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2016 DIGILAW 231 (RAJ)

Balvinder Singh Barar v. Aman Preet Kaur

2016-02-10

SANGEET LODHA

body2016
ORDER : Sangeeta Lodha, J. By way of this writ petition, the petitioner has questioned legality of order dated 4th February, 2015 passed by the Additional Sessions Judge No.1, Sriganganagar, whereby an appeal preferred by the respondent no.1 & 2 herein, under Section 29 of the Protection of Women from Domestic Violence Act, 2005 ("the Act"), has been allowed, and while maintaining the order passed by the Chief Judicial Magistrate (CJM), Sriganganagar, directing payment of maintenance to the respondent No.1-Smt. Amanpreet Kaur, for herself and her minor daughter, further directions are issued to the proforma respondents No. 3 and 4 herein, to provide residence to the respondent no.1 & 2 herein, at the ground floor in house No.161 "P Block" Sriganganagar. 2. The relevant facts are that the respondent no.1-Smt. Amanpreet Kaur is married to the proforma respondent No.3- Shiv Preet Singh. She was living in a shared household with her husband and her mother-in-law at Sriganganagar. The dispute having been arisen between the parties, Smt. Amanpreet Kaur, a victim of domestic violence, preferred an application before the CJM, Sriganganagar, under Sections 12, 17, 18, 19, 20, 21 and 22 of the Act, against the proforma respondents No. 3 and 4 herein, inter-alia seeking directions for maintenance and restrain order in respect of the residential accommodation occupied by her. 3. The application preferred by the respondent No.1 as aforesaid, to the extent of award of maintenance was allowed by the CJM vide order dated 4th January, 2014, however, the prayer for restraint order in respect of the shared household was rejected. Aggrieved thereby, the respondents No. 1 and 2 preferred an appeal before the Sessions Judge, Sriganganagar, which was later transferred to the Court of Additional Sessions Judge No.1, Sriganganagar for hearing and decision. The appeal preferred by the respondents No.1 and 2 has been partly allowed by the Additional Sessions Judge No.1, Sriganganagar and while maintaining the order for maintenance passed by the CJM, the proforma respondents No.3 and 4 herein, have been directed to provide an accommodation to the respondents No.1 and 2 herein, comprising of three rooms, store, kitchen and latrine-bathroom at the ground floor in House No. 161 "P Block", Sriganganagar, i.e. the house wherein they had lived in domestic relationship with the proforma respondents No.3 and 4. 4. 4. The present writ petition questioning the legality of the order passed by the Appellate Court has been filed by the petitioner, who alleged to have purchased ¾th share of proforma respondent No.4-Smt. Gurmeet Kaur in the disputed house measuring 31.5 x 50 sq.ft. by way of registered sale deed dated 16.8.13 for a consideration of Rs. 17 lacs. The petitioner claims that the ownership as also the possession of the house stands transferred to him and thereafter, the mutation entries have also been entered in his name in the record of Municipal Corporation, Sriganganagar. 5. Learned counsel for the petitioner contended that the Appellate Court has passed the order impugned in mechanical manner without considering the stand of proforma respondents herein, who had specifically averred that they have already sold their share in the house in question. Learned counsel submitted that the petitioner who is bona fide purchaser of the share of the proforma respondent No.4-Smt. Gurmeet Kaur in the house in question, by way of registered sale deed, cannot be deprived of his physical possession over the house by invoking the provisions of Sections 17 and 19 of the Act. Learned counsel would submit that the order impugned has been passed by the Appellate Court without appreciating the factual and legal position in correct perspective and thus, the order impugned deserves to be set aside. Learned counsel submitted that the factum of the sale of the disputed house to the petitioner having come on record, the Appellate Court could not have passed the order impugned without extending an opportunity of hearing to the petitioner. 6. On the other hand, the counsel appearing for the respondent No.1, submitted that it is not in dispute that the petitioner was in domestic relationship with the respondents No. 3 and 4 and was residing in the shared household i.e. the House No.161 "P Block", Sriganganagar. 6. On the other hand, the counsel appearing for the respondent No.1, submitted that it is not in dispute that the petitioner was in domestic relationship with the respondents No. 3 and 4 and was residing in the shared household i.e. the House No.161 "P Block", Sriganganagar. It is submitted that the proforma respondent No.3 herein, the husband of the respondent No.1, sold his ¼th share in the house in question in favour of his mother, the proforma respondent No.4-Smt. Gurmeet Kaur by way of a registered sale deed dated 30.1.13 and thereafter, the respondent No.4-Smt. Gurmeet Kaur executed a rent note in favour of one Shri Tejpal and then, on 12.7.13, the respondents No.3 and 4 in connivance with the petitioner and one Shri Jasvindra Singh, took forcible possession of the house, when the respondent No.1 had gone to Karanpur with her father. It is submitted that in this regard, an FIR was lodged at Police Station, Kotwali wherein after investigation, a charge-sheet has been filed against the petitioner and other accused persons for offences under Section 452, 504 and 143 IPC. It is submitted that after throwing the respondent No.1 out of the shared household, the ¾th share in the house in question including the ¼th share sold by the husband of the respondent No.1, has been sold by the proforma respondent No.4 in favour of her brother, the petitioner herein, by way of registered sale deed dated 16.8.13. Learned counsel submitted that apparently, the transaction of sale alleged to have been entered into by the respondent No.4 with the petitioner herein, is a sham transaction, entered into just to defeat the rights of the respondent No.1. Learned counsel submitted that the petitioner and the respondents No.3 and 4 cannot be permitted to defeat the provisions of beneficial legislation through a planned device and therefore, the order impugned passed by the Appellate Court does not warrant any interference by this Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India. 7. Learned counsel submitted that the petitioner and the respondents No.3 and 4 cannot be permitted to defeat the provisions of beneficial legislation through a planned device and therefore, the order impugned passed by the Appellate Court does not warrant any interference by this Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India. 7. Learned counsel appearing for the respondent No.4 contended that the premises in question was self acquired property of Ujagar Singh S/o Shiv Singh, who executed a will of ¼th share therein in favour of the respondent No.3, who sold the said share in the house in favour of the respondent No.4 by a registered sale deed and the respondent No.4 has sold the share purchased as aforesaid, in favour of the petitioner and thus, presently, the petitioner is the owner of the house. Learned counsel submitted that the respondent No.1 cannot claim right of residence in the house, which does not belong to her husband and thus, the Appellate Court has seriously erred in interfering with the order passed by the CJM rejecting the prayer of the respondent No.1 claiming right to residence in the house in question. 8. Learned counsel appearing for the respondent No.3 submitted that the house in question does not belong to the respondent No.3 and therefore, the respondent No.1 cannot claim any right of residence in the house in question. Learned counsel submitted that the respondent No.3 is ready to provide a residence to the respondent No.1, at the place where he is presently residing, but she is not ready to accept the same. Learned counsel would submit that the respondent No.1 is presently residing in a residential house situated at Sindhi Colony, Sriganganagar and therefore, she is not entitled for residence order in terms of provisions of Section 19 of the Act. 9. I have considered the rival submissions and perused the material on record. 10. Indisputably, the Act has been enacted by the Parliament to provide for various reliefs to those women, who are or have been in domestic relationship with the abuser, where both the parties have lived together in a shared household and related by consanguinity, marriage or through a relationship in the nature of marriage or through adoption. Besides the relationship with the family members living together as a joint family are also included within the ambit of the Act. Besides the relationship with the family members living together as a joint family are also included within the ambit of the Act. As per the definition of the 'respondent' incorporated in Section 2 (q) of the Act, a woman victim of domestic violence, an aggrieved person, is entitled to lodge proceedings for various reliefs provided for against the person, who is or has been in a domestic relationship with her and by virtue of proviso thereto, an aggrieved wife or female living in relationship in the nature of marriage, may also file complaint against a relative of the husband or male partner. Further, the definition of 'shared household' set out in Section 2 (s) of the Act, is also wide in its scope and includes not just the household where person aggrieved lives at present but also the household where the person aggrieved has at any stage, lived in domestic relationship either singally or along with respondent. 11. As per Section 17 of the Act, notwithstanding anything contained in any law for time being in force, every woman in a domestic relationship shall have right to reside in the shared household whether or not she has any right, title or beneficial interest in the same. Further, the aggrieved person cannot be evicted or excluded from shared household or any part of it by the respondent save in accordance with the procedure established by law. Further, the aggrieved person cannot be evicted or excluded from shared household or any part of it by the respondent save in accordance with the procedure established by law. That apart, as per provisions of Section 19, while disposing of an application preferred by the aggrieved person under Section 12, the Magistrate on being satisfied that the domestic violence has taken place, is empowered to pass a residence order in the following terms: "(a) restraining the respondent from dispossessing or in any other manner disturbing 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 off 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" 12. It is pertinent to note that by virtue of provisions of Section 19, the Magistrate is empowered not only to pass the restrain order against the dispossession of the aggrieved person or disturbing her possession from the shared household, but may also pass the order restraining the respondent from alienating or disposing of the shared household or encumbering it and further, not to renounce his right in the shared household except with the leave of the Magistrate. That apart, the Magistrate is empowered to direct the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay the rent for the same, if the circumstances so require. 13. That apart, the Magistrate is empowered to direct the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay the rent for the same, if the circumstances so require. 13. In the backdrop of the position of law discussed as above, adverting to the facts of present case, it is not in dispute that the respondent no.1 & 2 were residing in the house in question with the respondent no.3 & 4 even at the time of execution of the sale deed by the respondent no.3 of his ¼th share in the house in favour of respondent no.4 and even thereafter. It has come on record that the respondent no. 1 was forcibly evicted from the shared household prior to the execution of the sale deed dated 16.8.13 by the respondent no.4 in favour of the petitioner herein. 14. But then, a perusal of the order impugned passed by the Appellate Court reveals that it has recorded merely its ipse dixit regarding the right of residence of the respondent no.1 & 2 in the house in question and the facts noticed herein above regarding the forcible eviction of the petitioner from the shared household and the factum of sale by the respondent no.3 in favour of respondent no. 4 and thereafter, the sale of ¾th share in the house by the respondent no.4 in favour of the petitioner herein, has not been taken into consideration. It is pertinent to note that the petitioner claiming himself to be bona fide purchaser alleged to be in possession of the house was not party to the proceedings before the courts below and therefore, he had no opportunity to defend the claim of the respondent no.1 regarding the right to residence in the house in question. A perusal of the order reveals that the directions are issued by the Appellate Court to the respondent no. 3 & 4 to hand over the portion of the house in question to the respondent no.1 & 2, which is presently alleged to be not in their possession. A perusal of the order reveals that the directions are issued by the Appellate Court to the respondent no. 3 & 4 to hand over the portion of the house in question to the respondent no.1 & 2, which is presently alleged to be not in their possession. Thus, on the facts and in the circumstances of the case, in the considered opinion of this court, the matter with regard to restoration of possession of the house needs to be decided by the Appellate Court afresh, after taking into consideration, the provisions of Section 17 & 19 of the Act discussed herein above and the defence of the petitioner herein, who claims himself to be a bona fide purchaser, in possession of the house in question. 15. At this stage, it needs to be emphasised that the Act is essentially a remedial statute and it is trite law that a remedial statute needs to be interpreted liberally to promote the beneficial object behind it and any interpretation which may defeat its object necessarily needs to be eschewed. It also needs to be observed that even if the court comes to the conclusion that the petitioner, who is in possession of the property by virtue of sale deed executed in his favour by the respondent no.4, cannot be directed to hand over the possession of the disputed house to the respondent no.1 & 2 herein, the court is not precluded from passing an appropriate order to secure the same level of alternative accommodation for the respondent no.1 & 2 herein, by virtue of provisions of Section 19 (1)(f) of the Act. 16. In view of the discussion above, the petition is partly allowed. The order impugned passed by the Additional Sessions Judge No.1, Sriganganagar to the extent of issuing directions to the respondent no.1 & 2 to hand over the residential accommodation comprising three rooms, store, latrine, bathroom and kitchen at the ground floor of the house no.161 "P Block", Sriganganagar, is set aside. The matter is remanded to the Additional Sessions Judge No.1, Sriganganagar, to pass an appropriate order in respect of right to residence of the respondent no. 1 & 2 afresh, keeping in view the provisions of the Act discussed herein above and after due consideration of the submissions of the parties including the petitioner herein, who shall be impleaded as party respondent to the proceedings. 1 & 2 afresh, keeping in view the provisions of the Act discussed herein above and after due consideration of the submissions of the parties including the petitioner herein, who shall be impleaded as party respondent to the proceedings. The parties shall appear before the Additional Sessions Judge No.1, Sriganganagar on 22.2.16. Till the decision of the matter by the Appellate Court, the status quo as it exists today shall be maintained in respect of the disputed property. No order as to costs.