Anand Vs. S. Appi Reddy & Anr  Insc 91 (11 February 2005)
Mathur & P.K. Balasubramanyan R.C. Lahoti,
Unusual fact situation posing issues for resolution is an opportunity for
innovation. Law, as administered by Courts, transforms into justice. "The
definition of justice mentioned in Justinian's Corpus Juris Civilis (adopted
from the Roman jurist Ulpian) states 'Justice is constant and perpetual will to
render to everyone that to which he is entitled.' Similarly, Cicero described justice as 'the
disposition of the human mind to render everyone his due'." The law does
not remain static. It does not operate in a vacuum. As social norms and values
change, laws too have to be re-interpreted, and recast. Law is really a dynamic
instrument fashioned by society for the purposes of achieving harmonious
adjustment, human relations by elimination of social tensions and conflicts.
Lord Denning once said: "Law does not standstill; it moves continuously.
Once this is recognized, then the task of a judge is put on a higher plain. He
must consciously seek to mould the law so as to serve the needs of the
time." The facts which are either not disputed, or, are, at this stage,
beyond the pale of controversy, may briefly be noticed.
appellant Smt. B.P. Achala Anand (hereinafter 'Smt. Achala' for short) was the
legally wedded wife of H.S. Anand-respondent No. 2. Their relationship got
estranged so much so that in the year 1983 H.S. Anand deserted his wife Smt. Achala.
The matrimonial home was a tenanted premises owned by respondent No.1. H.S. Anand
left behind his wife with the children in the tenanted premises and walked away
to reside in a lodge. In the year 1991, proceedings for dissolution of marriage
by decree of divorce seem to have been initiated between the estranged couple.
On 3/12/1998 the marriage stood dissolved by a
decree of divorce based on mutual consent. That was an unhappy ending so far as
the matrimonial relationship is concerned. However, what transpired between the
couple has given a complex turn to an otherwise simple landlord-tenant
litigation which we are called upon to deal with in this appeal.
premises forming part of dispute in the present litigation is situated on the
ground floor of a property bearing No. 522, Upper Palace Orchards, Bangalore. H.S. Anand had taken the ground
floor of the building on tenancy from the landlord-respondent No.1. The rent of
the premises was fixed at Rs. 300/- which was later on revised and enhanced to Rs.
600/- and then to Rs. 700/- (the rate which the Trial Court has found proved on
evidence). The ground floor premises consisted of one verandah, one hall, two
bedrooms with attached toilet, kitchen, bathroom, another toilet and corridor
with overhead water supply and other incidental facilities. The tenant H.S. Anand
resided in the premises with his family members including his wife Smt. Achala.
tenanted premises were badly in need of repairs and in April 1991, consequent
upon a mutual agreement arrived at between the landlord and the tenant, a major
portion of the ground floor-tenanted - premises was handed over by the tenant
to the landlord for the purpose of carrying out repairs and the tenant
continued to retain and enjoy the verandah, one bedroom and an attached toilet.
However, the repairs, as were agreed upon, were not carried out.
28/11/1991, the landlord served a notice upon the tenant H.S. Anand and
initiated proceedings for eviction from the suit premises on the grounds
available under Clauses (a) and (h) of sub-section (1) of Section 21 of the
Karnataka Rent Control, Act, 1961 (hereinafter "the Act" for short).
The tenant was alleged to be in arrears of rent and was, therefore, called upon
to clear the same within a period of two months from the date of the service of
the notice in this regard. It was also alleged that the landlord and his wife
were old-aged couple and now-a-days residing in some adjoining premises not
their own and needed bona fide the ground floor premises for their own
tenant-H.S. Anand appeared in the Court of Small Causes and defended the suit.
However, it seems that on account of strained relationship between him and his
wife and, further as he had discontinued his residence in the tenanted
premises, he was not serious in contesting the suit and consequently, in the
event of a decree for eviction being passed, the family members including the
appellant-Smt. Achala, the deserted wife, ran the risk of being thrown away
from the tenanted premises which happened to be the matrimonial home. Briefly
stating these facts, the appellant moved an application under Order I Rule 10
of the Code of Civil Procedure (for short "the Code") seeking her own
impleadment in the eviction proceedings so as to defend against the eviction.
The trial court, by order dated 30.01.1993, rejected the application.
appellant preferred a revision petition in the High Court. Obvious as it is,
the revision petition preferred by the appellant was contested by the
landlord-respondent No. 1 submitting that it being a landlord-tenant dispute,
the appellant- wife had no right to be joined as a party to the proceedings and
further that the rent being substantially in arrears, the case for eviction was
already made out and impleadment of the appellant would only prolong the
proceedings. The High Court vide its order dated 02/12/1993 (Civil Revision Petition No. 1309/1993) noted the
submission of the parties and passed an order which can be termed an equitable
one. Legality or otherwise of the contentions raised by the parties in the High
Court was left open, the revision petition was allowed and the trial court's
order dated 30/01/1993 was set aside. The appellant was permitted to be brought
on record as defendant No. 2 in the original case subject to her depositing a
sum of Rs. 10,000/- towards payment of arrears of rent. The High Court did not
express any opinion as to the status of the appellant as tenant or otherwise
which issue was left open to be decided by the trial court. The fact remains
that the appellant did deposit an amount of Rs. 10,000/- towards the arrears of
rent claimed by the landlord and it appears that the amount has been withdrawn
by the landlord without prejudice to his rights. The appellant has, thereafter,
contested the suit.
trial court disposed of the suit on 04/12/1998. The trial court held that H.S. Anand-respondent
No. 2 was the tenant. A case for eviction under Section 21(1)(a) of the Act was
not made out in the opinion of the trial court. However, a case for partial
eviction under Section 21(1)(h) was made out.
trial court directed partial eviction of the two defendants (i.e. H.S. Anand
and his wife Smt. Achala) from that portion of the premises over which the
tenant had surrendered possession to the landlord and allowed the tenant to continue
in the front portion, namely, bedroom, hall, verandah, toilet etc. as to which
accommodation the eviction petition was directed to be dismissed.
aggrieved, the landlord preferred a revision petition in the High Court which
has been disposed of by the judgment impugned herein. It will be useful to
notice in brief the findings arrived at by the High Court which are as follows.
to the High Court ___ "There is no relationship of landlord and tenant
between the landlord and Smt. Achala. The tenancy vested only in H.S. Anand who
had given away the contest. He was served with a prior notice of demand. The
rent was Rs. 700/- per month. The provisions of Section 21(2) of the Act were
not complied with and therefore, the question of extending protection under
Section 21(2) did not arise and the tenant was liable to be evicted under
Section 21(1)(a)." So far as the ground for eviction under Section 21(1)(h)
is concerned, the High Court has not discussed the evidence in very many
details but seems to have been persuaded to hold against the landlord on the
ground that the first and second floor of the premises fell vacant but were not
occupied by the landlord and were rather let out which is a pointer to the lack
of bona fides.
the back portion of the ground floor premises which was got vacated from the
tenant was not put to any use for satisfying the alleged need of the landlord.
The High Court set aside the order of partial eviction under Section 21(1)(h)
and instead directed the tenant to be evicted under Section 21(1)(a) of the
Act. It may be noted that neither the tenant H.S. Anand nor Smt. Achala, the
wife had challenged the order for partial eviction passed by the trial court
and it became final.
has, feeling aggrieved by the judgment of the High Court, preferred this appeal
by special leave. The tenant H. S. Anand has not filed any appeal.
Rent Control Act, 1961 has been enacted to provide for the control of rents and
evictions and for the leasing of buildings amongst other things. It is not
necessary to extract and reproduce in extenso the relevant provisions of the
Act. For our purpose, it would suffice to notice that vide clause (a) of
sub-section (1) of Section 21 of the Act, the tenant's failure to pay or tender
the whole of the arrears of the rent legally recoverable from him within two
months of the date of service of notice of demand on him in this regard
provides a ground for eviction. In spite of a ground for eviction having been
made out within the meaning of the said provision entitling the landlord to
initiate proceedings for eviction of the tenant, no order for the recovery of
possession of any premises on that ground shall be made if the tenant deposits
or pays to the landlord rent during the pendency of proceedings in the manner
prescribed by Section 29 of the Act and satisfies the Court that there was a
sufficient cause for the default to pay or tender the rent within the period
referred to in Section 21(1)(a) and further pays to the landlord or deposits in
the Court such further amount as may be determined and fixed by the Court
within the meaning of clause (iii) of sub-section (2) of Section 21 of the Act.
Section 30 of the Act once the interest of the tenant in any premises has been determined
and order for recovery of possession has been made by the Court the same is
binding on all persons who may be in occupation of the premises and vacant
possession of the premises has to be given to the landlord by evicting the
tenant and all persons in occupation of the premises excepting those who have
any independent title to such premises. The term 'family' has been defined in
clause (ff) of Section 3 of the Act as ___ "'family' in relation to a
person means the wife or husband of such person and his or her dependent
children". Once the premises are taken on lease by any individual as
tenant he is entitled to exercise all such rights and is subject to all such
obligations qua the landlord as are referable to a lessee under the law. Yet, the
tenant in whose name the tenancy has been created is not the only one who is
entitled to live in the residential premises; he has a right to live therein
with his family wherein is included the spouse. In any litigation, based on
landlord-tenant relationship, when the tenant enters upon defence, he does so
not only for himself but also for protecting the interest of his family as its
members do live and are entitled to live with him, because in the event of an
order for eviction being made it is not only the tenant but also his family
members who shall be liable to be evicted from the tenancy premises along with
said so generally, we may now deal with the right of a wife to reside in the
matrimonial home under personal laws.
factual context of the present case, we are confining ourselves to dealing with
the personal law as applicable to Hindus as the parties are so. A Hindu wife is
entitled to be maintained by her husband. She is entitled to remain under his
roof and protection. She is also entitled to separate residence if by reason of
the husband's conduct or by his refusal to maintain her in his own place of
residence or for other just cause she is compelled to live apart from him.
Right to residence is a part and parcel of wife's right to maintenance. The
right to maintenance cannot be defeated by the husband executing a will to
defeat such a right. (See: MULLA, Principles of Hindu Law, Vol. I, 18th Ed.
2001, paras 554 and 555) The right has come to be statutorily recognized with
the enactment of the Hindu Adoption and Maintenance Act, 1956. Section 18 of
the Act provides for maintenance of wife. Maintenance has been so defined in
clause (b) of Section 3 of the Hindu Adoption and Maintenance Act, 1956 as to
include therein provision for residence amongst other things. For the purpose
of maintenance the term 'wife' includes a divorced wife.
position of law which emerges on a conjoint reading of the Rent Control
Legislation and Personal Laws providing for right to maintenance ___ which will
include the right to residence of a wife, including a deserted or divorced
wife, may be examined. The Rent Control Law makes provision for protection of
the tenant not only for his own benefit but also for the benefit of all those
residing or entitled to reside with him or for whose residence he must provide
for. A decree or order for eviction would deprive not only the tenant of such
protection but members of his family (including the spouse) will also suffer
eviction. So long as the tenant defends himself, the interest of his family
members merges with that of the tenant and they too are protected. The tenant
cannot, by collusion or by deliberate prejudicial act, give up the protection
of law to the detriment of his family members. So long as a decree for eviction
has not been passed the members of the family are entitled to come to the court
and seek leave to defend and thereby contest the proceedings and such leave may
be granted by the court if the court is satisfied that the tenant was not
defending ___ by collusion, connivance or neglect ___ or was acting to the
detriment of such persons. Such a situation would be rare and the court shall
always be on its guard in entertaining any such prayer. But the existence of
such a right flows from what has been stated hereinabove and must be
recognized. Persons residing with the tenant as members of his family would
obviously be aware of the litigation and, therefore, it will be for them to act
diligently and approach the court promptly and in any case before the decree of
eviction is passed as delay defeats equity. Such a prayer or any dispute sought
to be raised post- decree by a member of family of the tenant may not be
entertained by the court.
precedent, much less of a binding authority, from any Court in India and dealing with a situation as we
are called upon to deal with is not available. At least, none has been brought
to our notice. However, English decisions can be found. Lord Denning states in
The Due Process of Law (London, Butterworths, 1980, at page 212) ___ "A
wife is no longer her husband's chattel. She is beginning to be regarded by the
laws as a partner in all affairs which are their common concern. Thus the
husband can no longer turn her out of the matrimonial home. She has as much right
as he to stay there even though the house does stand in his name. . . . . . . .
Moreover it has been held that the wife's right is effective, not only as
against her husband but also as against the landlord. Thus where a husband who
was statutory tenant of the matrimonial home, deserted his wife and left the
house, it was held that the landlord could not turn her out so long as she paid
the rent and performed the conditions of the tenancy."
Gate Estates, Ltd. v. Alexander and Anr.,  2 All England Law Reports 822,
a statutory tenant living with his wife in a flat which constituted the
matrimonial home left the premises following a quarrel with his wife, and
purported to surrender them to the landlords by agreement. His wife remained in
occupation with the use of his furniture. On the wife's refusing to quit the
premises, the husband gave her written notice revoking any authority which she
might have from him to occupy the flat. In proceedings by the landlords against
the tenant and his wife for possession, the court held that the tenant had not
given up possession, as he remained in occupation through his wife and
furniture, and, accordingly, his statutory tenancy had not been terminated. The
statement of law as made by Denning, L.J. is instructive. He said ___ "If
a statutory tenant goes out of occupation, leaving lodgers or sub- tenants or
no one in the house, he ceases to be entitled to the protection of the Rent
Restrictions Acts, but he does not, in my opinion, lose the protection if he goes
out leaving his wife and furniture there. The reason is because the wife has a
very special position in the matrimonial home. She is not the sub- tenant or
licensee of the husband. It is his duty to provide a roof over her head. He is
not entitled to tell her to go without seeing that she has a proper place to go
to. He is not entitled to turn her out without an order of the court : see Hutchinson v. Hutchinson,  2 All E.R. 792. Even if she stays there against his
will, she is lawfully there, and, so long as she is lawfully there, the house
remains within the Rent Acts and the landlord can only obtain possession if the
conditions laid down by the Acts are satisfied." Their Lordships referred
to and applied the dictum of Lord Greene, M.R., in Brown v. Draper,  1
All E.R. 246, where the facts were somewhat similar. A husband was the tenant
of a house on a weekly tenancy. As in this case, he left the house in a dispute
with his wife, and his wife and child remained in occupation of the house with
the use of his furniture and he continued to pay rent. He received notice to
quit from the landlord and he then stopped paying the rent, but he did not
revoke his leave to the wife to reside in the house nor did he remove his
furniture. Later, the landlord brought proceedings against the wife for
trespass and at the hearing, the husband, who was not made a party to the
proceedings, gave evidence that he had no interest in the house. It was held by
the Court of Appeal that the husband was still in possession of the house, and
the only way he could be deprived of the protection of the Rent Acts was by his
going out of possession or having an order for recovery of possession made
the law propounded in Brown v. Draper (supra) and in Old Gate Estates Ltd. v.
Alexander and Anr. (supra), the Court of Appeal held in Middleton v. Baldock,
 1 All England Law Reports 708, that where a husband had deserted his
wife and the wife remained in the matrimonial home, she was lawfully there and
the husband remained in occupation through her; possession of a dwelling-house
to which the Rent Restrictions Acts applied could only be ordered on one of the
grounds specified in the Acts, and a tenant could not by agreement waive the
statutory protection afforded by the Acts; and, therefore, the orders for
possession were wrongly made.
deserted woman's equity (as it was called) was considered by House of Lords in
the National Provincial Bank Ltd. v. Ainsworth  AC 1175. The House of
Lords held that the rights of a deserted wife were their personal rights and as
such that they could not be treated as in any sense constituting a clog on the
property of the husband so as to run with the land as in the case of reality;
and that, accordingly, a deserted wife could not resist a claim from a genuine
purchaser of the matrimonial home from her husband whether the purchase took
place after or before desertion. Lord Hodson stated: "The duration of the
right if it were held to affect the land would be uncertain. It would not
survive divorce nor would it necessarily survive a judicial separation by order
of the court which puts an end to the duty of cohabitation on both sides."
He concluded:- "Having done the best I can to analyze the nature of the
right which the wife has against her husband which is fundamentally the right
relied on by the respondent, I conclude that it does not operate as a clog on
the land which protects her by operating as a mere equity against anyone but a
purchaser for value without notice". Lord Upjohn stated:- "The cases
that I have already cited show that, provided the wife's marital rights are
adequately safeguarded in some such way, the court would not normally refuse to
evict a wife if the husband wants to deal with his property. Or he may return
and resume cohabitation when the domestic forum resumes exclusive jurisdiction.
Or the wife may change her position. She may commit a matrimonial offence which
may lead the court to refuse her the right to continue under her husband's
roof; she may obtain (as in this case) a decree of judicial separation which at
all events brings the husband's desertion to an end [Harriman v. Harriman (1909
P 123)]. Such a decree must necessarily be an important though not conclusive
factor, if the husband is seeking to turn his wife out of occupation. Finally,
any right on the part of the deserted wife to remain in occupation, terminates
when the marriage terminates." (emphasis supplied).
Lordship in conclusion stated:- "My Lords, when differing as I do with
regret from so eminent a judge as the Master of the Rolls I think it is
important to see how this problem has been dealt with in other comparable
several States of Australia there has been a refusal to recognize that the
deserted wife has any equity available against third parties. In Brennan vs.
Thomas (1953 V.L.R. 111) Sholl J. sitting in the Supreme Court of Victoria
after an exhaustive review ( 1952(2) Q.B. 466) then recently decided in the
Court of Appeal, refused to recognize any right on the part of the wife
available against purchasers for value.
Public Trustee vs. Kirkham (1956 V.L.R. 64) sitting in the same court Herring
C.J. criticized the doctrine.
vs. Piro (1956 S.A.S.R. 233) Ligertwood J. sitting in the Supreme Court of
South Australia followed Sholl J. in preference to the English decisions.
in Dickson vs. McWhinnie [(1958) 58 S.R. (N.S.W.) 179], the Full Court of New
South Wales refused to follow Bendall vs. McWhirter (supra) save in relation to
bankruptcy. I derive much comfort from such a strong body of opinion in favour
of the view I have expressed." In Robson v. Headland,  64 TLR 596,
it was held that "after the date of the divorce the former wife of the
defendant was a stranger to him and was not in occupation of the flat as his
representative and that as he had abandoned possession himself, the Rent
Restriction Acts did not apply." In Waughn v. Waughn  1 QB 762, a
wife continued to reside in the matrimonial home even after she obtained a decree
of divorce against her husband. After some time the husband brought proceedings
for possession. The divorced wife resisted claiming that she had an irrevocable
licence during her lifetime. It was held by the Court of Appeal (Evershed M.R.
Denning and Romer. L.J.J.) that after they had ceased to be husband and wife,
the wife could not justify her claim unless she could set up a contract. As it
was, the statement originally made to her could after the divorce, amount to no
more than she, as ex wife, was entitled to remain in occupation as a bare
licensee and the licence was, therefore, revocable. Lord Denning stated:
wife ought to have protected her position by applying for maintenance in the
divorce proceedings before decree absolute and should have come to an
arrangement with her husband whereby he agreed not to turn her out except by an
order of the court, she agreeing to accept a reduced sum for maintenance as
long as she lived there." This indicates that the right of residence is a
part of the right to maintenance and in which case in the absence of an order
by the matrimonial court in the proceedings for divorce, she would not be able
to set up a claim in respect of the house even as against her husband, leave
alone the landlord of her husband.
of interest to note that the above decision of the House of Lords led to the
enactment of the Matrimonial Homes Act, 1983. The preamble of the Act says
"an Act to consolidate certain enactments relating to the rights of a
husband or wife to occupy a dwelling house that has been a matrimonial
home". So long as one spouse has right to occupation, either of the
spouses may apply to the court for an order requiring either spouse to permit
the exercise by the other of that right. This is one of the several rights
expressly provided for.
been held in India that right to maintenance arises out of the status as a wife
and not by way of a contract or otherwise. In Sri Raja Bommadevara Raja Lakshmi
Devi Amma Garu v. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu and another,
AIR 1925 Madras 757, Specncer, Officiating CJ,
obligation of a husband to maintain his wife is described, as one arising out
of the status of marriage. It is a liability created by the Hindu Law in
respect of the jural relations of the Hindu family.
there is no contract between the parties to a marriage, as among Hindus, a suit
for maintenance is not a suit based upon contract, but it is a suit arising out
of a civil relation resembling that of a contract, which is specially provided
for in Article 128 of the Limitation Act". (Head Note) In Unnamalai Ammal
v. F.W. Wilson and others, AIR 1927 Madras 1187, it was stated that the maintenance of a wife by a husband is a
personal obligation upon him arising from the existence of the relations. In P.
Suriyanarayana Rao Naidu v. P. Balasubramania Mudali & ors., ILR 43 Madras
635, it was held that an auction purchaser of an ancestral house sold in
execution of a money decree passed on a personal debt of the mother who inherited
the property as heir to her son, is not entitled to oust the unmarried sisters
of the latter, who reside in the house. The Bombay High Court in Bai Appibai v.
Khimji Cooverji, AIR 1936 Bombay 138,
held that under the Hindu Law, the right of a wife to maintenance is a matter
of personal obligation on the husband. It rests on the relations arising from
the marriage and is not dependent on or qualified by a reference to the
possession of any property by the husband. In Ganga Bai v. Janki Bai, ILR 45
Bombay 337, it was held:-
Hindu Law, a widow cannot assert her right of residence in a house which has
been sold by her husband during his life time, unless a charge is created in
her favour prior to the sale. The right which a Hindu wife has during her husband's
life time is a matter of personal obligation arising from the very existence of
the relation and quite independent of the possession by the husband of any
property, ancestral or self acquired." (Head Note) Dr. Abdur Rahim Undre
v. Smt. Padma Abdur Rahim Undre, AIR 1982 Bombay 341, is a Division Bench decision of the Bombay High Court, dealing
with right to residence of a wife in the matrimonial home. The marriage between
the parties was subsisting in law but had broken down beyond repairs. The husband
filed a suit inter alia for injunction, restraining the wife from entering the
matrimonial house. The Court held that an injunction subject to certain terms
and conditions could be granted. The parties, on account of seriously estranged
relationship between them could not be forced to live together.
flat was big enough to allow the parties to live there separately. The Court
earmarked separate portions for the husband and the wife to live separately and
restrained the wife from entering the portion in occupation of the husband, who
was an eminent surgeon, so that he could have a peace of mind to enable him to
discharge his duties as a surgeon more efficiently.
addition, the husband was directed to pay a certain amount of money by way of
maintenance to the wife.
Single Bench decision of the Andhra Pradesh High Court in M/s. Bharat Heavy
Plates and Vessles Ltd., AIR 1985 Andhra Pradesh 207, is more near to the facts
of the case at hand. The husband was an employee in a company. He was allotted a
company quarter in which he lived with his wife. The quarter was the
matrimonial home. However, differences developed between the husband and wife,
leading to their estrangement and finally the wife went to the Court, charging
her husband with neglect to maintain her and her three minor children. The
husband left the company quarter and it was occupied only by his wife and minor
children. The husband also wrote to the company, terminating the lease which
was in his favour. The hovering prospects of eviction led the wife to the Court
for protection, seeking an injunction restraining the company from evicting the
wife and her three minor children.
High Court upheld the order impugned before it, whereby the company was
restrained from evicting the wife and her minor children. For forming this
opinion, the Court took into consideration the facts that the quarter was meant
to be used by the employee and the husband was under an obligation to provide
shelter to the wife and children. The husband and the company had both
recognized the quarter to be the matrimonial home wherein the wife too was
residing. The amount of rent was directed to be deducted from the salary of the
Court in Kirtikant D. Vadodaria v. State of Gujarat and another, (1996) 4 SCC
479, has held: "According to the law of land with regard to maintenance
there is an obligation on the husband to maintain his wife which does not arise
by reason of any contract - expressed or implied - but out of jural
relationship of husband and wife consequent to the performance of marriage. ..
The obligation to maintain them is personal, legal and absolute in character
and arises from the very existence of the relationship between the
parties." Section 18 of the Hindu Adoption and Maintenance Act confers a
right on a wife to be maintained by her husband during her life time. According
to Mulla, the right of a wife for maintenance is an incident of the status or
estate of matrimony and a Hindu is under a legal obligation to maintain his
Mulla, ibid, pp 454-455) The Hindu Marriage Act provides for divorce. Section
15 indicates when divorced persons may marry again. Section 25 enables the
court to pass an order for providing alimony and maintenance in favour of the
divorced wife. Section 27 enables the court to make provisions in the decree in
respect of a property that may belong to the wife or to both. On the status of
wife being terminated by a decree for divorce under the Hindu Marriage Act, the
rights of the divorced wife seem to be cribbed, confined and cabined by the
provisions of the Hindu Marriage Act and to the rights available under Sections
25 and 27 of the Act.
V.B. Jaganathan v. A.R.Srividhya, 1997 (2) MLJ 366, the Madras High Court has
held that a court can pass an appropriate order under Section 27 of the Hindu
Marriage Act even when one of the parties to a marriage claims the property as
belonging to him exclusively thereby indicating that it might have been
possible to make a provision regarding the tenanted premises, in the
proceedings under the Hindu Marriage Act. How far that order would be binding
on a landlord who is not a party is another question, but it would certainly
give her a right to defend the proceedings for eviction.
we may refer to Karam Singh Sobti & Anr. v. Sri Pratap Chand & Anr.,
AIR 1964 SC 1305, though not directly in point. Proceedings for eviction were
initiated by the landlord against the tenant and sub-tenant unlawfully inducted
by the tenant in the premises. The tenant suffered a decree for eviction and
decided not to file an appeal. This Court upheld the right of sub-tenant to
file an appeal in his own right against the decree so as to protect himself
even though thereby the tenant would also be freed from the decree.
opinion, a deserted wife who has been or is entitled to be in occupation of the
matrimonial home is entitled to contest the suit for eviction filed against her
husband in his capacity as tenant subject to satisfying two conditions : first,
that the tenant has given up the contest or is not interested in contesting the
suit and such giving up by the tenant-husband shall prejudice the deserted wife
who is residing in the premises; and secondly, the scope and ambit of the
contest or defence by the wife would not be on a footing higher or larger than
that of the tenant himself. In other words, such a wife would be entitled to
raise all such pleas and claim trial thereon, as would have been available to
the tenant himself and no more. So long as, by availing the benefit of the
provisions of the Transfer of Property Act and Rent Control Legislation, the
tenant would have been entitled to stay in the tenancy premises, the wife too
can continue to stay exercising her right to residence as a part of right to
maintenance subject to compliance with all such obligations including the
payment of rent to which the tenant is subject. This right comes to an end with
the wife losing her status as wife consequent upon decree of divorce and the
right to occupy the house as part of right to maintenance coming to an end.
also of the opinion that a deserted wife in occupation of the tenanted premises
cannot be placed in a position worse than that of a sub-tenant contesting a
claim for eviction on the ground of subletting. Having been deserted by the
tenant-husband, she cannot be deprived of the roof over her head where the
tenant has conveniently left her to face the peril of eviction attributable to
default or neglect of himself. We are inclined to hold and we do so that a deserted
wife continuing in occupation of the premises obtained on lease by her husband,
and which was their matrimonial home, occupies a position akin to that of an
heir of the tenant-husband if the right to residence of such wife has not come
to an end. The tenant having lost interest in protecting his tenancy rights as
available to him under the law, the same right would devolve upon and inhere in
the wife so long as she continues in occupation of the premises. Her rights and
obligations shall not be higher or larger than those of the tenant himself. A
suitable amendment in the legislation is called for to that effect. And, so
long as that is not done, we, responding to the demands of social and gender
justice, need to mould the relief and do complete justice by exercising our
jurisdiction under Article 142 of the Constitution. We hasten to add that the
purpose of our holding as above is to give the wife's right to residence a
meaningful efficacy as dictated by the needs of the times; we do not intend nor
do we propose the landlord's right to eviction against his tenant to be
subordinated to wife's right to residence enforceable against her husband. Let
both the rights co-exist so long as they can.
have dealt with all the abovesaid aspects of the law as it was urged on behalf
of the landlord __ respondent No. 1 that Smt. Achala, the appellant has no
right to contest or defend herself in these proceedings nor a right to file and
prosecute this appeal as there is no privity of contract between the appellant
and landlord and the appellant is neither a tenant nor so recognized ever by
the respondent No. 1 __ landlord. We cannot agree. We feel that the appellant
was rightly ___ in the facts and circumstances of the case ___ permitted by the
High Court to be joined as a party to the proceedings. She was also rightly
allowed to contest the suit and deposit the rent in the court for payment to
landlord for and on behalf of the tenant-husband.
as a deserted wife, whose status as wife has not come to an end by a decree of
divorce or by decree for annulment of marriage, is concerned, we have made the
position of law clear as above. However, the case of a divorced wife stands on
a little different footing. Divorce is termination of matrimonial relationship
and brings to an end the status of wife as such. Whether or not she has the
right of residence in the matrimonial home, would depend on the terms and
conditions in which the decree of divorce has been granted and provision for
maintenance (including residence) has been made. In the event of the provision
for residence of a divorced wife having been made by the husband in the
matrimonial home situated in the tenanted premises, such divorced wife too
would be entitled to defend, in the eviction proceedings, the tenancy rights
and rights of occupation thereunder in the same manner in which the
husband-tenant could have done and certainly not higher or larger than that.
She would be liable to be evicted in the same manner in which her husband as
tenant would have been liable to be evicted.
present case, it is admitted by the appellant that on 3.12.1998, that is,
during the pendency of these proceedings and while the matter was pending in
the High Court a decree for dissolution of marriage by divorce based on mutual
consent has been passed. The terms and conditions of such settlement have not
been brought on record by the appellant which she ought to have done. It is not
the case of Smt. Achala, the appellant that she is entitled to continue her
residence in the tenanted premises by virtue of an obligation incurred by her
husband to provide residence for her as a part of maintenance. She cannot,
therefore, be allowed to prosecute the appeal and defend her right against the
claim for eviction made by the landlord.
appeal is, therefore, held liable to be dismissed and is dismissed accordingly.
However, in the facts and circumstances of the case, the appellant is allowed
time till 31.12.2005 for vacating the suit premises, subject to the following
the appellant shall clear all the arrears of rent (calculated upto the date of
deposit) at the rate of Rs.700/- per month, on or before 31st March, 2005, by depositing the same in the
with effect from 1st April, 2005 the appellant shall continue to deposit rent
calculated at the rate of Rs.700/- per month on or before 15th day of each
month for payment to landlord;
or before 31st
December, 2005, the
appellant shall hand over vacant and peaceful possession over the suit premises
to the landlord and shall not in-between part with possession to anyone else or
create third party interest;
an undertaking on affidavit, incorporating the above said terms, shall be filed
in the executing court on or before 31.3.2005.
order as to the costs.