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2018 DIGILAW 117 (ORI)

Anjana Kar v. Amarendra Bal

2018-01-25

J.P.DAS

body2018
ORDER : J.P. Das, J. This criminal revision is directed against the order dated 26.02.2016 passed by the learned 2nd Additional sessions Judge, Cuttack in Criminal Appeal No. 122 of 2014 confirming the order dated 12.08.2014 passed by the learned S.D.J.M., Sadar, Cuttack in Criminal Misc. Case No. 304 of 2013 rejecting an application filed by the present petitioner as not maintainable under the Protection of Women from Domestic Violence act, 2005 (here in after referred to as the 'Act'). 2. The petitioner no. 1 is the mother and petitioner no. 2 is the daughter. The opposite party no. 3 is the husband of the petitioner no. 1, opposite party nos. 1, 2 and 4 are other in-laws. 3. The petitioner no. 1 moved an application before the learned S.D.J.M., Sadar, Cuttack under Section 17 of the Act with a prayer to pass an order directing the present opposite parties to provide a room in her matrimonial house or allow her to construct another room in her own cost in the residential area of the shared household of the respondents. 4. The admitted position is that the petitioner no. 1 along with her daughter and her husband are staying in a room on the shared household where in her other in-laws are also occupying different rooms. In her application she prayed for an additional room with the submission that in the meantime her daughter has attained biological maturity for which another room is necessary for her convenience and privacy. She further alleged that it has become impracticable to accommodate herself with her children and husband in a single room provided to her in the shared household. In the alternative she sought for a permission to construct another room over any portion of the joint family property which admittedly stood recorded in the names of all the shareholders. The learned S.D.J.M. observed in the order that the purpose of the Act is to provide convenience or comfort to the aggrieved person but to save her from destitution. Hence, the learned court observed that the petitioners have tried to claim share over the properties in the guise of an application under the Act seeking comfort and convenience which was neither permissible under the provisions of the Act nor was the purpose for which the Act was enacted. The learned court also observed that admittedly the petitioner no. Hence, the learned court observed that the petitioners have tried to claim share over the properties in the guise of an application under the Act seeking comfort and convenience which was neither permissible under the provisions of the Act nor was the purpose for which the Act was enacted. The learned court also observed that admittedly the petitioner no. 1 along with her children have been provided with the accommodation in the shared household for more than twenty years and there was never any allegation of dispossession or non-availability of accommodation. Accordingly, the learned S.D.J.M. rejected the petition holding it as maintainable under the provisions of the Act. 5. The petitioners assail the said order before the learned 2nd Additional Sessions Judge, Cuttack in Criminal Appeal No. 122 of 2014, which court by impugned order dated 26.02.2016 dismissed the appeal holding it to be devoid of any merit. The learned appellate court has also discussed in detail the factual aspects of the case and has also observed in the similar line that the circumstances as pleaded and the relief as prayed for by the petitioners do come under the provisions of the act so as to grant any relief. Learned Sessions Judge has also observed that it was the pleading of the opposite parties that the petitioners are having separate house, which have been rented out and the accommodation as available in the shared household does have space to make a separate room available for convenience and comfort of the aggrieved persons. Section 17 of the Act provides that every woman in a domestic relationship shall have the right to reside in the shared household, whether she has any right, title or beneficial interest in the same. The aggrieved person shall be evicted or excluded from such possession without the due procedure of law. 6. In the instant case, it is the admitted position that the petitioners are staying in a room in the shared household since more than last twenty years. The only grievance, the petitioner no. 1 had made, is the space that has been given for their accommodation is sufficient since her daughter, petitioner no. 2 has attained biological maturity and some separate space is necessary for her privacy and convenience. 7. The only grievance, the petitioner no. 1 had made, is the space that has been given for their accommodation is sufficient since her daughter, petitioner no. 2 has attained biological maturity and some separate space is necessary for her privacy and convenience. 7. It was submitted by the learned counsel for the petitioners that Section 17 of the Act gives a right to the aggrieved person to reside in the shared household and residence would mean actual residence with minimum comforts and convenience. 8. Thus, it was submitted that the learned courts below erred in law by holding that the prayer of the petitioners does come under the purview of the Act. The Act nowhere defines "Residence". It only defines "Residence orders" in Section 2, which means an order granted in terms of Sub-Section 1 of Section 19 of the Act. 9. Section 19 of the Act empowers the Magistrate to pass a residence order in the following terms: "Residence orders-(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 disturbing the possession of the aggrieved person from the shared household, whether 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 form 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:" 10. It is not the case of the present petitioners that they have been deprived of the residence in the shared household. On the other hand, it is the admitted case that they have been residing in the said accommodation since more than last twenty years. It is not the case of the present petitioners that they have been deprived of the residence in the shared household. On the other hand, it is the admitted case that they have been residing in the said accommodation since more than last twenty years. Now, they claim that for their convenience and privacy they require another room or in the alternative they may be permitted to construct a room on the space available within the residential area. The question of permission to construct a room does not arise at all while considering an application under the Act. So far as providing another room for their convenience, it has been held by both the learned courts below that to construe the right of residence to the extent of comfort and convenience, more so when the petitioners are residing in the given accommodation for more than last twenty years, would amount to stretch the imagination beyond the permissible beyond the breaking point. Both the courts have also observed that the petitioners, if so advised, can seek redressal of their grievance in appropriate forum for getting desired share in the properties, if they so deserve. 11. Considering the stated facts and admitted circumstances, I do not find any illegality or perversity in the orders passed by both the learned courts below so as to be interfered with in exercise of re-visional power of this Court. 12. Accordingly, the CRLREV is dismissed being devoid of any merit.