Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 207 (ORI)

Rajendra Acharya @ Rajendra Kumar Acharya v. Dharitri Mishra

2019-03-12

D.DASH

body2019
JUDGMENT : D. Dash, J. The present revision arises from the common order dated 31.7.2018 passed by the learned Sessions Judge, Cuttack in Criminal Appeal No.36 of 2018 and Criminal Appeal No.38 of 2018, which had been filed assailing the order dated 27.3.2018 passed by the learned J.M.F.C., Cuttack in D.V. Misc. Case No.294 of 2014 (T.R. No.1505 of 2017), a proceeding under the Protection of Women from Domestic Violence Act, 2005 (for short, hereinafter called as the PWDV Act ). By the said order, in the appeals; one filed by the petitioner-husband and the other by the opposite party no.1-wife, the lower appellate court, while confirming the residence order passed by the court below, has granted the monetary relief of maintenance in favour of opposite party no.1-wife to the tune of Rs.15,000/- commencing from the month of July, 2018 to be paid by the petitioner by the first week of every month. 2. Coming to the prayer made in this revision, it is seen that the same is confined to the direction given in favour of the opposite party no.1 for living in her in-law s house and restraining the petitioner from dispossessing the opposite party from the shared household. 3. Heard learned counsel for the petitioners and the opposite party. Perused the impugned orders. 4. The restraint order passed by the court below as confirmed by the appellate court runs as under: (a) the opposite parties (the petitioners herein before this court ) are prohibited from committing any act of domestic violence, aiding or abetting in the commission of acts of domestic violence against the aggrieved person under section 18 of the Act; and (b) the aggrieved person is directed to live in her in-laws house at Dolamundai and the opposite parties are restrained from the shared household. 5. 5. The shared household has been defined in section 2(s) of the PWDV Act and it reads as under: 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. Sub-section (1) of section 17 of the said Act provides a non-obstante clause that 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. Sub-section(2) of section 17 of the said Act provides that the wife (aggrieved person) shall not be evicted or excluded from the shared household or any part of it by the respondent save and except in accordance with the procedure established by law. 6. Keeping in view the aforesaid provisions of law, let us come to the main plank of the argument advanced by the learned counsel for the petitioner. To put it, upon making reference to the provision of section 19 of the PWDV Act, it was his submission that the court, upon arriving at a satisfaction that the domestic violence has taken place, has the power to pass a residence order 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 in the shared household. He, therefore, submitted that once the aggrieved person has been dispossessed and is no more remaining in the shared household, the court has no power to restore or alter the position as it was before and thus in such circumstance which is stands in the case at hand, the court has no power to restore the status quo ante. He, therefore, submitted that once the aggrieved person has been dispossessed and is no more remaining in the shared household, the court has no power to restore or alter the position as it was before and thus in such circumstance which is stands in the case at hand, the court has no power to restore the status quo ante. In refuting the above contention, it was the submission of the learned counsel for the opposite party-wife that when the provision is clear that the court has the power to pass order to restrain the errant person/s in any other manner from creating disturbance in the possession of the shared household by the aggrieved person, it has all the power to restore the status by passing a restraint order against those person by way of a direction in a mandatory form, in appropriate case. He, therefore, submitted that on the admitted facts and circumstances of the case, the impugned order as to the residence of the opposite party in the shared household is not liable to be set at naught in exercise of the revisional jurisdiction of this Court. 7. On a plain reading of clause (a) of sub-section (1) of section 19 of the PWDV Act, it is seen that the court is empowered to restrain the parties from dispossessing and also restrain the parties in any other manner in disturbing the possession of the aggrieved person from the shared household. So, the question arises for answer is as to when the aggrieved person stands dispossessed from the shared household whether the Court in seisin of the proceeding under the PWDV Act can redress the grievance of the aggrieved person so as to put the cloack back by putting her in possession restoring the position of the said aggrieved person as it was before the said dispossession as complained of. 8. 8. Before going to search out the answer, it has to be kept in mind that the Parliament, having though the domestic violence to be human rights issue as seriously standing as a blockade to the development; further keeping in pace with the recommendations of the United Nations Committee on Convention on Elimination of All forms of Discrimination Against Women (CEDAW) and being aware that the civil law of the land either do not address this phenomenon on domestic violence in its entirety as also the loss, the position that the law in force are not capable enough to take care of these situations emerging in the present day taking different dimensions being evolved in view of the technical and other developments; enacted the PWDV Act. In doing so, the rights guaranteed under Articles 15 and 21 of the Constitution to protect the women from being victims of the domestic violence and to prevent the occurrence of domestic violence in the society, have been sought to be. The PWDV Act provides for a higher rights and remedies in favour of the aggrieved person. Not only that they acquire a right to be maintained but also thereudner their right of residence stands protected and that even extends over the peroperties in which the husband has a share. In this context, the word or appearing in between the word dispossessing and in any other manner disturbing the possession............. in clause (a) of sub-setion(1) of section 19 has its own significance that had it been in the mind of the legislature that the court was to be only given the power to restrain the violators before the aggrieved person is dispossessed, the subsequent sentences which is disjunctive of the previous in view of the appearance of the word or that the court also can pass a restraint order against those violators in any other manner from disturbing the possessing would not have been so placed. Certainly, if a person is in possession of a property, he cannot be said to have been dispossessed merely by a fugitive or stray act which is not legal and thereby those players cannot be said to have remained in possession getting the same shielded. Certainly, if a person is in possession of a property, he cannot be said to have been dispossessed merely by a fugitive or stray act which is not legal and thereby those players cannot be said to have remained in possession getting the same shielded. It may so appear to be physical with a very temporary character but that the dispossession at the hands of those players cannot be taken to be their possession in the eye of law so as to say that the prior possessor has been dispossessed for ever and cannot be allowed to so possess again. It may hold water in case the remedial measure sought for is within a reasonable timeframe but not after much delay when that factum of delay in moving for appropriate remedy would enure to the benefit of those actors that they can be said to have remained in possession shunning the character as such wrongdoers. The provision thus in my considered view being given a purposive interpretation, is to come to the rescue of the aggrieved person in such a situation where the dispossession is complained of soon before the initiation of the action. Thus, I am afraid to accept the submission of the learned counsel for the petitioners being of the considered view that its acceptance would run counter to the aforesaid statutory scheme standing on the way of achievement of the avowed purpose and objective in serving and setting an orderly society. 9. The petitioner no.1 and the opposite party who have tendered evidence are not in dispute that the house in question wherein the residence order is sought is falling within the definition of shared household which has also been amply established in the proceeding through the record of rights, Exts.1, 2 and 3. The courts below, upon detail discussion of the evidence and taking note of the surrounding circumstances, which prevail concerning the parties and especially their relationship appears to have rightly arrived at a satisfaction that the domestic violence has taken place and there surfaces no such perversity therein. 10. Next coming to the question of right of residence, it is relevant to take note of the state of affair as has been averred by the petitioners in an application subsequently filed hereinbefore this Court at paragraph-6 of the application giving rise to I.A. No.133 of 2019. 10. Next coming to the question of right of residence, it is relevant to take note of the state of affair as has been averred by the petitioners in an application subsequently filed hereinbefore this Court at paragraph-6 of the application giving rise to I.A. No.133 of 2019. It has been averred that despite the order dated 10.09.2018 whereby this Court had directed the Inspector-in-Charge of the concerned police station within whose jurisdiction the shared household situates to accompany the opposite party and lodge in her matrimonial house, i.e, shared household for compliance of the earlier order dated 20.08.2018 as to maintenance of status quo by the parties as on the date of possession, the opposite party does not want to stay in her matrimonial house and she was staying at a different place and remained silent till 23.1.2019 by which date, the order dated 10.9.2018 expired. This averment reveals that the petitioners had no objection for the stay of the opposite party in her matrimonial house and rather it is she who did not volunteer to reside therein. In that view of the matter, it can be said that there was no such dispossession of the opposite party from the shared household in the eye of law so as to be taken cognizance of. For the sake of argument, it is said that the opposite party as on the date of initiation of the proceeding was not staying in that shared household when the fact stands admitted that she was putting up there when the domestic violence took place, the court has all the power to pass such an order of restraint in any other manner even in a mandatory form so as to see that the right of residence of the opposite party is ensured and protected in remaining in possession in the shared household. In the wake of all the aforesaid, this Court finds no such illegality or impropriety in the impugned order warranting interference in exercise of the revisional jurisdiction. 11. In the result, the CRLREV stands dismissed. All the interim applications accordingly disposed of.