Smt. B.P. Achala Anand had been living in a tenanted apartment under her estranged husband’s name for several years when the landlord initiated proceedings for eviction. Smt. Achala’s husband, H.S. Anand, appeared in court to defend the suit, but it appears that he was not invested in defending his claim to remain on the property considering that he had a strained relationship with his wife and was no longer living there.
Smt. Achala decided to take matters into her own hands and filed an appeal to defend against the eviction. The landlord filed a petition contesting Smt. Achala’s right to be involved in the suit as it was a landlord-tenant dispute, and she was not the written tenant. While this matter was pending in the High Court, Smt. Achala and H.S. Anand got divorced.
The Supreme Court ruled that wives of tenants have the right to join as party to such eviction proceedings and to defend their right to remain in their matrimonial home. However, in this particular case, Smt. Achala was not permitted to prosecute the appeal and defend her right against the claim for eviction, as the property was no longer considered her matrimonial home by the end of the proceedings on account of the divorce.
2. 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.
3. H.S. Anand had taken the ground floor of [the premises forming part of dispute in the present litigation] 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 tenant H.S. Anand resided in the premises with his family members including his wife Smt. Achala.
5. On 28/11/1991, the landlord served a notice upon the tenant H.S. Anand and initiated proceedings for eviction from the suit premises … 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 … 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.
6. 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 urther 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 … 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.
7. 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)…[allowing] allowed the tenant to continue in the front portion [of the premises], namely, bedroom, hall, verandah, toilet etc.
8. Feeling aggrieved, the landlord preferred a revision petition in the High Court which has been disposed of by the judgment impugned herein … 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.
10. The Karnataka 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 … 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.
11. Under Section 30 of the Act, … 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.
12. 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 … For the purpose of maintenance the term ‘wife’ includes a divorced wife.
13. 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 collusion, connivance or neglect — or was acting to the detriment of such persons.
24. In Unnamalai Ammal v. F.W. Wilson and Ors., MANU/TN/0373/1927: AIR 1927 Mad 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.
26. A Single Bench decision of the Andhra Pradesh High Court in Bharat Heavy Plates and Vessles Ltd.,MANU/AP/0066/1985 : (1986)ILLJ145AP, is more near to the facts of the 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.
27. This Court in Kirtikant D. Vadodaria v. State of Gujarat and Anr., MANU/SC/1159/1996 : (1996)4SCC479, 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.
28. 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.
29. 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.
30. 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 is another question, but it would certainly give her a right to defend the proceedings for eviction.
32. 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. … So long as, 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.
33. 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. … 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.
34. We have dealt with all the above said aspects of the law as it was urged on behalf of the landlord — respondent No. 1 that Smt. Achala, the appellant has right to contest or defend herself in these proceedings nor a right to file and prosecute this 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.
35. 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.
36. 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.
37. The appeal is, therefore, held liable to be dismissed and is dismissed accordingly.