IMPORTANT POINT
Right to residence under Section 19 of D.V. Act is not an indefeasible right of residence in shared household especially when daughter-in-law is pitted against aged father-in-law and mother-in-law.

JUDGMENT

Suresh Kumar Kait, J.—Parties to the present petition are related to each other in a way that petitioner is the daughter-in-law and respondents are her parents-in-law. The matrimonial dispute between petitioner-wife, with son of respondents is the foundation of dispute inter se parties. Multiple legal proceedings are said to be pending between husband and wife but what has brought parties to this Court is the Agreement to Sell dated 18.02.2021 entered between respondent No.1-mother-in-law with third party qua property bearing Flat No.33, Second Floor, SFS DDA Flats, Motia Khan, New Delhi, which is purportedly in her name. According to petitioner the property in question is a shared household property where she had lived with her husband and so, she cannot be alienated from the said property.

2. In the aforesaid view of the matter, petitioner filed an application under Section 19(1)(d) of the Protection of Women from Domestic Violence Act, 2005 (“DV Act”) and the learned Magistrate after issuance of notice, vide order dated 15.03.2021 granted interim relief to petitioner restraining the respondents from selling or alienating the property in question. The learned Metropolitan Magistrate posted the matter for 27.07.2021 for arguments on interim application as well as on application seeking restraint.

3. Aggrieved against the said interim order dated 15.03.2021 passed by the learned Magistrate, respondents herein preferred a revision petition before the Court of Sessions under Section 395/397 Cr.P.C., which was converted into an appeal and vide judgment dated 03.05.2021 the said appeal was allowed. This is how petitioner is before this Court seeking setting aside of judgment dated 03.05.2021 passed by the learned Appellate Court.

4. Since the subject matter of the present petition is Agreement to Sell dated 18.02.2021 which has to be concluded or executed by 18.05.2021 and also since time is the essence of any agreement, therefore, the present petition has been heard on a short notice. Learned counsel for respondents has chosen to argue the present petition without filing any reply and therefore, with the consent of counsel for the parties, the present petition was finally heard at length.

5. Mr. Jatan Singh, learned counsel for petitioner submitted that the impugned judgment dated 03.05.2021 passed by the learned Appellate Court shows utter non application of mind, as it has been passed without considering the facts and circumstances of the case. Learned counsel submitted that the learned Sessions Judge has failed to consider the provisions of Section 2(a) and 2(s) of DV Act, 2005 and has also failed to correctly interpret the law laid down the Hon’ble Supreme Court in Satish Chandra Ahuja Vs. Sneha Ahuja 2021 (1) SCC 148, as the said decision does not distinguish between permanent living or short duration living in the shared household. Further submitted that the Appellate Court has not considered said judgment in its correct perspective wherein definition of shared household in Section 2(s) of DV Act has been rewritten by the Hon’ble Supreme Court.

6. Learned counsel for petitioner further submitted that the Appellate Court has wrongly held that since petitioner most of the time had stayed at different workstations of her husband, however, lived in the property in question on three occasions for a short duration with the respondents, therefore, the said house cannot be said to be a shared household.

7. Lastly, learned counsel submitted that petitioner’s complaint under the DV Act, 2012 is pending consideration for the last 4½ years and by permitting the respondents to execute the Agreement to Sell, great prejudice has been caused to petitioner and her minor son. Thus, interest of justice demands that the impugned judgment is liable to be set aside and respondents be restrained from selling the property in question without making any provision for alternative accommodation for the petitioner and her son. A direction is