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2019 DIGILAW 314 (JK)

Mohan Lal Raina v. Indu Raina

2019-06-07

SANJAY KUMAR GUPTA

body2019
JUDGMENT : 1. The respondent No.1 has filed the petition under Section 12, 17, 18, 19, 20 & 22 of the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010 before the court of 2nd Additional Munsiff, Jammu against the petitioner and respondent No.2 herein. Along with the aforementioned petition, an application under Section 23 of Protection of Women from Domestic Violence Act, 2010 was also filed. The trial court invited objections and on 21.07.2014 the trial court passed the order, thereby restraining the petitioner herein not to oust the complainant from the residence or alienate the residence, i.e. the house situated at Gole Gujral, Swaran Colony Near Cooperative Store, Trilokpur Road Gole Gujral, Jammu. Concluding para of the impugned order is as under :- “I have heard Ld. Counsel for the parties, perused the complaint U/S 12 of Domestic Violence Act, objection filed to that and given my thoughtful consideration to the arguments advanced. Ld. Counsel for the parties have reiterated the same assertions as are contained in their respective pleadings. L/C for the petitioner/applicant argued that since the marriage is admitted by the respondent/non-applicant No. 2 and the petitioner/applicant is living separately and thrown out from her matrimonial home as she is entitled to maintenance and residential accommodation. L/C for the respondent, on the other hand, argued that since the answering respondent/non-applicant has disinherited the applicant and non-applicant No. 1 from the residence above mentioned in the complaint therefore as such the applicant is not entitled to any residential accommodation. So far as interim maintenance is concerned, L/C for the respondent No. 2 submitted that since she is an educated lady therefore is not entitled to any maintenance much less any interim maintenance. Section 23 gives power to grant interim and ex-parte orders. Now respondents have appeared and filed objections so interim order can be passed to protect the complainant. Since the question as to whether applicant and non-applicant No. 1 has been disinherited from the residential house of respondent/non-applicant No. 2 is a fact which is required to be proved by leading evidence. So till the matter is finally decided by leading evidence, it is ordered that respondent/non-applicant No. 2 shall neither oust the complainant/Applicant from the residence or alienate the said residence with a further direction that both the non-applicants shall not cause any type of harassment for the applicant. So till the matter is finally decided by leading evidence, it is ordered that respondent/non-applicant No. 2 shall neither oust the complainant/Applicant from the residence or alienate the said residence with a further direction that both the non-applicants shall not cause any type of harassment for the applicant. So far as monetary relief is concerned, keeping in view the income of the respondent, the respondent shall also pay monetary relief of Rs.4000/- p.m. to the petitioner till final disposal of the main complaint. Application is disposed of and be made part of the file. Put up on for further proceedings on 14.08.14.” 2. The petitioner and respondent No.2 herein challenged the order dated 21.07.2014 in appeal before the 1st Additional Sessions Judge, Jammu, who dismissed the same on 16.03.2014. Now the petitioner herein, who is father-in-law of respondent No.1, has challenged the part judgment of the court below by virtue of which he has been restrained from ousting the respondent No. 1 from the house in question. 3. The petitioner herein has challenged the order of the court below on the ground that the trial court has exceeded its jurisdiction, since respondents were living in their matrimonial house at Una, Himachal Pradesh after the marriage. That in 2001 the petitioner through a deed of disinheritance, has disinherited both the respondents from his moveable and immovable property including the house in question. The trial court has failed to appreciate the admitted fact. That the trial court has taken upon itself and has passed the impugned order without calling for any domestic incident/report from the protection officer. That the appellate court has also erred in dismissing the appeal. That the respondent No.1 was not residing in the house in question, so there is no question of shared household. 4. I have considered the rival contentions by the parties. The learned counsel for the petitioner has reiterated all the grounds taken in the memo of this petition whereas respondent has supported the impugned orders. 5. The learned counsel for the petitioner has relied upon “S.R.Batra & anr. Vs. Smt. Taruna Batra” (2007) 3 SCC 169 ; “Vimalben Ajitbhai Patel vs. Vatslabeen Ashokbhai Patel and ors.” 2008(4) SCC 649 ; “Geeta Mehrotra and anr. 5. The learned counsel for the petitioner has relied upon “S.R.Batra & anr. Vs. Smt. Taruna Batra” (2007) 3 SCC 169 ; “Vimalben Ajitbhai Patel vs. Vatslabeen Ashokbhai Patel and ors.” 2008(4) SCC 649 ; “Geeta Mehrotra and anr. vs. State of U.P. and anr.” (2012) 10 SCC 741 ; “Smt. Abha Arora vs. Angela Sharma”, 2008 (148) DLT 506 ; “G.A Ferris vs. Svetlana Alexandrovna” 2015 (1) DMC 408 (KAR); “Manav Mishra & ors. Vs. State of J&K and anr.” 2012 (4) JKJ (HC) 608; “Ali Akbar and ors. Vs. Rashidan Beghum” 2012 (1) JKJ(HC) 379; and “Hamina Kang vs. District Magistrate (U.T.), Chandigarh and ors.” 2016 (2) PLR 138 . 6. I have given my thoughtful consideration to whole aspect of the matter and law on the subject. 7. The relevant extract of the judgment of appellate court reads as under:- “14 The other ground taken by the appellants is that the respondent has no right of residence in the house, which is exclusively owned by appellant no.2 and the appellant no.1 has got no right or any title with respect to the said house as the appellant no.1 has been disinherited by the appellant no.2. 15. Section 17 of the Act confers a right upon a woman in a domestic relationship to reside in a shared household and for seeking any such order the woman has to establish that she is in a domestic relationship and the right sought to be enforced by her is against the shared household. As per Section 17 of the Act, a woman has to establish that her relationship with the opposite party is a domestic relationship and the house in which she wants to live with her husband is a shared household. The terms "Domestic Relationship" and "Shared household" have been defined in section 2(f) & 2 (s) of the Act. As per Section 17 of the Act, a woman has to establish that her relationship with the opposite party is a domestic relationship and the house in which she wants to live with her husband is a shared household. The terms "Domestic Relationship" and "Shared household" have been defined in section 2(f) & 2 (s) of the Act. Section 2 (f) defines the domestic relationship as under: "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, adoption or are family members living together as a joint family; Section 2 (s) defines the shared household as under: “shared household" means a household where the person aggrieved lives 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; 16. According to definition of domestic relationship, admittedly the respondent Indu Raina is having relationship with the appellants by virtue of marriage and thus she is in the domestic relationship with the appellants. The appellants have admitted that respondent is legally wedded wife of the appellant no.1 and it is also evident from the material on the trial court record that she was residing with her husband, the appellant no.1 in the shared household before filing of the application under Section 12 of the Act. The appellant no.2 has averred that he has disinherited the appellant no.1 and his wife respondent from inheriting his property and thus the respondent has no right of residence in the house exclusively owned by the appellant no.2. The question whether the appellant no.2 has disinherited the appellant no.1 or not will be seen while deciding the main application under Section 12 of the Act and not in the application filed under Section 23 of the Act for grant of interim relief. The question whether the appellant no.2 has disinherited the appellant no.1 or not will be seen while deciding the main application under Section 12 of the Act and not in the application filed under Section 23 of the Act for grant of interim relief. But, from the perusal of the record of the case it is prima facie clear that the respondent is residing in the shared household being legally wedded wife of the appellant no.1 and daughter-in- law of appellant no.2. The respondent has a right to live in the said house by virtue of Section 17 of the Act and as per sub Section 2 of Section 17 she cannot be evicted or excluded from the shared household or any part of it by the appellants except in accordance with the procedure established by law. Thus, in view of the provisions of Section 17 read with definition of "Domestic Relationship", "Shared Household and "respondent" contained in section 2 (f), 2 (s) & 2 (q) of the Act the respondent/aggrieved person has a right to reside in the shared household and this right cannot be denied by the appellants to the respondent/aggrieved person till she is the legally wedded wife of the appellant no.1 as the right of residence has been vested upon her by virtue of section 17 of the Act, irrespective of the fact whether she has any right, title or interest in the shared household or not. The appellant no.2 merely by executing a "Deed of Disinheritance" cannot debar or restrain the respondent/aggrieved person who is in domestic relationship from residing in the shared household. 17. Under Section 23 of the Act, the Magistrate has powers to pass interim orders in any proceedings pending before him and as per sub Section 2 of section 23 of the Act, if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing or has committed an act of domestic violence or that there is likelihood that the respondent may commit an act of domestic violence, the Learned Magistrate can pass an ex-parte order on the basis of the affidavit of aggrieved person under Sections 18, 19, 20, 21 or 22 of the Act as the case may be against the respondent. Thus, Section 23 of the Act clearly empowers the Magistrate to pass interim orders under the sections provided therein as the case may be on the basis of the affidavit of the aggrieved person. 18. The perusal of the trial court reveals that the learned Judicial Magistrate on consideration of the material on the file and the application filed under Section 12 of the Act and her statement recorded on oath and the application filed under Section 23 supported with the affidavit of the respondent, has rightly exercised its discretion in granting interim reliefs in favour of the respondent Indu Raina and after going through the record of the trial court, I have not found any error of law or illegality committed by the trial Magistrate in passing the impugned order. The order under challenge in this appeal passed by the Learned Magistrate is in consonance with the provisions of Section 23 of the Act and on the basis of the grounds taken in the appeal the impugned order cannot be set aside as claimed by the appellants. 19. Therefore, in view of the aforesaid discussion and after perusing the record of the case and considering the submissions of the learned counsels for both sides, this Court has come to the conclusion that the order impugned passed by the learned Magistrate does not suffers from any illegality or impropriety calling for interference by this Court in exercise of its powers under Section 29 of the Act and thus the appeal filed by the appellants have no merit and the impugned order passed by the Learned Magistrate is upheld and the appeal is dismissed. The interim order dated 14.08.2014 stand vacated. The record of the trial court alongwith copy of this judgment be sent back forthwith. The learned counsels appearing for both the parties shall cause their appearance in the trial court on 25.03.2015. The appeal is accordingly disposed of and the file on its compilation be consigned to records.” 8. The first ground taken is that the petitioner has ousted the respondent as well as her husband from the house in question and they are not residing in the shared household. The appeal is accordingly disposed of and the file on its compilation be consigned to records.” 8. The first ground taken is that the petitioner has ousted the respondent as well as her husband from the house in question and they are not residing in the shared household. This ground is not tenable because from the perusal of memo of the appeal filed before the 1st Additional Sessions Judge, Jammu, it appears that the petitioner as well as his son respondent No.2 herein filed a joint appeal before the said court and the residence of both of them have been given as Swaran Colony near Cooperative Store Trilokpur Road Gole Gujral, Jammu. 9. Another argument of learned counsel for the petitioner is that the petitioner has executed a deed of disinheritance against respondents, is also not tenable because it is a fact to be decided as to whether the deed has been executed with bona fide intention or it has been executed only to deprive the respondent No.1 from his legitimate right. 10. Next ground taken is that house in question exclusively belongs to petitioner and respondent No.1 has never lived with her husband there at any point of time, so it cannot be termed as shared household. 11. Section 17 of Act reads as under;- “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. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. 12. (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law. 12. Shared household has been defined in Section 2(s) of Act, it reads as under :- “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.” 13. From bare perusal of definition of ‘shared household, it is evident that, there has been exhaustive narration of shared household which includes wherever the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent, 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 also 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. 14. In present case, except bald version made by petitioner that house exclusively belongs to him, there is no documentary evidence in this regard. 15. Exercise of power under Section 561-A Cr.P.C. is the exception and not rule– Inherent jurisdiction of High Court under this section may be exercised :- 1. To give effect to an order under the Code. 2. To prevent abuse of the process of Court. 3. To otherwise secure the ends of justice. 16. Perusal of this section makes it clear that the provisions of the Code are intended to limit or affect the inherent powers of the High Courts. To give effect to an order under the Code. 2. To prevent abuse of the process of Court. 3. To otherwise secure the ends of justice. 16. Perusal of this section makes it clear that the provisions of the Code are intended to limit or affect the inherent powers of the High Courts. Obviously the inherent power can be exercised only for any of the three purposes specifically mentioned in the section. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, the power under this section can be used. Under section 561 A Cr.P.C., High court does not conduct a trial or appreciate evidence or function as court of appeal or revision. This power has to be exercised sparingly with circumspection and in the rarest of rare cases. While exercising powers under Section 561-A of the Cr.P.C., the Court has to keep in mind that it should not ordinarily embark upon any legal order passed by any Court. 17. I have gone through the laws cited by counsel for petitioner. These are not applicable in present case because facts of those cases are quite distinguished. Firstly, facts are to be seen, then law is to be applied. 18. In the present case, petitioner has failed to point out any legal bar created under any law, which restricts the courts below to pass the impugned orders. So petitioner has not made out any case for quashing the proceeding and order impugned passed by courts below. Hence, this petition is dismissed along with connected MP, if any.