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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,

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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.

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       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

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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

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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

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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

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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

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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

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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

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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

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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.

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No order as to the costs.