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shrinivasg Advocate. (N)     19 September 2011

Residence order undr d.v.

case of my client is pending in family court for residence order. In the meantime the spouse(husband) of my client served a notice from his father  on himself  and my client to vacate the flat, on flase grounds of  dispute of the son and daughter in law is disturbing them . The flat is owned  by  father in law of my client and she . is staying there from the inception of marriage till date with her two daughters. This notice is served to serve the purpose of defeating the order proces of Residence order. Reply will be given to the notice, and as the notice is part of d..v  it will be submitted in the court requesting to pass residence order in that shared house.what other steps you  senior advocare/expert suggest.



Learning

 22 Replies

gaury..fight to win (Education)     19 September 2011

i also want to know.

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA)     19 September 2011

as per the recent judgement the daughter-in-law can not claim the property right from her parents-in-law, if her husband is not residing there and husband of ur client is going to do the same by getting issued notice from the side of his father.

gaury..fight to win (Education)     19 September 2011

what if property is ancestral?

shrinivasg Advocate. (N)     20 September 2011

the said property is anchesteral.

Adv. Chandrasekhar (Advocate)     20 September 2011

I hope you might have made FIL and MIL as respondents in DV case.

Let us see that as per Section 2 (s) of DV Act, what are the requirements a wife should have to get the benefits of residential order:

(1)  She lives or has lived either singly or along with respondent; (here the requirement is fulfilled)

(2)  the house is owned or tenanted by wife and the respondent; (here if FIL has been made respondent, the requirement has been fulfilled otherwise not)

THIRD REQUIREMENT HAS ALL PERVADING EFFECT.

(3)  SUCH HOUSEHOLD WHICH MAY BELONG TO THE JOINT FAMILYOF WHICH THE RESPONDENT IS A MEMBER, IRRESPECTIVE OF WHETHER THE RESPONDENT OR WIFE HAS ANY RIGHT, TITLE OR INTEREST IN THE SHARED HOUSEHOLD.

The third requirement takes away the all false pleas of FIL of disowning the son to disentitle the statutory right conferred on the wife.  The ratio laid down in S.R. Batra case is not applicable in this case, because in that case the wife has not lived in the house, where she was seeking shared household.

In my view, the DILand the children have got right to shared household irrespective of that property is ancestral or self acquired by FIL,  

shrinivasg Advocate. (N)     21 September 2011

Adv..Rakhi budhiraja/adv.chandu

I agree with Adv.chandu that batra case is different. Here the DIL staying in FIL's  house since the marriage date. Her spouse is in unethical relations with other woman. He in collusion with his father gave the notice to vacate the flat on himself and wife. If he goes away as per notice and do not  take his  wife and children with him, what the wife should do is the question. According to me she should not leave the house and come on the street due to vimsical behavour of his husband as she is not sure about his careing her , but stay there in FIL's house which is ancesteral and more over it is also safe for her to stay there. Alternatively her spouse should make similar level of alternative arrangement to her,till then she should not leave the house. In family court case is filed under D.V. for residence order and judge will take care of the application, after hearing.The notice is given to defeat the very purpose of law for residence order. If civil suit is filed,by her FIL, according to me it will not go agaist the DIL. Pl.comment.

shrinivasg Advocate. (N)     22 September 2011

Adv. Chandu

FIL and MIL is not made party to the D.V.case which is counterclaim in divorce case filed by her spouse . Now we may add these names, but inspite of this residence order can be taken out. as wife is staying in thel shared house of her fatherin law along with husband and two children. If otherwise,  Pl comment

shrinivasg Advocate. (N)     22 September 2011

Adv.Shoni Kapoor,

Please read  the above case and give your comments.

Adv. Chandrasekhar (Advocate)     22 September 2011

In the DV case, you move an application for amended memo of parties inclluding in-laws.  Otherwise, you may face difficulties in execution of residential order.  Move another application to maintain status-quo in respect of residence of applicant wife till the disposal of the main application.

Tajobsindia (Senior Partner )     30 September 2011

1. Your case is weak for a reason FIL is not made party and after thought they are now being made party for which the other side will have equally present their befitting say to defeat the very purpsoe for which your side is in Court.


2. Meanwhile since the Notice of disownment is already served by first movers (non arrayed FIL) husband is at liberty to leave his fathers ancestral house and start his own seperate dwelling. Court can’t compel him to return back nor allow DIL with children to forcefully occupy the erstwhile shared household of hers in the name of residence rights. See the interpretation of residence rights sub clauses ! Reasoning here is that she has shown as material consideration that she was already forced to leave her shared household for whatever reason (it is besides the point to your core issues) and for the same she has put this Bharat Ratna DV complaint to regain her rights to residence is it not so!
So important thing to watch and bring to notice of court right now is if husband leaves this house and starts his own dwelling. Second no stay has been granted the moment Bharat Ratna DV complaint for prayer clause was filled. At least status quo should have been obtained ex party or on very first appearance date.


Also note now husband will offer his seperate dwelling that he might by now have taken for residence as that option also is there under The Act, 2005 which is much saver for FIL to let go his ancestral property ! Here interesting thing to bring out to court notice is when husband filed the fathers Notice did he use another address by way of updated memo or same address as alleged in complaint to be ancestral property in dispute over residence right?. Both address should be different and if not then technical mistake is fatal on husband’s part.


The above three are main facts which makes your case weak as per my observation on recent development in case laws of Bharat Ratna DV Act are concerned. However ld trial court may come up with is own views which would be interesting to read down if reproduced later for our understanding of this qury. 

shrinivasg Advocate. (N)     30 September 2011

In the above case court maintained statusco till next hearing and FIL served notice on his sone and daughter in law to vacate his flat. the spouse of the DIL has not made any arrangement for her and then how she can vacate the flat. There is no mention if she should vacate the flat along with her two daughter. Notice is served only on both son and DIL. Her spouse should make arrangement of her stay alongl with both daughters and since property rights are yet not decided and her spouse served notice on him and his spouse in colusion with his father, court will give stay/ask to maintain status co till hearing of an application under D.V. for residence order is finalised, and ulternatively court may make order to her spouse to make ulternative arrangement for her till  the divorce case is finalised along with D.V. case and demand for RCR by his spouse is finalised.

shrinivasg Advocate. (N)     30 September 2011

Further I have to say that since her spouse is also  staying in her FIL's flat and divorce case filed by him on her in family court since last 1.5 years and case is now for hearing his intention to defeat the residence order is obvious, and hence court will  pass residence order for her and in that order ask him to make alternative arrangement for her stay. Pl.comment.

shrinivasg Advocate. (N)     30 September 2011

Advvocate Chandu.

Can we make now the amendment of  addding the name of the FIL in the suit after receiving notice and giving reply to them. we have submitted the notice copy and our reply that  we are not vacating the flat to the court and court advised the spouse of the DIL not to take her away till further date. Addding the name of the FIL in the D.V.suit filed against her husband is no doubt required, but court advised both to settle the matter during the next hearing otherwise necessary orders will be passed after Diwali. Can court stop her spouse to go away as he has served the notice on himself also to vacate the flat,and if he goes away  singley and do not take his wife and 2 children, who she can vacate the flat. I think , if  FIL filed civil suit, she may make defence that since she resides there since last 13 years and  her husband is  against her, unless alternative arrangement is made by him she should be allowed to stay there only along with her children.

Adv. Chandrasekhar (Advocate)     30 September 2011

Why I suggest that FIL and MIL shall be made parties is for the reason for proper implementation of residential order.  Residential order will go in your favour but even then, if FIL evicts her forcefully by saying that he is not a party to the DV case, the police cannot help her to stay in the house.  so, I suggested to make FIL and MIL as parties.

Once, a supreme court judge (I think Krishna Iyer) said that on the street, street smarts are living.  If the judges cannot understand the mischivous games these street smarts play, and raise to the occasion and pierce the mischief, they cannot deliver the justice and the judges are cheated by gullible public.  On the face of it, both FIL and husband are playing fraud to deprive the lady of her legal right clearly expressed in the statute that even though she or her husband has no title and other legal rights on the residential property, she is entitled to stay there.

Now FIL's disowning drama.  It is nothing but pure drama, which can be perceived by the courts.  In either personal laws or codified laws, there is no provision or no modus operandi of disowning the blood relations.  Simply giving paper notification does not absolve him from his liabilities towards his legal heirs.  It does not matter that before moving the amendment of parties application by you, he published the disowning notification.  But, he did so only after your filing the DV case seeking the residential rights.  So, there FIL is fully exposed.

The court will not leave that hapless lady and the two children like that.  As you correctly said, if the court wants to give any consideration to FIL's submissions, it insists the husband to provide appropriate residential accomodation to her and children in the similar locality where she was living.

I know you certainlly succeed in the case.

best of luck.


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