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Madhya Pradesh High Court · body

2011 DIGILAW 653 (MP)

Jyoti Parihar v. Munindra Singh Parihar

2011-06-21

G.D.SAXENA

body2011
ORDER 1. This revision petition preferred by the petitioner/wife under section 397/ 401 of the Code of Criminal Procedure 1973 is directed against an order dated 31st January 2011, passed in Criminal Appeal No. 2/10 (Munidra Singh & another v. Smt. Jyoti Parihar) by the Special Judge (Atrocities), Gwalior whereby the appellate Court by setting aside the order dated 30th November 09 passed in Criminal Case No. 13299/09 by the Judicial Magistrate First Class, Gwalior, remitted the matter back to the trial Magistrate to reconsider the case on directions given in the light of the impugned judgment and pass an order afresh. 2. The facts in short, just necessary for the decision of this petition are that the petitioner and the respondent No.1 were married on 21st May 2005 in Gwalior as per Hindu customs. It is stated that at the time of marriage, valuable articles such as silver and gold ornaments, furniture, clothes, household's articles and cash etc. were gifted to the wedding couple by the parents and relatives and friends. After marriage, the petitioner lived near about eight months in her matrimonial house. Thereafter, the husband (respondent No.1) of the petitioner and her father-in-law (respondent No.2) including other members of her in laws family used to harass and torture her for their illegal demand of Maruti Car and also threatened her to contact the second marriage of respondent No. 1Munendra Singh. Petitioner was compelled to leave her matrimonial house. The report of the incident was lodged by the petitioner-complainant against her husband, mother-in-law and brother-in-law with police station Padav. Oh the basis of the said report, a crime for commission of offence under section 498A IPC was registered against the respondents. After investigation the charge-sheet was filed before the Court competent in which trial is in progress. One more case under section 9 of the Hindu Marriage Act, on her petition is also pending before the Family Court Gwalior. The petitioner also filed the petition under section 125 of CrPC for monthly maintenance against the respondent No.1 before the Family Court, Gwalior. The petitioner filed the petition under section 12 (I) of the Protection of Women From Domestic Violence Act against the respondents with a request to issue the direction against respondents restraining them from interfering in the petitioner's shared household and not to create any obstructions in enjoyment of her in the share household. The petitioner filed the petition under section 12 (I) of the Protection of Women From Domestic Violence Act against the respondents with a request to issue the direction against respondents restraining them from interfering in the petitioner's shared household and not to create any obstructions in enjoyment of her in the share household. Simultaneously, it is prayed to secure for her some level of alternate accommodation in the shared house hold or to pay rent for the same, if the circumstances so warrant. 3. The learned trial Magistrate by the impugned order dated 30th November 09 while allowing the petition directed the respondents that neither they themselves nor through others shall create domestic violence on the petitioner/applicant and the petitioner is entitled to reside in a joint property of the respondents and hence a place in shared house hold be provided or in alternative accommodation of same level of shared house be made available to her or the rent be paid for her suitable accommodation. 4. Being aggrieved by the order dated 30th November, 09 the appeal under section 29 of the Protection of Women From Domestic Violence Act was filed before the Court of Sessions. The appellate Court by the judgment dated 31st January, 2011 passed in Criminal Appeal No. 02/2010, by allowing the appeal and setting aside the order dated 30th November, 09, remitted the case back to the trial Magistrate for reconsideration after recording the statement of appellant No. I and thereafter pass a judgment afresh in the case. 5. The learned counsel for the petitioner contended that the impugned order dated 31st January 2011 passed by the appellate Court is against the facts of the case and law, and hence the same is liable to be set aside. It is contended that the appellate Court while remitting back the case did not consider that even after affording of twelve more opportunities for appearance and recording of the evidence of appellant No.1 -Munedra Singh, who is serving in the Indian Army, he did not turn up before the trial Court. The appellate Court has not considered it properly that the petitioner after marriage lived in the shared house with the respondents and other family members and she was ousted from there, therefore, she is entitled to get entry in the shared household house which is the joint house of the respondents. The appellate Court has not considered it properly that the petitioner after marriage lived in the shared house with the respondents and other family members and she was ousted from there, therefore, she is entitled to get entry in the shared household house which is the joint house of the respondents. Therefore, it is requested that by allowing the petition of the petitioner, the order dated 31st January 2011 be set aside and the order of the trial Magistrate be restored. 6. The learned counsel for the respondents repudiated the contention of the petitioner and submitted that the appellate Court rightly remitted back the case for recording the statement of the respondent No.1, who is in service in the Indian Army. It was contended that the respondent No. I had the proof of an illegitimate relations of the petitioner with his brother and the alleged property is belonging to the mother of respondents No.1, who is neither party before the trial Magistrate nor before the appellate Court. It is submitted that the respondents are ready and willing to provide her the house or in alternative the rent of the house. The statement of respondents No.1, who is husband of the petitioner is necessitated for just and fair decision of the case. Therefore, it is requested that by dismissing the petition, the order of the appellate Court be maintained. 7. Heard the learned counsel for the patties and perused the record of the case. 8. The statement of respondents No.1, who is husband of the petitioner is necessitated for just and fair decision of the case. Therefore, it is requested that by dismissing the petition, the order of the appellate Court be maintained. 7. Heard the learned counsel for the patties and perused the record of the case. 8. It would be useful to reproduce relevant sections 2 (s), 17 and 19 (1) of the Protection of Women from Domestic Violence Act, 2005, which run as below "Section 2 (s) -- Shared household' means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared houshehold." Section 17 Right to reside in the 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. (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. Section 19 Protection Order: (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order (a) restraining the respondent from dispossessing or in any other manner distrubing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household; (b) directing the respondent to remove himself from the shared household; (c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides; (d) restraining the respondent from alienating or disposing of the shared household or encumbering the same; (e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or (f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require; Provided that no order under clause (b) shall be passed against any person who is a woman." 9. In the case of S.R. Batra v: Taruna Batra (AIR 2007 SC 1118), the apex Court held :- "29. As regards section 17 (J) of the Act, in our opinion the wife is jointly entitled to claim a right to residence in a shared household, and a 'shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. 30. No doubt, the definition of 'shared household' in section 2 (s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society." 10. 30. No doubt, the definition of 'shared household' in section 2 (s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society." 10. The property in question in the present case neither belongs to respondent No.1-Munindra Singh, Parihar, husband of the petitioner, who is at present working in Indian Army nor was it taken on rent by him nor is it a joint family property of which the respondent No.1 -Munindra Singh Parihar (husband) is a member. It is the exclusive property of Smt. Saroj Parihar, the mother of respondent No.1 Munindra Singh Parihar, who is not a party in criminal proceedings before the trial Magistrate or the appellate Court in the appeal. It is true that Smt. Saroj Parihar is wife of Surendra Singh, father of respondent No.1 -Munindra Singh Parihar, i.e., husband of the petitioner. It is also true that the alleged house was constructed on plot purchased by Smt. Saroj Parihar on Home loan taken from HDFC Bank on 28th March 2002. The loan amount was paid from the salary ofSurendra Singh Parihar, an army personnel. Hence, under the circumstances, noticed above, the property cannot be called a 'shared household' having owned or in the share of the respondents. In other words, it is the exclusive and self owned property of Smt. Saroj Parihar, mother of the respondent No.1. Statement of respondent No. I-Munindra Singh, being party to the proceedings is necessary for the decision of the petition. During pendency of the petition, the trial Magistrate may, with consent of the petitioner, direct the respondents to make available same level or alternate accommodation for the petitioner Jyoti Parihar as enjoyed by her in the house where she lived or in alternative it may be directed to pay the rent for the same as may be determined by the Magistrate. The order of the Court in this regard may be enforced by the respondents by executing the bond with or without securities by them. 11. Hence, by affirming the order passed by the appellate court, the revision petition is disposed of with the above directions.