MAJOR HARMOHINDER SINGH Vs. RANJIT KAUR

JUDGEMENT

(1.) The twin revisions arise out of same impugned order dated 04.01.2007 passed by Additional District Judge (Adhoc), Ropar. The husband, who was restrained from dispossessing his wife from his own residence by a suit for injunction filed by the divorced wife is the revision petitioner in C.R. No. 770 of 2007 before this Court. C.R. No. 2598 of 2007 is filed at the instance of the wife against the direction contained in the same order permitting the husband to sell the property.

(2.) NOW to some facts: The suit had been filed by the wife seeking for relief of injunction restraining husband from alienating the suit property and for restraint against PUDA from issuing any No Objection Certificate for transfer of property. In such a suit, the wife had sought for a restraint under Order 39 Rule 1 and 2 CPC against alienation of the property and from disturbing of possession. The basis of the claim filed by the wife for such a restraint was a decree passed by the High Court in R.S.A. No. 3451 of 1999 dated 17.05.1999 that the wife should be given a right to reside in the house being the wife of the petitioner. The suit in the application was resisted by the husband pointing out to a significant subsequent event that the marriage has been dissolved since the decision of the High Court and in the petition for dissolution of marriage passed under the Hindu Marriage Act, there had been no provision made for permanent alimony under Section 25 of the Hindu Marriage Act. The husband also contended that the wife had earlier filed a petition for maintenance under Section 125 Cr.P.C. but it was rejected finding that the wife was adequately provided for and also attributing to certain conduct that disentitled her to claim such maintenance. This order of dismissal was sustained by the District Court in revision filed under Section 399 of the Cr.P.C.

(3.) LEARNED counsel appearing on behalf of the petitioner submits that the right of residence, which the wife could claim and which could not be jeopardized by the husband even in an action for eviction against the husband by an offer to surrender the property would always be seen in the context of what the wife would be entitled at the time of dissolution of a marriage. The law was settled, progressive as it was, in protecting a hapless woman from being exposed at the prospect of being thrown out by an estranged husband in B.P. Achala Anand v. S. Appi Reddy and another, 2005(2) RCR(Civil) 80 : 2005(1) RCR(Rent) 286 : 2005(3) SCC 313. The Hon'ble Supreme Court did not go as far as to say that the right of residence will have to be protected at all times but qualified the right to depend on the terms and conditions of divorce decree/settlement and the provision for maintenance including residence that is made in such a divorce decree. This decision was further explained by a later judgment of the Hon'ble Supreme Court in Ruma Chakraborty v. Sudha Rani Banerjee and another, 2005(4) RCR(Civil) 394 : 2005(2) RCR(Rent) 460 : 2005(8) SCC 140 where affirming the observations that the right of residence of a divorced wife in a matrimonial home would depend on the terms and conditions of a divorce decree, observed with particular reference to the facts in that case that the divorced wife, who had expressly waived her right to maintenance by consenting for maintenance only in favour of the children lost the right to remain in the matrimonial home. The Hon'ble Supreme Court held that termination of a matrimonial relationship brought to an end the status of wife as such and hence her right of residence in the matrimonial home.