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2013 DIGILAW 778 (RAJ)

Vimla Dhariwal v. State of Rajasthan

2013-04-18

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant revision has been filed by the petitioner challenging the order dated 26.4.2012 passed by the learned Addl. Sessions Judge(F.T.) No. 3, Jodhpur whereby the order dated 18.10.2011 passed by the learned A.C.J.M. (Economic Offences), Jodhpur in Case No. 344/2009 has been affirmed. The trial Judge dealing with an application under Section 12 of the Domestic Violence Act ordered as under:- That the respondent Arun being the son of late Shri Shantilal Dhariwal and his family members i.e. wife and children will not interfere in the possession and enjoyment of the premises held in possession of the petitioner at Mahamandir, Jodhpur. That they will not commit any domestic violence with her. That the respondent Arun shall make a payment of Rs. 5000/- per month to the petitioner as maintenance from 18.10.2011. The aforesaid order has been affirmed in appeal. Hence, this revision. 2. Learned counsel for the petitioner submits that the petitioner is the widow of late Shri Shantilal Dhariwal and is a 72 years old ailing lady. He submits that the petitioner's husband owned certain property; one being residential premises which is the bone of contention in the instant case and the other being a Ice Cream Parlour located at Gole Building, Jodhpur a highly prestigious commercial area. He contends that late Shri Shantilal executed a Will in favour of the petitioner, as per which both the properties were bequeathed to her. Learned counsel further submits that the respondent Arun came with his family members to the petitioner's residence at the time of the death of Shri Shantilal Dhariwal and occupied a portion of the residential property forcibly. Thereafter the petitioner was subjected to domestic violence by Arun & his family members. She filed a complaint with the S.H.O., P.S. Mahamandir who verified the fact of domestic violence and cruelty being committed by the respondents with the petitioner. 3. Thereupon the petitioner filed an application under Section 12 of the Domestic Violence Act in the Court of A.C.J.M. (Economic Offences), Jodhpur which has been disposed of as above. 4. The grievance of the petitioner was that the despite the order of protection from the domestic violence, the respondents were continuing their acts of domestic violence and cruelty on the petitioner. 4. The grievance of the petitioner was that the despite the order of protection from the domestic violence, the respondents were continuing their acts of domestic violence and cruelty on the petitioner. Counsel for the petitioner submits that being an old ailing lady of 72 years, she is fearing harm to her, mental as well as physical well being because of the cruelty committed by the respondents and thus an order be passed directing the respondents to remove themselves from the shared household and for restraining them from entering into the property. 5. Learned counsel further submits that admittedly the respondent Arun is reaping the benefits of the Ice Cream Parlour which was set up by the petitioner's husband despite the property being bequeathed in favour of the petitioner. Learned counsel further contends that the respondent is earning handsomely from the said Ice Cream Parlour, and therefore, quantum of the amount of maintenance which has been granted to the petitioner @ Rs. 5000/- p.m. is absolutely inadequate and should be enhanced. He submits that the petitioner being an old ailing woman has to spend very substantial sum of money on her medical and health expenses. He submits that the petitioner has filed a suit way back in the year 2009 for possession on the strength of the Will but the respondents are delaying the proceedings of the suit by using dilatory tactics. He thus prays that a direction be issued to the civil court for deciding the suit expeditiously. 6. Per contra Mr. I.R.Choudhary assisted by Mr. Vikram Choudhary, learned counsel for the respondents no. 2 to 5 vehemently opposes the submissions of the counsel for the petitioner. He submits that the subject matter of the dispute is already list before the Civil Court i.e. A.D.J. No. 3, Jodhpur in Civil Suit No. 36/2009 and thus the reliefs which are claimed in the instant revision is without any justification because it is the civil court which can decide about the validity of the Will or the right of the petitioner to claim the property rights on the strength of the Will. 7. 7. Learned counsel further suggests that in order to ensure that domestic violence is not committed by either of the parties on each other, the respondent Arun is ready to install closed circuit cameras in the premises so that the activities going on in the house can be recorded and monitored. Learned counsel further submits that the respondent is not earning handsomely as claimed by the petitioner, and therefore, there is no justification for considering the prayer for enhancement. 8. Heard and considered the arguments advanced at the bar. Perused the record. 9. It is an admitted case from the record that late Shri Shantilal who undisputedly was the owner of the residential property in question. The petitioner being late Shantilal's widow claims to be entitled to the property on the strength of a Will which is subject matter of consideration before the Civil Court. The Will which is relied upon by the petitioner as having been executed by Shantilal in her favour has not been challenged By Arun or his other family members till date as per the information available with the counsel for the respondents. It is also not in dispute that the petitioner was residing with her husband in the property. It is the specific plea of the petitioner that the respondents came and occupied a portion of the residential property on the death of her husband. Since the issue of possession on the property in question is already subject to lis before the Civil Court, this Court is not going into the validity of the orders passed by the courts below regarding the claim of the petitioner to receive possession of whole of the property. Such an order would amount to transgressing the jurisdiction of the Civil Court. Be that as it may. With a view to secure ends of justice, this Court feels that as the petitioner is a senior citizen, the Civil Court which is seized of the matter is under duty and obligation to decide the suit expeditiously. 10. Such an order would amount to transgressing the jurisdiction of the Civil Court. Be that as it may. With a view to secure ends of justice, this Court feels that as the petitioner is a senior citizen, the Civil Court which is seized of the matter is under duty and obligation to decide the suit expeditiously. 10. However, having regard to the facts and circumstances of the case and considering the fact that the petitioner is the old ailing mother of respondent Arun and as the respondent is in the possession of Ice Cream Parlour owned by the petitioner's husband late Shri Shantilal Dhariwal and considering the location at which the Ice Cream Parlour is operating, this Court is of the opinion that the quantum of maintenance which has been awarded to the petitioner from the respondent no. 2 Arun is on rather lower side and deserves to be enhanced and the impugned orders deserves to be modified. 11. Accordingly, the revision is disposed of with the following directions:- (1) The respondent no. 2 shall install appropriately located Closed Circuit Cameras in the premises within a period of four weeks from today. The S.H.O., P.S. Mahamandir shall supervise installation of the cameras and shall ensure that cameras are installed at such places so that the places which are accessible commonly by both the parties can be covered. The S.H.O. P.S. Mahamandir shall take fortnightly reports from the Closed Circuit Camera recordings and if any incident of domestic violence is observed in the same, he shall forthwith report the same to the A.C.J.M. (Economic Offences), Jodhpur who shall be entitled to pass additional orders for providing protection to the petitioner in the event of any such domestic violence reported to it. (2) The petitioner shall now be entitled to receive maintenance from the respondent @ Rs. 8000/- per month from the date of this order. The respondent no. 2 shall deposit the amount of maintenance in the trial court on 10th of every month with the trial court failing which the trial court shall issue recovery warrant and have the amount recovered and disbursed to the petitioner. The trial court shall also ensure that if any dues of maintenance are accrued, the same shall be recovered and disbursed to the petitioner forthwith. Record be sent back forthwith. Petition disposed of. *******