of residence in a shared household  which shared household  as contemplated under Section 2 (s) of  Protection of Women from Domestic Violence Act would mean the house belonging to or taken on rent by her husband or the house which belong to the joint family of which the husband is a member. In the present case, the property in question i.e. 253, 3rd  Floor, Rajdhani Enclave, Pitampura, Delhi is the exclusive property of the respondent who is the mother-in-law of the appellant with the husband Dheeraj Kapoor having no share in the same and hence the property in question in respect of which the appellant is seeking Right of  Residence cannot   be called a shared household within the meaning of Section 2 (s) of Protection of Women from Domestic Violence Act.

(9) Assuming for a moment that the appellant was permitted by her parents-­in­-law to live in the house, it does not create any legal right the violation of which would be actionable rather on the contrary under no circumstances the parents can  be  made to suffer the burdens of their sons and their estranged daughter ­in­ laws. If it is anybody against whom or against whose property she can assert her rights, is the husband but under no circumstances can she thrust herself on the parents of her husband or can claim a right to live on their house against their consult and wishes.

(10) Lastly, keeping in view the problems and the disputes which have arisen between the parties and considering the background that the respondent is herself a working lady and in a position to maintain herself being doctor in Government Hospital, drawing House Rent Allowance, allowing her to reside in the premises of  her parents-­in-­law against their wishes will  only aggravate  the existing domestic problems and create numerous hassles for these senior citizens, which this court will not permit.  

(11) In view of my above discussion, I hereby hold that the impugned order dated  7.10.2013 passed by  Ld. Trial  Court  warrants no interference.The appeal is devoid of  merits and is hereby dismissed. Copy of   this order  be placed before  the Ld.  Trial Court. Appeal file be consigned to Record Room. 

Announced in the open Court        

(Dr. KAMINI LAU)

Dated: 6.11.2013    ASJ (NW)­II: ROHINI

Chetna Kapoor Vs. Suman Bala Kapur, (CA 62/13) Page 8 of 8

Don't lose heart after an early divorce – The Insight

Don't lose heart after an early divorce

Divashri Sinha,MUMBAI MIRROR,Mar 7, 2011, 11.51am IST

Life doesn't come to an end if you get divorced in your 30s. Here's how you can pull yourself together

Find yourself at the end of a marriage, single and emotionally-stranded in your late 30s? While at some ages it's easier to bounce back from upheavals, the late 30s and early 40s are not the easiest in these matters. The silver lining, however, is that it's a lifealtering event which, if played well, can lead you to a happier place ultimately. The trick is to put one foot in front of the other and move on to making a full recovery. Marriage counsellor and therapist, Manju Jain debriefs you on things you must get in order, if you find yourself at this difficult crossroad.

Heart first

The death of a relationship, no matter how long its duration, is always intense and difficult. In your 20s and early 30s, it is easier to wrap up an intimate relationship. For a middle-aged adult with multiple responsibilities, this process magnifies manifold.

- Take the time to grieve, heal and restore. However, there will come a time when you'll have to accept facts and just get on with life. If you have children, they will force you to keep your focus in check.

- While it is an immensely overwhelming feeling, terms like "my life is over" or "I've lost everything" are very powerful and have a strong impact on how you feel. Recognise that this isn't factually true and work on it from there.

- Your emotional vulnerability and insecurities need to be addressed. To begin with, get a good listener. Create a support squad of your closest friends and family who won't mind providing you with emotional support, professional guidance and ongoing inspiration. Realise that you're not the first person to go through this.

- Avoid discussing your issues with or in front of your children. They have their own issues to deal with.

Mindspeak

In the end, it doesn't matter whose fault it was. Don't fester over revenge and orchestrate devious plans of ruining your ex's life. Negative energy needs to be dispelled even though forgetting and forgiving may sound like a tall order. Concentrate your energy on clearing your mind space. Don't focus on anger, focus on yourself. De-clutter.

- While you may no longer be with the one half of a couple any longer, you are still 100 per cent the same person you were. Go back and rediscover yourself. Make a trip, preferably alone. After a long spell of marriage, finding the courage and independence to travel alone will give you the confidence to survive as a singleton.

- Do what you loved to do before you got married. Many people, especially by the time they reach their middle age, have put themselves aside for the sake of their families and given up on things they used to love. If you once loved to dance or paint or ride a motorcycle, do it again.

- Focus on your professional graph to ensure you don't get sucked into a downward depression cycle.

- Get counselling if you need it. Divorce is traumatic so if you find that you are having problems sleeping, are depressed or have feelings of low self-esteem, get help. While these are common things to go through after, they can become a serious matter if they begin to interfere with your life.

Get back in the game

Getting back into the dating game can be rough because you have been out of it for a while. It can feel daunting. The thing with going into long droughts after a divorce is that, the more you prolong getting back in the game, the tougher you are making it for yourself.

- Do things that make you feel beautiful and don't bother trying to compete with younger men and their trimmer behinds. Embrace your beauty and wear your accomplishments proudly.

- Having been through a marriage, you will be very clear about what you are looking for. Don't rush into anything for the fear of being alone. So whether it is a meaningful long relationship or a short term casual association, you will have to make the effort of starting off, even if the first few turn out to be bumpy. Get a group of friends together and slowly start getting yourself out there.

Body beautiful

Over the years, people can let their body image slide and become sloppy. Feeling good is a lot about looking good.

- Hit the gym. Don't try to achieve miracles for your body. But it will keep you physically active and release the healthy feel good endorphins. Get a manicure, pedicure, and a snazzy new wardrobe.

- Don't let age, work, stress and children be the excuse for you to neglect your health. It's common for people going through a divorce to eat too much or too little. Eat a well-balanced diet and get at least 30 minutes of exercise for three to five days a week.

- Wear make up to work, do your hair well. Tone down the scruff and create a positive body image.

Money matters

After all the legalities are done away with, ensure you have a grip on your financial condition and assets. After years of shared bank accounts and joint ownership of assets, this process is particularly painful. But make sure you don't feel cheated of your rightful share.

- Get your household finances in order. If your spouse took care of balancing the cheque book and paying the bills when you were married, now you need to be able to run your own finances successfully.

- Keep a record of when certain bills, such as credit card bills and utility bills, are due, so that you won't be lagging behind in making payments.

- Keep all important finance-related paperwork, such as bank statements and insurance policies together in a drawer, where they can easily be found. Following a divorce, being able to manage your money wisely is pivotal to getting your life in order.

http://articles.timesofindia.indiatimes.com/2011-03-07/man-woman/28665194_1_marriage-divorce-matter

Divorce at 70? Plan some spiritual growth, says Supreme Court

 

JUDGMENT AWAITED

 

Divorce at 70? Plan some spiritual growth, says Supreme Court

Saturday, Aug 28, 2010

At the age of 70, it’s time to go on a pilgrimage to Hardwar and be divorced from the material world, instead of being engaged in a prolonged legal battle for divorce.

These are the words of the Supreme Court for an aged Juhu couple, seeking separation under the Hindu Marriage Act.

Making a bid to make them conscious that the age is catching up, apex court judges on Thursday counseled petitioner Veena, 70, and her husband, Govardhan Kapoor, 75, to share the roof. However, the court suggested that if the two wish, they may keep themselves separated by a wooden partition.

Veena doesn’t want to share the apartment with Govardhan and contested a Bombay high court judgment last year that made her share the accommodation as per a mutual agreement between them in the divorce case.

The couple married in Delhi on April 26, 1969. They have two sons — Navin, 36, who lives in America, and Sachin, 33, lives with his father.

In 1981, the couple started litigation after Govardhan suffered heavy losses in his business. Charges and counter charges ensued and Govardhan alleged that his wife had an extra-marital affair.

Govardhan’s case got stronger after Sachin testified in favour of the allegation.

While Govardhan moved a law suit seeking an injunction against Veena from dispossessing him from the flat, she sought a direction asking him not to enter the house.

Govardhan agreed to the term that Veena is the owner of the flat but he would live there with certain conditions that included installing separate electric meters and demarcating territory with a wooden partition.

But Veena’s lawyer DK Garg on Thursday told a bench headed by justice GS Singhvi that she couldn’t be expected to live under the same roof particularly when she had been accused of being in an adulterous relationship. She lamented that even her son had also sided with his father.

Disposing of her petition, the court said: “You can’t throw out the aged husband, but you can get the son out.”

Delhi HC – Misuse of PWDVA to settle property disputes Definition explanation of "Domestic relationship" "at any point of time"

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: July 27, 2010

Date of Order: 13th August, 2010 Crl. M.C. No.3878/2009 13.08.2010 

VIJAY VERMA ….. Petitioner Through: Mr. K.K. Manan, Mr. Tarun Goomber,

Mr. Nipun Bhardwaj, Mr. Pankaj Mandiratta and

Mr. Ashish George, Advocates.

versus

STATE N.C.T. OF DELHI & ANR. ….. Respondents Through: Mr. Sunil Sharma, APP for the State.

Mr. Sunil Sethi, Mr. Sumit Sethi & Mr. B.C.

Mishra, Advocates for R-2.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes. JUDGMENT

1. This petition has been filed under Section 482 Cr. P.C. assailing order of learned A.S.J. dated 7th September, 2009, upholding the order of learned M.M. dated 11th July, 2009.

2. Brief facts relevant for the purpose of deciding this petition are that the petitioner herein had filed an application under Section 12 of Protection of Women from Domestic Violence Act making her brother and his wife as  respondents. She sought an interim order from the Court of M.M. for immediate residence rights and police protection so that she could stay at premises No. A-181, Defence Colony, Delhi, whenever she visited India. The petitioner is a permanent resident of USA and is living in USA since year 2000. She came to India on a visit on 15th July, 2008 and alleged that when she went to her parental house on 16th July, 2008, she was not allowed to enter her parental house and hence the application.

3. Learned MM in her order observed that in this case the petition was more in a nature of claiming right in the property. The whole dispute seemed to be property dispute between the parties and there was no ground to pass an interim order of residence. The learned ASJ upheld this contention in appeal.

4. It is not disputed that father of the petitioner is not alive. Property No. A-181, Defence Colony, New Delhi, was owned by the father of the petitioner and respondent No. 2. Petitioner claimed right in the property alleging that she had a right in her father’s property whereas respondent No. 2 relied upon a Will executed by father bequeathing his rights and share in the property in favour of his grandson. The respondent also relied upon an affidavit earlier executed by the petitioner showing that she had received her share in the property. It is also not disputed that a suit for partition titled as “Indra Warman Vs. Kishan Kumar Verma”, being CS(OS) No. 2137 of 2006, filed by the sister of petitioner was pending in the High Court wherein the petitioner was one of the defendants and the petitioner herself also filed a suit for partition in the High Court being CS(OS) No. 2028 of 2009, titled as ” Vijay Verma Vs. Kishan Kumar Verma & Ors.”

5. Filing of a petition under Protection of Women from Domestic Violence Act by the petitioner taking shelter of domestic relationship and domestic violence needs to be considered so that this Act is not misused to settle property disputes. Domestic relationship is defined under the Act in Section 2(f) as under: 

“(f) ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”

6. A perusal of this provision makes it clear that domestic relationship arises in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married  and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc survives but the domestic relationship of living in a joint household would not survive & comes to an end.

7. This meaning of domestic relationship has sense when we come to definition of domestic violence and the purpose of the Act. The purpose of the Act is to give remedy to the aggrieved persons against domestic violence. The domestic violence can take place only when one is living in shared household with the respondents. The acts of abuses, emotional or economic, physical or sexual, verbal or nonverbal if committed when one is living in the same shared household constitute domestic violence. However, such acts of violence can be committed even otherwise also when one is living separate. When such acts of violence take place when one is living separate, these may be punishable under different provisions of IPC or other penal laws, but, they cannot be covered under Domestic Violence Act. One has to make distinction between violence committed on a person living separate in a separate household and the violence committed on a person living in the shared household. Only violence committed by a person while living in the shared household can constitute domestic violence. A person may be threatening another person 100 miles away on telephone or by messages etc. This may amount to an offence under IPC, but, this cannot amount to domestic violence. Similarly, emotional blackmail, economic abuse and physical abuse can take place even when persons are living miles away. Such abuses are not covered under Domestic Violence Act but they are liable to be punished under Penal laws. Domestic Violence is a violence which is committed when parties are in domestic relationship, sharing same household and sharing all the household goods with an opportunity to commit violence. 

8. I therefore consider that the application filed by the petitioner under Section 12 of Domestic Violence Act was not at all maintainable. The petitioner had settled her separate house in America, her Passport was issued in America, she is doing job in America, she was adult and able to take care of herself, take her own decisions. She decided to live in America after leaving her parents here. If she has any right in her father’s property, she has already filed a suit for partition. An application under Section 12 of Domestic Violence Act was nothing but a gross misuse of the Act and I consider that she was rightly denied the interim relief of residence in the property left by her father. The petition is hereby dismissed.

August 13, 2010 SHIV NARAYAN DHINGRA, J. acm

http://lobis.nic.in/dhc/SND/judgement/16-08-2010/SND13082010CRLMM38782009.pdf