B.P. Achala Anand vs S. Appi Reddy & Anr on 11 February, 2005 [(2005) 3 SCC 313]

Facts of the Case:

Appellant B.P Achala Anand was the legally wedded wife of respondent No.2, Mr Anand. Their marital bond got estranged and Mr.H.S Anand deserted the appellant from 1983, which paved the way for the initiation of divorce proceedings in 1991 and culminated in divorce by mutual consent in 1998. However, the matrimonial home they were living in, is the subject matter of this litigation. The ground floor of the property was taken by H.S Anand by tenancy from landlord-respondent No.1.The said property was in a dilapidated state, and in 1991, on mutual agreement, the possession of a large share of the tenanted property was transferred to the landlord for repairs, with the tenant retaining only verandah, one-bedroom, and an attached toilet. But the agreement was not fulfilled. Moreover, the landlord filed a suit against the tenant for arrears of rent. Subsequently, the tenant, that is, H.S Anand made a fitting defense. But after deserting his wife, he was not serious in contesting the suit. Consequently, a decree for eviction was passed and the appellant bore the chances of being thrown to the streets.

Appellant moved an application under Order I Rule 10 of Code of Civil Procedure seeking her own impleadment in the eviction proceedings, which was ultimately rejected by the trial court.  A revision petition was filed in the High Court by the appellant, which was contested by the landlord. High Court allowed the revision petition and the order of the trial court 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, appellant deposited the amount and thereafter contested the suit. Later trial court disposed of the suit granting partial eviction of the tenant. As per the order, the appellant was allowed to possess the veranda, one-bedroom, and attached toilet. The landlord was not happy with this decision, so he went to High Court with a revision petition. High Court noted that, landlord and Smt. Anchala does not embody the landlord-tenant relationship and hence the order of the trial court was set aside and order complete eviction.  Aggrieved by this order of the High court, the appellant filed this appeal by special leave to Supreme Court.

Issue

Whether right to maintenance of a divorced wife includes the right to residence, even when the matrimonial home they were living in was a rented space?

Rule of Law

Section 18 of The Hindu Adoption and Maintenance Act,1956 provides for the maintenance of a wife. 

Section 3(b) of the same Act states that “Maintenance” includes:

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

Judgment Analysis

After considering the factual situation, the Supreme Court concluded that a divorced wife has the right of residence, which would depend on the decree of divorce. Residence, be it under the ownership of a husband/family member or a rented space has to be granted along with maintenance and specifically mentioned in the divorce settlement. However this case doesn’t refer to any such circumstance, at least it was not brought to the notice of the court. So the Court prevented the appellant from going on with prosecuting the appeal and defending her right against eviction. Hence the appeal was dismissed.

Courts referred to the words of Lord Dennings in Due process of Law “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[1]”.

“In various English decisions regarding deserted wife in a rented space, the same view was reiterated. 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[2]”.  Even if the wife 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[3].

But law stands in a different position in the case of a divorced wife. In National Provincial Bank Ltd. v. Ainsworth House of Lords held that “any right on the part of the deserted wife to remain in occupation, terminates when the marriage terminates[4]”. The reason behind this position is 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[5]. Lord Denning stated: “The 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 agrees 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[6]”.

There is a lack of precedents from Indian courts that can well be applied for this case. However, the right to maintenance comes from a different footing in Hindu Law. In India, the right to maintenance arises out of the status as wife not by way of contract or otherwise[7]. Maintenance of a wife by husband is a liability created by Hindu Law. And this obligation is personal, legal, and absolute in character. In Karam Singh Sobti & Anr  v. Sri Pratap Chand &Anr[8] , it was held, 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 a tenant subject to two conditions: first that the tenant has given up the contest or is not interested in contesting the suit and such a giving up shall prejudice the wife residing in the premises: and secondly, the scope and ambit of the contest or defense by the wife would be on a  footing higher or larger than the tenant himself. However, this right comes to an end with the wife losing her status as a wife consequent upon decree of divorce and the right to occupy the house as part of the right to maintenance coming to an end.

Conclusion

Right to residence comes with a bundle of rights in matrimony. And this right extends even to deserted wives, be it the matrimonial home they were living in is owned by husband, in-laws, or rented space. Also Section 17 of the Protection of Women from Domestic Violence Act, 2005 provides for the right of a wife to reside in a shared household.  But, the position of a divorced wife is quite distinguished. Since all the ties of marriage have ended by the divorce, there exist no obligations other than that specified in the divorce settlement. In the recent judgment of Satish Chander Ahuja v. Sneha Ahuja, Supreme Court held that a woman can claim the right to residence in the houses owned or rented by relatives as well. This means that she can seek a residence order with respect to the property, which belongs to in-laws if she and her husband lived there with some permanency after marriage. This claim can extend even to a rented space, where the husband and wife have been living as their matrimonial home. The wife can rightfully claim even a rented space on divorce. But the right to residence has to be specifically mentioned and awarded in the divorce, for the divorced wife to enjoy it.

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References:

[1] London, Butterworths, 1980, at page 212

[2] Old Gate Estates, Ltd. v. Alexander and Anr., [1949] 2 All England Law Reports 822

[3]Hutchinson v. Hutchinson, [1947] 2 All E.R. 792

[4] [1965] AC 1175

[5] Robson v. Headland, [1948] 64 TLR 596

[6] Waughn v. Waughn [1953] 1 QB 762

[7] Sri Raja Bommadevara Raja Lakshmi Devi Amma Garu v. Sri Raja B. Naganna Naidu Bahadur Zamindar Garu And another AIR 1925 Madras 757

[8] Air 1964 SC 1305