Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1432 (ALL)

Ashwani v. State of U. P.

2016-04-19

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Ram Raj Pandey, for the petitioners and Additional Government Advocate, for State of U.P. 2. This petition has been filed for setting aside the orders of Additional Chief Judicial Magistrate, dated 24.03.2015, directing to provide, residence of one room, kitchen, toilet and inner court yard on ground floor of joint residential house to the petitioner and Additional Sessions Judge/Special Judge (SC/ST Act), dated 09.03.2016, dismissing the appeal of the petitioners against aforesaid order. 3. Smt. Poonam (respondent-3) filed an application (registered as Criminal Case No. 1729 of 2011) under Protection of Women from Domestic Violence Act, 2005, for direction to the petitioners to return her ornaments, stridhan and handover custody of her minor son, along with cost. She stated in the application that Ashwani (petitioner-1) had married to her on 11.07.2007 according to Hindu rites. Out of their bed lock, she had a male child of 18 months old. The petitioners are making further demand of dowry of two lakh cash and one residential plot in New Delhi. Due to unable to fulfill their dowry demand, they tried to burn her on 02.11.2010 and ousted from house after beating on 17.11.2010 after taking her ornaments and cash, in bearing clothes. They have also took her son. She also filed an application to direct petitioner-1 to provide residence to her. 4. Additional Chief Judicial Magistrate by order dated 24.03.2015, held that it has not been denied by petitioner-1 that she along with her husband were residing in joint house of her father-in-law as such he directed to provide residence of one room, kitchen, toilet and inner court yard on ground floor of joint residential house of the husband. The petitioners challenged the aforesaid order in appeal (registered as Criminal Appeal No. 16 of 2015). The appeal was heard by Additional Sessions Judge/ Special Judge (SC/ST Act), who by his order dated 09.03.2016, dismissed the appeal. Hence, this petition has been filed. 5. The counsel for the petitioners submitted that house in which respondent-3 has been provided residence by impugned orders, was purchased by Salekh Chand (petitioner-3) along with his brothers Rohtash Singh and Ishwar Singh through sale deed dated 31.10.1972. This was not an ancestral house and sons of Salekh Chand have no share in it. 5. The counsel for the petitioners submitted that house in which respondent-3 has been provided residence by impugned orders, was purchased by Salekh Chand (petitioner-3) along with his brothers Rohtash Singh and Ishwar Singh through sale deed dated 31.10.1972. This was not an ancestral house and sons of Salekh Chand have no share in it. "Shared household" as mentioned under Section 17 and 19 of the Act, came for consideration before Supreme Court in S.R. Batra Vs. Taruna Batra, AIR 2007 SC 1118 , in which it has been held that house belonging to or taken on rent by the husband or the house which belonged to joint family of which husband was member. The orders of the Courts below are liable to be set aside. 6. I have considered the arguments of counsel for the parties and examined the record. According Mitakshara Hindu Law, aged parents, a virtuous wife and a infant child are entitled to be maintained even by doing a hundred misdeeds. Husband is under legal obligation to maintain his wife while father-in-law is under moral obligation to maintain her. The word "maintenance" includes residence also. In order to remove any doubt in this respect, Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 was enancted. This Act was repealed by Section 29 of Hindu Adoption and Maintenance Act, 1956. The word "maintenance" has been defined under Section 3 (b) of Hindu Adoption and Maintenance Act, 1956. Section 3 (b) and Section 18 of Hindu Adoption and Maintenance Act, 1956 are quoted below: - Section 3 (b) "maintenance" includes-- (i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage; 18. Maintenance of wife.--(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. Maintenance of wife.--(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance,-- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if he has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately. (3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. 7. Supreme Court in Mangat Mal v. Punni Devi, (1995) 6 SCC 88 , held that maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. 8. Again a Bench of three Hon'ble Judges in B.P. Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313 , held that a Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. 8. Again a Bench of three Hon'ble Judges in B.P. Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313 , held that a Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a Will to defeat such a right. (See Mulla: Principles of Hindu Law, Vol. I, 18th Edn., 2001, paras 554 and 555.) The right has come to be statutorily recognised with the enactment of the Hindu Adoptions and Maintenance Act, 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause (b) of Section 3 of the Hindu Adoptions and Maintenance Act, 1956 as to include therein provision for residence amongst other things. For the purpose of maintenance the term "wife" includes a divorced wife. 9. Thus in the aforesaid cases, it has been held that a wife has right of residence at her matrimonial home. A "matrimonial home" is house where the wife is first well-come and blessed by her elders after marriage as a bride. Where she resided with her husband after marriage under the blessing of elders. Under Hindu, law a husband is under legal obligation to provide residence to his wife and father-in-law is under moral obligation. Right of residence has been held as fundamental right and included under Article 21 of the Constitution as held by Supreme Court in Olga Tellis Vs. Bombay Municipal Corporation, AIR 1986 SC 180 . 10. The Protection of Women from Domestic Violence Act, 2005 was enacted to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. It is a remedial legislation. Under this Act, word "shared household" has been used. Relevant provisions are quoted below: - Section 2. 10. The Protection of Women from Domestic Violence Act, 2005 was enacted to provide more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. It is a remedial legislation. Under this Act, word "shared household" has been used. Relevant provisions are quoted 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 household; 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. 11. In this petition, the husband is petitioner-1, along with other members of family. The husband is under legal obligation to maintain his wife which will include to provide residence also. For a young lady, a residence must be under the care and protection of family members. In case the husband, petitioner-1, is providing alternate residence as directed by the Court below then respondent-3 shall shift in it. So long as she is not provided alternate accommodation by petitioner-1, she will be entitled to reside in the house as directed by Courts below. It is not proper for this Court to keep a young lady without roof, in exercise of supervisory jurisdiction under Article 227 of the Constitution. 12. In view of aforesaid discussions, this petition has no merit and is dismissed.