Delhi High Court
Smita Jina vs Amit Kumar Jina on 5 August, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 28.07.2025
Judgment pronounced on: 05.08.2025
+ MAT.APP.(F.C.) 270/2025, CM APPL. 44851/2025, CM
APPL. 44852/2025 & CM APPL. 44853/2025
SMITA JINA .....Appellant
Through: Mr. Rajat Bhalla, Adv. with
Appellant in Person
versus
AMIT KUMAR JINA .....Respondent
Through: Mr. Ajay Kumar Chopra, Mr.
Mudit Talesara, Mr. Samarth
Talesara and Ms. Nandita
Mishra, Advs.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
ANIL KSHETARPAL, J.
1. The present Appeal has been filed by the Appellant under
Section 19(1) of the Family Courts Act, 1984 challenging the order
dated 17.04.2025 [hereinafter referred to as “Impugned Order”]
passed by the Ld. Principal Judge, Family Court, Patiala House
Courts, New Delhi [hereinafter referred to as “Family Court”] in
CS(OS) 22/2023 captioned Amit Kumar Jina vs. Smita Jina, whereby
an application under Order XII Rule 6 of the Code of Civil Procedure,
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1908 [hereinafter referred to as “CPC“] filed by the Respondent
(Plaintiff before the Family Court) was allowed and it was held that
both, the Appellant (Defendant before the Family Court) and the
Respondent, are entitled to an equal half share i.e. 50% each in the
property bearing no. C-5/18, 2nd Floor, Grand Vasant, Near DPS,
Vasant Kunj, New Delhi [hereinafter referred to as “suit property”].
FACTUAL MATRIX:
2. The brief facts leading to the present Appeal, as pleaded, are
that the marriage between the parties was solemnized on 30.01.2005
in accordance with Hindu rites and ceremonies at Bhilai, Chhattisgarh.
Thereafter, the parties relocated to London, United Kingdom, on
30.07.2006, where they resided together for nearly eight years and
subsequently acquired British nationality. Out of the said wedlock, a
female child was born on 30.11.2009, who remains in the care and
custody of the Appellant. During the subsistence of marriage, the
parties jointly purchased the suit property by virtue of a Sale Deed
dated 28.06.2010 [hereinafter referred to as “Sale Deed”], duly
registered on 01.07.2010 with the Office of the Sub-Registrar, New
Delhi. The purchase was funded through a joint housing loan of
Rs.2,00,00,000/- obtained from the State Bank of India, Bhilai, with
the Appellant‟s father acting as a Guarantor. The Appellant had
initially contributed GBP 58,000 (approximately Rs.50,00,000/-)
towards the purchase of the suit property, and that the parties have
continued to service the EMI‟s towards the home loan in equal
proportion. Thereafter, the parties, along with their minor daughter,
returned to India on 31.07.2014. On account of growing matrimonial
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discord, the parties started living separately since 30.07.2020.
Subsequently, a series of legal proceedings were initiated between the
parties. The Appellant filed a Complaint Case No. 11/2023 under the
Protection of Women from Domestic Violence Act, 2005 [hereinafter
referred to as “PWDV Act“], before the Ld. Metropolitan Magistrate,
Mahila Court, Patiala House Courts, New Delhi, which is presently
pending adjudication. The Respondent instituted guardianship
proceedings bearing GP No. 28/2023 inter alia seeking custody of
their minor daughter which is also pending adjudication.
3. It is in the aforesaid background that the Respondent sought
partition of the suit property, which, according to the Appellant,
constitutes her only matrimonial home and continues to be the
residence of the Appellant along with the minor daughter. Upon
completion of pleadings in the said suit, the Respondent filed an
application under Order XII Rule 6 of the CPC, seeking a judgment on
the basis of alleged admissions made by the Appellant in her written
statement.
4. In parallel, both parties also instituted divorce proceedings by
filing cross-petitions under Section 13(1)(ia) of the Hindu Marriage
Act, 1955, [hereinafter referred to as “the HMA”], which culminated
in a common judgment and decree dated 20.03.2025 passed by the
Family Court, dissolving the marriage under Section 13B of the
HMA. The said decree is presently under challenge at the instance of
the Appellant in MAT.APP.(F.C.) No. 167/2025, wherein the
Respondent has been restrained from solemnising a second marriage
in the interregnum.
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5. Thereafter, vide the Impugned Order dated 17.04.2025, the
Family Court, upon considering the record and the submissions made
on behalf of both the parties, allowed the Respondent‟s application
under Order XII Rule 6 CPC and passed a preliminary decree
declaring both parties are entitled to 50% share each.
APPELLANT’S CONTENTIONS:
6. Learned counsel for the Appellant contends that the Family
Court has erred in passing the Impugned Order dated 17.04.2025
allowing the application filed by the Respondent under Order XII Rule
6 of the CPC, inasmuch as it has failed to appreciate the facts and
circumstances of the present case in their correct perspective. It is
contended by the learned counsel for the Appellant that despite
specific averments and material placed on record, the Family Court
has passed a preliminary decree of partition under Order XII Rule 6 of
the CPC solely on the basis of alleged admissions, without
considering that the written statement filed by the Appellant, read in
its entirety, disclosed no unequivocal or unambiguous admissions that
would justify the passing of the said decree.
7. He further contends that the Family Court has failed to consider
that the Appellant had categorically denied the Respondent‟s claim of
equal ownership and had asserted that she had contributed over 60%
for the purchase and furnishing of the suit property. Despite the
existence of this material factual dispute regarding actual financial
contribution and possession, the Family Court presumed equal
ownership solely on the ground that no specific share ratio was
mentioned in the Sale Deed. It is further submitted that the purported
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admissions relied upon by the Respondent could not be construed in
isolation, but were required to be considered holistically, in the
context of the pleadings as a whole.
8. It is further contended that the Impugned Order is liable to be
set aside on the ground that the suit property constitutes the
matrimonial home of the Appellant and, therefore, falls within the
definition of a „shared household‟ under Section 17 of the PWDV Act.
It is submitted that the Family Court failed to consider that the
statutory scheme under Section 17 of the PWDV Act is intended to
protect the right of a woman to reside in the shared household,
irrespective of ownership or title. In terms of the said provision, the
Appellant has a statutory right to reside in the shared household, and
no co-owner, including the Respondent, has any right to seek partition
or to disturb her possession therein.
9. It is contended that the Family Court has failed to comprehend
that any decree of partition, at the present stage, would result in
serious hardship and prejudice to the Appellant, who continues to
reside in the suit property along with the minor daughter. It is urged
that the Appellant‟s continued residence in the said premises, coupled
with the child‟s welfare, ought to have weighed as a relevant equitable
consideration in the adjudication of the Respondent‟s application,
particularly when the Appellant‟s right of residence under the PWDV
Act remains sub judice.
10. Reliance is placed on the judgment passed by the Delhi High
Court in Preeti Satija vs. Raj Kumari &Anr.; (2014) SCC OnLine Del
188, wherein this Court held that a decree under Order XII Rule 6 of
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the CPC can be passed only when the admission is clear,
unambiguous, and unequivocal. Further reliance is placed on the
judgments of the Supreme Court in S.R. Batra & Anr. vs. Taruna
Batra; (2007) 3 SCC 169, Satish Chander Ahuja vs. Sneha Ahuja;
(2021) 1 SCC 414 and Sapna vs. Pravim Ishwar Bhai Patel &
Others; (2019) SCC OnLine Bom 760, to highlight the statutory rights
of a woman to reside in her shared household and the need to
harmonise such rights with claims for partition.
RESPONDENTS’ CONTENTIONS:
11. Per contra, learned counsel for the Respondent, who appears on
advance notice of the present Appeal, supports the Impugned Order
and submits that the Family Court has rightly allowed the application
under Order XII Rule 6 of the CPC filed by the Respondent. It is
submitted that the Appellant has, in paragraph 2 of the preliminary
submissions of her written statement, categorically, unequivocally, and
unambiguously admitted that the parties are co-owners of the suit
property, having purchased the same from joint funds. The
Respondent, in his application under Order XII Rule 6 of the CPC, has
extracted the said portion to demonstrate such admission and has
submitted that there remains no material factual dispute requiring trial.
In addition, reliance has been placed on the recitals of the Sale Deed,
which records both parties as joint purchasers and co-owners of the
suit property.
12. Learned counsel for the Respondent further submits that the suit
property, as on date, is valued at approximately Rs.8,00,00,000/- and
the Respondent is willing to pay Rs.4,00,00,000/- to the Appellant
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towards her 50% share; however, the Appellant is unwilling to accept
the same. The Respondent has also offered to purchase another
suitable apartment for the residence of the Respondent and the minor
daughter with 50% of the price received on sale of the suit property,
which offer was also declined by the Appellant. It is contended that
the Appellant, being a well-educated and professionally qualified
individual, is earning an annual income of approximately
Rs.1,00,00,000/- and it is not the case that she would be left without
any residential accommodation. It is argued that the plea of the suit
property being a “matrimonial home” or “shared household” is wholly
misconceived in law and fact, inasmuch as the suit property is a
jointly owned asset, purchased through joint financial contributions of
both parties, and admitted as such by the Appellant in her written
statement. It is further submitted that the Appellant, being a co-owner,
cannot seek to obstruct lawful partition proceedings by branding the
suit property as a matrimonial home, particularly when she has
sufficient space to reside in the suit property even after its equitable
partition, and cannot, therefore, claim an absolute right of residence so
as to prevent lawful partition.
13. Reliance is placed on the decisions in Ajay Kumar Jain v.
Baljit Kaur Jain; 2009 SCC OnLine Del 1538, and Sunita Shankar
Salvi v. Shankar Laxman Salvi; 2002 SCC OnLine Bom 927, to
contend that where the ownership and entitlement of parties stand
admitted, partition cannot be obstructed merely on the basis of a claim
of residence or vague assertions of hardship.
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ANALYSIS:
14. We have considered the rival submissions made by learned
counsel for the parties and perused the material on record.
15. In order to appreciate the issue raised in the present Appeal, it is
necessary to examine the scope and purpose of Order XII Rule 6 of
the CPC. The said provision reads as under:
Order XII Rule 6 – Judgment on admissions.
(1) Where admissions of fact have been made either in the pleadings
or otherwise, whether orally or in writing, the Court may at any stage
of the suit, either on the application of any party or of its own motion
and without waiting for the determination of any other question
between the parties, make such order or give such judgment as it may
think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1), a decree
shall be drawn up in accordance with the judgment and the decree
shall bear the date on which the judgment was pronounced.
A plain reading of Order XII Rule 6 of the CPC makes it evident that
the legislative intent behind the provision is to empower the Court to
expedite the disposal of cases by pronouncing judgment on the basis
of clear, unambiguous, and unequivocal admissions made by a party,
without awaiting the determination of other issues. The object is to
avoid unnecessary prolongation of proceedings where the entitlement
of a party is admitted and no further adjudication is warranted on that
aspect. However, such power must be exercised with circumspection,
bearing in mind the requirement that the admission must be
categorical and must leave no room for doubt or interpretation.
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16. In the present case, a perusal of the Written Statement filed by
the Appellant reveals a categorical admission that the suit property
was jointly purchased by the parties. The Appellant herself has, in
paragraph 2 of the preliminary submissions of her written statement,
expressly stated that the suit property was jointly purchased by her
and the Respondent. Although in paragraph 8 of the Written
Statement, the Appellant has vaguely averred that she contributed a
“majority share” towards the purchase of the property with the help of
her savings and financial assistance from her father, and has invested
substantial amounts in renovation and maintenance, such assertions
are neither supported by any contemporaneous documentation nor do
they constitute a categorical denial of co-ownership. No material has
been placed on record to establish the precise extent of the Appellant‟s
contribution vis-à-vis the Respondent‟s.
17. It is not in dispute that the Sale Deed reflects both parties as
joint purchasers, without specifying any differentiated ratio in
ownership. Even as on date, both parties are jointly servicing the
housing loan and are contributing equally towards the EMI payments.
Having unequivocally admitted the co-ownership of the suit property
and continued to discharge joint financial obligations arising
therefrom, the Appellant cannot, at this stage, turn around and claim a
greater share on the purported ground of having allegedly contributed
more towards furnishing or renovation of the property.
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18. Section 45 of the Transfer of Property Act, 1882, stipulates that
in the absence of any contrary intention or specification, where
property is purchased jointly in the names of two or more persons, the
share of each shall be deemed equal.
19. The next issue that arises for consideration is the Appellant‟s
plea that the suit property constitutes her matrimonial home and a
“shared household” within the meaning of Section 17 of the PWDV
Act. Section 17 of the PWDV Act reads as under:
17. Right to reside in a shared household.–
(1) Notwithstanding anything contained in any other law for the
time being in force, every woman in a domestic relationship shall
have the right to reside in the shared household, whether or not she
has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the
shared household or any part of it by the respondent save in
accordance with the procedure established by law.
A plain reading of the provision confers upon every woman in a
domestic relationship the right to reside in the shared household,
irrespective of whether she has any right, title or beneficial interest in
the same. However, this right to residence is not absolute in nature.
Sub-section (2) of Section 17 of the PWDV Act clarifies that such a
woman shall not be evicted or excluded from the shared household
except in accordance with the procedure established by law. The
combined reading of sub-sections (1) and (2) makes it clear that the
right to reside in a shared household, though protected, is not
indefeasible and is subject to lawful eviction or exclusion as per due
process. The provision does not create a proprietary right in favour of
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the aggrieved person, nor does it preclude lawful civil proceedings
such as those for partition, possession or eviction, if instituted in
accordance with law.
20. In the present case, the Appellant‟s reliance on Section 17 of the
PWDV Act to resist partition of the suit property is misconceived. The
Respondent is not seeking to evict the Appellant without following
due process, but has initiated a civil action for partition of the jointly
owned property. The Appellant, who herself claims to be a co-owner,
would not be rendered homeless by the mere fact of partition. Upon
division of the property, she would continue to be entitled to reside in
her allocated portion, or in the event of sale, receive her share of the
proceeds to secure alternative accommodation. It is also well settled
that the right of residence under the PWDV Act is intended to provide
shelter and protection to a woman facing domestic violence, and not to
indefinitely resist lawful claims arising out of title or co-ownership. If
the objective of secure residence can be achieved by other lawful
means, such as the allotment of a share in the partition or by provision
of alternate accommodation, the aggrieved person cannot insist upon
retaining exclusive possession of the entire property. As held in Ajay
Kumar Jain case (supra), a shared household can indeed be
partitioned, and the female occupant‟s right to residence can be
protected without conferring a greater proprietary entitlement than
what is legally owned.
21. In the present case, therefore, the Appellant‟s plea that the suit
property constitutes a shared household does not create any legal
embargo against the partition of the property in accordance with the
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admitted co-ownership rights. The right to reside in a shared
household under Section 17 of the PWDV Act cannot override or
nullify the lawful entitlement of either party to seek partition or
enforcement of ownership rights in civil proceedings.
22. It is also relevant to note that the Appellant is a well-educated
and professionally qualified individual. As per the pleadings, the
Appellant is financially independent and gainfully employed. The
factum of her employment and earnings is not in dispute. While the
Appellant asserts that the suit property constitutes the only residence
for her and the minor daughter, and that her right of residence under
Section 17 of the PWDV Act ought to have weighed with the Family
Court, it must be borne in mind that the concept of shared household
is primarily intended to safeguard the shelter rights of women who are
economically dependent, vulnerable, or genuinely aggrieved. The
statutory protection under Section 17 of the PWDV Act does not
entitle a financially self-reliant woman to indefinitely resist the lawful
partition of a jointly owned property. Such provisions, which are
enacted to protect women in genuine need of security and shelter,
should not be misused by privileged individuals to frustrate legal
claims arising out of ownership or title. In our considered view, the
Family Court has correctly appreciated the factual matrix and has
arrived at a reasoned conclusion that the right of residence under the
PWDV Act cannot operate as a bar to lawful partition proceedings
initiated by a co-owner.
23. In S.R. Batra case (supra), the Supreme Court was considering
the validity of an injunction granted in favour of the wife restraining
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the husband from dispossessing her from the matrimonial home. The
Supreme Court set aside the injunction, holding that the right to
residence under the PWDV Act does not extend to property owned
exclusively by in-laws, and further observed that Section 19(1)(f) of
the PWDV Act contemplates provision of alternate accommodation to
the aggrieved woman, rather than enforcing residence in a specific
property.
24. Again, in Satish Chandra Ahuja case (supra), the Supreme
Court clarified that the right of residence under Section 19 of the
PWDV Act is not an indefeasible or absolute right in the shared
household. While identifying and addressing key questions in
paragraph 30 and the subsequent portions of the judgment, the
Supreme Court reaffirmed that the pendency of proceedings under
Section 12 of the PWDV Act does not preclude or bar the initiation or
continuation of civil proceedings, including those for partition or
possession.
25. In Sapna case (supra), the Supreme Court was dealing with a
case where the widow, having no independent source of income, was
dispossessed from the matrimonial home by her deceased husband‟s
brother. In the facts of that case, the Supreme Court directed
restoration of possession to the widow, having regard to her
vulnerability and lack of alternative accommodation.
26. Thus, it is evident that all the four judgments relied upon by the
Appellant do not come to the Appellant‟s rescue. While interpreting
statutory provisions, the Court is expected to look into the intent of the
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Act, while avoiding its abuse.
27. As already noticed, the offer made by the Respondent to either
pay the Appellant Rs.4,00,00,000/- towards her 50% share in the suit
property, or to facilitate the purchase of an alternative residential
apartment for the Appellant and the minor daughter using the sale
proceeds from the suit property, appears to be bona fide and fair,
particularly in light of the admitted co-ownership of the property and
the Respondent‟s willingness to amicably resolve the dispute. The
Appellant‟s insistence on continuing in exclusive possession of the
entire suit property, while simultaneously resisting its partition, cannot
be justified either in law or on equitable grounds. Such a stance
defeats the very purpose of a partition suit, where each co-owner is
entitled to enjoy and possess the property in accordance with their
share.
CONCLUSION:
28. In view of the foregoing discussion on facts as well as the
applicable legal principles, this Court finds no infirmity in the
Impugned Order passed by the Family Court. The conclusions arrived
at are well-reasoned, based on a fair appraisal of the pleadings and
supported by the statutory framework. This Court, therefore, sees no
reason to interfere.
29. The present Appeal, along with the pending applications, are
accordingly dismissed.
30. However, it is made clear that the observations made
hereinabove are confined to the adjudication of the present Appeal and
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shall not be construed as expressing any opinion on the merits of the
proceedings pending before the Family Court, which shall be decided
uninfluenced by any observations made in this judgment.
ANIL KSHETARPAL, J.
HARISH VAIDYANATHAN SHANKAR, J.
AUGUST 05, 2025/jn/pl
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