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Case Reviews, The Law

Neelam Gupta V. Mahipal Gupta & Anr

A three-judge bench, comprising of Justice UU Lalit, Justice Indu Malhotra, and Justice Krishna Murari, at Supreme court, in an appeal arising out of the common judgment and order passed by High Court of Delhi, disposed of a matrimonial dispute on settlement. Previously the HC affirmed the order passed by the Mahila Court in proceedings under section 12 of the DV Act and an order passed by Additional sessions judge-2, Rohini Courts, Delhi.

By: Anshika Singh, 3rd Year, LLB (Hons), PIMR, Department of Law.


The Respondent no.1 Shri Mahipal Gupta (R1), was married to Ms. Geeta Gupta and from their lawful wedlock, they had two children’s i.e. a son, Arnab Gupta and a daughter, Garima. After the demise of Ms. Geeta Gupta, the Respondent no. 1 got married to Ms. Neelam Gupta, the appellant, in the present case.

But after sometime of the marriage, the relations between the appellant and Respondent no. 1 started to deteriorate. Because of which the appellant filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 for protecting her rights of residence, and also a civil suit against her husband obtaining interim injunction, so that she cannot be dispossessed from the premises in question. 

The son Arnav Gupta, respondent no. 2, filed a partition suit for the same premises which got decreed and was made executable subject to the variation/vacation of the order in the domestic violence act.

The appellant got relief as her possessory right cannot be disturbed unless the alternative accommodation has been provided by her husband. 

Application for variation of the protection was disposed of by Mahila High Court stating that the appellant is not comfortable with the premises that the respondent has offer and is entitled to the same standard of living as she had during her marriage. In this view, it was directed that the respondent can provide a similar accommodation in the locality or lieu pay the rent of Rupees 15000/- per month. 

After this, the appellant in the partition suit prayed to reside in the property in dispute as “shared household”, but it was not allowed. The appellant then settled for the suggestion made on behalf of respondent no.1 to get 1/3rd share in the value of the apartment. The affidavit indicated that the market value would be in the range of 1.85 to 2.25 crores and thus the reasonable amount which the A would get is 65 Lakh as 1/3rd  share by way of Permanent settlement. The Respondent no.1 along with his son and daughter gave no response which made the court assume there willingness to the sale of the apartment. The aforesaid offer was given by R1 subject to the divorce between both the parties.


  1. Whether the appellant, in a partition suit, entitled to a ‘shared residence’ or suitable accommodation provided by her husband?
  2. Whether the vacation/variation order contemplated can distribute the possessory right of the appellant?


The apex court accepted the appeal and gave the appellant options to come to a settlement with the respondent and held that in case the husband does not deposit money, the appeal stands allowed, the said orders under the appeal will stand set aside.


About the first issue, the apex court held that property belonged to the deceased wife (Ms. Geeta Gupta) of R1 and the children received their shares, and therefore the Appellant has no right of ‘Shared Household’ in that property.

  • Therefore the Appellant has the right of possession only against R1. She can claim alternative accommodation only from her husband as under the Protection of Women from Domestic Violence Act, 2005, ‘the appellant was certainly entitled to a shared residence being her matrimonial home or in lieu thereof her husband to provide her with suitable reasonable accommodation in accordance with law’.    
  • In the second issue, the vacation/variation contemplated by the impugned order would mean the appellants’ possessory rights cannot be disturbed concerning the premises in dispute unless the husband offers an alternative accommodation by an order obtained from Metropolitan Magistrate. 
  • The Supreme Court further allowed the order given by the HC that the Husband should provide the alternate residence of Appellant’s Choice near to that area by giving suitable accommodation and rental amount. The Appellant may file an application for rejecting such orders if she thinks fit. 

The court directed:

  •  If the Respondent no. 1 is not in the condition to provide the alternate residence and rental amount, then he must sell the property, and with the total amount received after the sale is effected 1/3rd share of the total amount is to be provided to the Appellant. 
  • The court directed the R1 to Deposit Rs 5 lakh as an interim consideration for 1/3rd share and Rs 1 Lakh as rent for 6 months (at the rate of 15000/- per month. And 10000 for other expenses.)
  • After the sale is effected, the parting of a sum of Rs. 60 lakh is to be done and should be given to the registry and the leftover amount should be distributed between the son and daughter of the Respondent No. 1 in equal shares, from his first wife.
  • If for any reason the flat is not sold the A shall be entitled to re-enter in the property and if the A chooses not to re-enter R1 would be obliged to give her 30k per month for rents. 

After passing through all the circumstances the court reached a balanced approach. The court also mentioned the repercussions if the party does not oblige to its direction. The court in deciding the alimony and discharging the judgment kept in mind the conditions of the appellant and her choices. In the appeal court majorly explored the possibilities of settlement between both the parties. The court worked on a No-harm principle and directed to give effect to the sale in a way that it shall not create any third party rights with respect to premises and no such dealings should be done which prejudices the interest of the appellant.

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