http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12

CASE NO.:

Appeal (civil) 4250 of 2000

PETITIONER:

B.P. ACHALA ANAND

RESPONDENT:

S. APPI REDDY & ANR.

DATE OF JUDGMENT: 11/02/2005

BENCH:

CJI,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

R.C. Lahoti, CJI

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.

The 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.

The 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12

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.

The 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.

On 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 occupation.

The 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.

The 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12

The 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.

The 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.

Feeling 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.

According 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.

Even 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.

Smt. Achala has, feeling aggrieved by the judgment of the

High Court, preferred this appeal by special leave. The tenant \026

H. S. Anand has not filed any appeal.

The Karanataka 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.

Under Section 30 of the Act once the interest of the tenant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12

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 him.

Having said so generally, we may now deal with the right

of a wife to reside in the matrimonial home under personal laws.

In the 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.

The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12

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.

Any 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."

In Old Gate Estates, Ltd. v. Alexander and Anr.,

[1949] 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, [1947] 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, [1944] 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12

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 against him.

Applying 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, [1950] 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.

The deserted woman's equity (as it was called) was

considered by House of Lords in the National Provincial Bank

Ltd. v. Ainsworth [1965] 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).

His 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12

been dealt with in other comparable jurisdictions.

In 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

of the authorities, including Bendall Vs. McWhirter

( 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.

In Public Trustee vs. Kirkham ( 1956 V.L.R.

64) sitting in the same court Herring C.J. criticized

the doctrine.

In Maio 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.

Finally, 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, [1948] 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 [1953] 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:

"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 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.

It is of interest to note that the above decision of the

House of Lords led to the enactment of the Matrimonial Homes

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12

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.

It has 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, stated:

"The 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.

When 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:-

"Under 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.

The 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12

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.

In addition, the husband was directed to pay a certain amount of

money by way of maintenance to the wife.

A 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.

The 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 husband.

This 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. \005.. 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 wife.

(See : 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.

In 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12

is another question, but it would certainly give her a right to

defend the proceedings for eviction.

Incidentally, 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.

In our 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.

We are 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 \026 and we do so \026 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.

We have dealt with all the abovesaid aspects of the law as

it was urged on behalf of the landlord __ respondent No. 1 that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12

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.

So far 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.

In the 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.

The 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 conditions:-

(i) that 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 executing court;

(ii) 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;

(iii) on 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;

(iv) that an undertaking on affidavit, incorporating the

above said terms, shall be filed in the executing

court on or before 31.3.2005.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12

No order as to the costs.