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2018 DIGILAW 56 (RAJ)

Pinki @ Prachi v. Viklesh @ Vikki Sharma

2018-01-03

DEEPAK MAHESHWARI

body2018
JUDGMENT Deepak Maheshwari, J. - This miscellaneous petition has been preferred by wife petitioner Smt. Pinki and her daughter Gudiya with a prayer to quash and set aside the order dated 15.9.2017 passed by Special Judge, SC/ST (Prevention of Atrocity) Cases, Tonk as also the order dated 25.5.2017 passed by Additional Chief Judicial Magistrate, Newai, Tonk. 2. Heard learned counsel for both the sides and perused the relevant documents. 3. In compliance of the order dated 28.3.2017 passed by Coordinate Bench of this Court in S.B. Criminal Miscellaneous (Petition) No.5559/2016, whereby the order dated 17.9.2016 was set aside directing the Court below to consider the entire facts of the case and pass appropriate order in light of the judgment passed in S.R. Batra and Anr. vs. Smt. Taruna Batra reported in (2007) 3 SCC 169 , the impugned orders have been passed by the Courts below. 4. Learned counsel for the petitioners submits that though the order for providing alternate residential accommodation was passed by learned trial Court vide order dated 3.10.2015, but the accommodation provided by husband Viklesh at House No. 511, Shankar Gurjar Ki Gali, Chandi Ki Taksal, Jaipur which was found unsuitable as per the report of the Protection Officer. Learned counsel for the petitioners submits that without calling the report of the Protection Officer regarding suitability of the said alternate accommodation, learned Courts below have arrived at the conclusion that the said house has become suitable for residence after renovation. He submits that the orders passed by the Courts below dated 25.5.2017 and 15.9.2017 are therefore not proper and deserve to be quashed and set aside. 5. Per contra, learned counsel for the respondent submits that house No. 511, Shankar Gurjar Ki Gali, Chandi Ki Taksal, Jaipur was completely renovated and has been made equivalent to Plot No. 14, Priyanka Vihar, Gurjar Ghati, Jaipur. This fact has also not been controverted before the Courts below, even by the petitioner. The Courts below having considered the colored photographs submitted by the respondent in this regard have passed the orders in question. Further, this fact has been observed by the Courts below that Plot No. 14, Priyanka Vihar, Gurjar Ghati, Jaipur belongs to the mother-in-law of the petitioner No.l, namely Smt. Sita Sharma and therefore it is not a shared accommodation, in view of the judgment of Hon'ble Supreme Court in S.R. Batra case (Supra). 6. Further, this fact has been observed by the Courts below that Plot No. 14, Priyanka Vihar, Gurjar Ghati, Jaipur belongs to the mother-in-law of the petitioner No.l, namely Smt. Sita Sharma and therefore it is not a shared accommodation, in view of the judgment of Hon'ble Supreme Court in S.R. Batra case (Supra). 6. Learned counsel for the petitioner thus submits that the orders impugned do not suffer from any infirmity and do not call for interference. 7. Having considered the rival contentions advanced by the opposite sides, this Court finds that in compliance of the order dated 28.3.2017 passed by Co-ordinate Bench the Courts below have passed orders afresh in light of the judgment of Hon'ble Supreme Court in S.R. Batra's case. The relevant para of the said judgment is reproduced below:- "29. As regards Section 17(1) of the Act, in our opinion the wife is only 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. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of Appellant 2, mother of Amit Batra. Hence it cannot be called a "shared household" 8. Both the Courts have come to the categoric conclusion that Plot No. 14, Priyanka Vihar, Gurjar Ghati, Jaipur exclusively belongs to the mother-in-law of the petitioner namely Smt. Sita Sharma. Admittedly, it is therefore, not a shared house hold in light of the judgment passed by the Hon'ble Supreme Court in S.R. Batra's case. 9. This is further to observe that in the initial order passed by the trial Court on 3.12.2015, it was specifically mentioned that alternative accommodation may be provided by the husband non-petitioner. The accommodation so provided by non-petitioner was earlier reported by the Protection Officer to be unsuitable for residence. But it was thereafter renovated. Both the Courts below have observed this aspect while observing the photographs produced by the non-petitioner. It is pertinent to note that this fact has not been controverted by the petitioner. The accommodation so provided by non-petitioner was earlier reported by the Protection Officer to be unsuitable for residence. But it was thereafter renovated. Both the Courts below have observed this aspect while observing the photographs produced by the non-petitioner. It is pertinent to note that this fact has not been controverted by the petitioner. Therefore, it was not warranted for the Courts below to call any further report regarding suitability of that house. No fault cannot be found in the orders impugned and they have rightly come to the conclusion that this house can now be used as a residence by the petitioners. 10. I do not find any infirmity in the orders passed by the Courts below in light of the facts mentioned above, for which the powers under Section 482 Cr.P.C. may be exercised by this Court. 11. Accordingly, this miscellaneous petition deserves to be and is dismissed.