EVENEET SINGH Vs. PRASHANT CHAUDHARI

JUDGEMENT

(1.) THE issue at hand is settled by a decision of a Division Bench of this Court in FAO(OS) No.341/2007 Shumita Didi Sandhu vs. Sanjay Singh Sandhu & Ors. In paragraphs 48 and 49 the Division Bench held as under:- 48. THE learned counsel for the appellant had also referred to Single Bench decisions of the Kerala High Court and the Madras High Court in the cases of S.Prabhakaran (supra) and P.Babu Venkatesh Kandayammal and Padmavathi (supra) to indicate instances of cases where the Supreme Court decision in S.R.Batra (supra) was distinguished. Those decisions are Single Bench decisions and that too of other high courts and are, therefore, of no precedential values insofar as this Bench is concerned. We feel that in view of the prima facie finding that the property in question does not belong to the appellants/plaintiffshusband nor does he have any share or interest in the same, there is no question of the said property being regarded as a shared household in terms of Section 2(s) of the said Act. We also find that the expression matrimonial home is not at all defined in the said Act and the concept of the matrimonial homes as prevailing in England by virtue of the Matrimonial Homes Act, 1967 cannot be applied in India as pointed out in S.R.Batra (supra) and B.R.Mehta (supra). THEre is no doubt that the appellant/plaintiff has a right of a residence whether as an independent right or as a right encapsulated in the right to maintenance under the personal law applicable to her. But that right of residence does not translate into a right to reside in a particular house. More so, because her husband does not have any right, title or interest in the said house. As noted by the Supreme Court in the case of Komalam Amma (supra) as well as in Mangat Mal (supra), the right of residence or provision for residence may be made by either giving a lumpsum in money or property in lieu thereof. In the present case, we have noted earlier in this judgment that the learned Single Judge had recorded that alternative premises had been offered to the appellant/plaintiff, but she refused to accept the same and insisted on retaining the second floor of the property in question claiming it to be her matrimonial home.

(2.) VIDE impugned order dated 20.12.2010, the learned Single Judge has held that the appellant would have no right to enforce a claim for residence in the ground floor of building bearing Municipal No.D-32, South Extension Part-II, half-share whereof was inherited by appellantsmother-in-law through her mother, a fact which is undisputed; and yet in spite thereof we find appellant claiming the subject property to be ancestral property in the hands of her mother-in-law and through her husband having an alleged right therein, and hence a claim set up that being the wife the appellant would have a right of residence in the house belonging to her husband. Said claim on the plea afore-noted cannot be sustained and we reject the same outright.

(3.) IT is not in dispute that after marriage, appellant and her husband set up their matrimonial home in the house in question, but after a few months the husband and wife fell apart and the husband took on rent the barsati floor, consisting of a drawing room, a bed room, kitchen and an attached toilet with an open terrace abutting on the second floor of House No.C-528 Defence Colony, New Delhi at a rent of Rs.30,000/- per month.