TMI Blog2005 (2) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... lain. 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 situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loor 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 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 evict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent 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 Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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, dealin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... 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