ANU SETH Vs. ROHIT NARAIN SETH

JUDGEMENT

(1.) The plaintiff No. 1 is the wife of defendant No. 1 and the plaintiffs 2 and 3 are their children. Defendant Nos. 2 and 3 are the parents, and defendant No. 6 is the brother, defendant No. 4 is the uncle, defendant No. 5 is the aunt, defendant No. 8 is the cousin of defendant No. 1. It is the plaintiff's case that plaintiff No. 1 was married to defendant No. 1 and stayed in the matrimonial home at 6A, Jantar Mantar Road, New Delhi for 8 years. The plaintiff No. 1 has further averred in the plaint that owing to matrimonial disharmony, she left the matrimonial home alongwith plaintiffs 2 and 3 and took shelter in her parents house on 13th August 1999. The plaintiff No. 1 has further stated that she is being denied the access to the matrimonial house by the defendants and consequently seeks a decree for permanent injunction restraining the defendants from obstructing the ingress and egress of the plaintiffs to her matrimonial home i.e. at 6A, Jantar Mantar, New Delhi. The plaintiff No. 1 has further pleaded that she is seeking access only to the suite marked blue in the site plan in which she was residing with plaintiffs 2 and 3 and defendant No. 1 and this portion of the HUF bungalow at 6A, Jantar Mantar Road was earmarked for their family i.e. the plaintiff and defendant No. 1.

(2.) The suit has been resisted by defendant No. 1 by pleading that the plaint is founded on false premises. The plaintiff's relief, if any, is to file proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Further reliance has been placed on the bar contemplated in Section 41 (h) of the Specific Relief Act. The defendant No. 1 has referred to the plaint where the plaintiff has made several scandalous and defamatory remarks. The defendant No. 1 further submits that the conduct of the plaintiff No. 1 disentitles her to any interim relief. However, the main plea raised by the defendant No. 1 is that the plaintiff No. 1 made the stay of the defendant No. 1 so unbearable that the defendant No. 1 left the house of his parents and is no more residing there and is in any event not the owner of the bungalow in respect of which the injunction is being sought. It is further stated that he has shifted to his sister's house at 141, Sunder Nagar, New Delhi and, therefore, the relief for infrunctuous is infectious in any event. The plea taken on behalf of defendants 2 to 8 is that the plaintiff No. 1 was not forced to leave the house and she left the same on her own accord.

(3.) Learned counsel for defendants 2 to 8 has relied on the judgment of the Hon'ble Supreme Court in Saroj Rani v. Sudershan Kumar Chadha, 1984(4) SCC 90 to contend that the concept of conjugal rights is wide and Includes enjoyment of living together. It is, therefore, pleaded that the plea which seeks the injunction in the present suit clearly falls within the meaning of conjugal rights covered by Section 9 of the Hindu Marriage Act and no suit as framed can lie. The learned counsel has also relied upon the judgment reported as Smt. Mahua Biswas v. Swagata Biswas, 1998(2) SCC 359 (at page 361) to contend that matrimonial disputes should be taken to matrimonial courts. The learned counsel has relied upon the certain pleadings of the plaint wherein scandalous and defamatory remarks have been pleaded against the husband, defendant No. 1, and the other defendants. For deletion of these remarks, the defendants have filed a separate application IA No. 3128 of 2000, which is being dealt with separately. It has further been pleaded that the plaintiff No. 1 does not want to come and live in the house but wants only the right of free ingress, egrees and use of the premises and the motive behind the relief claimed in the suit is to harass the defendants by having the right of ingress and egress and to use the premises so,as to create further trouble for them as was done on 13th August 1990 by calling the police. It is further stated that no relief can be granted against the defendants as the premises in question belongs to defendants 2 and 4 and defendant No. 1 and the plaintiff No. 1 have no right whatsoever in the said bungalow. In this regard reliance has been placed on the judgment of this Court in Sardar Sudhir Singh v. Narinder Kaur, 1995(6) DLT 638 to contend that the daughter-in-law has no right to the property of her father-in- law. It is further stated that defendant No. 1 is not living in the suit premises at Jantar Mantar Road any more and the relief sought for cannot be granted and the said bungalow is not her matrimonial home. It is therefore stated that since the permanent injunction claimed cannot be granted, the question of a temporary injunction being granted cannot arise. It has further been stated that the plaintiff No. 1 left the house on 13th August 1999 and did not attempt to come back till 25th January 2000. It has also been stated that there is no balance of convenience in her favour as the plaintiff No. 1 is staying with her parents who are very well to do and who can conveniently support the plaintiffs. It is also denied that the irreparable loss will be suffered by the plaintiffs. The main dispute in the present application for interim relief is as to whether the plaintiff can seek a relief of an injunction to enable her to have access to what was her matrimonial home.